Abstract
The police use of statutory stop and search powers is an ongoing cause for concern. Research evidence dating back a number of years suggests that the misuse of such powers is commonplace. It has long been recognised that the important relationship between the police and the communities which they serve can be severely damaged where innocent people are routinely stopped and searched for no good reason. The Home Secretary has recently announced in Parliament a package of reforms aimed at reducing the overall use of stop and search powers, ensuring that stops and searches are more intelligence-led, and improving the ratio between the number of encounters and arrests made. Significantly, the proposed reforms are largely voluntary in nature. Their content is therefore particularly important, as is their potential take-up by police forces. There are sound reasons for believing that they may be a prelude to legislative reform in this area of policing.
Introduction
30 April 2014 may in hindsight prove to be a significant date in the history of statutory stop and search powers, since it was on this day that the Home Secretary, Theresa May MP, made a statement to the House of Commons in which she set out what she claimed was a ‘comprehensive package of reform’ 1 in relation to such powers. The subject matter of her statement was not new, the issue of the use of stop and search powers by police officers being a continuing controversy which has beset all of her predecessors at the Home Office since the Police and Criminal Evidence Act 1984 (PACE) was enacted. Indeed, the present incumbent had cause to make a statement to MPs on the same subject less than a year earlier. 2 For present purposes, it is both necessary and appropriate to put to one side the political jousting which accompanied the statement as the Home Secretary and her shadow sought to blame one another's party for the present state of the law and practice relating to stop and search. We shall focus instead on what the Coalition Government intends to do to improve a situation which has persisted for far too long, and which one MP described as ‘a stain on British policing’. 3
Background
The Home Secretary's statement was made in conjunction with the publication of a summary of responses to a public consultation on stop and search powers (Home Office, 2014b). It also followed a nationwide inspection on this aspect of policing carried out by Her Majesty's Inspectorate of Constabulary (HMIC) across the 43 police forces in England and Wales (HMIC, 2013). Although not directly mentioned in Parliament on this occasion, the statement was also made against the backdrop of work undertaken by the Equality and Human Rights Commission with a number of police forces, including the Leicestershire Constabulary and the Metropolitan Police, where the police's own statistics relating to stop and searches suggested that in some forces the powers were being used in a racially disproportionate way (Equality and Human Rights Commission, 2012, 2013).
The Reform Package
The reform package announced in Parliament consists of eight elements. Each is identified here in the order in which it was announced rather than in order of importance.
Code of Practice A
The Home Secretary began the substantive part of her statement by declaring her intention to revise PACE Code of Practice A (Home Office, 2013) to make ‘absolutely clear’ what constitutes ‘reasonable grounds for suspicion’ for the purposes of exercising those stop and search powers to which the requirement applies. Since it was first drawn up, Code of Practice A, like a number of the other codes which have been drafted in accordance with the duty under s. 66 of PACE, has been subject to a number of revisions to take account of matters such as new statutory provisions or amendments, or judicial interpretation. Thus announcing that there is to be a further revision of Code A is not in itself a significant development. What is significant, however, is that the revision is to specifically address the meaning of ‘reasonable suspicion’. In truth, although this was an issue which some previous versions of the Code might have addressed better, the current version of Code A (which has applied to searches taking place since 27 October 2013) provides some helpful guidance to police officers. Thus, for example, it emphasises that there must be an objective basis for reasonable suspicion based on ‘facts, information, and/or intelligence which are relevant to the likelihood of finding an article of a certain kind’. 4 It also stresses that reasonable suspicion ‘can never be supported on the basis of personal factors’. In other words, it needs to be either intelligence-led, or to have arisen as a result of some specific behaviour exhibited by the person to be searched. The Code is also clear that a person's physical appearance, or previous convictions, cannot be used either alone or in combination with one another or other factors as a basis for searching a person. Neither can reasonable suspicion be based on ‘generalisations or stereotypical images of certain groups or categories of people as more likely to be involved in criminal activity’. 5
It is worth noting, in passing, that one MP, who has experience of these matters as a special constable, suggested that Code A ought to be amended so as to ‘allow officers who stop somebody with serial offences of carrying weapons or drugs to use that previous criminal record as grounds for a search’. 6 Although the Home Secretary undertook to ‘reflect carefully’ on this comment, it is hoped that she will reject her colleague's advice. To allow the police to stop and search on the basis of past convictions would be highly likely to make the use of such powers even more unpopular than they are at present. In the wrong hands, it would enable stop and search powers to become an instrument of social control and oppression. Officers might use the powers in an unthinking manner, as a way of ‘keeping an eye’ on persons known to them. It would also make the lives of those affected intolerable. As it is, there is ample evidence to suggest that entirely innocent people are currently targeted for no good reason (Choongh, 1998; Fitzgerald, 1999; Bowling & Phillips, 2007). Thus another colleague reminded the Home Secretary how together they had, ‘recently met a young man who has been stopped 50 times in the past five years, from the ages of 13 to 18’. 7 In reply, the Home Secretary informed the House:
The testimony of that young man really brought home to me both the extent to which the misuse of stop- and-search can alienate people, and the problems that people from particular communities, such as that young black man, have experienced over the years. What was distressing was his assumption that, ‘It will happen to me because I am black’. That is appalling and must not be the case, which is why the reforms are so important. 8
Patently, if the guidance on ‘reasonable suspicion’ in Code A was to be revised in the way suggested to the Home Secretary, there would be a very real danger that a further category of persons would become alienated by the use of stop and search powers. For previous offenders, it would be difficult to deny that they too were being discriminated against by the police.
In its present form, Code A tends to refer to circumstances where ‘reasonable suspicion’ would not arise rather than those occasions on which it might be formed. Although this may be understandable since when asked to define a concept it is often easier to state what it is not, rather than what it is, the importance of ‘reasonable suspicion’ in the present context demands a change of emphasis in a revised Code A. It might, for example, assist the police if the section on ‘reasonable suspicion’ was expanded to include some examples which reflect the Code's wording. Relatively brief hypothetical or actual scenarios may be of greater practical value to officers than wordy paragraphs, provided, of course, that they are not regarded as binding instructions on how to deal with the situations they describe. An important factor which the present Code A emphasises, and which any revised version must also make clear, is that the powers to stop and search are discretionary. Whether or not they are exercised is a matter for an individual officer to decide, not a Code of Practice. However, a revised Code may assist police officers, especially if it identifies circumstances in which it would be lawful to exercise a high discretion, i.e. stopping and searching a person where an officer's suspicion is based on limited factors, such as that the person is present in a known drug-dealing location late at night.
Despite the Home Secretary's good intentions, there is a strong case for arguing that, contrary to her avowed aim, it is not possible to ‘make absolutely clear what reasonable grounds of suspicion are’. If it were possible, why has it not already been done? Have previous Home Secretaries and their civil servants been guilty of inertia over the matter? The answer to this question is a qualified ‘No’. Although her predecessors may have done more by providing fuller guidance in Code A as to the meaning of ‘reasonable suspicion’, the current Home Secretary may be misunderstanding the concept if she genuinely believes that it can be made ‘absolutely clear’ what it means in the present context. By its very nature, ‘reasonable suspicion’ is not susceptible to precise definition. The standard which it imports deliberately eschews precision, preferring instead to direct the focus of attention on the circumstances known to the officer at the relevant time. It is therefore a flexible concept. The law applies a standard which, as the House of Lords noted in the arrest case of O'Hara v Chief Constable of the RUC, 9 consists of two elements: a subjective element, i.e. what was in the mind of the officer at the relevant time; and an objective element, as signified by the need for the suspicion to have been ‘reasonable’. Thus although it is admittedly unfair to subject the words used by the Home Secretary in response to an oral question in Parliament to the same level of scrutiny as the words of a statute, code of practice or even a written reply, she might have been better advised on this occasion to have been a little more guarded as to what can be achieved. A more attainable goal for her department would be to revise Code A so as to make it clearer, rather than ‘absolutely clear’, what reasonable grounds of suspicion are in relation to stop and search powers.
Performance or Disciplinary Proceedings
In PACE as originally enacted, s. 67(8) provided that a failure to comply with any provision of a code of practice made under the Act rendered an officer liable to disciplinary proceedings, unless he had previously been the subject of criminal proceedings relating to the same matter. As one commentator has noted, however, despite the fact that the provision made ‘even trivial breaches of the Codes automatically a breach of discipline’, it was rarely used in practice (Zander, 2013). Accordingly, it was repealed as from 1 April 1999. 10 It is interesting to note, therefore, that the second element of the Home Secretary's reform package involves a partial restoration of this provision. Thus she announced: ‘The revised code will emphasise that where officers are not using their powers properly, they will be subject to formal performance or disciplinary proceedings.’ 11
This reform will therefore stop short of re-enacting s. 67(8). Instead, it will be Code A rather than PACE itself which will form the basis for dealing with officers who misuse their stop and search powers. Presumably, disciplinary proceedings will be reserved for the egregious cases where, for example, written records 12 of a number of encounters betray the fact that a particular officer routinely stops and searches people without the necessary ‘reasonable suspicion’. Isolated examples of this form of misuse of the powers may be a matter more appropriate for performance management, in the first instance at least. It may be that complaints received from members of the public in connection with an officer's use of the power lead to performance or disciplinary proceedings, depending upon their frequency, volume and veracity. After all, although a stop and search may be lawful in that all the requirements of PACE have been complied with, it may nevertheless have been conducted improperly in respect of the officer's manner towards the person being searched. This is an issue which has been identified by a number of commentators over the years (Smith & Gray, 1985; Fitzgerald, 1999; Quinton et al., 2000; Bowling & Phillips, 2007). Indeed, it can be inferred from the official statistics (Home Office, 2014a) that a sizeable proportion of the arrests following a stop and search occur not because the police find what they were looking for, but for offences committed in respect of the encounter itself, for example assaulting or wilfully obstructing a police officer in the execution of his duty contrary to s. 89(1) or (2) of the Police Act 1996.
Public Scrutiny
The third element of the reform programme involves police forces’ adherence to para. 5(4) of Code A. In its current form, it provides:
In order to promote public confidence in the use of the powers, forces in consultation with police and crime commissioners must make arrangements for the records to be scrutinised by representatives of the community, and to explain the use of the powers at a local level.
Despite the mandatory nature of this public scrutiny obligation, HMIC's recent inspection revealed, amongst other things, that it is ignored by more than half of all police forces (HMIC, 2013). Accordingly, the Home Secretary informed the House of Commons that she has written to all Chief Constables and Police and Crime Commissioners to remind them that they must adhere to this requirement. Additionally, she has warned them that if they continue to fail to do so, the Government will legislate to make the obligation a statutory requirement. The threat of legislation on this and other aspects of the reform package is significant. If this last resort were ultimately pursued, it would transform what is currently a non-statutory requirement into a legal duty which would have the potential to be enforced before the courts. The prospect of a Chief Constable being sued for breach of a publicity duty is presumably something that both the police and the Home Office would wish to avoid. Accordingly, it seems unlikely that the present Government will rush into legislating on the matter. It came as no surprise, therefore, that when the Home Secretary was invited to identify a timetable for legislation in the event of the reforms not working, she declined to do so, citing as her reason the approach of the last session of the present Parliament. 13
Police Training
The fourth element of the reform package, police training, consists of two strands. The Home Secretary 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’. Although these categories of persons reflect only those who are already in police forces, it should not be forgotten that those undertaking the Certificate of Knowledge of Policing are required to study a unit (unit 7 of 10) on searching individuals. It would be highly advisable, therefore, to modify the content of this unit to reflect any changes which are made to the training of existing officers in respect of their stop and search powers.
The Home Secretary has also requested that the review include work on ‘unconscious bias awareness training’, and that in future, officers be assessed as to their fitness to use stop and search powers. It is not clear from the statement what form the assessment will take. Its tone suggests, however, that it may well be something more than simply a performance review of an individual officer's use of the powers. The sanction for not passing the assessment is, however, rather clearer. Thus the Home Secretary stated:
… if officers do not pass this assessment, if they do not understand the law, or if they do not show they know how to use stop-and-search powers appropriately, they will not be allowed to use them. 14
Although the Home Secretary failed to elaborate on the point, her words suggest that a police officer may be suspended from using stop and search powers pending passing the assessment. While there is something to be said for such an approach with regard to individual officers who may otherwise misuse the powers and act unlawfully, potentially there could be significant management issues connected to its implementation. Given that HMIC's national inspection found that 27% of the stops and searches which it investigated were not based on the necessary reasonable suspicion (HMIC, 2013), it seems likely that a significant number of police officers may fail to pass the initial assessment unless the revised training produces immediate results. If it does not, senior officers could be presented with a situation whereby only some of those on duty at any particular time are entitled to carry out a stop and search. Cleary, this would be an unsatisfactory state of affairs which would need to be rectified swiftly. Presumably any officer who failed to pass the assessment would require urgent and intensive training, followed by re-assessment, since not being allowed to use a key police power lessens their operational usefulness to the force which employs them.
‘Best Use of Stop-and-Search’ Scheme
The fifth element of the reform package involves a joint launch by the Home Office and the College of Policing of a new ‘best use of stop-and-search’ scheme. The Home Secretary informed the House of Commons that the scheme already has the backing of the Metropolitan Police, which is significant because according to the official statistics (Home Office, 2014a) its officers carry out the greatest number of stops and searches annually of any of the police forces in England and Wales. She also informed the House that she has written to the Chief Constables of the other forces inviting them to join the scheme. She then proceeded to explain the scheme as follows:
Forces participating in the scheme will record the outcome of stops in more detail to show the link, or the lack of a link, between the object of the search and its outcome. This will allow us to assess how well forces are interpreting the ‘reasonable grounds for suspicion’ they are supposed to have in order to use their stop- and-search powers in accordance with law. The scheme will also require forces to record a broader range of outcomes, such as penalty notices for disorder and cautions. This will allow us to better understand how successful each stop and search really is. 15
Hitherto, official statistics relating to stops and searches have not been particularly informative. It is common knowledge that the annual arrest rate following a stop and search often hovers at around 10%. In other words, 90% of stops and searches do not result in an arrest because the police do not find what they were looking for. A 10% ‘hit rate’ is comfortably below what is considered to be desirable by commentators (Lustgarten, 2002; Bowling & Phillips, 2007). It is regarded as tangible evidence that the ‘reasonable suspicion’ safeguard is not working in practice. However, the 10% arrest rate is also misleading, since currently there is a general lack of specificity as to which offences arrested suspects are believed to have committed. Accordingly, if a by-product of the reform presently under discussion is that more detail is provided as to the relevant offences, it will be possible to estimate, for example, what proportion of them relate to the conduct of the search itself rather than prior criminality. In other words, will they be for offences committed against police officers under, for example, the Public Order Act 1986, or might they show that a person suspected of being in possession of drugs was in fact in possession of a knife?
As part of their commitment to the ‘best use of stop-and-search’ scheme, police forces will have to introduce ‘lay observation policies’ whereby members of the public will be able to apply to accompany police officers on patrol. Although the Home Secretary did not explain the thinking behind this policy, presumably its aim is to improve public confidence in the police by making the use of stop and search powers more transparent. Having independent and impartial observers present is also likely to have a disciplinary effect on officers, rather like it is said that the presence of the public in a court of law serves to ensure that the proceedings are conducted in a proper manner. 16 In the event that a police force received a ‘large volume’ of complaints relating to its use of stop and search powers, a ‘community trigger’ will be activated, requiring an explanation to be provided. In the absence of further clarification, it remains to be seen whether a particular threshold will need to be surpassed before the trigger applies either locally or nationally, or what level of explanation by the police will suffice. Patently, however, in order to comply with the spirit of the ‘best use of stop-and-search’ scheme, it would be advisable for explanations to be as full and candid as they can be in the circumstances, and for them to be published in a timely fashion.
Section 60 of the Criminal Justice and Public Order Act 1994
The final feature of the new scheme relates to what the Home Secretary termed ‘no-suspicion-stop-and-search’ under s. 60 of the Criminal Justice and Public Order Act 1994. This is, of course, a controversial power in that it authorises officers to carry out random stops and searches within a defined area for a period of up to 24 hours. The exercise of the power was recently subject to an unsuccessful judicial review application and subsequent appeal. 17 It is noteworthy, therefore, that under the scheme, participating police forces will effectively commit themselves to observe limits on the exercise of the s. 60 power which are more stringent than those provided for in the 1994 Act itself. Thus, for example, s. 60 stops and searches will only be carried out where they are necessary rather than expedient. Moreover, authorisation to use the s. 60 power will only be capable of being granted by a chief officer rather than an officer of the rank of inspector of above, as laid down in statute. Under the scheme, s. 60 authorisations will be limited to a maximum of 15 hours, and the police will be required to communicate with local communities both in advance of and after they have ended, ‘so that residents can be kept informed of the purpose and success of the operation’. 18
The Home Secretary informed the House that she hopes that the scheme will ‘reduce the number of no-suspicion stops significantly’. 19 While this is a laudable objective, if the Government genuinely wishes it to be achieved, making the informal reforms to s. 60 outlined above a matter of voluntary submission seems a little odd. In some senses, they have the appearance of a trial-run or pilot. It is as if it has been decided in the Home Office that the way forward is to see what can be achieved under the scheme and then, depending upon the results, decide whether or not legislative reform is necessary. It may also be the case that the scheme is the product of political compromise since it is understood that while the Home Secretary wanted to change the law on s. 60, the Prime Minister was less keen on the idea. Perhaps, therefore, the new voluntary scheme was the best ‘deal’ that the Home Secretary was able to obtain from Number 10.
Remaining Reforms
The remaining elements of the reform package are intended to improve transparency and accountability within police forces. They involve adding stop and search data to the Government's online crime maps. The Home Secretary also announced that she has asked the chief inspector of HMIC to include the use of stop and search powers in that body's new annual general inspections. Finally, the Home Secretary has also commissioned HMIC to review all other police powers similar to stop and search with the aim of eliminating unfair or inappropriate usage. This will include, therefore, powers such as s. 163 of the Road Traffic Act 1988, which enables a police officer in uniform to stop a mechanically propelled vehicle or cycle which is on a road.
Conclusions
Stop and search powers have been in the public spotlight for some considerable time, in large part because their use has the potential to cause tension between the police and local communities and can even fracture that relationship where the perception exists that they are being routinely misused. A number of commentators have drawn attention to how very serious incidents of public disorder, such as the Brixton Riots in 1981 and the riots in August 2011, have in part been attributable to ill-feeling over the use of stop and search powers (Scarman, 1981; Macpherson, 1999; Lustgarten, 2002; Delsol & Shiner, 2006). As Diane Abbott MP opined in response to the Home Secretary's statement: ‘… there is no single issue that poisons relationships between urban communities and the police more than stop-and-search’. 20 Few would deny, therefore, that preserving the status quo is neither a realistic nor a responsible option.
Despite the problems associated with stop and search powers, there is no general clamour for them to be abolished and not replaced. Collectively, they are too important a tool in relation to crime detection and prevention to be dispensed with entirely. The controversy relating to them is thus essentially concerned with their exercise rather than their existence. Indeed, even though the ‘hit rates’ have consistently been lower than is desirable, the very fact that each year people are arrested following a search for being in possession of an item or article which they ought not to have makes a compelling case for the police to continue to have the powers. With this in mind, therefore, it is necessary to assess the Home Secretary's reform package further.
An important point to note concerns the largely voluntary nature of the proposed reforms. Although this is not a negative feature per se, the Shadow Home Secretary, Yvette Cooper MP, regarded it as an indication that the reform package is weaker than it ought to be. Speaking on behalf of the Labour opposition, she was clearly of the view that the time for voluntary schemes has passed; that nothing short of legislative reform is now required. While this is a view which has its supporters, we ought not to forget that voluntary schemes may often be capable of being put in place, and made operational, relatively quickly. On the other hand, amendments to statutory provisions such as s. 60 of the 1994 Act may take longer, especially when there is no Bill before Parliament to which the Government may conveniently add an amendment. Nevertheless, it should be remembered that under the UK's constitutional arrangements, the government of the day controls the parliamentary timetable. Thus, although the next general election is now less than a year away, if the Coalition Government wanted to, it could introduce legislation to reform stop and search powers and ensure that the relevant Bill was accorded the parliamentary time necessary to pass all of its stages. Given the strength of feeling over this issue in Parliament, a reform measure would be likely to enjoy cross-party support and hence could be swiftly enacted. By opting for a voluntary scheme rather than legislative reform, the Home Secretary has effectively accepted that if the law is to be amended, this will be a matter for the new parliament following the 7 May 2015 General Election.
It is, of course, too soon to comment on the take-up of the Home Secretary's ‘best use of stop-and-search’ scheme. However, the potential value of the scheme in terms of the lessons which may be learnt from it will be significantly undermined unless the take-up is very high amongst police forces. Hitherto, police cooperation in respect of stop and search research projects or investigations has not always been good. Thus, for example, when the Equality and Human Rights Commission looked at the issue of race disproportionality in stops and searches under s. 60 of the 1994 Act (Equality and Human Rights Commission, 2012), despite the fact that it received 39 responses from the 40 English police forces to which it wrote, only 24 were able or willing to supply all of the information requested. Eight forces either failed to provide any information, or claimed exemption under the Freedom of Information Act 2000.
Although the Home Secretary was therefore unable to give any assurances as to how many police forces will sign up to the scheme, it seems likely that her department will do all that it can to encourage Chief Constables and Police and Crime Commissioners to do so. In Parliament, she called upon the Labour Front Bench to do likewise on the basis that the Police and Crime Commissioners in the major metropolitan areas are Labour Party people. 21 The initial letters which have already been sent out to the relevant persons are therefore likely to be followed by reminders, if necessary. The fact that the Metropolitan Police has already signed up to the scheme is significant. Given the size of the force, 22 and that its officers use stop and search powers so often in comparison with colleagues in many other forces (Home Office, 2014a), 23 questions would undoubtedly have been asked had it failed to take the lead in this regard.
That part of the ‘best use of stop-and-search’ scheme which relates to s. 60 of the 1994 Act will involve the practical operation of an unusual principle: the police acting under agreed restraints that are stricter than those currently imposed by the law. Although there may be advantages to such an approach, there is a danger that it may create uncertainty in the minds of some officers who are using stop and search powers. Some of the cases heard by the courts, in which it is alleged that the police have acted unlawfully, demonstrate that individual officers do not always have a good grasp of the scope of the relevant statutory power, the procedural requirements which need to be followed or the provisions of a Code of Practice which have been drafted to guide them in its exercise. Officers who fail to grasp what the law currently is may perhaps become confused by the need to adhere to a modified version of the relevant statutory provisions which does not have the force of law. Accordingly, if the self-imposed limits on the use of the s. 60 stop and search power prove to be a success, in the sense that the power is exercised in a more targeted manner resulting in a higher arrest/search ratio, then the relevant changes ought to be formally reflected in statute rather than left as a non-statutory undertaking. One of the hallmarks of the rule of law is that laws ought to be clear and certain so that those who enforce them, and those required to comply with them, know the extent of their powers or obligations. Legal certainty would be undermined if s. 60 were left unamended while in practice the police worked to different, more stringent requirements. Thus rather than treating legislation as a sanction in the event that the voluntary scheme does not work, it might instead be regarded as an appropriate course of action in the event that the voluntary arrangements prove to be a success. It would seem, therefore, that the reform of s. 60 is almost inevitable, regardless of the results of the scheme.
In due course, there may be potential for a similar approach to be adopted in other policing contexts. Several recent court decisions suggest, for example, that the search warrant regime under PACE does not always work as well as it ought to and that on occasion police failures to properly comply with the dictates of the law have compromised an investigation. 24 On other occasions, it is only because the evidence has clearly betrayed a defendant's guilt that failings in relation to the obtaining or execution of a search warrant have not led a trial judge to rule that evidence inadmissible under s. 78 of PACE. 25
The PACE Codes of Practice provide an important source of guidance, primarily for the police but also for the wider public, as to how particular powers ought to be exercised in practice. Despite their importance, there remain occasions when officers are forced to admit during the course of criminal proceedings that they are unfamiliar with the detail of the relevant Code. 26 Revising Code A, and providing enhanced training on the use of stop and search powers, may therefore help to address this issue, as will the possibility of formal performance or disciplinary proceedings where the evidence suggests that an officer is not using the powers properly. If these measures are to work, they will need to be robustly applied. They will also require sufficient resources to be devoted to them. Although individual officers ought not to be scapegoats where there is evidence of widespread failings in a particular force, formal performance or disciplinary proceedings need to be a real rather than a hypothetical deterrent. In other words, where the circumstances justify it, those with performance management functions within police forces will need to be willing to take action against failing officers. If they do, it will reinforce the message that stop and search powers must be taken seriously and exercised properly, and that their misuse will not be tolerated.
In the context of internal management, it is worth noting that following the Home Secretary's statement, one of the criticisms levelled at the reform package by Yvette Copper MP was its failure to ban the use of stop and search targets for individual officers. Significantly, the Home Secretary avoided the issue when she rose to reply. It is unclear whether the practice of setting targets exists in the present context. 27 Inevitably, it will have had no role to play in those forces where stop and search powers are little used. However, research evidence shows that, at the very least, a public perception has existed that in some forces targets or quotas have been used in the past (Stone & Pettigrew, 2000). If this practice does continue to the present day, it runs contrary to the principle of the present reform programme and much of its content. Officers ought to focus on the lawfulness of the encounters which they initiate with individuals whom they wish to search, not how many times they have exercised the powers during a week, month or year. If an officer feels under pressure to reach a stop and search target by the end of a prescribed period, clearly this is likely to influence a decision to exercise the powers. There is a case for arguing, therefore, that the Home Secretary's reform package might also have included an intention to commission research into the impact of targets on the use of stop and search powers. If that research were to reveal that targets do in fact exist in some forces, and that they are causing officers to carry out stops and searches which they know to be unjustified, no good case could be made for their retention.
Footnotes
1.
Hansard, HC vol. 579, col. 833 (30 April 2014).
2.
Hansard, HC vol. 565, cols 773–82 (2 July 2013).
3.
Per Michael Ellis MP, Hansard, HC vol. 579, col. 841 (30 April 2014).
4.
Code of Practice A, at para.2.2.
5.
Ibid.
6.
Per David T.C. Davies MP, Hansard, HC vol. 579, col. 839 (30 April 2014).
7.
Per Charles Walker MP, Hansard, HC vol. 579, col. 839 (30 April 2014).
8.
Hansard, HC vol. 579, cols 839–40 (30 April 2014).
9.
[1997] AC 286; [1997] 2 WLR 1; [1997] 1 All ER 129.
10.
See Police Act 1996, Schedule 9, Part II, at para.1.
11.
Hansard, HC vol. 579, col. 831 (30 April 2014).
12.
Section 3 of PACE imposes a duty on an officer who has carried out a search to make a written record of the encounter. The record must contain various pieces of information, including the object of the search and the grounds for making it, as well as the ethnic origins of the person searched.
13.
Hansard, HC vol. 579, col. 837 (30 April 2014).
14.
Ibid. at col. 832.
15.
Ibid.
16.
See, for example, the remarks of Lord Widgery CJ in R v Socialist Worker Printers and Publishers Ltd, ex p A-G [1975] QB 637 at 651, and those of Lord Woolf MR in R v Legal Aid Board, ex p Kaim Todner (a firm) [1999] QB 966 at 977.
17.
See R (on the application of Roberts) v Metropolitan Police Commissioner [2012] EWHC 1977 (Admin) (DC); [2014] EWCA Civ 69 (CA).
18.
Hansard, HC vol. 579, col. 833 (30 April 2014).
19.
The official figures suggest that in fact, this has already happened. Thus in 2012/13, 4,912 searches of persons or vehicles were made under the authority of s. 60 by police officers in England and Wales (excluding the British Transport Police). This represents an 89% reduction from the previous year's figure of 45,696: see Home Office (2014a: Table ss. 06).
20.
Hansard, HC vol. 579, col. 840 (30 April 2014).
21.
Ibid. at cols 840–41 (30 April 2014).
22.
23.
Thus in 2012/13, of the 1,006,187 stops and searches of persons or vehicles carried out under s. 1 of the Police and Criminal and Evidence Act 1984 (and other legislation) in England and Wales, the Metropolitan Police's share was 35.7% (359,287): see Home Office (2014a).
24.
See, for example, R (on the application of AB and another) v Huddersfield Magistrates’ Court and another [2014] EWHC 1089 (Admin).
25.
See, for example, R v Pheby [2014] EWCA Crim 634.
26.
See, for example, Bonner v DPP [2004] EWHC 2415 (Admin).
27.
Recently it has been denied by the Metropolitan Police: see The Voice (2014).