Analysis of the Police and Criminal Evidence Act

Introduction

In the year 1822, a select committee of the house of common rejected the idea of establishing a full time police force as they believed to be inconsistent with political freedom. Six years later in 1829, Sir Robert Peel was very instrumental in the creation of the first police force under the Metropolitan Police Force. Since then, the police have evolved and it seems the powers they hold have also evolved. In the year 1984, the Police And Criminal Evidence Act was introduced. There had been tension prior to the enactment of this act. Lord Scarmans report after the Brixton riots in 1981 proposed a more regulated procedure for police powers as the report found out that the methods adopted by the police was disporportionate and discriminatory[1]. Some commentators argue it took 280 injuries to the police and 45 to the members of the public to revolutionalised the powers of the police since its genesis in 1829[2].

Police powers to Stop and Search dates back to the Vagrancy Act of 1824. This was the old ‘sus’ law which prevented ‘any person or thief’ from loitering in a public place with an intent to commit an arrestable offence[3].

PACE was introduced to provide a uniform and acceptable set of standard for practises of the police. The present operational codes are Code A which deals with powers of stop and search, Code B deals with searching of premises and seizure of property. Code C deals with detention, treatment and questioning of persons. Code D, identification issues, and Code E relates to tape recording of interviews of suspects. Code G provides for arrest and code H deals with detention and questioning of terrorist suspects under the Terrorism Act 2000. An important part of this act is the Code of practises which regulate the rules and procedures they are to uphold to ensure the citizens right to liberty are not infringed. In McVeigh, O’Neill and Evans v UK[4] held that powers to stop and search entrants into the UK did involve an obligation falling with in Art 5(1)[5] of European convention on Human Rights- suggesting that there is validation for stop and search powers. To prevent arbitary treatment from the police. This Paper will look at stop and search, what constitutes as resonable suspicion and whether is it discriminatory and if so, should it be reformed?

Chapter One; Stop And Search 

The primary purpose of this power according to PACE Section 1.4 of code A is to enable officers to allay or confirm suspicious behaviour without exercising their power of arrest and are required to justify the use or authorisation of such power. In the year ending 31 March 2016, a publication by the Her Majesty’s Inspectorate of Constabulary (HMIC) indicated that there was a total of 386,474 stop and searches carried and only 60,317 led to arrest.

There is a substaincial amount of legislation where the Powers of stop and search can be found. Police and Criminal Evidence and they inlcude (PACE), Misuse of Drugs Act 1971 and Firearms Act 1968. To use these powers in the above provisions requires the police to have ‘reasonable suspicion’ that the person stopped is in possession of prohibited or stolen items

In the Road Traffic Act 1988, section 163 of this Act provides a person driving a vehicle or cycle must stop when asked to do so by a constable in uniform.

S4 of PACE mandates 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.

Under the Criminal Justice and Public Order Act 1994 S, section 60 of this Act differ from PACE searches as 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.

Under Section 43 of the Terrorism of requires 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. Although searches under this provision were ruled to be in breached Article 8 of ECHR and the European Court of Human rights rule it unlawful.

Evidence obtained from search to which this code applies may be open to challenge if the provision of this codes are not observed[6].

What constitutes as reasonable suspicion?

The concept of reasonable suspicion is a hard one to define and It is on this basis that the police powers of stop and search is triggered. Reasonable suspicion is an objective requirement and the burden rises upon the prosecution to proof so. (Fegan 1971). According to PACE reasonable suspicion may depend on each circumstances unlike the power under Section 43 of the terrorrism Act which provides a ‘reasonable suspicion’ that the person is a terrorrist.

Section 2 of PACE and the judgement in O’Hara v Chief Constable of RUC[7] attempts to explain what it means. The definition is broken into two parts;

(i) Firstly, the officer must have formed a genuine suspicion in their own mind that they will find the object for which the search power being exercised allows them to search, for and

 (ii) Secondly, the suspicion that the object will be found must be reasonable. This means that there must be an objective basis for that suspicion based on facts, information and/or intelligence which are relevant to the likelihood that the object in question will be found, so that a reasonable person would be entitled to reach the same conclusion based on the same facts and information and/or intelligence which indicates that members of a particular group or gang, or their associates carry knives unlawfully or weapons or controlled drugs.

Reasonable suspicion should not come from generalisations or stereotypical images of certain groups[8] and provides a person’s race, age, appearance, or the fact that the person is known to have a previous conviction, cannot be used alone as the reason for searching that person. Religion should never be used as a reason to stop someone for the purposes of a search. It is unlawful for police officers to discriminate on the grounds of race, colour, ethnic origin, nationality or national origins when using their powers under Race Relations Act 2000[9].

In Gardiner[10], Simply receiving a radio message that a person was ‘loitering’ did not justify a suspicion that a person roughly fitting the description was involved in any criminal activity. 

However, In Dryburgh V Galt[11], , the facts of the cases was concerned with whether the appellant was driving drunk, Lord justice Clerk Whetley said

 “Suffice it to say that the fact that the information on which the police officer formed his suspicion turns out to be ill-founded does not in itself necessarily establish that the police officer’s suspicion was unfounded. The circumstances known to the police officer at the time he formed his suspicion constitute the criterion, not the facts as subsequently ascertained. The circumstances may be either what the police officer has himself observed or the information which he has received.”

In the case of Samuels v Commissioner of Police of Metroplis established that failure to answer question itself did not give grounds for reasonable suspicion.

In Dumbell v. Roberts [1944][12] , a judgement by Scott LJ explained:

“ Provided always that they have reasonable grounds for their suspicion is a valuable protection to the community; but the power may easily be abused and become a danger to the community instead of a protection. The protection of the public is safeguarded by the requirement, alike of the common law and, so far as I know, of all statutes, that the constable shall before arresting satisfy himself that there do in fact exist reasonable grounds for suspicion of guilt”

Sanders and Young notes that the reason that the ‘reasonable suspicion’s interpretation is loose and wide is to the police ‘take into account the social reality of policing on the streets[13]’

In 2013, an inspection carried out by the HMIC saw that out of the 8, 783 record examined, 27% indicated that the police had not had the necessary reasonable suspicion at the relevant time[14].

In February 2016 HMIC published police Legitimacy 2015 which represent a comibination of inpection of all the police forces in England and Wales.

Is Stop and Search Discriminatory? Statistic and Arguments.

For a long time, there have been concerned that the British police use of these powers is dispropotionate and discriminatory and the have been any calls for a fairer policing. The Scarman report highlighted the use of such powers under the metropolitan act 1829 was a major contributing factor in the riots in 1981[15] and major concerns also erupted from the much publicised case of stephen lawrence of a growing tensions between the police and ethnic minorities in regard to searches[16]. Following a backlash from previous cases like the stephen lawrence case and the riots in 2011, There have been some evidence to suggest that improper use of these powers have had a damaging effect in the communities the police and especially among ethnic minorities.

 In Ben Bowlings and Corretta Phillips paper o. ‘Disproportionate and Discrimination; Reviewing the evidence of Stop and search’, They went on to argue that the police powers to stop and search individual in public remain a controversial aspect of british policing.

The the Race Relations Act 2000, states that is it unlawful for a police officer to discriminate in carrying out any of their duties including conducting stop and searches or arresting suspects. Chief Constable are liable for all acts of discrimination by officers under their command unless they can show that they have taken all reasonable steps to prevent this. Citizens can complain of racial discrimination if believes they have been stopped and searched on the grounds of their race or ethnicity or that they have been treated less favourably than someone else would have been during the process. In Durrant v Chief Constable of Avon and Somerset,[17] police officers had been consciously motivated by racial discrimination in their treatment of a young woman of mixed race who had been arrested on suspicion of assaulting a taxi marshal, in circumstances where they had treated her differently to a white female and a male who had been arrested in relation to the same incident. Even the introduction of the Race Relation Act, Home Office stop and search figures are still shocking; 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 likely.

According to Kiron Reid, there are worrying general trends which demonstrate stops based on ethnicity or religion, that are well known and has continue over a long period of time[18]. In L. Lustgarten, The future of stop and search, it reported in 2002 that in every police force exept Humberside, there is significant disperity in use of powers against ethnic minorities as against white people [19]. Looking at statistics from Mersyside for example, the figures for 1999–00 indicated that people of ethnic background were twice as likely to be stopped as a white person and for 2000–01, the figures exhibited 17.5 stops per 1,000 white population; 57.2 per 1,000 racial minority population[20]. However, others argue, For example, in Merseyside, the police explained that : “there was more crimee in inner-city areas where most of the ethnic minority communities lived, therefore there were more stops and searches in those areas; there was higher unemployment in inner-city areas and therefore more young men on the streets in the daytime and consequently more young men stopped and searched; the population figures were inaccurate in inner-city areas because of fewer residents returning census or electoral registration forms and therefore the stop and search statistics were inaccurate; the actual numbers were very small and therefore a small increase in number made a big difference to the percentages; and police officers were worried about false complaints branding them racist and, as a result, were more meticulous in recording stops and searches of black people than they were of white people”

Mark Duggan, the black father of four, initially reported to have shot a policeman (IPCC sources now say the officer was a victim of “friendly fire”) and who himself shot dead in Tottenham in 2011. This case gathered a lot of controversy and many argued the police lacked reasonable suspicion. Although inquiry into the incident found the killing lawful, the circumsatnces that surrounds is still ‘foggy’ and some argue it was unconscious steroetyping and racial profiling. R (Duggan) v North London Assistant Deputy Coroner[21].

A reasearch by Dr Ben Bradford for the Guardian report that stop and search rate has risen to 120% between 1999/2000 and 2009/2012[22].

Ben and corretta argue that, If police officers serving in the Metropolitan Police Service represent a cross-section of society, then it can be expected that some will be racially prejudiced[23]. From the study by Quinton et al, a police inspecter shared this view, ‘whenever a robbery comes in over the radio … 90 per cent you’ll be thinking it’s a black man because of the description and because you know who does robberies in the past’[24].

However, Janet Foster and colleagues conducted a study for the Home Office and found that ‘explicit racist language was no longer tolerated and reached the view that it is gradually disappearing’[25]

Bowling and Phillips argue the disproportionate use of these power ‘impacts negatively on the law-abiding population and is the cause of a loss of public support for and de-legitimisation of the police’. And that various unnecessary encounters might have the potential to trigger public disorder and contributes to accelerating the flow of young black people disproportionately into the criminal justice system[26].

Following the London attacks in July 2005, Marian Fitzgerald stated that ‘Your chances of being an innocent member of the Asian community going about your lawful business and being stopped and searched by the police are infinitely higher than a white person’[27]. She argues this stems from the need of to police to reassure public confidence. Iqbal Sacranie, Secretary General of the Muslim Council of Britain commented: There have been far too many cases of wrongful arrests of British Muslims and miscarriages of justice. The recently published MPA report on the Metropolitan Police’s ‘Stop and Search’ powers have revealed how they have been used unfairly and devastatingly especially against Muslims. Just as an entire generation of young black people were alienated through ‘Stop and Search’ practice, we are deeply worried that the same thing is now occurring again, this time to young Muslim men. This cannot be allowed to go on[28]. However, Deputy Chief Constable Adrian Hanstock in an interview to the Guardian stated “Have we done enough to demonstrate commitment, the will to change and ability to change? Yes, I think we have, because the legislation would be being laid now, they would not have waited four years.”[29]

Reform

The home Secretary announced a package of reform to in aid in the overall reduction of the use of stop and search and to ensure that stops and searches are more made from accurate information and improving the overall ratio between the number of stop and search made and arrest emitting from that.

In 2013 she announced that she had commissioned the chief executive of the College of Policing to undertake a review of the national training of stop and search ‘with a view to developing robust professional standards for officers on probation, existing officers, supervisors and police leaders’. In her words ‘ nobody wins when stop and search is misapplied’. She went to say It is a waste of police time and it is unfair, especially to young, black men.

According to Neil Papworth, there have been a long source of controversy surrounding the powers of stop and search. In 2014, the Home office published its outcome of the consultation on code A of practises on stop and search. It set out two issues it had to deal with, firstly to make it clear what constitute reasonable grounds for suspicion and secondly empasis within the code that officers who do not use their power properly will be subject to formal performance or disciplinary proceedings. 5(3) of Code A. states that:

Supervision and monitoring must be supported by the compilation of comprehensive statistical records of stops and searches at force, area and local level. Any apparently disproportionate use of the powers by particular officers or groups of officers or in relation to specific sections of the community should be identified and investigated[30]. In PACE 67(8) provided that a failure to comply with any provision of code of practice made under the Act results in an officer being liable for disciplinary proceeding. But Zander noted that even though the most trivial voilation should in theory led to disciplinary proceedings; it was rarely used in practise[31].

Kiron reid also argues that, although the relevant requirement of pace may have been followed, ‘it may nevertheless have been conducted improperly in respect of the officer’s manner towards the person being searched’. Statistics shows us that, majority of arrest following a stop wasn’t due to the police finding the prohibited item they were looking for but for offences committed in course of such ecounters. For example assault upon a constable in the execution of his duty or willful obstruction as such. R. v. Waterfield[32]. From a survey of 19,078 people by the HMIC, ‘the majority (80%) believed that the use of stop and search powers helps the police to catch criminals, and over half said its use made them feel safer’[33]. However the Hmic found out that Police forces could not demonstrate an approach to using stop and search was based on intelligence and upon a foundation of evidence and states ‘It was surprising how little effort was given to monitoring how well stop and search powers were used to prevent crime and catch criminals’[34].

There 10 recommendation proposes by the HMIC in 2013 and some include Chief Constables should ensure that relevant intelligence gleaned from stop and search encounters is gathered, promptly placed on their force intelligence systems, and analysed to assist the broader crime fighting effort. Also they stated that Chief Constables should ensure that officers carrying out stop and search encounters are supervised so that they can be confident that the law is being complied with and that the power is being used fairly and effectively. Particular attention should be given to compliance with the code of practice and equality legislation. Dr Ellis recommends that, although PACE states that generalisation and stereotyped images should not be the foundation for suspicion, its definition and application should be made more vivid to show whether current practises from police is acceptable and to what extent these generalisation can be used to inform decision when using stop and search. In her words ‘clearly stereotyping which forms prejudices and in turn influences discriminations against particular races and ethnicities are the type of processes which the police should be focused on rooting out’.

Theresa May announced when she was Home Secretary in 2013 that she had commissioned the chief executive of the College of Policing to undertake a review of the national training of stop and search ‘with a view to developing robust professional standards for officers on probation, existing officers, supervisors and police leaders’. Neil Parpworth argues there should be a modification to Unit of 7 of 10 of the certificate of knowledge of police ‘to reflect any changes which are made to the training of existing officers in respect of their stop and search powers’.

In Janet Foster et al, the study showed there has been a notable decline in police confidence after the Stephen Lawrence injury and Police officer interviewed gave the view that after the inquiry there has been a different atmosphere in the way police responded to stop and search and that ‘people were too afraid’ to use this power to avoid being accused of racism[35].

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[1] Lord Scarman report

[2] Battle 4 Brixton pt6 of 6. 22^nd April 2008

[3] Vagrancy Act of 1824

[4] (1981) 5 EHRR 71

[5] Article 5 on European convention on Human Rights

[6]

[7] [1997] AC 286

[8] At Pace 2.2

[9] Race Relations Act 2000

[10]

[11] 1981 J C 6979

[12] 1 All ER 326 (at 329).

[13] A. Sanders, R. Young, Criminal Justice (Butterworths 2000), p.87.

[14]

[15]

[16]

[17]

[18] Kiron Reid: Race Issues and Stop and Search: Looking behind the Statistics. Lecturer of law, Liverpool law school

[19] In L. Lustgarten, The future of stop and search.

[20] Merseyside Police report of the chief constable, Appendice and statistical tables, Table 3; 1990-2000 statistics: 2001-02

[21] [2016] 1 W.L.R 525

[22] < https://www.theguardian.com/news/datablog/2013/apr/22/ethnic-minority-stop-search-rates-doubled> Date Assessed, 17^th April 2017

[23] B. Bowling & C. Phillips, ‘Disproportionate and Discriminatory: Reviewing the Evidence on Police Stop and Search’ [2007] Modern Law Review 70(6), 936

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

[25] J.Foster T Newburn and A Souhami assessing the impact of the Stephen Lawrence inquiry. Home office research study 294 (London: Home, 2005)

[26] See above At 960

[27] < https://www.theguardian.com/uk/2005/aug/17/race.july7> Date assessed 21/04/2017

[28] Many Challenges, But British Muslims Look Ahead with Courage And Confidence < http://www.mcb.org.uk/many-challenges-but-british-muslims-look-ahead-with-courage-and-confidence/> date assed 20^th April 2017

[29] Police satisfied with stop amd search despite racial inequality  <https://www.theguardian.com/uk-news/2016/oct/27/police-satisfied-with-stop-and-search-reform-despite-racial-inequality> Date assessed 20^th april 2017

[30] PACE at 5.3

[31] Zander 2013

[32] [1964] 1 Q.B. 164, [1963] 3 All E.R. 659

[33] HMIC (2013) Stop and Search Powers: Are the police using them effectively and fairly? At p47

[34] See above n 30 at p47

[35] see above n 24