The search of Arnold - Police stop and search powers.

Student number: 030280588

The search of Arnold

Introduction

A police officer is given the power to stop and search a person under section 1(2) of the Police and Criminal Evidence Act 1984, where it states that a constable may search “any person or vehicle, anything which is in or on a vehicle, for stolen or prohibited articles or any articles to which subsection (8A) below applies”. A police officer can also be given the power to randomly search people under s.60 of the Criminal Justice and Public Order Act 1994, without the need for reasonable suspicion. To consider whether the stop and search was lawful, I will begin by determining whether the statutory requirements were fulfilled for a s.1 PACE search, then the alternative means of searching Arnold, and finally questions over the legality of the search in other aspects of the law.

S.1 Pace Search

The first issue which we must deal with is where the section 1 search takes place. Under section 1 of PACE, it specifies that a search may take place where the “public has access” or “any other place to which people have ready access at the time”, but is not the suspect’s garden. In this case it is in The Shires shopping centre in Leicester; this suggests that it complied with s.1(1) and 1(4) of PACE, unless the police officer took him to a part of the shopping centre which was not open to the public. However, this isn’t specified in the information given to us, so we can assume that this was not the case.

A fundamental requirement for a stop and search to be lawful is the need for “reasonable grounds” for suspicion that a person is carrying stolen or prohibited articles, or any articles to which subsection (8A) in section 1 PACE applies. “Reasonable grounds” are not defined in the statutory provisions of PACE, but are expanded upon in PACE Code A. This states that reasonable suspicion cannot be based on stereotypes or generalisations; it must be supported by intelligence, facts, or information. A police officer can also stop and search a person if they think that someone is in innocent possession of stolen or prohibited articles, although there would be no power of arrest. Reasonable suspicion can also exist without specific information, based on a generalisation stemming from the behaviour of a person, e.g. if somebody is on the street at night looking as though they are trying to hide something. This, however, is vague. Looking at case law does little to help us obtain a complete definition of “reasonable suspicion”, or the boundaries between the levels of suspicion. On the one hand, as shown in King v Gardner, a high threshold of suspicion was needed. However, in cases such as Shaaban Bin Hussien v Chong Fook Kam, reasonable suspicion can be of a much lower standard than the evidence needed to prove a prima facie case, and in Lodwick v Sanders a similar low threshold of suspicion is allowed. Some commentators, such as Hart, have identified two elements in legal rules; the “core” meaning, and the “penumbra of uncertainty”. The cases above indicate that there certainly is a wide penumbra of uncertainty about behaviour which constitutes “reasonable suspicion”, which arguably allows the courts to be flexible with their decisions in this area. In this case, we are not told details about Arnold’s behaviour, so assuming that he is stopped with no real cause for suspicion, the officer would be seen to be going against the guidelines in the Codes of Practice for reasonable suspicion. There is also no power for the constable to detain or search Arnold to find reason for suspicion, as this must already be present before any action begins. This might be seen to be happening when “the constable asks Arnold whether he has been shoplifting”, to which he replies no, and the constable proceeds to search him. Failing to observe the Codes of Practice is not, however, a criminal or civil offence unless it would be under normal circumstances, but would be admissible as evidence. It is well-established that failing to observe the principles in Code A could mean that the use of stop and search may be drawn into question. Therefore, in this case, if we are to believe that Arnold did nothing to encourage the officer into suspecting him, then the constable will not have fulfilled the requirements for “reasonable suspicion”, which following the precedent of Black v DPP, would render the stop and search unlawful. If, however, Arnold’s behaviour appeared to be suspicious, then it would not be so straightforward deciding whether it would render the stop and search illegal, due to conflicting case law over the thresholds of suspicion, and the wide “penumbra of uncertainty” of reasonable suspicion.

The officer must be searching for particular objects: stolen or prohibited articles. In this case, the officer seems to be searching for stolen items, as he suspects Arnold of shoplifting, although he doesn’t directly say what it is he is searching for. The officer can only ask for an outer coat, jacket, or gloves to be removed, although pockets can be searched if it is related to an offence where the item could be slipped into the pocket, but the search cannot go any further than that. In Arnold’s case, the constable searches his pockets but nothing more, which, ...

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The policeman is also required to follow some identification requirements when he stops and searches a person. He should give his name and police station, the object of the search, his grounds for it, and the suspect’s entitlement to a copy of the search record. These identification requirements were not followed in our example, as the officer simply says “in that case, you won’t mind me checking what you have in your pockets”. It seems that the police officer did not take all reasonable steps in trying to provide this information, which would make the stop and search unlawful, as shown in Mustapha Osman v Southwark Crown Court

There is also a duty to record the search unless it is not practicable to do so. In this case, it seems that there should be no problem in doing so, therefore there should be some form of record made. With the information given to us, one would assume that this was not done, hence the constable would not have fulfilled the statutory requirements set out in PACE.

Therefore, one can conclude that if this was a s.1 PACE search, the need for reasonable suspicion does not seem to have been fulfilled, and neither do the identification or recording requirements. As the cases of Osman v Southwark Crown Court and Black v DPP show, without this, the stop and search could be found to be unlawful.

Consent Searches

The officer seems to suggest that the search which is undertaken is consensual “in that case, you won’t mind me checking what you have in your pockets”. However, due to recent developments, Code A states that “an officer must not search a person, even with his or her consent, where no power to search is applicable”, unless their consent is given as a condition of entry to, say, a sports club. In this case, and on the information given, it is likely that the officer did not have a statutory power to search Arnold, so whether or not consent was given, the search would still be unlawful. This is supported in the case of Osman v Southwark Crown Court by Collins J.

s.60 Searches

A random authorised search can take place under section 60 of the Criminal Justice and Public Order Act 1994, where a police officer of or above the rank of inspector reasonably believes that incidents involving serious violence may take place in the locality, or that persons are carrying dangerous instruments or offensive weapons in the area. In this example, there is no indication that Arnold is carrying an offensive weapon, or that serious violence may take place in the shopping centre. The officer even says “have you been shoplifting?” suggesting that he is not even searching him for weapons, but for stolen articles, which isn’t covered under s.60 of the Criminal Justice and Public Order Act 1994. It is highly unlikely that this was a section 60 search, and even if it was, the officer seems to be searching for stolen items, and not weapons, which could make the search unlawful.

Human Rights

Arnold may argue that being stopped and searched contravenes his human rights, specifically his right to liberty. It has not been fully determined how far stop and search powers comply with the European Convention on Human Rights. It would be seen, however, that Arnold’s liberty was not compromised in this situation, as it was a “brief” search which did not result in detention of a substantial period of time. Learned academics, such as Quincy Whitaker agree that if a stop and search is speedy, such as that of a roadside search, and doesn’t involve long periods of detention, human rights issues are not raised.

Conclusion

It is highly unlikely that this stop and search was a random authorised search under s.60 of the Criminal Justice and Public Order Act 1994; there is no evidence to suggest this in the problem, therefore I will not dwell on this point. It is much more likely that the search was in fact a search under s.1 of PACE. The statutory requirements for this do not seem to have been followed given the information which has been presented; there doesn’t seem to have been “reasonable suspicion”, and the recording and identification requirements were not fulfilled. Each of these factors could well lead to the stop and search being declared unlawful. The matters of consent searches and human rights issues are easily resolved; revisions to Pace Code A mean that consent is not enough to allow a search to take place; there must be a statutory basis for it to be lawful. It would most probably be seen that Arnold’s human rights were not infringed, as he was not detained for a sufficiently long period of time. Therefore, it is more than likely that the constable’s actions were not entirely legal, as he did not fulfil all of his statutory requirements set out in s.1 PACE.

[1,910 words including footnotes]

Bibliography

Police and Criminal Evidence Act 1984

Pace Code A: Stop and Search (effective 31st March 2003), Home Office, 2003

Criminal Justice and Public Order Act 1994

The European Convention on Human Rights, Article 5

Starmer, K, Strange, M, Whitaker, Q, Criminal Justice, Police Powers & Human Rights, Blackstone Press Ltd, 1st edition, 2001

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S.1(1) PACE 1984, s.1(4) PACE 1984

s.1(3) PACE 1984

Code A, para 2.2

Code A, para 2.7

Code A, para 2.3

(1979) 71 Cr App Rep 13.

[1970] AC 942

[1985] 1 WLR 382

See H Hart, The Concept of Law (Oxford: Clarendon, 1961)

Code A, para 2.11

s.67(10) PACE 1984

s.67(11) PACE 1984

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11 May 1995, unreported, DC

s. 1(2) PACE 1984, s.1(7) PACE 1984

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s.2(2b) PACE 1984

s.2(3) PACE 1984

High Court, QBD, 1 July 1999, LEXIS transcript

s.3(1) PACE 1984

Code A, para 1.5

High Court, QBD, 1 July 1999, LEXIS transcript

as amended by s.8, Knives Act 1997

s.60(1) Criminal Justice and Public Order Act 1994, as amended by s.8, Knives Act 1997

Art. 5 European Convention on Human Rights

Criminal Justice, Police Powers & Human Rights, Blackstone Press Ltd, 1st edition, 2001, p.95

Teacher Reviews

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Edward Smith

7th of Aug 2013

5 Stars. An excellent essay on PACE.

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The search of Arnold - Police stop and search powers.