Keywords: police powers stop and search, stop and search racism, stop and search effects
The power to stop and search has been a prominent policing tool since the Vagrancy Act of 1824. The briefing, Series 2, Edition 3 – March 2012 , it has come under regular legal, political and societal scrutiny because of its broad and discretionary use by its police officers. However has also been praised as it has not only combated crime however prevented criminal acts happening as police can stop and search anyone who they have reasonable suspicion are carrying weapons, stolen goods or going equipped for stealing. Stop and search is extremely subjective in the view that we must trust the officer’s views are wholly unbiased and prejudice and there is no untoward intent of the officer when using stop and search legislation.
Since the very onset of the enactment of legislation in this area of police discretion, there has been controversy because of the subjectiveness afforded to police officers; the controversy being this discretion may be abused. Also the broad term of ‘reasonable suspicion’ and what is seen as reasonable. There are also fundamental human rights breaches that have been evident in much of the case law.
Stop and Search is now governed by 2 statutes; stop and search with arrest situates under the police and criminal evidence act 1984 whilst a stop and search without an arrest comes under section 60 of the criminal justice and public order act. Section 60 of the 1994 criminal justice and public Order Act was introduced to originally tackle people going to illegal raves which were a major problem in the 1980’s and early 90’s. It gave police the power, if they feared violence or disorder, to stop and search suspects at a specific time and place. I will further be discussing the controversies surrounding Police stop and search and concluding with my own views on this subject.
Before the introduction of the police and criminal evidence act in 1984, the police stopped and searched individuals under what was called the ‘sus’ law. This being because the police only had to have suspicion on their part in order to stop and search an individual, it did not need to be reasonable. The only national stop and search legislation was for the pursuit of drugs and firearms, unlike now with the introduction of the Terrorism act and Sporting event act. Eventually the Brixton riots in 1981 brought a stop to the use of the ‘sus’ provisions due to the negative relationship it caused between the police and the public, in particular, ethnic minorities. Lord Scarman’s Inquiry into the Brixton riots acknowledged that stop and search was a necessary tool to combat street crime and petty crime but expressed genuine concerns over the extent to which the ‘sus’ laws were used in regards to the police officers own prejudices and views. In 1999 Stop and search came under scrutiny yet again during the Steven Lawrence murder enquiry, when Lord Macpherson revealed the shocking disproportionate amount of stop and searches in ethnic minorities, which in turn led on to accusing the police of holding prejudices and being institutionally racist. Lord Macpherson called for stop and searches, whether or not they resulted in an arrest to be recorded so that officers could be monitored and held accountable for if any racially aggravated stop and searches were made.
Police work and especially stop and search works on the provision of reasonable suspicion and discretion. Discretion, although many may disagree, is not doing as you please. Discretion is bound by norms, thus including; professional norms, correct community norms, legal norms, and moral norms. Philosophers such as Ronald Dworkin and H.L.A. Hart have cleverly referred to discretion in the police force as “the hole in the doughnut” ; doughnut theory of discretion, Dworkin described discretion as a donut because “it is not free-standing but part of a process. Discretion, like the hole in the doughnut, does not exist except as an area left open by a surrounding belt of restriction. Discretion is not outside the law but internal to the law”  and “where the law runs out”; natural law theory. Thus meaning “unwritten law” that is more or less the same for everyone everywhere, based on customary behaviour. In other words ‘Unwritten law’ is the body of morals and principles everybody obeys and lives by. This idea refers to discretion as the empty area in the middle of a ring consisting of policies and procedures. It is an empty space inside of the law surrounded by statues and rules.
Police discretion and the way it operates can be explained by 3 broad terms; individualistic cultural and structural.
Individualistic explanation states that police work and the ‘macho’ image of the police attracts people with authoritarian personalities, research however carried out by Waddington (1999a) does in fact not support this view and states that police recruits are not more authoritarian then normal civilians. Brown and Willis (1985) and Fielding (1988) explained how the training process for these new recruits has a temporary liberalizing effect however exposure to permanent practical police work leads to an authoritarian perspective and outlook.
The work of Zimbardo may give some explanation as to the sudden behaviour change in these new police recruits. Zimbardo (1973) conducted the Stanford prison experiment as he wanted to study conformity and was interested in finding out whether the rough treatment reported among guards in American prisons was due to the authoritarian personalities of the guards or had more to do with the prison environment. He took a group of 75 volunteers whom he tested for psychological normality’s, and assigned them to either the role of the prisoner or prison guard. For every 9 prisoners they had 3 guards. They put them in a prison environment and watched as each volunteer began adapting to their roles. The findings were phenomenal, Within hours of starting the experiment the prison guards began to act in a sadistic manner, dehumanizing the prisoners and some even began tormenting and bullying them and alongside this the prisoners began conforming to their newly established roles by taking the rules very seriously and become depressed and ‘telling tales’ on their fellow inmates. Perhaps this experiment and its findings can give an explanation on the alleged view that police recruits adopt an authoritarian perspective perhaps due to its ‘macho nature’ and the control they have suddenly been ascribed. Zimbardo concluded after the experiment that people will readily conform to the roles they have been ascribed, especially when they are strongly stereotyped.
Canteen Culture could also give an understanding of the individualistic explanation and racism.
The police must work as a united front to not only protect the public however to also protect each other so therefore, therefore due to the close proximity of the officers in the police force it is only inevitable officers will begin to conform to certain beliefs and values held by their colleagues, especially if they are outspoken about these. Canteen Culture, Ike Eze-anyika, Faber and Faber (20 Mar 2000).
“Police sub-culture ( Canteen Culture) is often portrayed as a pervasive, malign and potent influence on the behavior of officers. The grounds for this portrayal are, however, insubstantial and appear to rely more upon the condemnatory potential of the concept than its explanatory power.”
The cultural explanation of police discretion as said by Skolnick talked about this in a different way by identifying 3 main aspects of police culture and discretion, there is a suspiciousness which they have against certain groups of potential criminals that they treat with prejudice, there is the internal solidarity and social isolation which I believe both internal and support each other; solidarity in which the police must remain a force which supports each other as police individuals against danger in the streets and also the social isolation in terms of because of this solidarity the police have it creates more of a rift in society between the protectors and the protected. This creates citizens feeling like they are just stereotypes viewed by the police and they cannot complain about the police because of this solidarity they have or that they are just merely subjects without autonomy.
New research from the official human rights body reveals racial disproportionality in the amount of Stop and searched being made. Police forces are still more likely to use stop-and-search powers against black people than white people, stopping black people up to 28 times more and therefore may be breaking the law due to breaching their powers and wasting police time. The police force has been accused of being predominantly occupied by white middle class males with old fashioned work practices and “who’s face fits.” A report by the equality and human rights commission reviewed the police force 10 years after the Steven Lawrence inquiry, in which Lord Macpherson branded the Police and Its Officers as institutionally racist. The report found a huge amount of black men on the national DNA database as appose to other ethnicities.
The power is used most by the Metropolitan police, which carried out three-quarters of the stops between 2008- 2011, almost 258,000 in total. Although they could hold the largest amount due to the population size in the metropolitan districts. The next heaviest user of these powers was Merseyside with 40,940 stops.
Due to these extortionate figures it was established that something must be done and also perhaps that many of the people they stop may not be educated in this subject and may not necessarily know their rights. A mobile application was introduced early 2012 to inform the users of their rights when being stop and searched. Many people may be unaware that The police have to follow the correct code of conduct when stop and searching an individual; An officer should tell you their name, the reason why you have been stopped and the power that you are being stopped under. They should also give you their badge number, the name of the police station and provide you with a receipt at the end. This app tells the user their rights when being stop and searched. This could be either a blessing or a curse. Perhaps if the user of the mobile application was aware of their rights they could stop any mistreatment or exploitation, However on the other hand if there is a large amount of ‘clued up’ young people then when they do get stop and searched they may feel very confident and start telling the police how to do their jobs and maybe even state that the police did not follow one of the rules even when done so just to get out of an arrest or fine etc. h
Although the police force have been branded institutionally racist It could be argued that the police get these racist perceptions from the media. If one crime has been reported, eg- a mugging, the media have been known to blow this story out of proportion and create a societal panic. Pearson was writing in the 1970’s, during the time when ‘muggings’ and the moral panic surrounding it was rife. The word ‘mugging’ was an invented word to describe a theft against a person, the media stated that muggings were spiralling out of control and were a new dangerous crime.
The media were also highly racist and said the crime was committed most by young black males thus resulting in the police using their stop and search powers more and especially on young black males, which in turn led to the police recovering more illegal articles and led to more arrests. This only because the police stop and searched more people. With these new figures young black males were then labelled as ‘thugs’ and deviant and therefore left people and also the police with a negative perception towards young black males. This has also been seen lately with the knife crime moral panic and also the London riots as the media stated that working class undeducated young males from broken families decided to revo
The police force is stereotypically renown for being a macho profession, and there perception of their job role should be on the streets searching for true criminals; murderers, rapists etc, however they are on the streets stop and searching individuals for petty crimes in most cases. They therefore perhaps to gain some job satisfaction feel they have to find prohibited articles or make an arrest and fight crime therefore they want to find criminals instead of being satisfied that there are no criminals which could result in a high amount of stop and searches. They have work pressures that determine their career on the basis of how many arrest they make and illegal articles they find. They therefore obtain their job satisfaction by finding criminals, by stop and search, rather than being satisfied that they live in a society where there are no criminals. On the other hand with the higher volume of stop and searches results in a higher amount of arrests which shows that justice is being done and therefore heightens the morale of the police officers who are fighting the more every day street level crime.
Along with lord Macpheresons statement he released during the enquiry into the steven Lawrence case and also Lord Scarmans statement during the Brixton riots in which he claimed that the police abuse their powers yet again Stop-and-search powers have come under criticism again when they were ruled illegal by the European court of Human rights in January 2010. The Strasbourg court has been recently hearing a case involving two civilians who were stopped near an arms fair in London in 2003.
The court heard the case of Kevin Gillan and Pennie Quinton who had been stopped outside the Defence Systems and Equipment International exhibition at the Excel Centre in London Docklands in 2003, Both individuals were held for twenty to thirty minutes. The court stated that their right to respect for a private and family life was violated. The European Court of Human Rights also said their rights under Article 8 of the European Convention on Human Rights had been violated.
Section 44 of the Terrorism Act 2000 gives power to the home secretary; Theresa May, to authorise the police force to make random searches in certain circumstances, but The court said the stop and search powers were “not sufficiently circumscribed” and there were not “adequate legal safeguards against abuse”. Subsequently both individuals were awarded 33,850 euros (£30,400) to cover legal costs.
Lord Carlile; the government’s independent reviewer of anti- terrorist legislation stated, “In my view, section 44 is being used far too often on a random basis without any reasoning behind its use…The fundamental point that the court is making is that it increases the possibility of random interference with the legitimate liberties of the citizenâ€¦On the other hand, we have to be safe against terrorism. There is therefore a very difficult balancing exercise to be done and I’m sure Section 44 will come under intelligent scrutiny in the coming months.”
Speaking to BBC Radio 4’s The World At One, Ms Quinton said “It’s not about saying that there’s no need for stop and search. What we’re really saying is people have a right to privacy and there needs to be a balance between police powers to ensure our safety but also our rights to a private life.”
To conclude; the police force and more specifically the stop and search powers they hold have come under regular scrutiny by many different proffessionals; Lord Scarman, Lord Macphereson and the European court of human rights, to name just a few. The Police force works mainly on discretion and they are trusted upon to make the right decisions, act subjectively and have ‘reasonable suspicion’ however it is hard to define what is reasonable. This term is too broad and vague and a police officer’s perception of what is reasonable may differ from his colleagues. Another important point to remember is that each police officer has his own views and prejudices and even if they do not consciously work upon these prejudices they are still engrained into the officer and this may change or dim their view on certain individuals.
I believe police should work with discretion to not only to protect the public however also themselves against any foreseeable danger. Police officers get into numerous situations daily and therefore too many laws would be needed to govern every situation in which discretion is used.
On the other hand, the stop and search figures brought to the public’s attention over the last two decade do indicate levels of racism in the police force however with more and more ethnic minorities and also women beginning to occupy the force there is no room for racism or sexism. Society is rapidly changing alongside people’s perceptions of other races.
Finally, I strongly believe that stop and search over the past years has caused a lot of controversy. The concept of stop and search; stop anybody whom you believe to be reasonably suspicious, does seem to work on paper however in practice the officers deeply engrained morals and prejudices seem to subconsciously effect their work which is evident in past figures. Further along Stop and Search does also need reforming due to the very public way in which the individual is stopped which leads to labelling by passing people, even if the individual is completely innocent.