Critically Assess the Use of Stop and Search Powers

In light of concerns about racial discrimination, critically assess whether the use of stop and search powers by the police can be justified.

Introduction

The ability of police officers to stop and temporarily detain individuals for the purposes of a search has always been highly controversial, with the extent to which their powers facilitate discrimination featuring amongst the most potent criticisms. As a result, many argue that the powers should be curtailed, or abolished entirely. In this essay, it will be argued that stop and search powers, as currently exercised, are not justified; with an overly-liberal legal framework, discriminative use of the powers is evident. However, removing or substantially curtailing the powers may be counter-productive. This is because the powers are fundamentally linked to the effective operation of the police force; they ‘epitomise the discretionary powers available to the most subordinate ranks in the police’¹. Upon analysing the legal framework that facilitates stop and search, and the relevant stop and search statistics, it becomes clear that fairer use of the powers will come about via better police training and careful recruitment.

Statistics and Interpretation

In assessing the extent (if any) of the discriminative use of stop and search powers, an analysis of stop and search statistics is required. On face value, Home Office stop and search figures are disturbing; in England and Wales in 2012, black people were six times as likely as white people to be stopped and searched by the police, and Asian people more than twice as likely². Similar levels of disproportionality are evident in the Home Office publications of 1998 and 2003³. A culture of racism has long been associated with the police force, and Bowling and Phillips argue that it manifests in more extreme ways than that found in wider society⁴. This assertion is reinforced by the findings of the Panorama investigation ‘The Secret Policeman’⁵ in which a number of police officers in the Greater Manchester police force were filmed espousing extremely racist views. Prima facie, it appears that these prejudices have had an impact on stop and search activity.

However, the above conclusion is based on a very general statistic. An understanding of how stop and search happens is required, otherwise statistics can be improperly analysed; the statistic above may not necessarily suggest that the police are discriminative. In an attempt to understand the disproportionality, Waddington explains that one must consider the ‘available population’ when assessing stop and search. He notes that ‘different racial groups place themselves at greater or lesser risk of being stopped….through their differential use of public space’⁶. In other words, because people of ethnic minorities expose themselves to more police stop and searches more of the time (by virtue of their timing and location), the stop and search statistics will inevitably demonstrate a bias against them.

On the other hand, however, Delsol and Shiner note that this added availability does not ‘constitute sufficient grounds for a stop and search’⁷; simply being out at a certain time and place does not mean the police are automatically required to conduct more stop and searches. On top of that, Bowling and Phillips point out that the police control the areas in which they concentrate their stop and search efforts, meaning the ‘available population’ Waddington highlights can be manipulated by them at will. In their view, the ‘stop zones’ police set up are often densely populated with ethnic minorities, and a self-reinforcing argument is thus made⁸. Cashmore points to police culture as the cause of this targeting; he notes that the police, enveloped by a performance culture, believe they will have more success tackling crime by concentrating their efforts in areas where ethnic minorities live⁹. Regardless of the end goal of their behaviour, there is strong evidence to suggest that stop and search powers are being used in a discriminative fashion, suggesting that the power is not justified.

In countering this conclusion, advocates of stop and search argue that ethnic minorities are simply more likely to commit crimes, meaning any police targeting is justified. Their argument is supported by arrest rate statistics. Bowling and Phillips note that ‘black people are much more likely to be arrested for….street robbery and drugs offences’, a view reinforced by the comments of police officers¹⁰ and arrest rate statistics. Indeed, in 2010, black people were 3.3 times more likely to be arrested as white people¹¹. However, in considering arrest rates, it is important to note that the police power to arrest is, like stop and search, highly discretionary¹². On top of that, very few arrests actually result in criminal convictions. In 2010, the Equality and Human Rights Commission pointed out that only forty per cent of arrests led to a conviction in 2009¹³, meaning that arrest rates alone cannot be used to suggest an entire ethnic group is more inclined to commit crime. Therefore, it appears that stop and search statistics cannot be interpreted in any other manner; the disproportionate use of stop and search on ethnic minorities is indicative of discrimination.

The use of stop and search by the police must also be analysed from the perspective of their supposed targets – ethnic minority groups. Whilst Fitzgerald notes that searches of ethnic minorities are more likely to be recorded than those of white people (potentially skewing statistics), she goes on to explain that interactions between minorities and the police are more likely to be confrontational anyway¹⁴. She points out that a deep-rooted antagonisation exists between minorities and the police; this sense of resentment between the two groups has often boiled over. Indeed, the 2011 London Riots were arguably caused by minority resentment of ‘stop and search, which was felt to be unfairly targeted and often undertaken in an aggressive and discourteous manner’¹⁵. Therefore, statistics aside, stop and search powers no longer seem justified in the face of disintegrating relations with ethnic minority groups.

Discrimination: The Legal Framework

The frequency with which stop and search powers are being used against ethnic minorities prompts us to assess the relevant law that makes stop and search possible. The police largely derive their stop and search powers from Section 1 of the Police and Criminal Evidence Act 1984 (also known as PACE)¹⁶, as well as Section 60 of the Criminal Justice and Public Order Act 1994¹⁷ (CJPO). It may be that these provisions are simply too expansive, and must be amended or repealed so as to curtail discriminative police behaviour.

At a glance, it appears that stop and search powers, particularly those under PACE, are refined and well-contained, with every effort made to preclude discriminative activity. Indeed, before PACE was introduced in 1984, ‘hunch or stereotyping’¹⁸ was the method by which police forces chose to conduct stop and searches, and the law that permitted searches, the Vagrancy Act of 1824, was hopelessly vague and outdated¹⁹. This method proved to be highly antagonising; their use is blamed for the Brixton Riots of 1981. In an official Inquiry, Lord Scarman stated that the law was ‘a mess’²⁰, and his recommendations were used to create PACE. Now, under S.1(3) of the Act, police must have reasonable suspicion that they will find stolen or prohibited articles in order to search an individual in a lawful manner²¹. The inclusion of a reasonable suspicion requirement has been referred to as ‘the paradigm stop and search power in any democracy’²², as it imposes a strict evidentiary standard.

However, it seems this standard is not as strict as it appears. As Ellis points out, ‘It is the officer alone who determines, at street level, reasonable suspicion, which is a concept that has eluded academics and lawyers in more reflective surroundings’²³. Indeed, academics have known for many years that the phrase ‘reasonable suspicion’ can be widely interpreted²⁴, with different perspectives on the term even appearing within the same police force²⁵. This appears to be the case even though the PACE Code A states (at paragraph 2.2) ‘reasonable suspicion cannot be based on generalisations or stereotypical images of certain groups’²⁶. Though Sanders and Young believe that the ‘reasonable suspicion’ clause has been left sufficiently wide so as to ‘take into account the social reality of policing on the streets’²⁷, it appears that the term is too vague; as a result, police officers are free to interpret it in such a way that facilitates discriminative stop and searches.

Other than PACE, the police are afforded a narrower stop and search power by way of S.60 of the Criminal Justice and Public Order Act (CJPO). The power contained here allows a senior police officer to order that inhabitants of a particular locality be subject to stop and searches for a 24-48 hour time window, if there is a reasonable belief that serious violence or use of weapons may occur²⁸. Crucially however, S.60 does not require the existence of ‘reasonable suspicion’ once that order has been made, meaning individual searches in that locality may take place in a discriminate manner. In Lustgarten’s words, the power ‘license^s police to conduct dragnet searches without need for belief in any individual’s guilt’²⁹. In 2011, Parliament amended the PACE codes in an attempt to remedy this issue. At paragraph 2.14A, the Code now states that S.60 searches ‘should reflect an objective assessment’ and ‘officers must take care not to discriminate unlawfully’³⁰. However, Liberty argue that these amendments do not go far enough in limiting discriminative police behaviour. They note that even in its revised form, ‘those thought likely to be associated with the incident’³¹ are still able to be stopped, which, in a prejudiced officer’s mind, may include people of ethnic minority groups. As such, S.60 CJPO is in serious need of amendment, so as to at least include ‘reasonable suspicion’ terminology.

On the other hand, there does seem to be an issue with narrowing police powers of stop and search; it may be, contrary to intuition, that narrowing terms like ‘reasonable suspicion’ would be counterproductive. Quinton notes that a tension exists between clarifying terms like ‘reasonable suspicion’ to prevent discriminative stop and searches, and the need for police to act on generalisations to do their duty effectively, and need to draw on generalisations for effective policing³². Ellis highlights the gravitas of this issue, explaining that trying to narrow ‘reasonable suspicion’ is effectively an attempt to ‘root out subjectivity’³³. Moreover, Manning points out that relying on ‘generalised rationales and beliefs’³⁴ is a core police process. It police are unable to make these generalisations, crime prevention and detection will become a far more difficult task.

Lerner argues that this catch-twenty-two aspect of stop and search powers highlights the isolation within which the police operate. Indeed, the police are subject to constant scrutiny for use of their powers, from those who fail to appreciate the pressures of the role. As a result, it may be that externally-based reform (like changes to legislation) may be ineffective. Instead, Lerner suggests that more attention needs to be paid to the police recruitment and training process, so that officers with no discriminative inclinations are recruited, and are taught to use their powers appropriately³⁵. This fresh approach may go further in ensuring that police officers exercise stop and search powers in a proportionate manner, whilst at the same time preserving their discretionary quality, thus ensuring the power is used to its full extent.

Conclusion

As Waddington points out, stop and search powers have existed since before a professional police service came into being³⁶. However, it appears that the way in which the powers are currently being exercised is largely unjustified; the disproportionate way in which they have been used against ethnic minorities means some reform is required. However, determining what sort of measures could be implemented as a remedy is difficult; any restraints on current police powers may hinder their ability to minimise crime. It may be that improvements to recruitment and training and will ensure police officers utilise stop and search powers effectively, thus securing a future of fair use.

Footnotes

¹ P. Waddington, ‘In Proportion: Race, and Police Stop and Search’, [2004] British Journal of Criminology 44(6), 890.

² Ministry of Justice, ‘Statistics on Race and the Criminal Justice System 2011-2012’ (November 2013), p.11-12.

³ Black people were 5 times and 5.8 times more likely, respectively.

⁴ B. Bowling & C. Phillips, ‘Disproportionate and Discriminatory: Reviewing the Evidence on Police Stop and Search’ [2007] Modern Law Review 70(6), 890.

⁵ T. Sculthorp, ‘The Secret Policeman’, (BBC Panorama 2003).

⁶ Waddington (n 1), p.893.

⁷ R. Delsol, M. Shiner, ‘Regulating Stop and Search: A Challenge for Police and Community Relations in England and Wales’ [2006], Critical Criminology 14(3), 249.

⁸ Bowling (n 4), at 947.

⁹ E. Cashmore,Ethnic Minority Police Officers.Interim Report: Perceptions and Experiences in the Service (Staffordshire University Press 1999), p.252.

¹⁰ P. Quinton, N. Bland, J. Miller, ‘Police Stops, Decision-making and Practice’ [2000], Police Research Series Paper 130, p.37.

¹¹ Ministry of Justice, ‘Statistics on Race and the Criminal Justice System 2010’ [October 2011], p.15.

¹² L. Lustgarten,’The future of stop and search’ [2002], Criminal Law Review 60(3), 3 .

¹³ Equality and Human Rights Commission, ‘Stop and Think: A Critical Review of the Use of Stop and Search Powers in England and Wales’ [March 2010], p.54.

¹⁴ M. FitzGerald, R. Sibbitt, ‘Ethnic Monitoring in Police Forces: A Beginning’ (Home Office 1997), p.34.

¹⁵ LSE, The Guardian, ‘Reading the Riots: Investigating Britain’s Summer of Disorder’ [2012], p.4.

¹⁶ Police and Criminal Evidence Act (1984), S.1.

¹⁷ Criminal Justice and Public Order Act (1994), S.60.

¹⁸ P. Strickland, G. Berman, ‘Police Stop and Search Powers’ ^{House of Commons 2012}, p.56.

¹⁹ S.24 of the Vagrancy Act 1824 allowed the search of a ‘suspected person or thief’.

²⁰ L. Scarman, ‘The Brixton Disorders 10-12 April 1981, Report of an Inquiry’ (Home Office 1981), Paragraph 8.58.

²¹ PACE (n 16).

²² ‘Liberty’s Briefing on the Police and Criminal Evidence Act 1984 (Codes of Practice) (Revision of Codes A, B and D) Order 2010’ (February 2011), p.5.

²³ D. Ellis, ‘Stop and Search: Disproportionality, Discretion and Generalisations’ [2010], Police Journal 83, 3.

²⁴ D. Dixon, ‘Reality and Rules in the Construction and Regulation of Police Suspicion’ [1989], International Journal of the Sociology of Law 17(3), 350.

²⁵ Bowling (n 4), at 938.

²⁶ PACE Code A, 2.2.

²⁷ A. Sanders, R. Young, Criminal Justice (Butterworths 2000), p.87.

²⁸ CJPO (n 16).

²⁹ L. Lustgarten, ‘The future of stop and search’ [2002], Criminal Law Review 60(3), 3.

³⁰ Pace Code A (2011 Edition), Para 2.14A.

³¹ CJPO (n 16).

³² P. Quinton, N. Bland, J. Miller, ‘Police Stops, Decision-making and Practice’, (Police Research Series Paper 2000), p.63.

³³ Ellis (n 23), at 6.

³⁴ In W. Bailey (ed), ‘The Encyclopaedia of Police Science’, (Garland 1989), p.360.

³⁵ C.Lerner, ‘Reasonable Suspicion and Mere Hunches’ [2006], Vanderbilt Law Review 59, 473.

³⁶ Waddington (n 1), p. 890.