• Charles E.Cheadle

A Critical Assessment of the Police and Criminal Evidence Act 1984


The USE, IMPACT and EFFECTIVENESS of Police Stop and Search powers since the Police and Criminal Evidence Act 1984


It is now almost four decades since the Police and Criminal Evidence Act 1984 passed into law (PACE), giving important powers to the police, including the investigative power to stop and search an individual suspected of committing a crime.[1] Because most stops and searches in England and Wales are conducted under PACE, and their application remains controversial, the way the police use stop and search has to some extent become a ‘litmus test’ for determining the effectiveness of policing as a whole.[2]


This study aims to establish the extent of misuse, if any, of stop and search powers, both before and after the powers were codified by PACE, in order to determine whether criticism of these maligned powers is fair or whether the police have struck a satisfactory balance between using these powers to control crime whilst respecting the fundamental human rights of English and Welsh citizens, measuring the efficacy of the police by whether their use of stop and search has brought about a reduction in crime and disorder.


‘Policing by consent’

Unlike police states, such as Hitlerite and Stalinist dictatorships, which gave police such as the infamous Gestapo unchecked powers to operate above the law, British police derive their authority from the consent of the people. Sir Robert Peel, who has come to be considered the “father of modern policing”, introduced the concept of ‘policing by consent’ in his “Nine Principles of Law Enforcement” in 1929. Intended to create an ethical police force, Peel issued every officer with “General Instructions” which remain relevant today and hold the police are the people and the people are the police. [3] Although the police require consent of the people as a whole, rather than an individual who alone cannot withdraw consent for the police or the law, it remains critical the police secure voluntary cooperation of all citizens in observing the law.


‘Representative democracy’, the ‘rule of law’, ‘equal justice’ and ‘human rights’

American historian Wilbur Millar referring to British democracy, described “London’s Metropolitan Police as the first modern police force in a nation with a representative government”.[4] As such, a stop and search of an individual will only be lawful where the police respect key democratic principles by adhering to the rule of law, ensuring equality before the law and protecting fundamental human rights. The rule of law, defined as "the authority and influence of law in society, especially when viewed as a constraint on individual and institutional behaviour”,[5] effectively determines that no one citizen is above the law and everyone must obey the law. The basic promise of the British legal system that all laws are just and applied equally to all citizens, is further enshrined in the Universal Declaration of Human Rights 1948, Article 7.


The nature of civil liberties has to some extent changed since PACE came into force. The Human Rights Act 1998, (HRA) incorporating rights set out in the European Convention on Human Rights into domestic British law, sets out fundamental rights and freedoms that British citizens are entitled to enjoy.[6] It is therefore now necessary English law governing stop and search, in this study PACE, complies with the requirements set by the European Court of Human Rights.[7] Thus, one of the main objectives of the British police force is to create an environment within which civil freedoms are protected and enjoyed by the majority.


However, when using these powers to protect citizens right to “liberty and security” i.e. to be kept safe from crime, the police necessarily infringe the rights of those subject to a stop and search which in law technically constitutes a deprivation of liberty under Article 5, HRA 1998.[8] However, Article 5 (2) provides circumstances where the police are allowed to interfere with these rights, provided they do so in accordance with the law and interference is necessary in the interests of national security, public safety, economic well-being, health and morals, or for the prevention of disorder or crime. Thus, carrying out a stop and search will be only be compatible with the 1998 legislation if the infringement is rational, proportionate and lawful. Therefore, as Section 1, PACE 1984, only gives police power to carry out a search on suspicion a person is in possession of prohibited articles, used otherwise, for example to collect intelligence, disperse groups of people or as a general deterrent, will be unlawful.[9] Further, as the police rely on the public agreeing to these powers, it is imperative the use of stop and search is kept under review to ensure an individual’s privacy is only interfered with in very limited circumstances to avoid undermining their authority.


Whilst it is perhaps inevitable conscientious officers, in the genuine belief it is in the public interest, will exceed and want to acquire further powers to strengthen their authority, history has taught us the dangers of police operating without legal constraint, ultimately resulting in the Holocaust in Nazi Germany and Purges in Soviet Russia. It is therefore vital human rights are respected and effective safeguards are in place to ensure the police do not abuse their power.[10]

If the study finds police officers mostly compliant with PACE and human rights legislation, one can surely assume they have achieved a good balance between crime control and interfering with civil freedoms. However, if police frequently exceed their authority, failing to uphold civil liberties and the rule of law, one must consider the impact this has on public trust which is vital to Peel’s concept of policing by consent.


Use and Impact of Stop and Search powers prior to PACE

In order to evaluate whether codifying stop and search powers has helped the police achieve this balance it is necessary to scrutinise the nature and impact of the use of stop and search powers prior to 1984. As there is no available statistical evidence, this study relies on empirical evidence of recorded events and government commissioned Inquiry’s in forming a judgement.

Prior to PACE, the police relied on piecemeal stop and search powers, such as those provided for in The Vagrancy Act 1824.[11] Becoming known as “SUS” laws, these powers allowed the police to stop any person found loitering in a public place on suspicion of intent to commit an offence, rather than a belief a crime had been committed. Professor of Criminology, Tony Jefferson explains, ancient SUS laws allowed police to “arrest and secure convictions based purely on suspicion of an impending illegality”.[12] Despite scope for misuse, there is a lack of recorded evidence to suggest widespread abuse of the power. Instead, the “Bobby” appears to have been revered both at home and abroad, representing popular ideals of crime investigation.[13] However, since the 1970’s this image has to some degree been undermined. In the context of industrial disputes, a precarious economy and mass unemployment in Thatcherite Britain, there is substantial evidence of a growing climate of racism, with a re-emerging National Front and hostility towards the government, leading to discriminatory use of stop and search powers against poor, inner city, black youths identified by the police as potential criminals. For example, the police justified a heavy use of SUS laws and a “flooding” of officers at the Notting Hill Carnival in 1976, which resulted in violence, as necessary because of a perceived threat of ‘black’ crime.[14]


Against growing antagonism, the police demanded both increased powers and a reform of criminal procedure. However, it was not police demands for more power but questions raised about their blatant disregard of Judge’s Rules, resulting in 3 innocent youths being jailed for the murder of mixed-raced male prostitute Maxwell Confait in 1972, which caused a major review of policing. Public concern and Sir Henry Fishers report into the Confait case resulted in a government appointed Royal Commission on Criminal Procedure in 1979, Sir Cyril Philips “noting there had been no complete review of police process undertaken in the 20th century”.[15] Reporting in 1981, the Commission, finding an “unsatisfactory” use of stop and search powers based on 16 local acts, proposed uniform powers and safeguards to apply across England and Wales, aiming to reduce the number of random and discriminatory searches. However, the “shopping list” of demands made by the Metropolitan Police Commissioner at the time, Sir David McNee, although not accepted in their entirely, appears to have led to the Commission sacrificing some of the protections they had proposed.[16]


At the same time, there is evidence the public’s attitude towards the ‘boys in blue’ was shifting from the admired flat-footed bobby on the beat to a more gritty, confrontational style of policing, exacerbating growing tensions with the black community in particular, and causing a decline in respect for police authority generally.[17] Riots in Bristol in 1980, and Brixton in 1981, where black youths fought the police and burned buildings, suggests the protections recommended by the Philips Commission were doomed from the start.[18] Further Insurgencies also breaking out in Toxteth, police using CS gas for the first time in England, made 500 arrests over 9 nights, and 500 officers were injured in the violence, 70 buildings incinerated.[19] There are accounts of at least 20 spontaneous outbursts of violence spreading across the country involving over 5,000 people within the month.[20]


The official aftershock of the riots is well documented. Community leaders claimed violence had been triggered by built-up resentment of heavy-handed and flagrant, invariably racist abuse of SUS laws which in practice had come to mean almost any black person between 13-30 years of age being arrested for “loitering with intent to commit an arrestable offence”.[21] Lord Scarman, in his “urgent inquiry” into the Brixton riots pointed to “Operation Swamp” as a contributing factor, in which 150 plain- clothed police officers had made 1,000 stops and 150 arrests over a period of 10 days.[22] Lord Scarman suggesting “complex political, social and economic factors” had created a “disposition towards violent protest”, did not explicitly condemn police racism. Instead, he recommended recruitment of more ethnic minorities into the force to improve trust, and stressed “urgent action” was required to ensure “racial disadvantage did not become an endemic, ineradicable disease threatening the very survival of our society”.[23]


Although the report appears to have been generally well received by senior police officers, the Metropolitan Police responded by releasing figures showing black people being disproportionately responsible for muggings in London. Suggesting an ‘underclass’ as the problem, the Metropolitan police went on to target “symbolic locations” where black youths were known to congregate.[24] In his 1983 memoir, Sir David McNee complained the police had been “political scapegoats” for government failures to address social problems and criticism of the police had been undeserved.[25] It took the Fisher Report, a Royal Commission, and the Scarman inquiry before the controversial SUS laws were finally replaced by PACE in 1984. Ironically, the catalyst for an increase in police powers was a finding that they were abusing those they already had.


Part 1, Section 1- The Police and Criminal Evidence Act 1984

Section 1 allows an officer to detain “any person or vehicle or anything in or on a vehicle” for the purpose of carrying out a search, limited to public premises by sub-sections (4) and (5).[26]

As under ‘SUS’ laws a ‘stop’ had technically amounted to false imprisonment, searching an individual an assault and carrying out a search of a vehicle a trespass, it is arguable PACE merely legalised existing police practice. More significantly, rather than based “purely on suspicion of an impending illegality”, an officer is now required to have “reasonable grounds to suspect an individual is in possession of stolen goods or prohibited articles” before a search is authorised, for example an offensive weapon; an absence of ‘reasonable grounds’ making any subsequent stop and search unlawful.


Code A of the Code of Practice

Although supplementary, and described as “notes for guidance” on interpreting PACE, compliance with the Code is mandatory, and any officer breaching it will be liable to disciplinary proceedings.[27] A14, provides, an officer’s decision to find ‘reasonable suspicion’ is to be made objectively, “based on facts, information and/or intelligence which is relevant to the

likelihood of finding an article of a certain kind which would lead an impartial third person to form reasonable suspicion”, for example, the nature of the property being carried or the time of day.[28]Current case law interpreting this requirement can be found in the 1980 case of Baker & Oxford in which the Divisional Court ruled “to suspect” implies an “imagination that something exists without proof”.[29] The standard is therefore lower than for an arrest which requires an officer to ‘believe’ rather than ‘to suspect’ in order to have reasonable grounds. Code A also makes it clear ‘reasonable suspicion’ cannot be based on “personal factors alone”, for example on age or race, thereby prohibiting the use of stereotypical images of certain groups to be used to form grounds for reasonable suspicion, such as believing black people are more likely to be involved in criminal activity. However, the use of the word ‘alone’ in the definition, allowed the police to use age, race, appearance or the fact a person was known to have a previous conviction, to form ‘part’ of reasonable suspicion, provided not the sole reason. Despite pressure from the Royal Commission, it took until 2009, 25 years after PACE came into force, for the word ‘alone’ to be removed, spelling out race or colour can never be a reason to stop someone, either on its own or in combination (other than where it is part of a witness description of a suspect).[30]


A stop and search will now only be lawful if it is compliant with PACE, human rights legislation, and respects key democratic principles of equal justice, i.e. it is legal, proportionate and non-discriminatory. As these new powers were intended to allow an officer to confirm or allay suspicions about a person without the need for an arrest, used correctly, it is arguable new powers should increase public confidence and reduce fear of crime in an area. This study investigates whether this aim has been achieved, considering evidence of any reduction in arbitrary use of this discretionary power.


Use and Impact since stop and search powers were codified under PACE – 1984 - 2008

A second major riot in Brixton in 1985 suggests codifying stop and search powers had no immediate effect in healing distrust or preventing violence between a largely white Metropolitan police force and a mainly Afro-Caribbean population. Sparked by the shooting of the mother of a black man suspected of robbery, the riot lasted 2 days, injured 50 people, and the police made 200 arrests.[31] It was nearly 20 years, before the police issued an apology for 8 police “failings” found by the inquest jury which had led to the wrongful shooting of Mrs Groce.[32] Violence also broke out in Peckham, (London), where black youths threw petrol bombs, and a second riot in four years broke out in Toxteth, injuring 10 people, in response to the arrest of 4 local black men in connection with a stabbing.[33] The then Archbishop of Liverpool, Derek Warlock, criticising Merseyside police for "over-zealous and provocative tactics", which included the drumming of batons on riot shields.[34] A week later, another serious conflict broke out in Tottenham after Cynthia Jarrett collapsed and died during a police search of her home for stolen goods following the arrest of her son Floyd. Better known as the Broadwater Farm riot, violence quickly escalated, resulting in 6 people being charged with the murder of PC Blakelock. A leader column in the Guardian newspaper after the riot appears to have been particularly dismissive of PACE having any real impact in reducing the overuse of stop and search powers, suggesting “All one can say is that there will be a next time, and that it will be even bloodier than Broadwater Farm”.[35] The resulting Gifford Inquiry urged the police and the council to build stronger police-community relations suggests nothing had changed.[36]


At the same time as being criticised for over use of stop and search powers, under- policing of racially motivated crimes was being blamed for a rise in racist attacks. In 1993, an inadequate police investigation into the murder of Stephen Lawrence, a black teenager from Plumstead who was stabbed to death in an unprovoked attack whilst waiting for a bus, highlighted police indifference to racially motivated attacks.[37]


Despite continued criticism, the Metropolitan Police Commissioner at the time, Paul Condon, appears to have continued to connect black youth with crime.[38] In 1999, Sir William Macpherson’s Inquiry into the Lawrence murder found a disproportionate and racially discriminatory use of stop and search was contributing to the “distrust and loss of confidence” in the police; his landmark ruling finding the police guilty of institutional racism.[39] However, despite these findings, Macpherson concluded stop and search had a “genuine usefulness” and should in principle be retained, recommending police provide a full written report to every individual stopped at the scene, and publish statistics on the use of stop and searches in order to limit their arbitrary use.[40] However, on the grounds of saving time, recording requirements have since been reduced.


Benson Egwuonw, a rights campaigner, suggested the Macpherson inquiry, together with amendments to the Code of Practice, and the 1976 Race Relations legislation, and the passing of the Equality Act 2010,[41] bringing the police service within the ambit of UK anti-discrimination laws, “changed the trajectory of race relations in the UK”.[42] If a person believes they have been unlawfully stopped on the grounds of race, colour or nationality they now have recourse to the law. The Equality Act 2010, (22), (23), (24) requiring the police take proactive steps to eliminate discrimination, in this instance, taking action to reduce levels of disproportionality in the use of stop and search. A noticeable lack of disturbances involving black people during the years following Macpherson suggests Egwuonw’s assessment was correct.[43]


However, analysis of statistical data supplied by the police to the Ministry of Justice for 2001-2008 paints a very different picture.[44] Based on the 2001 Census which like the police classifies ‘ethnic appearance’ as the main measure of the ethnic composition of an area which allows a consistent approach to analysing the data, even if some residents may have moved away during the period under study.[45]


Using 3 measures to determine how stop and search has been used over time, the data firstly reveals overall rates of people stopped remained consistently high across all ethnic groups which suggests the police continued to use stop and search as a significant policing tactic during this period.


Secondly, although not reflected by rioting during these years, a rising trend in disproportionality ratios, climbing from 4.9 to 7.6, meaning a black person living in England and Wales was at least 6 times more likely to be stopped than a white person. Figures supplied by the Metropolitan police showing consistently high ratios across London, the highest rate, 188 per 1,000 people, recorded in the Westminster borough. Further, the data showed consistent geographical patterns of disproportionality by County, the highest in Dorset at 12.5 and the lowest consistently recorded on East and West coasts of England, in Durham, white people twice as likely to be stopped than black.


One of the main theories advanced to explain high disproportionality ratios is “Street availability”, suggesting rates are high because they fail to account for the demographic of an area, for example, more people are ‘available ‘to be stopped in areas of high unemployment.[46] However, this theory does not explain regional patterns of disproportionality, such as why more black people were ‘available’ to be stopped in Dorset than Devon. There is also no reliable measure available to support other explanations, including higher numbers of stops being simply a product of differences in involvement in crime, black people are more likely to be arrested for robbery for example.[47]


Thirdly, applying the same rates of stop and searches to black people as those carried out on white people, there was a clear trend of high ‘excess’ stops associated with black populations, for example, 5,800 excess stops in largely black Hackney, and in urban areas like the West Midlands which had the largest black population outside London, over 4,000 excess stops.[48]


However, there were persistent trends which are less easily explained, for example the consistently high black/white disproportionality ratios in Dorset where despite having a low crime rate the police stopped 142 black people per 1,000 compared to the average for England and Wales (outside London) of 68 per 1,000.


Evident from the data for this period, only a handful of areas had low disproportionality ratios, for example, 0.9 in Cumbria confirming a persistent problem of race disproportionality particularly in areas with a high percentage of black residents, as one Home Office researcher put it, ‘being black means that you get stopped more often’.[49] The most persuasive explanation accounting for this disproportionality is that the way each of the 43 territorial police forces use stop and search has been determined by ingrained custom since the days of “SUS” powers. These forces continuing to unlawfully base stop and search decisions on stereotypical assumptions and generalised beliefs suggests despite codifying powers under PACE, the police did not achieve better equality outcomes for black British people during these years.


Knife Crime – 2009

The stop and search debate brought to ahead again after Operation Blunt 2 in 2009 in which the police carried out 380,000 searches, 14,700 arrests, recovering 7,500 knives.[50] As a direct result of this massive utilisation of stop and search the Metropolitan Police Commissioner issuing

“Plan B”, intended to make officers more accountable and again requiring decisions to be based on best information available at the time.[51] At the same time, the European Human Rights Commission cited Cleveland police as a model example of a force who had achieved an overall reduction in crime by reducing the use of stop and search. Together with finding stop and search just 0.2% effective in disrupting crimes, suggests when overused the benefits of stop and search are far outweighed by the damage caused to community relations.[52]


Riots revisited – 2011

It is unsurprising journalist Mark Easton described a sense of ‘deja vu’ in 2011 when England experienced the largest wave of riots since the 1980’s. [53] A second race-related riot in Tottenham, triggered by police shooting mixed-race Mark Duggan, involving 20,000 people, and killing 5 people.[54] Professor Drury’s research into causation, providing a useful correlation between rioting, deprivation and areas with a shared negative attitude to police, linking riots to boroughs where the number of stops in the previous 2 years were 6 times higher than in non-affected areas, suggesting the police has become the “face of the oppressor”.[55] Scotland Yard’s Commissioner responding by promising a return to old police values and the principle of policing by consent.[56]In 2014, then Home Secretary Theresa May, after telling Parliament, whilst “undoubtedly an important police power”, used without good reason a stop and search amounts to an “affront to justice”, and commissioning a Constabulary Inspection, which found a staggering 27% of stops being conducted without reasonable grounds, [57] introduced ‘Best Use of Stop and Search Scheme’, aimed at increasing community involvement and encouraging intelligence -led decisions.[58]


Use of stop and search 2009 - 2019

The continued malignment of the over-use of stop and search powers before and following PACE was clearly justified and finally resulted in a downward trend in use over the last decade. A sharp decline from 25 people per 1,000 of the population to 7 per 1,000, mirroring political scrutiny whilst coinciding with a reduction in police numbers. [59] Encouragingly, this decrease is reflected across every ethnic group, in line with policy changes recommending stop and search be used in a more focused way. A record low in the numbers of people stopped in England and Wales in 2017/2018, 300,000, compared to 1,200,000 in 2009/2010 suggesting significant progress has been made towards achieving a good balance between crime control and interference with civil liberties.


Impact of stop and search 2009 – 2019

However, despite the dramatic decrease in the numbers of people being stopped, the police continue to exceed their authority by disproportionate use of these powers, in 2019, disproportionality ratios have widened, police stopping 38 black people compared to only 4 in 1,000 white people.[60] Former Foreign Secretary, Douglas Hurd once warned, “everyone is fully aware of the risk of damage to relations between the police and public if stop and search powers are overused or misused”.[61] Campaigners, such as the charity Stopwatch, reporting an increase in the number of complaints suggests disproportionality is having a huge impact on the experience of black people, having lower confidence in local police than other ethnic groups. Evidence suggesting markedly different use of stop and search across England and Wales is mostly due to police strategy, those forces adopting a more adversarial style of policing triggering riots in the 1980’s and in 2011, has contributed to an entrenched pattern of prejudice, discrimination and selective enforcement based on stereotyping certain groups; For example, in 2019, the Metropolitan police stopped 15 times as many black people than stopped by the Greater Manchester force suggests London police have not struck a satisfactory balance between crime control and respecting the human rights of black people.


‘Efficacy’

This study also aimed to assess the efficacy of stop and search by measuring any reduction in crime and disorder. The fact there have been no significant riots or disorder since levels of stop and search have dramatically decreased suggests these powers are most effective when used judiciously. However, despite 97% of all stops in England and Wales being conducted under PACE in 2019, the contribution Stop and Search makes to an overall reduction of crime is largely unproven. In 2016, McCandless concluded in his part-experimental study into the effects of Operation Blunt 2, large numbers of stops had no effect on recorded crime.[62] Together with Ben Bradford finding a 10% increase in the number of stops conducted in London over a period of 10 years, resulted in an associated drop in crime of only 0.3% per month, suggests the efficacy of stop and search in preventing crime is at best marginal,[63] and does not support policy makers who continue to advocate for these powers as vital tools in crime prevention.[64] Ben Quinn recently argued whilst stop and search ‘may’ make some people more cautious of being caught, others will be empowered to ‘get away with it’, for example, choosing to “stash” knives rather than carry them.[65] Although Adrian Braga provides some evidence of stop and search being used effectively in ‘hot-spot’ areas of high crime, it is unclear whether this success was attributable to a police presence acting as a deterrent.[66] Further, as these findings relate to ‘prevention’ they do not ultimately assist in determining the efficacy of PACE stop and search which in law is framed as an ‘investigatory’ power. [67] For example, a stop and search of an individual in possession of cannabis is unlikely to make a substantial contribution to detecting dealers of Class A drugs and reducing drug- related crime. There is currently insufficient evidence to determine how effective stop and search is in practice as an investigatory power, even where it is justified, lawful and stands up to public scrutiny. What is clear is that some police forces are failing to comply with PACE, human rights legislation and key democratic principles of equal justice by continuing to use stop and search in a disproportionate and discriminatory way. Far from ‘new’ powers being used to confirm or allay suspicions to avoid an arrest, critics argue in many cases the relentless use of stop and search, sometimes multiple times a day, is causing young men to “snap”, and increasing the likelihood of crime.[68] Claims by the Guardian newspaper in 2019, police searches of black people in London were statistically less likely to result in an arrest than of white people, explaining why the disproportionate use of stop and search is decreasing not black people’s confidence in the police. Whilst police officers continue to have a “heightened suspiciousness of black people”, routinely using skin colour to shape suspicion, as a report by the Institute for Policy Studies warned prior to PACE, ‘reasonable suspicion’ will “not be an effective constraint on officers deciding whether to make a stop”.[69]

The Future for Stop and Search

The difficulty in achieving a satisfactory balance between crime control and interference with civil liberties is illustrated by data for the period 2014-2019. Against a reduction in use of stop and search, the Home Office in 2018/2019 recorded 285 killings, the highest number involving knives since records began in 1946.[70] These statistics go some way in explaining why the police remain intransigent in their commitment to stop and search as the solution to violent offences even though the evidence seems to suggest they remain part of the problem; [71] also explaining why political focus remains on the utility of stop and search, the Mayor of London arguing, “If stop and search means lives can be saved from the communities most affected, then of course it is a good thing”. These findings also suggest using stop and search as a ‘litmus test’ to determine the effectiveness of policing as a whole is perhaps too simplistic.


Whilst the majority of the public continue to consent in principle to officers having adequate powers, the Police Watchdog recently warned, an increase in disproportionate use of stop and search damages confidence black Britons have in the police which in turn threatens voluntary cooperation of both victims and witnesses. As reported by Staffordshire police, shared good practice with forces with low racial disproportionality ratios can bring about a reduction in crime and restore respect for neighbourhood policing. Ultimately, in the long term, a satisfactory balance depends on the public perceiving police action to be acceptably fair as no democratic policing can survive without legitimacy and consent.


Charles E.Cheadle


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