Stop and search
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This article describes the general powers that the police have to search people and vehicles; powers to search premises are dealt with elsewhere. It also discusses the regulations that govern the exercise of stop and search powers.
Stop and search: overview The public are (rightly) worried that the increasing powers of the police to stop and search are an infringement of civil liberties. Of particular concern is recent legislation (e.g., the Terrorism act (2000) that allows a search to be lawful when the constable has no grounds to be suspicious of the person searched. An opposing view is that such powers are necessary to uphold the rule of law in a society that has become increasingly aggressive.
In general, any constable may require a person or vehicle stop and be searched, if the constable has reasonable grounds for believing that the person has possession of certain illegal items, or the proceeds of crime. In designated areas where, for example, there is a high risk of violence or public disorder, or for the prevention of terrorism, any person or vehicle may be stopped, without such justification. Approval for such actions must have been given in advance. There are also powers to set up 'road checks' to search for offenders and escaped prisoners (which requires advance approval), and to prevent breaches of the peace (which does not).
The following table summarises the main provisions that allow the police to stop and search; each will be described separately later.
Stop and search for prevention and detection of crime The powers conferred by s.1 of PACE (1984) are mostly intended to assist in the detection and prevention of certain crimes, in particular crimes associated with theft and with offenses against the person. Theft offences include, in addition to theft itself, Burglary, taking a conveyance, and obtaining property by deception. The Act empowers any constable to search a person or vehicle where he has reasonable grounds for believing that any person possesses the proceeds of theft, or articles to be used for theft, or an offensive weapon or other dangerous object. The Act does define an 'offensive weapon' -- it is anything 'made or adapted for causing injury' -- but does not limit the search to offensive weapons defined in this way. For example, the power also extends to searches for 'bladed objects' that can be used to commit an offence under s.139 of the Criminal justice act (1988), which may not ordinarily be classed as offensive weapons (e.g., pen-knives).
In general, 'vehicle' is defined broadly, and includes boats and aircraft, and there are few places where the power to stop and search cannot be exercised. The notable exceptions are that there is no power to search inside a dwelling, or to search the legal occupier of a dwelling in the attached grounds. However, there is a power to search a person in a yard or garden attached to a dwelling if there is a suspicion that the person has no lawful right to be there.
Although s.1 of PACE gives powers to stop and search most people in most places most of the time, the public are protected by the need for the constable to demonstrate 'reasonable suspicion' that one of the objects covered by the Act will be found. Otherwise the search will be unlawful, and the constable liable to disciplinary procedures. So what is 'reasonable suspicion'?
It goes without saying that ethic origin, colour, religion and class are never going to confer reasonable suspicion for the purposes of PACE. The constable must have good grounds for believing that the search will reveal something covered by the Act, perhaps because of information supplied by a credible memeber of the public or because a person is acting furtively in a area that has been associated with high levels of burglary. There are, clearly, borderline cases. Butterworths (p34), for example, gives as an example the common practice of searching coaches containing football supporters on the way to matches. Merely being a football supporter probably does not confer the reasonable grounds for suspicion required by PACE. However, such searches frequently do reveal articles that could be classed as offensive weapons. Moreover, it is accepted that certain groups or gangs are regularly involved in criminal activity, and therefore people displaying the insignia of such groups are under more like to to be subjects of reasonable suspicion than other people. On balance, football supporters as a group probably do not qualify as a 'group or gang' for these purposes, so routinely searching them is on the boundary of lawful procedure.
As well as requiring reasonable suspicion, the conduct of the search must be according to Code of Practice 'A' of PACE (1984), as discussed below.
Stop and search for prevention of violence In contrast to the provision of s.1 of PACE (1984), s.60 of the Criminal justice and public order act (1994) provides for stop and search without 'reasonable suspicion'. Under these terms a constable can lawfully require anyone to submit to search.
The Act is not intended to create a police state, but to reduce the ability for criminals to use peaceful demonstrations and festivals as an excuse for rioting and violence. The provisions of the Act therefore apply only for short periods of time, in designated locations. Any police officer or the rank of Inspector or higher can authorize the application of these powers for 24 hours. A further 24 hours can be authorizied by a superintendent. Once the provisions of the Act have been invoked, a constable need not show reasonable suspicion to conduct a search; however, the authorizing officer must have reasonable grounds for thinking that their use is justified. Such grounds may include a belief that violence demonstrations are being planned, or that people are carrying offensive weapons. For these purposes, 'offensive weapon' has the same meaning as in PACE, and may included bladed object not normally considered offensive.
A person stopped under these powers can be searched for dangerous articles; any found may be seized. In addition, the police have the power to compel people to remove any outer clothing that they believe is being worn to conceal identity.
Stop and search for prevention of hooliganism The Sporting events control of alchohol etc act (1985) is intended primarily to control football hooliganism. It makes it an offence to supply alchoholic beverages on a vehicle intended to transport football supporters to matches. To search a vehicle the police must have reasonable suspicion that its occupants have been supplied with alchohol, or are drunk, not (in theory) that it is carrying football supporters. Reasonable suspicion may result from, for example, information supplied by a member of the public.
Conduct of stop and search procedures Code of Practice 'A' of PACE (1984) governs most stop and search activities; in cases where it does not this is usually because it is not relevant, rather than because draconian powers are to be wielded without restraint. For a defence lawyer or defendant, it is important to understand that a search that contravenes Code A, although unlawful, does not necessarily render evidence obtained inadmissible.
The Code sets out the following procedure to be followed when exercising stop and search powers.
- The constable must give his or her name, and the police station to which he is attached, to every person searched. If not in uniform he must show his warrant card. Failure to do this has been held to render the search unlawful. The only exception is for searches under the Terrorism act (2000), where the constable need not give his name -- a station and warrant number will suffice.
- The constable must indicate that objective of the search, and the authority under which it is being carried out.
- The constable must take reasonable steps to ensure adequate communication with the suspects. These may include, for example, finding an interpreter for suspects who do not speak English.
- The suspect must be given every opportunity to cooperate with the search, even if he resists at first. A forcible search can only be contemplated if it is obvious that there is no alternative.
- The suspect may be detained to make the search, but for no longer than necessary.
- The search should be no more thorough than is necessary. For example, it should be confined to the suspects outer clothing or pockets unless there is a good reason for a more intimate search.
- The suspect should be treated with decorum throughout the procedure.
- The authority under which the search is made will dictate the amount of clothing that a suspect may be required to remove in public: there are small discrepancies between the various provisions. In all cases, a suspect may be required to remove coats and gloves. For searches under the Terrorism Act the suspect may be required to remove headgear and footwear, while under the Acts concerned with public order the suspect may be asked to remove any garment that conceals identity. Wherever possible, such a search should be carried out away from public view, by an officer of the same gender as the accused. A constable can ask a person to remove additional clothing in a public place, but it is lawful to refuse. Where there are religious sensitivies about clothing, or where the search is more than superficial, then it must be out of public view. Ideally this will be in a police station.
- The constable must keep a record of the search, on the standard form used for this purpose, and should offer it to the person searched. If this is not practical (e.g., in heavy rain), he should advise that a record can be obtained from the police station within one year.
Force or compulsion may be used to secure a search, provided that it has been established that the suspect will not comply willingly.
The Code allows that a person or vehicle may be detained in order for a search to be carried out. It expressly forbids the detention of a person or vehicle to find grounds for a further search.
The suspect is not required to offer his name or address, except in cases where this would normally be required. That is, the power to stop and search does not extend to compelling a person to reveal his identity. It is illegal to detain a person for the purposes of identifying him. Of course, the power of arrest may be invoked if the constable has grounds for believing that the suspect is guilty of a serious offence and does not provide a credible name or address. PACE indicates that the search record should include a description where the suspect refuses to identify himself.
Stop and search 'Road checks' The term 'road check' usually refers to the construction of a checkpoint at which vehicles are stopped to be inspected. There are two legal authorities for this: section 4 of PACE, and common-law powers in respect of breach of the peace.
PACE allows an officer of the rank of superintendent or above to authorize road checks for 7 days, which can be extended a further 7 days in exceptional circumstances. To authorize a check under these powers, the officer must have reasonable grounds to believe that vehicle in a designated area is carrying:
- a person who is about to commit, or has commited, a serious arrestable offence, or
- a person who is a witness to such an offence, or
- a person unlawfully at large.
Common-law powers allow any constable to stop and search any vehicle where there are reasonable grounds for believing that its occupants intend to commit a breach of the peace.
Voluntary search If there is no general power to search, a police officer may search a person who consents, provided that
- it has been explained that the search is by consent, and will not be carried out without it, and
- the person to be searched is capable of giving informed consent (which effectively exludes children and many mentally handicapped people), and
- the search is carried out with the same consideration and decorum as an enforced search.
In general, Code A discourages the involvement of the police in routine volutary searches. For example, the managers of sports facilities or public buildings may make it a condition of entry that visitors submit to a search; this is not felt to be a police matter, and is expressly excluded from the Code.