November 16, 2019

In if the exercise of this power was proportionate

In this essay I will argue that the requirement of reasonable suspicion to stop and search a person is extremely important to safeguarding an individuals human rights, but that it falls short of adequately protecting them, and additional safeguards should be put in place. 

The police have an enormous duty to fulfil in keeping people safe from harm, and at times this is an incredibly difficult job to do. However, despite police requiring certain powers to prevent crime efficiently and effectively, individuals in the UK are innocent until proven guilty, and that as agents of the state, the police must uphold the human rights of individuals, and not breach them unnecessarily. Some of our human rights are absolute, meaning they can under no circumstances be breached. However, some are known as qualified rights. They can be breached, in specified circumstances where it is completely necessary. When considering if the state has breached an individuals right or not the court will (1) identify what human right has been engaged, (2) consider if this right has in fact been breached, stop and search generally concerns Article 5, the right to liberty and Article 8, the right to private and family life, both of these rights are qualified rights. Therefore (3), the courts will then apply the test of legality, considering if this breach is in accordance with the law and if there is a statute permitting it. (4) It will also be considered if the police acted arbitrarily, or if there was a legitimate aim behind the exercise of their power and (5) the courts will consider if the exercise of this power was proportionate and ‘necessary in a democratic society’.

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Police have have several different powers of stop and search, including s1 of the Police And Criminal Evidence Act (PACE) (1984), as well as s60 Criminal Justice and Public Order Act (CJPO) (1994). These powers differed in that s1 PACE (1984) contains the safeguard that a police officer must have ‘reasonable suspicion’ as grounds for the search, whereas s60 CJPO (1994) does not require any such suspicion.

s1 PACE (1984) grants police officers the power to stop and search individuals if they ‘reasonably suspect’ that they will find stolen or prohibited goods. This statute is however, to be used alongside a code of practice, code A. Code A determines the scope and power for stop and search. 

s60 CJPO (1994) was originally enacted to control violence associated with football hooliganism, but has since evolved and is now used as a means to curb the use of weapons and counter gang violence.  Under s60, any police officer of the rank of inspector or higher may make an authorisation that s60 powers are exercisable in his or her police area, for up to 24 hours. To do so they must believe that, ‘incidents involving serious violence either may occur or have occurred’ and an authorisation is ‘expedient’ to either prevent that violence or attempt to locate the dangerous weapons or instruments. When this authorisation is in effect, any officer in uniform may stop and search any pedestrian or vehicle for offensive weapons or dangerous instruments, without any requirement for reasonable suspicion. 

Similarly, s44 and s45 of the Terrorism Act (2000) allowed police officers to stop and search anyone, at any time, without any requirement for reasonable suspicion. Police officers were not required to give any reasonable grounds for the stop and search of citizens. In the case of Gillan, it was ruled that there were no adequate safeguards in place to protect individuals from harm under the Terrorism Act, and so the search was found not to be in accordance with the law, and s44 and 45 were repealed due to their arbitrary nature.
Despite the repeal of this statute, suspicion-less search under s60 of the CJPO Act remains, albeit with the additional safeguard of a ’24 hour’ limit. In the case of Roberts, Mrs Roberts, a woman of African-Caribbean heritage, brought a claim for judicial review after she was stopped and searched under s60, after giving a false name to ticket inspectors. She claimed her Article 5, 8 and 14 rights had been breached. The court dismissed the appeal, holding that it cannot be held from Gillan that every suspicion-less search would fail the requirement of lawfulness. The use of suspicion-less stop and search creates obvious concerns, if police officers were not required to give a reason for the stop and search, it could not possibly be known whether the reason for the stop and search was discriminatory or not.

Police can also stop and search individuals at borders, with no reasonable suspicion requirement under Paragraph 2, Schedule 7 of the Terrorism Act (2000). This was seen in the case of Beghal, and the breach of her Article 8 right was held to be both in accordance with the law and proportionate, however in this case there are larger policy issues concerned. In preventing terrorism and international crime, which is a huge concern, it seems necessary to breach the rights of a few in order to protect the majority by preventing terrorism, as opposed to s60 CJPO powers, which are domestic. The court also found that there were sufficient safeguards in place, as Schedule 7 was only applicable to those passing through airports and ports.

Under s 2.2 of the Code of Practice A, the police officer must form a ‘genuine suspicion in their own mind’, which must be ‘reasonable’ and based on ‘objective’ reasons. This is intended as a safeguard to prevent power being used arbitrarily. Officers as a result cannot breach individuals Article 8 right without a necessary reason, in this case, his reasonable suspicion. Yet, the reasonable suspicion of a police officer is in itself inherently subjective. Every individual officer will have had his own personal experiences, influencing his thought processes and it is extremely unlikely that he is free from pathologies, particularly in his privileged position as a police officer. For this reason, it is difficult to ever ensure his suspicion is objective. 

Lady Hale and Lord Reed have previously accepted that any random and suspicion-less power ‘carries with it the risk that it will be used in an arbitrary and discriminating manner in individual cases’, but stressed the benefits to the public of such a power. As Lord Neuberger and Lord Dyson pointed out in the case of Beghal, it is the randomness and therefore unpredictability of the search that has the deterrent effect, and also increases the chance that weapons will be detected. There is a clear legitimate aim to the suspicion-less search, to prevent violence, and this measure is connected to the legitimate aim. However, there has been much debate about whether the use of suspicion-less stop and search, and stop and search in general, is necessary and proportionate.

The College of Policing conducted a study which found that stop and search does not significantly reduce crime. The results from their study were that ‘higher rates of stop and search (under any power) were associated with very slightly lower than expected rates of crime in the following week or month.’ This may suggest that the legitimate aim of stop and search is not being met, it does not reduce crime successfully, and so the use of it could be argued to be an unnecessary breach on our rights. 

In 2014, the home secretary of the time Theresa May, addressed these concerns in parliament in launching a new scheme to ‘reform the use of stop and search powers’. She acknowledged that when stop and search is misused it can be ‘counter-productive’. When innocent people are stopped and searched for no good reason it can be ‘hugely damaging to the relationship between the police and the public.’ The ‘Best Use of Stop and Search scheme’ is designed to contribute to a significant reduction in the use of stop and search, improve stop-to-arrest ratios, and lead to better snd more intelligence-led stop and search, rather than random suspicion-less search. As of 2015, 19 of the 43 forces were still not complying with this scheme.

There has as a result been a huge decline in the use of stop and search. As of the year ending March 2015, there were 541,000 stops and searches conducted by police in England and Wales, a fall of 40% compared to the previous year.  99.8% of these searches were conducted under s1 of PACE (1984), with only a very small remaining number of searches conducted under s60 CJPO Act (1994). This shows an obvious disuse of suspicion-less search, however, in 2017, the Metropolitan police commissioner defended the use of stop and search, and vowed to fight the perception that it is used disproportionately against black and asian communities.  This is despite overwhelming evidence that stop and search is used discriminatory and warnings that an increase in stop and search would further alienate communities. In 2010, it was found that if you are a black person, you are six times more likely to be stopped and searched in England and Wales than a white person, and if you are asian, twice as likely. The highest number of ‘excess’ stops and searches was seen in London, where a high percentage of the black and asian population live. 

In conclusion, I think that reasonable suspicion clearly is important in safeguarding individuals rights, and it has prevented the complete arbitrary use of statutes to suspicion-less search individuals as was done under s44 and 45 of the Terrorism Act. Additional safeguards have been put in place in the remaining powers of suspicion-less stop and search to protect individuals. However, I do not believe that the reasonable suspicion safeguard still in place under s1 of PACE and Code A is an adequate safeguard, there is still overwhelming evidence that stop and search is still being used in a discriminatory and dividing manner as it is entirely subjective, despite claims it is objective. I believe additional stronger safeguards need to be put in place, amongst all stop and search powers.

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