Stop and Search: can we continue to justify the use of this police power?

As a firm, we have had many discussions about Black Lives Matter and how we can make a difference to the movement. In the second blog in our series, Maeve looks at the power police have to stop and search citizens and how these powers are consistently being used disproportionately against black and Asian communities in England and Wales.

Stop and Search: can we continue to justify the use of this police power?

The police currently have the power to stop and search citizens across the UK under a wide range of legislative acts for the purpose of preventing and detecting crime. For years, this has been one of the most controversial and contentious police powers,  with the promise of extending the powers regularly being used as the go-to rallying call for politicians who want to show that they are being ‘tough on crime’. 

Misinformation about the tactic itself is rife, notably the Home Secretary made claims in December 2019 about how many murders in London are prevented per week by stop and search despite this being impossible to prove.

What has been proven however is that stop and search powers are consistently being used disproportionately against black and Asian communities in England and Wales.

The figures are stark: you are 8.5 times more likely to be stopped and searched if you are black than if you are white. If you are Asian you are around 2.5 times more likely to be searched than a white person.

In the abstract, stop and search may seem like a perfectly reasonable power for police to have but in reality its application has shown that it is used disproportionately against black and Asian communities and is ultimately ineffective at reducing crime.

What stop and search powers do the police have?

Police in England and Wales have a variety of powers to stop and search. Broadly speaking, these can be categorised into one of two groups.

On the one hand there are those that require officers to have ‘reasonable suspicion’ before conducting a search, the most well-known and widely used being:

• Section 1 of the Police and Criminal Evidence Act 1984 (PACE), which enables searches for stolen goods and a range of prohibited items (such as offensive weapons);
• Section 23 of the Misuse of Drugs Act 1971 (s23);and
• Section 47 of Firearms Act 1968 (s47) (these latter powers are also governed under PACE).

The requirement for ‘reasonable suspicion’ is extremely important as it means that officers are required to be able to demonstrate that there were objective factors which made them think that the person they searched was likely to have been involved in a crime or carrying a prohibited item.

Stopping someone on the basis of their race alone is expressly prohibited in the PACE Code A Code of Practice which states:

‘Reasonable suspicion can never be supported on the basis of personal factors alone without reliable or supporting intelligence or information or some specific behaviour by the person concerned. For example, a person’s age, race, appearance or the fact that the person is known to have a previous conviction, cannot be used alone or in combination with each other as the reason for searching that person. Reasonable suspicion cannot be based on generalisations or stereotypical images of certain groups or categories of people as more likely to be involved in criminal activity.’

On the other hand, there are powers that do not require such suspicion, most notably section 60 of the Criminal Justice and Public Order Act 1994 (s60), intended to prevent acts of serious violence; and section 44 of the Terrorism Act 2000 (s44, since repealed) intended to prevent acts of terror. These are highly controversial as they allow the police to stop and search individuals in certain situations and they do not have reasonable suspicion at all.

Is stop and search effective in reducing crime?

Measuring the effectiveness of stop and search is extremely difficult as there is remarkably little evidence to suggest that stop and search works either as deterrent or as an investigatory power.  In a paper published by the British Journal of Criminology, which looked at 10 years of police, crime and other data sources from London it was found that: ‘the effect of stop and search on crime is likely to be marginal, at best. While there is some association between stop and search and crime (particularly drug crime), claims that this is an effective way to control and deter offending seem misplaced.’

A report by the College of Policing in 2014 concluded that increased powers were only “occasionally followed by very slightly lower rates of crime,” while also noting that these correlations were “inconsistent” and “weak.”

The police have also justified its use by arguing that it ‘disrupts and deters criminal activity’ but a Home Office study of the effectiveness of stop and search estimated that searches reduced the number of ‘disruptable’ crimes by just 0.2 per cent. It also found that while a very high proportion of stop and searches were carried out on the basis of suspicion of possession of drugs, it was unlikely that searches made a substantial contribution to undermining drug related crime. Given that drug searches tend to focus on users rather than dealers, and cannabis rather than class A drugs, its contribution to this aspect of crime reduction is questionable at best.

Why is stop and search used disproportionately towards black and Asian communities?

The reason for the disproportionate use of stop and search on black and Asian individuals appears to be complex, ranging from stereotyping, implicit and institutional bias to the political, social and economic positions of different groups in society. What is clear is that people from certain minority groups are considerably more likely than others to be stopped, with often very significant implications for themselves and the communities they are part of.

The most comprehensive analysis of the disproportionate use of stop and search under PACE was published in 2010 by the Equality and Human Rights Commission which concluded “the evidence indicates that PACE may be being used in a discriminatory and unlawful manner.” It also examined many of the common justifications for the disproportionate impact and found that “even taken together, they provide no justification for the extent and persistence of the problem.”

The experience of those being searched is directly associated with reduced confidence in the police, particularly when it is felt that these searches are being carried out on the basis of racial profiling. The damaging impact that the use of searches has in the communities in which the police serve was explored in the Criminal Justice Alliance paper ‘No respect: Young BAME men, the police and stop and search’  which found that three quarters of young BAME people think that they and their communities are targeted unfairly by stop and search. It also found that the feelings derived from negative experiences of stop and search can have long term effects, including anger and hostility towards the police. It is arguable that this clearly outweighs whatever marginally positive impact that these measures are said to have on reducing certain crimes.

There is no clear or easy solution to redress the imbalance of the use of stop and search across racial groups.  It is generally accepted that the public are supportive of stop and search powers if they are used lawfully and appropriately, in a way which maintains public trust and police legitimacy. The evidence shows that this is currently not the case and there must be recognition of the problem at leadership level.  The government and police must recognise that there is a racial bias and make a commitment to eliminate it.

Unfortunately, despite little evidence to prove that it is effective and considerable evidence that it is used disproportionately, extending stop and search powers remain high up the government’s agenda.  The Prime Minister has defended the use of stop and search and pledged new police powers to extend stop and search in a bid to ‘crackdown’ on knife crime. What is becoming increasing clear is that this is nothing more than irresponsible political grandstanding. The Prime Minister’s continued rejection of an evidence-based approach to policing means that any extension to stop and search powers is likely to increase the unjustified profiling and harassment of black and Asian individuals.

Our BLack lives matter/ Bame blog series

As a firm, we have had many discussions about Black Lives Matter and how we can make a difference to the movement. We wanted to do more than just put out a statement of support, we wanted to take substantive action to address the inequalities faced by Black people and other ethnic minorities. Over the coming weeks, we will be publishing a series of blogs from our varying practice areas highlighting what we are doing, how you can make a difference and shining a light on the issues.

Our Diversity and Inclusion group is working hard with Human Resources and the Management Team to effect change through methods such as training and reviewing recruitment practices.  We have implemented a lot of change but we recognise we have more to do and we are always looking to make improvements as a firm.  We all have respective roles to play in advocating for issues of inequality and we hope our blogs give you some inspiration as to how you can make a change.

About the Author

Maeve is an Associate in the Criminal Litigation team. She has represented clients on a wide range of general crime matters including road traffic, public order, allegations of serious violence and both historical and current sexual offences. She is instructed on cases ranging from the initial stages of criminal investigations through to trials, including working on a number of Crown Court matters since qualification.