GOWISELY: Time to stop and think
about stop and search

The aftermath of the death of George Floyd and the strength of feeling surrounding the Black Lives Matter movement should provide Police forces in the UK with a reason to re-assess their relationships with the communities that they serve.
 

Perhaps the most direct and intrusive way that Police Officers interact with members of communities is by exercising the powers of stop and search. 

Two reports released this week demonstrate the reasons why there remains a pressing need to review the overall operation of stop and search powers.  

Background

Our previous blog Stop and Search: can we continue to justify the use of this police power?  provides some legislative background to the stop and search regime.

The most widely used stop and search power is pursuant to Section 1 of the Police and Criminal Evidence Act 1984. The Guidance that the Police are required to adhere to in exercising this power states that the test to be applied has two parts:

1. “Firstly, the officer must have formed a genuine suspicion in their own mind that they will find the object for which the search power being exercised allows them to search…; and
2. Secondly, the suspicion that the object will be found must be reasonable. This means that there must be an objective basis for that suspicion based on facts, information and/or intelligence which are relevant to the likelihood that the object in question will be found, so that a reasonable person would be entitled to reach the same conclusion based on the same facts and information and/or intelligence…”

The Guidance also requires Police Officers to communicate clearly with the subject of a search the reason why they are being stopped. The Police use the mnemonic GOWISELY as a short hand for the information that they are required to provide to the subject of a search.

Home Office Statistics on Police Powers and Procedures

This week, the Home Office released its statistics on Police Powers and Procedures for the year ending 31 March 2020.

The Government’s figures demonstrated that in the last year:

• There were 558,973 stop and searches (under Section 1 of the Police and Criminal Evidence Act), which was an increase of 53% on the previous year (excluding the data from Greater Manchester Police).  Of those searches, 73,423 searches led to an arrest;
• There were also 18,801 stop and searches under Section 60 of the Criminal Justice and Public order Act 1994 (this power does not require reasonable grounds for suspicion);
• Of the 577,054 combined stop and searches, the majority (437,139 or 76%) resulted in no further action.

Perhaps, most starkly, one analysis of the statistics demonstrated that black people are nine times more likely to be stopped and searched by police than white people. The Home Office paper concedes that in the year ending March 2020, BAME people were stopped at a rate 4.1 times higher than those who were from a white ethnic group. 

In circumstances where the test that Officers are supposed to apply requires an objective basis for suspicion; the significant majority of stop and searches result in no further action – and there is an overwhelmingly disproportionate impact on a particular ethnic group, it is hard to escape the conclusion that the Police are getting something wrong. 

Those who advocate on behalf of the use of stop and search as an effective policing power often point to the number of arrests that result from stop and searches being conducted. In particular, proponents may suggest that 73,423 arrests that resulted from a stop and search may lend support to the argument that it is an effective policing measure. However, the efficacy of the power is less clear cut. After all, in only 20% of stop and searches was the outcome (i.e. arrest) linked to the initial reason for the search. Instead, suspects are often arrested as a result of the conduct of the search itself, for example, an offence of obstructing, assaulting a police constable or assaulting an emergency worker. These situations often arise because the Police do not properly communicate what they are doing, or use unnecessary force in doing so. The fact that some arrests arise from a significant proportion of stop and searches that do not yield the very object of the search should not be seen as a justification for the use of the power. Rather, the fact that so many stop and searches result in confrontations between the Police and those subjected to searches should be a reason for the Police to carefully consider the impact that stop and search has on the subject of the search and their relationship with the communities that observe those searches.

IOPC Review on Stop and Search by the Metropolitan Police

On 28 October 2020, the IOPC published a report based upon a thematic review of five investigations involving the stop and search of black men by Officers of the Metropolitan Police. The report identifies 11 opportunities for the Metropolitan Police to improve the conduct of its stop and search regime. The IOPC’s report found, among other things:

• Scenarios where two Black men fist-bumping were suspected of exchanging drugs and also where a Black man in possession of someone else’s credit card was suspected of having stolen it even after providing a credible explanation;
• In two investigations, the smell of cannabis formed the sole grounds given for the stop.  Not only is this counter to policing practice, it undermines the legitimacy of the stop and search;
• Handcuffs were also used in nearly all instances where the use of other tactics could have de-escalated the encounter.

It should not be difficult to understand that the use of handcuffs on a person who may be completely innocent of any wrong doing is upsetting and degrading. Worryingly, the IOPC saw a lack of understanding from officers about why their actions were perceived to be discriminatory.

Recent history reminds us that controversies arising from the misuse of stop and search are nothing new. Sadly, the IOPC’s report concluded that Officers are still making the same mistakes that were made in the past, including not always using the principles of GOWISELY.

The IOPC’s recommendations (which the Metropolitan Police have agreed to adopt in full) are a step in the right direction and may provide for some operational improvement on the conduct of searches on a day to day basis. But improving the operation of individual searches is not enough, when there appears to be a structural problem with the statutory regime.

Perhaps it is now the time that the Police and policy makers take a step back and consider the objective data and re-assess whether the overall stop and search framework remains fit for purpose. There are certainly options for reforms available.  These include:

• Making the use of body warn cameras mandatory when a stop and search is performed;
• Training Police Officers that any physical force should only be used where absolutely necessary and that handcuffs should only be used where a suspect actively resists or actively gives an Officer objective grounds to suspect that they may be violent towards an officer;
• Amendments to the Police and Criminal Evidence Act 1984, for example, to expressly provide that “the smell of cannabis” alone is not an objective reason for a stop.
• The appointment of an independent reviewer of stop and search legislation to impartially analyse the overall regime, the current data and make proposals to the Police and the legislature for reform.

Further information

For further information on the issues raised in this blog post, please contact a member of our criminal litigation team.

About the author

Nick Dent is an Senior Associate in the Criminal Litigation team with experience in a broad range of general crime and white collar crime cases. He has significant experience at handling criminal cases from the interview under caution to the conclusion of a case. He frequently advises individuals who are under investigation or immediately following their arrest and is acutely aware of the emotional distress and pressure that this can entail. Nick has particular experience in acting on behalf of people who are in the public eye whose reputation and livelihood are at stake.