Stop and search

The Home Secretary has announced significant changes aimed at strengthening the exercise of police powers of stop and search in response to the rise in knife crime in England and Wales

  "Knife Crime" by the justified sinner. CC BY-NC-SA 2.0

Fatal stabbings in England and Wales rose last year to the highest point since records began. Understandably, the government has felt under intense pressure to be seen to be responding effectively as the sustained rise in knife crime shows no sign of abating. Part of its strategy, announced a few weeks ago by the Home Secretary, is aimed at strengthening the exercise of police powers of stop and search. This reflects the adoption of a tough ‘law and order’ approach in which ‘stop and search’ is presented as “a hugely effective power when it comes to disrupting crime, taking weapons off our streets and keeping us safe”.

The reality is that police officers in England and Wales already possess and use an extensive array of powers to stop and search. Not only have they proved ineffectual in combating knife crime, but they also have a notorious record of alienating and provoking violence among low-income, ethnic minority and marginalised communities. There are compelling reasons to think that the announced changes will have no effect on the former, but will further deepen the latter.

Police powers of stop and search in England and Wales can be traced at least as far back as the Vagrancy Act 1824. Today, they can be found across a range of statutes, most notably the Police and Criminal Evidence Act 1984 (PACE), the Criminal Justice and Public Order Act 1994 (CJPO), the Misuse of Drugs Act 1971 and the Terrorism Act 2000. At their height in 2008/09, these powers were used to effect more than 1.5 million searches in a single year. As a result of reforms introduced by Theresa May, as Home Secretary in 2014, that number fell steadily to 277,000 in 2017/18; although it appears to be on the rise against.

The vast majority of stops are made under section 1 of PACE. This empowers a police officer to stop and search anyone whom he or she has reasonable cause to suspect is carrying an offensive weapon or an article with a blade or point (among other things), either of which will readily encompass a knife.

Critically, the section 1 power requires the officer to suspect, and to have reasonable grounds to suspect, that the person is carrying a knife (or other relevant item). Nevertheless, very few such searches result in finding a knife, and less than ten percent of the searches actually result in an arrest. This suggests that the power is used excessively and unnecessarily. Indeed, scrutiny by HMIC shows that in more than one quarter of the incidents in which the power was used, the constable in question did not have reasonable grounds for the search. In other words, the stops were not predicated on evidence that the targeted persons were carrying a knife (or other prohibited item). It is hardly surprising, therefore, that the section 1 power is not proving an effective tool in combating knife crime.

An even deeper concern with this search power, and search powers generally, is the compelling evidence that it is used in a grossly discriminatory manner against black people. In 2014/15 a black person was 4 times more likely to be stopped and searched than a white person. Bizarrely, as the number of stops and searches dropped pursuant to the 2014 reforms, their disproportionate targeting of black people actually increased. Home Office figures show that the multiple of 4 in 2014/15 had increased to a multiple of 8.5 in 2016/17 and again to 9.5 in 2017/18. Yet, research carried out by the London School of Economics shows that there is no robust evidence that black people are more involved in crime than white people. Indeed, the searches of black people are less likely to reveal prohibited items etc than the searches of white people. It is difficult to avoid the deeply disturbing conclusion that the colour of a person’s skin will be a vital factor in a police officer’s decision whether to subject him to a stop and search in a relevant situation.

The disproportionate targeting of stop and search against black persons (especially young black males) and marginalised ethnic minority communities is not new. Resentment caused by such practices fuelled the Brixton riots in 1981, and was a factor in the 2011 London riots. More broadly, it is readily identified as a key ingredient in alienating such communities from the police and the State. There is very sound reason to believe that the government’s strategy to expand the use of stop and search will fail to curb knife crime, and will further target black people unfairly and disproportionately.

Significantly, the government is intent on expanding the stop and search power under section 60 CJPO, instead of that under s.1 PACE. The former is distinctive in that it empowers a police officer of at least the rank of inspector to issue an authorisation in respect of any locality in his or her police area. An authorisation can be issued where he or she reasonably believes that incidents involving serious violence may take place in the locality and that it is expedient to issue an authorisation to prevent their occurrence. An authorisation can also be issued in other circumstances, including where the officer reasonably believes that persons are carrying dangerous instruments or offensive weapons (such as knives) in that locality.

Typically, an authorisation will apply to designated streets or public places in an urban area and will last for up to 24 hours. They can be extended for up to 24 hours by an officer of at least superintendent rank

When an authorisation is in force in respect of a locality, any constable in uniform may stop and search any person for a dangerous instrument or offensive weapon in that locality. Critically, the constable does not need to have any prior suspicion against the person stopped and searched. It is a power to stop and search at random. This contrasts markedly with the section 1 PACE power where the constable must suspect that the person is carrying a relevant item (eg. a knife) and must have reasonable grounds for that suspicion. By removing these pre-requisites for a stop and search, section 60 CJPO effectively makes the constable master of the street in a locality covered by an authorisation. He or she can stop and search any person there at random and for any purpose. It is a criminal offence for the person concerned to refuse to submit.

The section 60 power is clearly more intrusive on the freedom, bodily integrity and privacy of the person than the much-abused section 1 PACE power. Significantly, the European Court of Human Rights in Gillan and Quinton v United Kingdom (2010) found a similar power under the Terrorism Act 2000 in violation of the Article 8 ECHR right to privacy because it could be used in the absence of reasonable suspicion against the person concerned. Admittedly, there were some differences in the regimes surrounding the two powers, but the key flaw identified in Gillan and Quinton was the fact that the power could be used to stop and search persons on the street arbitrarily. Section 60 suffers from the same flaw.

It can also be expected that the section 60 power will be even less productive in terms of finding knives, and much more discriminatory against people of black skin, than section 1 PACE. Freed from the (admittedly weak) shackles of the reasonable suspicion standard, the section 60 power is likely to be used more frequently in situations where there are little prospects of finding a knife. At least the section 1 PACE stops are supposed to be evidence based in the sense that they should only be used where there is a prior reasonable suspicion that the targeted person is carrying a knife etc. The section 60 CJPO stops, by contrast, can be effected lawfully on an entirely random basis; with no need for a prior suspicion of any kind that the targeted person is carrying a knife etc. Anyone in a locality subject to an authorisation can be stopped and searched at any time on the street in that locality at the whim of any unformed constable.

A key question is which localities are likely to be the subject of an authorisation from time to time. The current statistics on stop and search as a whole point the finger unmistakably at localities in which there is a high concentration of young black males. As the section 60 option is expanded and used more frequently, these will become ‘suspect’ communities in which the residents are controlled by a regime of random stops and searches on their own streets. Not only is this a gross assault on the rights and status of the individuals and communities affected, but it will also alienate and marginalise them even further.

The government’s strategy will merely accentuate these negative consequences of section 60 operations without producing any tangible benefits in reducing knife crime. It reverses key policy reforms which were introduced in 2014 in an attempt to inject greater transparency into the use of stop and search powers and to increase public confidence that the powers were being used fairly, lawfully, effectively and, ultimately, in a non-discriminatory manner. Key changes being introduced now are that section 60 authorisations can be issued by an officer of at least inspector rank and that he or she can issue an authorisation on the basis of a reasonable belief that incidents of serious violence may occur.

It will be noticed, of course, that these changes do not entail any change in the law. They do, however, reflect a significant reverse in the policy reforms introduced in 2014. The latter reserved the issue of authorisations to senior officers above the rank of chief superintendent, and restricted them to a reasonable belief that incidents involving serious violence will occur. By relaxing these constraints, the government has cleared the way for a more intensive use of the draconian section 60 power. The changes will be introduced initially for up to one year across seven major urban police areas, namely: London, West Midlands, Merseyside, South Yorkshire, West Yorkshire, South Wales and Greater Manchester.

The reality is that section 60 searches have been rising steeply long in advance of the announcement of the government’s new strategy. It rose from a low of 630 in 2016/17 to 2500 in 2017/18; a quadrupling in a single year. This reflects the fact that the London Metropolitan Police LMP had already increased their use of section 60 searches in 2017/18 in response to the spike in stabbings there. It is painfully obvious that they have had no tangible effect in reducing knife crime. There is no reason to believe that the more extensive and intensive use of section 60, heralded by the government’s strategy, will have any greater success. One would have to suspect that the new policy is being driven by political expediency, and the price for that will be paid in the even deeper alienation and marginalisation of the very people and communities that the police and government must reach in order to turn the problem around.

Ultimately, we cannot stop and search our way out of the knife crime problem. Indeed, more intensive use of arbitrary stop and search is much more likely to be counterproductive as it will accentuate underlying factors that are fuelling knife crime. More positive and creative approaches that target these underlying factors are required. Scotland offers a promising lead on this front.  It adopted a public health approach to knife crime with the establishment of a Violence Reduction Unit in 2005. Ten years later, fatal incidents had more than halved. The new Unit has worked to divert actual and potential gang leaders and members from their violent activities through the development of alternative outlets such as youth clubs, training and work. This is combined with doctors and teachers taking a direct role in educating and alerting young people to the harsh reality of knife crime.

The public health approach does not dispense with the need for police powers of stop and search, but it offers a more positive alternative to a policy that has already shown itself to be more part of the problem than the solution. It is highly unlikely that the latter will pay dividends in combating knife crime, but it will almost certainly ensure that stop and search remains a matter of acute concern in policing, the rule of law and the health of our democracy.

Download the May 2019 edition of Criminal Justice Notes