Under s.1(7-9) PACE ‘offensive weapons’ are objects which have been altered to cause harm to another. Whether an article is considered an offensive weapon would depend on the manner in which it was found as shown in the cases of Buckley v DPP and Southwell v Chadwick. In Buckley a machete which was found wrapped in a newspaper and hidden in the boot of a car was considered an offensive weapon. However as the machete found in Southwell was found in its sheath it was not considered an offensive weapon. Prohibited articles are considered as objects which have been altered to aid offences including burglary, theft and fraud.
Code A provides that the main element required for stop and search is reasonable suspicion. In Shaaban bin Hussein v Choong Fook Kam Lord Devlin provides:
‘Suspicion is its ordinary meaning is a state of conjecture or surmise where proof is lacking: but I cannot prove.’
This is reinforced in Samuels v Commissioner for the Metropolis which demonstrated that walking around at night was not enough to satisfy reasonable suspicion to stop an individual. Following this, Code A also suggests that reasonable suspicion cannot be supported on the basis of person factors such as race, age or gender which is complemented by The Race Relations (Amendment) Act 2000. The provision ensures that discriminatory stop and searches are unlawful as described in the journal ‘Stop and Search: disproportionality, discretion and generalisations’ written by Darren Ellis. The journal illustrates that Code A is applied into the police officers code of practice to reduce the risk of racial and religious discrimination when executing the power to stop and search.
S.2 PACE provides that a constable must identify himself to the suspect and give reason of the search, this is demonstrated in s.3 of Code A and Christie v Leachinsky. The search may not be more than a ‘quick frisk’ and allows only the removal of outer clothing including jacket and gloves. Other safeguards include the requirement of the searching officer to keep a written record of the search, under s.3 the suspect will also be entitled to a copy of this if he requests it. This follows the inquiry of Stephen Lawrence as demonstrated in the article by Joel Miller, ‘Stop and Search in England: A Reformed Tactic of Business as Usual,’ the article discusses how recording a stop-search helps avoid the racial disproportionality and generates fairness. R v Fennelly demonstrates that if a stop-search is not conducted correctly, any evidence obtained can be excluded by the courts.
The journal by Caroline Day and Jill Lorimer ‘Update: PACE (May)’ discusses the changes to Code A made by s.1 Crime and Security Act 2010 which came into effect in March 2011. S.1 of the Act reduces the amount of necessary information which must be recorded after a stop and search.
Furthermore, under s.2(8) PACE and Code A the suspect should be searched at or near the place where he was stopped to protect the intrusion on his liberty which is supported by Art 5 ECHR. If the constable does not follow this, the concept for the powers of the police becomes less effective. This also applies to s.117 of PACE where a constable is allowed to use reasonable force to search the suspect. Since Code A provides that an attempt to obtain consent should be made, if the constable uses force without trying to acquire consent he will not be covered for the force under any defence of PACE as shown in Collins v Wilcock where the police woman’s grabbing of the arm amounted to a battery.
Regarding PACE, s.23 Misuse of Drugs Act and s.47 Firearms Act 1968 a constable must have reasonable grounds to suspect the individual; however, in 2006/7 figures displayed a 3.7% rise in discriminatory stop-searches.
Not all powers of stop and search need grounds to reasonably suspect, Sarah Wallace’s journal ‘Stop!’ discusses the provisions under Code A and the types of searches which do not require ‘reasonable grounds to suspect’ as follows; under the Terrorism Act 2000 if a constable believes an individual is in possession of an offensive weapon which may under s.43(1) ‘constitute evidence that he is a terrorist’ a stop-search may be performed. The search however, must be completed by a senior ranking officer (as demonstrated in DPP v Avery) of the same sex of the suspect, caution to minimise embarrassment must also be made. In R (on the application of Gillan) v Commissioner of Police of Metropolis the court adopted the view that the lack of reasonable suspicion cannot become a reason to stop and search any person, but an exception where the constable may stop-search a person he believes may be a terrorist under s.44. This however, may not always be lawful and lead to negative attitudes from the public with regard to racial profiling. The issue of discrimination can be seen in Gillan and Quinton v UK ECHR where it was held that the power of stop-search established a violation of the right to privacy under Art 8 ECHR the discriminatory use of the power against the person and his belongings was not in accordance with the law. This demonstrates that if the stop is discriminatory or does not follow statutory provisions, the stop-search will be deemed unlawful. Since Gillan and Quinton the courts have abandoned powers of stop-search under s.44 Terrorism Act 2000 the criteria now followed is set out under s.43 of the Act. The Criminal Justice and Public Order Act 1994 also extends the powers of stop-search where reasonable suspicion is not required. If the police are searching for guns, knives or other weapons under s.1 PACE a senior officer may stop-search. The number of stop-searches with relation to violence and offensive weapons was on average considerably lower than stop-searches under the Terrorism Act. However, since 07/07/2005 London bombings, the number of stop searches in relation to the Terrorism Act has shot up.
A wide range of stop-searches under s.1(3) of PACE require reasonable grounds to suspect, including s.4 PACE which allows roadblocks to be set up when there is reasonable suspicion that, for example, an serious offence has been committed. However, the powers of stop-search have been extended and not all offences require this pre-condition. Whether reasonable suspicion is required or not, PACE places an absolute duty on police officers to conduct the stop-search through the accurate procedures. The powers of stop and search pre-PACE were ill defined, causing confusion through case law and legislation. Since PACE has come into effect the powers of the police with regard to stop and search have become wider and more extensive. Through both common law and statute these powers have become more clearly defined which benefits both the police and the suspects.
Word Count:2,200
Bibliography:
Websites:
LexisLibrary
Westlaw
http://www.historyextra.com/feature /stop-and-search-what-can-we-learn-history
http://news.bbc.co.uk/1/hi/uk/7495075.stm
Books:
Andrew Sanders, Richard Young, Mandy Burton, ‘Criminal Justice’ Fourth Edition, Oxford University Press 2010
Paul Ozin, Heather Norton, Perry Spivey, ‘A Practical Guide to the Police and Evidence Act 1984’ Second Edition, Oxford University Press 2010
Reports:
Royal Commission on Criminal Procedure, ‘The investigation and Prosecution of Criminal Offences in England and Wales: The Law and Procedure’ (Cmnd 8092-1, app1)
Scarman Sir L, ‘The Brixton Disorders: 10-12 April 1981’ Cmnd 8427
Articles:
Joel Miller, ‘Stop and Search in England: A Reformed Tactic or Business as Usual?’ Br J Criminol (2010) 50 (5): 954-974
Journals:
Caroline Day and Jill Lorimer, ‘Update: PACE (May)’ S.J. 2011, 155 (17), 23-24
Darren Ellis, ‘Stop and Search: disproportionality, discretion and generalisation’ Pol.J.2010, 83(3), 19-216
Sarah Wallace, ‘Stop!’ N.L.J. 2003, 153 (7082) 813-815
Code A Police and Criminal Evidence Act 1984 (PACE 1984)
Jackson v Stevenson [1879] 2 Adam 255
Rice v Connolly [1966] 2 QB 414
Kenlin v Gardiner [1967] 2 QB 510
S.66 Metropolitan Police Act 1839
Daniel v Morrison (1979) 70 Cr App Rep 142
James Whitifield, ‘Stop and Search: What can we learn from history’ (History Extra, 2004) <http://www.historyextra.com/feature/stop-and-search-what-can-we-learn-history> accessed 20 November 2011
Royal Commission on Criminal Procedure, ‘The investigation and Prosecution of Criminal Offences in England and Wales: The Law and Procedure’ (Cmnd 8092-1, app1)
Scarman Sir L, ‘The Brixton Disorders: 10-12 April 1981’ Cmnd 8427
S.1(8B) and (8C) PACE 1984
Criminal Justice Act 1988
Southwell v Chadwick [1986] 85 Cr App Rep
P.2.2 Code A, Codes of Practice, PACE 1984
Lord Devlin, Shaaban bin Hussein v Choong Fook Kam [1970] AC 942
Samuels v Commissioner for the Metropolis [1999] EWCA Civ 883
P.1.1 Code A, Codes of Practice, PACE 1984
The Race Relations (Amendment) Act 2000
Darren Ellis, ‘Stop and Search: disproportionality, discretion and generalisation’ Pol.J.2010,83(3),19-216
S.3 Code A, Codes of Practice, PACE 1984
Christie v Leachinsky [1947] AC 574 1 All ER 567
Joel Miller, ‘Stop and Search in England: A Reformed Tactic or Business as Usual?’ Br J Criminol (2010) 50 (5): 954-974
R v Fennelly [1989] Crim LR 142
Caroline Day and Jill Lorimer, ‘Update: PACE (May)’ S.J. 2011, 155 (17), 23-24
S.1 Crime and Security Act 2010
P.1.2. Code A, Codes of Practice, PACE 1984
Collins v Wilcock [1984] 3 AII ER 374
S.23 Misuse of Drugs Act 1971
2011. ‘Police Stop and Search Figures Up’ (BBC News, 2008)< 22Nov11
Sarah Wallace, ‘Stop!’ N.L.J. 2003, 153 (7082) 813-815
S.43-44 Terrorism Act 2000
S.43(1) Terrorism Act 2000
DPP v Avery [2002] 1 Cr. App.R. 31
R (on the application of GIllan) v Commissioner of Police for the Metropolis [2006] UKHL 12
Gillan and Quinton v UK ECHR (2010) 28
S.60 Criminal Justice and Public Order Act 1994
British Crime Survey 2005-2006