Freedom of the Person: Stop and Search

3 relevant laws:

·         PACE 1984

·         Terrorism Act 2000

·         Criminal Justice and Public Order Act 1994

 s.1 PACE: power to stop and search

Guidance in Code A

S.3 and S.2 PACE: Procedures to be followed before, during and after a search has been carried out.

PACE: has origins in recommendations of Royal Commission on Criminal Procedure

• Is power being exercised in an appropriate place?: S.1(1)(a) Police and Criminal Evidence Act, or PACE-power can only be exercised in any place to which the public/section of the public has access to; can’t be exercised in a dwelling
• Does the Police Officer Suspect that he will find stolen or prohibited articles?: Police constables can’t search a person or vehicle under S.1 ‘unless he has reasonable grounds for suspecting that he will find stolen or prohibited articles

Stolen articles=any articles that have been stolen

Prohibited articles=

• Offensive weapons
• Articles made/adapted/intended for use in burglary, theft, taking motor vehicle without consent, deception

Code A paragraph 2.2: There must be an objective basis for reasonable grounds for suspicion.  Must be a specific reason for stopping a person.

Reasonable grounds: cannot be supported by personal factors (race, clothing etc.), generalisations, stereotypical images

Must be based on a range of factors such as info or intelligence, possibly a person’s behaviour (suspicious behaviour)

Gardner v King: A police radio message was not reasonable grounds for suspicion

Equality Act: Race equality duty: unlawful for the police to racially discriminate in using their powers

S.1: the power to stop and search NOT question

Code A: “There is no power to stop or detain a person in order to find grounds for a search”

The police must question a person before the search.  If a satisfactory explanation for suspicious behaviour is provided then no search should take place.

Legality of stopping a person=depends if there are grounds for reasonable suspicion before the stop is made

Tomlinson v DPP: prevalence of drugs in an area cannot justify the detention and search of an individual

S.2: Police officer must inform person of 5 things before search of that person/their vehicle:

• Officer’s name and the name of the station they are attached to
• Grounds of authorisation for the search
• Right of person searched to request a record of the search
• Object of the Search
• Officers not in uniform must produce identification to prove they are an officer (O.G.R.O.O)

This ensures a person has sufficient info to challenge the stop and search later/make a complaint

Fenelly: The defendant wasn’t told why he was stopped, searched and arrested, so evidence produced by the search was excluded at trial.

R v Bristol: There was failure to provide necessary info,e.g.name and station attachment, so the search conducted was illegal.

S.3: an Officer that has stopped someone under PACE must make a written record of the search  unless it is not practicable/there are exceptional circumstances.  Where it isn’t practicable, it should be done as soon as possible

S.3: Record must include:

• Classification of the person’s ethnic origin (can monitor for discrimination)
• Object of the search
• Grounds for making the search
• Date/Time/Place
• Result of the search
• Identity of the constable/officer

The record proves the search took place, also that there is justification and authority.  Also allows for complaint.

PACE has no guidance on how a stop and search should be carried out: Code A sets out the principles for the use of stop and search power:

• The powers of stop and search must be used fairly and responsibly without unlawful discrimination and with respect for the person.
• The intrusion of liberty for the person stopped and searched must be brief
• All stop and searches must be carried out with courtesy, consideration and respect for the person
• The amount of time used for a stop and search must be kept to  minimum
• Searches must take place near the place the person was stopped
• If principles aren’t observed, use of stop and search powers might be questioned.

These principles give the person searched some dignity while the police do their job.

• There’s no power to require removal of any clothing in public other than outer coat jacket and gloves
• Search in public of a person’s clothes that haven’t been removed must be a superficial examination e.g. pockets, collars

Shoes and socks can also be searched as well as hair, subject to the rules on removal of headgear.  There is no requirement for any of these items to be removed and under PACE an officer cannot make a person take off headgear.

Where, on reasonable grounds, a more thorough search is required: must be done by an officer of the same sex out of the public view i.e. police van

Restrictions on headgear not applicable to stop and search under Terrorism Act 2000 or S.60AA Criminal Justice and Public Order Act 1994.

S.117 PACE: power to use reasonable force when executing police powers; any police power

Terrorism Act: there is a broad definition of terrorist under act, so more people may be subject to search.  2 powers of stop and search under this Act:

• S.43: Power to stop and search anyone the constable reasonably suspects to be a terrorist for evidence that the person is a terrorist.  There is no need to suspect that an offence has been committed or prohibited articles are being carried.
• S.44: Power to stop and search a person where there is no reasonable suspicion that they are a terrorist.  Can only happen where authorisation has been granted in a particular area.  Authorisation only lasts 28 days; but can be continually renewed.  Authorisation is given where  it is thought to be ‘expedient’ for preventing terrorist acts.  ‘expedient’ doesn’t=terrorist acts are thought to be likely

Gillian and Quinton v the UK: S.44 power challenged in the ECtHR.  It was ruled that the powers were an illegal breach of Art 8: So broad, no safeguards against abuse

July 2010: Government announced suspension of S.44 power.  Power reviewed; recommendation for repeal

S.59-62 Protection of Freedoms Act 2012: amended Terrorism Act 2000; replaced S.44 power with new stop and search powers in S.47A of Act.  Test for authorising S.47A powers: Senior Officer must:

Reasonable suspect an act of terrorism will take place; AND

Considers the powers necessary to prevent such an act

Safeguards include; reduction of maximum authorisation from 28 to 14 days.  Also, there is a requirement that the size and length of authorisations be no more than necessary.

Crimina Justice and Public Order Act 1994: Power applies to certain specific locations at certain times where a senior officer, believing additional powers are necessary, has given authorisation.

Where authorisation is given in a locality, S.60 allows:

•         A police officer in uniform
•        To stop and search pedestrians/vehicles and drivers and passengers
•          For offensive weapons/ ‘dangerous instruments’
•        Whether or not he has any grounds for suspecting the person/vehicle is carrying such articles

S.60: ‘dangerous instruments’= ‘instruments which have a blade or are sharply pointed’.

Safeguards under S.2 PACE apply to S.60 stop and searches.

•          Officer must say name and police station they are attached to
•          Grounds of authorisation for search
•          Right to request a record of the search
•          Object of search
•          Officers not in uniform must produce identification to prove they are police

Osman: A S.60 search not in compliance with S.2 PACE isn’t legal; so the officers in this case couldn’t be assaulted in the execution of their duty

Officer of rank of inspector (or above)

•          Reasonably believes;
•          ‘incidents involving violence in any locality in his area’; AND
•          It’s expedient to authorise such powers to stop such an occurrence.
•          Officer of Rank of Superintendent must be informed of use of power as soon as is practicable.

·         Authority is given in regard to any place in the locality for up to 24 hours
·         Can be extended for up to 24 hours if it appears  to officer that gave the authority/Superintendent  that it’s expedient to ‘having regard to offences which have, or are reasonable suspected to have, been committed in connection with any incidents falling within the authorisation’.

·         The period authorised should be no longer than appears reasonable necessary to prevent incidents of serious violence

It’s for authorising officer to determine what may reasonably amount to a locality. The officer shouldn’t set a wider area than he believes necessary for the purpose of preventing the anticipated violence.

S.60AA CJPOA: Power to require removal of face covering.  But; Officer must believe that such item is worn wholly/mainly for the purpose of concealing identity.

There’s no power to stop and search for disguises.