Stop And Search
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Stop and Search powers in England and Wales have been critically reviewed by the Equality and Human Rights Commission. Below is a shortened version of the report which can be viewed via the link below in further reading.
In seeking to protect the rights of the majority, the police at times infringe certain individual rights, such as the right to privacy or to freedom of movement and association. However, they are only permitted to do so if the infringement is rational, proportionate and lawful. Yet the evidence shows that, on the contrary, some police forces are using their powers disproportionately suggesting they are stopping and searching individuals in a way that is discriminatory, inefficient, and a waste of public money. This is despite the evidence from both Staffordshire and Cleveland which proves that a reduction in the use of stop and search can go hand in hand with a reduction in the overall levels of crime. Staffordshire and Cleveland show that policing which respects human rights is more effective and actually makes us safer.
Table 1: Stop and search rates, disproportionality ratios and excess stops and searches in England and Wales, 2007/08
1. What Is Stop And Search?
For the police, the power to stop and search people who they suspect of being involved in crime is an important tactic. It provides a means to confirm or allay suspicions about individuals without exercising their power of arrest. Were it employed appropriately and proportionately, it could increase community confidence in the police and make a positive contribution to reducing the fear of crime.
Stop and search has been widely used in relation to knife crime. For example under Operation Blunt 2, up to October 2009, more than 380,000 stops and searches have been conducted; 14,700 people have been arrested; and more than 7,500 knives have been recovered. (1)
For the use of stop and search to be lawful and rights-respecting, it must be in accordance with both human rights and equality law. The police have issued the following criteria, known as ‘PLAN B’ in guidance produced by the Metropolitan Police: (2)
▪︎ Proportionality: it must be fair and achieve a balance between the needs of society and the rights of the individual.
▪︎ Legality: it must be conducted correctly according to the relevant legislation.
▪︎ Accountability: it must be recorded.
▪︎ Necessity: any infringement of rights must be justifiable ‘in a democratic society’.
▪︎ Best: the decision to stop and search must be made against the best information reasonably available at the time.
The evidence in the report suggests that police practice often falls short of meeting these criteria.
2. Problems With Stop And Search
The stated objectives of stop and search are undermined if there is a public perception that the powers are being used unfairly. Law-abiding people who feel they have been unjustifiably targeted are less likely to trust the police and co-operate with them when they have a problem. Effective policing becomes, therefore, much more difficult.
‘Since 1995, per head of population in England and Wales, recorded stops and searches of Asian people have remained between 1.5 and 2.5 times the rate for white people, and for black people always between 4 and 8 times the rate for white people.
If you are black, you are at least six times as likely to be stopped and searched by the police in England and Wales as a white person. If you are Asian, you are around twice as likely to be stopped and searched as a white person.
This has a huge impact on the experience that people from these groups have of the police: in 2007/08, black people were subjected to around 150,000 more stops and searches – the majority of the 172,000 black stops and searches in total – than they would have been if they were stopped and searched at the same rate as white people. In the period of more than 10 years over which the statistics have been collected, the ratios have remained stubbornly high.1 Despite years of debate and several initiatives aimed at tackling the problem, the police have still not achieved any significant improvement in their record on race disproportionality in stop and search. In January this year, the European Court of Human Rights (ECHR) ruled that searches undertaken under section 44 of the Terrorism Act 2000 were unlawful as they were not based on ‘reasonable suspicion’.2 The ruling has important implications for the police and for civil liberties in Britain. The Commission believes, however, that there are much wider problems with the police use of stop and search powers.
The large majority of searches in England and Wales are conducted under the Police and Criminal Evidence Act 1984 (PACE): around 1 million per year compared to 256,000 in 2008/09 under section 44 of the Terrorism Act.3 Stop and search under PACE is also used more disproportionately against black people than those conducted under the Terrorism Act.4 We believe, therefore, that the police use of PACE is of great significance in terms of its impact on community relations. Furthermore, the evidence 5 indicates that PACE may be being used in a discriminatory and unlawful manner. Several explanations have been advanced as to the extent and consistency of race disproportionality in stop and search, including theories that the data are inaccurate, that black people commit more crime, or that they are more ‘available’ to be stopped and searched than white people. In this report we examine these arguments and find them inadequate: even taken together, they do not explain or justify the extent and persistence of the problem of race disproportionality.
A close examination of police force area figures raises the issue of whether the disproportionate rate that different racial groups are stopped and searched is the result of the practice of particular police forces – whether by policy or custom. Forces that have adopted rigorous measures to tackle the issue have seen ratios fall significantly. (8)
3. UK Stats
In the UK:
- Black people are at least six times as likely to be stopped and searched as white people.
- Asian people are around twice as likely to be stopped and searched as white people.
- Both black/white and Asian/white disproportionality ratios have remained approximately constant over the last five years if changing population composition is taken into account.
- The biggest impact in terms of numbers of ‘excess’ stops and searches is seen in London where the stop and search rate is highest and where a high percentage of the black and Asian population lives.
- Outside London, large excesses are also seen in the West Midlands, Greater Manchester, West Yorkshire, Thames Valley, Leicestershire and Hampshire for black stops and searches.
4. A Brief History Of Stop And Search
From the earliest years of PACE many black and Asian people believed that they were disproportionately subject to stop and search. Complaints of mass stops and searches of black people preceded the Brixton riots of 1981 and were identified as a contributory factor by Lord Scarman in his report on the disturbances.8 The Police and Criminal Evidence Act 1984 (PACE) is the legislation under which most stops and searches are currently carried out.9 It was brought in following the repeal of a patchwork of varying powers by individual police forces to stop and search individuals including the controversial ‘sus’ laws, which allowed the police to arrest someone simply for being a ‘suspected person’.
The perception that there were large disproportionalities in the use of stop and search on different racial groups was confirmed when ethnic monitoring was introduced, with the data first published in 1995. Since 1995, per head of population in England and Wales, recorded stops and searches of Asian people have remained between 1.5 and 2.5 times the rate for white people, and for black people always between 4 and 8 times the rate for white people.10 The Stephen Lawrence Inquiry report of 1999 examined the matter in depth and, while concluding that stop and search powers should be retained, it recommended safeguards to try to ensure their proper and consistent use.11 Recommendation 61 proposed that a full written record should be made of each stop, as well as each stop followed by a search. These records were to be completed and handed to the person concerned at the time of the encounter.
Overall numbers of stops and searches under PACE 1984 have increased annually since 1993 (see figure 1, using 2001 as a starting point) and on the grounds of saving time and paperwork the recording requirements have now been reduced. Only a numbered ‘receipt’ is now given, with the person to collect the full record from a police station or online. This may deter people from asking for their full record as they fear being labelled as a potential complainant. More recently, the scope of stop and search has been significantly increased under counter-terrorism legislation. In January 2010, the European Court of Human Rights ruled that stops and searches conducted under section 44 of the Terrorism Act were unlawful as police were not required to demonstrate reasonable grounds for suspicion.12 The court noted that it had been ‘struck by the statistical and other evidence showing the extent to which police officers resorted to the powers of stop and search under section 44 of the Act and found that there was a clear risk of arbitrariness in granting such broad discretion to the police officer’.
5. The Legal Framework
There is a range of legislation (13) governing police use of stop and search. This includes:
▪︎ Police and Criminal Evidence Act 1984 (PACE)
▪︎ Misuse of Drugs Act 1971
▪︎ Firearms Act 1968
To stop and search under these three Acts the police are required to have ‘reasonable suspicion’ that the person stopped is in possession of stolen or prohibited articles.
▪︎ Road Traffic Act 1988
Under section 163 of this Act a person driving a vehicle or cycle must stop when asked to do so by a constable in uniform. Section 4 PACE authorises the police to search vehicles where there is reasonable suspicion that the vehicle is carrying a person who has committed, or is about to commit, an offence other than a road traffic offence.
▪︎ Criminal Justice and Public Order Act 1994
Searches under section 60 of this Act differ from PACE searches in that they do not require suspicion in individual cases. They can be authorised by a senior police officer based upon a reasonable belief that incidents involving serious violence may take place or that people are carrying dangerous instruments or offensive weapons in a specific locality. These powers were intended to prevent violent offences at large-scale events such as football matches.
▪︎ Terrorism Act 2000
The requirement under section 43 of this Act is a ‘reasonable suspicion’ that the person is a terrorist. Under section 44 people can also be stopped without reasonable suspicion – but only within a specific area in which this power has been authorised by a senior police officer. Searches under section 44 of the Act were ruled unlawful by the European Court of Human Rights (ECHR) in January 2010, as they breached Article 8 of the European Convention on Human Rights.
More detailed information about what constitutes ‘reasonable suspicion’ is laid out in a statutory ‘Code of Practice’ called PACE Code A.14 This states that: ‘There must be an objective basis for that suspicion based on facts, information and/or intelligence which are relevant to the likelihood of finding an article of a certain kind, or in the case of searches under section 43 of the Terrorism Act 2000, to the likelihood that the person is a terrorist. Reasonable suspicion can never be supported on the basis of personal factors alone without reliable or supporting intelligence or information or some specific behaviour by the person concerned. For example, a person’s age, race, appearance or the fact that the person is known to have a previous conviction, cannot be used alone or in combination with each other as the reason for searching that person. Reasonable suspicion cannot be based on generalisations or stereotypical images of certain groups or categories of people as more likely to be involved in criminal activity.’
Stopping someone solely on racial grounds has always been prohibited. In January 2009, PACE Code A was amended after pressure from the Commission to remove the word ‘alone’ and make it clear that a person’s race or colour can never be a reason for stopping someone, either on its own or in combination (other than where it is part of a witness description of a suspect).
Other relevant legislation In addition to the legislation specifically governing stop and search there are a number of legal instruments which are relevant to the findings of this paper:
▪︎ The Human Rights Act 1998 (15)
The power to stop and search constitutes a deprivation of liberty and as such should be compatible with Article 5 of the Human Rights Act: the right to liberty and security of person. The use of the power must also be compatible with Article 8, respect for privacy, and Article 14, non-discrimination. This means that use of the power must be legal, proportionate, and nondiscriminatory. Under PACE, the police only have the power to carry out a search when they have suspicion that a person is in possession of prohibited articles. Therefore, using the power to collect intelligence, to disperse groups of young people, or as a general deterrent is unlawful. (16)
▪︎ Race Relations Act 1976
The Race Relations (Amendment) Act 2000 brought the police service within the ambit of UK anti-discrimination legislation by amending the Race Relations Act 1976. Under the Act, it is unlawful for public authorities – including police forces and police officers – to directly or indirectly discriminate or harass persons in carrying out any of their functions including conducting stops and searches or arresting suspects.
6. Further Reading
The full report by the Equality and Human Rights Commission https://www.equalityhumanrights.com/sites/default/files/ehrc_stop_and_search_report.pdf
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This page was last updated on 05, November, 2021
Stop and Think!
Photo Credit: Sislin Faye Allen
Britain’s First Black Woman Police Officer, Sislin Faye Allen. Circa 1968.
Mrs Allen joined the Met in 1968 after training and working as a nurse. After training she was posted to Croydon Police Station near where she lived. She later worked in the Missing persons Bureau at NSY and at Norbury.
She left the Met in 1972 because of family commitments and returned to Jamaica where she joined the Jamaican Police. She later returned to the UK and settled again in South London.