This was strictly addressed under s.30 of PACE which clearly divides powers of detention into distinct time periods. Section 30 requires any arrested person to be brought as soon as practicable to a police station. On arrival at the police station, or twenty-four hours after their arrest (whichever time is earlier), the detention clock begins to run. Section 41 authorises an initial detention period of twenty-four hours. If the arrest has been for an indictable (serious) offence, that period may then be extended under s.42 to forty-eight hours by a senior police officer but only if there are reasonable grounds to believe that further detention is necessary to secure evidence relating to the offence committed. The rationale being that an arrested person should have their liberty restored to them if the police are unable to gather sufficient evidence to sustain the person being charged with an offence.
Powers of detention arise, more-often-than-not, following arrest but before the detained person is charged with any offence. However a person may be lawfully detained without actually being arrested. A good example of such a power is s.23(2) of the Misuse of Drugs Act 1971 which provides that a police officer:
‘may detain and search any person that they have reasonable grounds for suspecting is in possession of a controlled drug or any vehicle or vessel in which the constable suspects that the drug may be found, and for that purpose require the person in control of the vehicle or vessel to stop.’
Of course PACE also has similar provisions in s.1(2): a constable may search any person or vehicle and anything which is in or on a vehicle where there are reasonable grounds that stolen or prohibited articles may be found. One exception to this rule is that the power does not extend to people or vehicles on land used as a dwelling unless the officer has reasonable grounds to believe that the person did not live in the property or have permission from the occupier to be there.
Section 3 of PACE makes provisions for a record to be made of all searches conducted by an officer. This came about as a particular concern, with relevance to the abuse of police powers, that ‘stop and search’ powers, especially under s.23, were used by the police on the basis of unsubstantiated presumptions about the tendency of particular ethnic or cultural groups to be in possession of illegal drugs and that a similarly prejudiced ethos would lead to the abuse of the much broader powers granted under PACE.
Not only does PACE set out the powers of the police it also balances these powers with the rights and freedom of the public. Before this act was established the powers of the police force were very ambiguous and many saw them as being outdated. The Human Rights act 1988 is taken into consideration when looking at the powers that the police have as it limits the powers of the police in relation to ones personal freedom.
The common law states that a police constable must explain to a person who is being arrested that they are under legal obligation and the reason of the arrest. An arrest will be invalid if a police constable does not follow out the correct procedure. The only power of arrest under common law relates to breach of peace (R v Howell). The Court of Appeal stressed that the power (breach of the peace) should not be regarded as a routine element of police conduct.
‘It is a power which ought to be exercised only in the clearest of circumstances and when one is satisfied on reasonable grounds that a danger is imminent. There must be a sufficiently real and present threat to justify the extreme step of depriving a person of their liberty (who is not at that time acting unlawfully)’
Many will scrutinise this power and argue that it interferes with there right to liberty, security and freedom of expression. It can be argued that this power is excessive as it gives the police the power to arrest someone if they have reason to believe that an incident is going to reoccur from the past.
The implementation of PACE could be perceived as been one of the most effective and influential pieces of legislature introduced for a long time. However some of the powers provided to the police through this legislation can be deemed to be excessive or insufficient in allowing the police to carry out their work effectively. Frequent claims have been made that powers are used randomly and discriminatorily. One of the major causes of conflict and distrust between the police and young people and minority communities, is the abuse of police stop and search powers.
Whether or not a police officer decides to carry out a stop and search is based on their discretion. ‘Reasonable suspicion’ plays a fundamental role in relation to the police powers, hence why it is distressing that the concept is so vague and insufficient. There are no set rules or regulations that form one’s reasonable suspicion. The aim of this term is to discourage police from being discriminative and indiscriminative when stopping and searching. It is generally based upon one’s intuition. However critics would argue against this and deem that those who use such powers have an ‘objective’ basis to their reasonable suspicions. Of course, the use of one’s intuition to form reasonable suspicion could result in both excessive and unlawful use of the police’s powers. In 1999 the Macphearson report was issued which landmarks a pinnacle moment in time in regards to relationships between ethnic minorities and the police force, This report was carried out in relation to the murder of 18 year old black teenager and A-level student, Steven Lawrence. He was stabbed to death in a racial attack whilst he waited for a bus in South-East London, where he was from. Two of the suspects where initially charged with murder however this was later dropped due to insufficient evidence. The Macpherson report dug deep into the case and made 70 recommendations aimed specially at improving police attitudes and handling with racism. The report famously stated that ‘institutional racism’ exists within the Metropolitan police force and that “consequential to this more people of a particular age group, sex, colour, have been targeted, stopped and searched.”
The Macpherson report addressed the issues involved and brought the public’s attention to the unfairness that was served. The fact that it was addressed and criticised instilled confidence in the black community as well as other ethnic minority groups who also feared racism from the Metropolitan police force. Progression with the Steven Lawrence case in terms of justice being served increased public confidence in the police force which indirectly increased confidence in police stop and search procedures.
The provisions relating to stop and search powers are debatable by many. There are significant reservations about the efficiency of the powers provided but overall they are a good way of bringing ‘crime to light.’ The stop and search powers that the police have are proven to be beneficial in many ways however insufficient they may be in others.
The purpose of PACE is to create a balance, however it has failed in doing so in some instances. For example, under the Police Reform Act 2002 s.50, a uniformed police officer can require a person who has behaved in an anti-social manner to give their name and address. Failure to comply is an offence and may form the basis for an arrest under s. 25 of PACE. This is a significant extension of police powers, which could be abused to harass young people. Police officers, aware of the power they have, are therefore able to gain the name of address of any person they wish, legally. It is highly likely that this will be abused as they have to power to do so and whilst this is a moderate form of abuse and cannot be compared to more serious police offences, i.e. racism, it is still likely to cause offence.
The Sporting Events Act 1985 seems to give a rather excessive power to the police. This Act seems unusual because it gives the police the power to stop and search certain vehicles for articles which can normally be freely and legally carried. It is an extreme power for the 21st century as it was established in 1985 at the height of football hooliganism.
‘Not only does it seem extreme that the police can stop and search people for items normally legal it also seems to be an insufficient power in the fact that there is no specific power given to the police to seize any goods found.’
The police may seize alcohol under different acts of parliament but the power given seems to be rather inadequate in the fact that the police can actually stop and search for certain goods under one power but not seize them under the same power.
Police powers have been extended in relation to terrorism since the Terrorism Act 2000 was established. This in itself has helped to protect society from those who are suspected of terrorism although many problems have arisen from it also. Code A of PACE states that officers must not discriminate in any way whilst exercising powers given to them. However it seems difficult to carry this out in relation to the Terrorism Act 2000. It can be argued that a police officer might need to take into consideration one’s ethnic background when deciding who to stop. For instance, many international terrorist groups are related with particular ethnic groups, such as Muslims. Not only can they be seen to be discriminating by stopping certain ethnic groups but the police can also when asking people from ethnic backgrounds to remove items of their clothing. Using the Muslim example again, the police could request that they move there headscarfs whilst carrying out their powers of stop and search. This is lawful but not seen as respectful to their religion.
For example, the rise in the past few years of incidences of terrorism could lead to the police discriminating against fundamentalist Muslims if not simply all Muslims, and this is only justified if these people are acting suspiciously in the context of the surrounding situation. A fundamentalist Muslim praying, won’t very often be construed to be suspicious behaviour, but one seen to be attempting to conceal something while passing through customs for example, would be viewed in almost all instances to be suspicious.
If the aforementioned victimisation occurred, it seems likely that a catch 22 situation would arise, in that the victims of such discrimination would notice that it was present, and wouldn’t feel comfortable in the presence of a police officer, whether talking to one, or being across the street from one. This type of over-awareness can lead people to act in an unnatural way which may be construed to be suspicious behaviour, meaning more stops of a certain race or religion may occur, furthering the reaction of this group of people to police officers due to their feeling of victimisation.
The Royal Commission’s report (headed by Lord Woolf) on Criminal Procedures in 1981, recognised that the public needed some sort of protection from random and discriminatory stops and searches. The Royal Commission was unable to state precisely what were acceptable grounds for ‘reasonable suspicion,’ therefore they proposed that police officers should inform people why they have searched them and also that a record of all searches should be made. The term ‘reasonable suspicion’ attempts to be half way in between the two models of ‘due process’ and ‘crime control.’
“If our Criminal Justice System adopted a strict due process approach then the police would not be able to use their powers to stop and search without adequate evidence to prosecute. At the other end of the scale, if strict crime control principles were adopted then the police would be allowed to use force if they had any suspicion.”
In order to try and over come these biases in the use of stop and search by the police, more controls were introduced through the implementation of PACE. The Home Office’s Code of Practice for stop and search devised under PACE rules that:
‘There must be some objective basis for the suspicion which can never be supported on the basis of personal factors alone.’
Code A of PACE s.1.4 states that, the primary purpose of stop and search powers is to enable officers to allay or confirm suspicions about individuals without exercising their power of arrest. Section 1.1 basically explains how stop and search should be used and how those stopped should be treated. It states that discrimination of any kind, such as age or racial background is unacceptable. Section 3.1 is significant as it lays down the fundamental rule that police officers must abide by when stopping and searching, that is that searches require reasonable grounds for suspicion.
However the police’s decisions on when to stop and search have been described as ‘constrained only loosely by the law,’ and also that the powers the police have and the offences in which these powers cover, are vaguely defined and prejudiced. Furthermore it has been suggested that police officers appoint their own priorities.
There are many other reasons why stop and search is used discriminatorily by the police. The number of stops and quality of arrests has a direct impact on promotion and maintaining high position jobs. Therefore police officers are under a great deal of pressure. Also, young people tend to be stopped more at night than older people because there are more young people about at night than there are older people and ‘the reason why there are more stop and searches carried out on males rather than females, is directly related to their incidence of criminal activity, which is far higher for men than it is for women.’
Public confidence in stop and search procedures vary depending on who you are. Those living in London would especially have a lack of confidence in the police as this area has the highest concentration of stop and searches due to high levels of criminal activity and it being the most likely target in the UK for terrorist attacks.
The problem is, no matter how many attempts are made at defining “reasonable suspicion”, the reason as to why there can never be specific criteria fulfilled is given in the proposed clarification in PACE; that it will always depend on the circumstances. Police, having read these requirements, are likely to continue as they were before in their practice of stopping and searching, generally reverting to their instinct as to whether someone is acting suspiciously, and worrying about having to defend their decision in the future if so needed.
Perhaps after putting so much trust in the police officers in practice, the authorities are assuming that the police are capable of correctly, or at least legitimately judging each and every situation. The fact that maybe they are not, perhaps due to a lack of effective training, may indicate some of the problems involved in attempting to implement the aforementioned supposedly sound theory. So much of a policeman’s job is left up to his judgement, and this includes deciding whether or not someone is acting suspiciously. What constitutes suspicious behaviour is decided on the job, by the police officer, and that decision will relate directly to each of the officers’ personal experiences. This could be seen, in some circumstances, as prejudiced behaviour because although subjectivity will always play a large part in deciding whether a person is suspicious or not, some objectivity needs to be maintained in their decision to ensure they aren’t making snap judgements that would be difficult to justify.
It seems the theory behind how a police officer should behave before and during a stop and search is all that can be expected. The whole situation relies so much on their judgement that it would be very difficult to punish officers behaving incorrectly, and this would only lead to more problems. It doesn’t seem that the situation can be regulated by producing further rules that policemen should follow.
One possible solution to such discrimination ever arising would be to populate the police force with minority groups. Two results would be achieved in doing so: firstly, policemen would become more familiar with the minority populations, meaning racist and prejudiced attitudes would dissipate and secondly; the policemen representing such minority groups are likely to have a greater ability to establish whether or not certain members of the public from their minority groups are, in fact, acting suspiciously, or whether certain behaviours were, for example, a typical religious or cultural normality, which maybe the majority of the police force would not have the ability to recognise and understand. This would reduce offences being caused, and would substantially educate the entire police force on what is suspicious and what is not, hopefully eliminating discrimination and victimisation.
Whilst the Steven Lawrence inquiry and the Macpherson report have no direct link to public confidence in stop and search procedures, they do have an indirect link. The killing of Steven Lawrence and the way in which the police handled the situation upset and angered the black community and created tension with the Metropolitan police force.
Due to past events, such as the Steven Lawrence murder and current events including tension between Islamic extremists, terrorists and the police, there will be always be a certain lack of public confidence in police stop and search procedures. Those lacking confidence are most likely to come from one of two groups, these being those from the black community and those from the Muslim community whereas white people are more likely to have confidence in the police force as there is no obvious discrimination against them and we often read in the newspapers of alleged police discrimination against ethnic minorities.
Even the most productive and innovative ideas brought in by the government are unlikely to remedy perceived problems as it is difficult to change people’s opinions and views. The steps taken by the government have had little effect so far however it takes time for such an effect to occur. The Metropolitan police force is constantly trying to recruit more ethnic minority officers in an attempt to boost relations and to put a stop to the view that the police force is institutionally racist.
We can conclude that there is an overwhelming use of stereotyping in police discretion. Police make rapid judgements about a person’s nature based on their physical appearance and we can see that there is no doubt that stop and search powers are used discriminately by the police. Although efforts are being made to reduce this discrimination, evidence shows that it still exists.
Despite the negativity surrounding stop and search, the fact that a large number of people are stopped and searched should be encouraging to the general public. This is because there is constant criticism aimed at the police for not being out on the streets enough, trying to prevent crime before it occurs. Stop and search is one of the few policing methods used to prevent possible future crimes from happening and can be seen as an effective mechanism for both detecting and clearing up crime.
Overall the powers given to the police service in relation to arrest, search, seizure, and detention are respectable. There are, as with all areas of law, certain grey areas but evidence shows that the police force makes a lot of discretionary decisions due to the ambiguity of rules and regulations. Therefore on the balance of evidence, it can be said that police powers need to be more comprehensible in order to form a wider understanding.
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