Powers of stop and search
POWERS OF STOP AND SEARCH
In this case, James was stopped at 2.00 am by two uniformed police officers, who wanted to know what was in his bag.
Under section 1 of the Police and Criminal Evidence Act 1984(PACE), it is stated that a constable can only conduct a stop and search in a public place, if he has reasonable grounds for suspecting that stolen or prohibited articles would be found on the person. As well as this fact, it must be examined in James case whether the police complied with notification requirement, in explaining to him the reason for been searched (in accordance to section 2 and 3 of PACE). Therefore it must be questioned whether the police officers were legal in their actions towards him. Did they have the authority to stop and search him in the first place?
The power to stop and search has always required reasonable suspicion,1that the person in question will be found in possession of specific articles which provides the proof to an offence. Therefore power cannot be exercised to stop and search someone on the pure notion that something unlawful would be in his or her possession. So the fact that a constable is suspicious, or going on their instinct can be seen as unjustifiable.2This in itself can lead to racial bias, and those been targeted may feel they are been harassed by the police. It can be seen that the requirement for reasonable suspicion is meant to protect people from been stopped and searched randomly, or on the basis that the law views unacceptable such as a person's racial background and age.
Code of Practice A, paragraph 1.6-1.7AA contains details and guidance on what actually constitutes reasonable suspicion and when these powers should be used.
These paragraphs draw attention to the grounds by which reasonable suspicion can occur. Officers can be suspicious if they have received certain information on the suspected offender or certain articles been carried. Importance is also stressed on the 'time and the place' and 'the behaviour of the person concerned'.
Paragraph 1.7 of the code in particular puts emphasis on the point stressed previously, it states that: `reasonable suspicion can never be supported on the basis of personal factors alone without supporting intelligence or information. For example a person's colour, age, hairstyle...'
It is important therefore that police powers are used sensibly and that failure to obey such codes may be damaging to the police as opinion and trust of the police will not be high, in regards to members of society.3
When looking at the facts of this case, one has to question whether, there ...
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Paragraph 1.7 of the code in particular puts emphasis on the point stressed previously, it states that: `reasonable suspicion can never be supported on the basis of personal factors alone without supporting intelligence or information. For example a person's colour, age, hairstyle...'
It is important therefore that police powers are used sensibly and that failure to obey such codes may be damaging to the police as opinion and trust of the police will not be high, in regards to members of society.3
When looking at the facts of this case, one has to question whether, there was reasonable grounds for suspecting that stolen or prohibited articles would be found.
The evidence indicates that the suspect is walking at 2.00 am so the officers had a right to be suspicious as it was an unusual time to be carrying a bag (to which they did not know the content of). Crime is also more likely to occur at this time of the morning. . However despite the fact that time, it is not indicated that the police had received information on crime in that area. Additionally, there is no evidence to suggest that certain articles4were been carried or that James was acting in a suspicious manner, trying to hide something.5
Therefore he was randomly searched, this can only be authorised in accordance with the Criminal Justice and Public Order Act 1994 (as amended by s.8, knives Act 1997). It provides that where it is thought that violence would occur in a certain area, a senior officer gives authorisation to officers to stop and search people randomly in that area for offensive weapons or dangerous instruments.6
It is clear in this case that no such authorisation was given so the officers were not justified in stopping him.
Another point to make is the fact that the officers did not make any effort to question James in order to find a reasonable explanation that would rule out a search being carried out on him.7However, on this note it has been stressed that questioning cannot provide the grounds for reasonable suspicion (such suspicion must exist before an individual is stopped, although it can corroborate or eliminate it).8
On top of this, there are certain requirements before a search can be carried out. These are listed in section 2 (3) of PACE, which states that a police officer must take reasonable steps to notify the person being searched of their name, the police station to which they are attached, what they are searching for and the officers grounds for the search. Details of the search have to be recorded and the person is also entitled to have a copy of the national search record.
In relation to this case, it could be said that the officers made no attempt to provide James with the notification or record required. When James did ask why they wanted to search his bag, one of the officers replied sarcastically, ``Because we don't like your face, Sonny.' It is shown here that the officers acted in an improper manner.
The only situation where a search record is not needed is when it may be impractible to do so.9An example was given by white, which states a situation 'where multiple searches are made of persons attending a football match where the need to make notes would interfere with the purpose of the searches'.10
This is not the case here, therefore the officer's failure in conducting this notification and record requirement made their search of James unlawful.
Moving on from this it is also important to highlight the fact that a certain amount of force was used on the suspect. It can be argued that this force was done without legal authority. His restraint by one of the officers while his bag was searched was not necessary because he did not put up much resistant and there were no signs that he was going to be violent towards them. He was more than likely willing to co-operate to the search of his bag without being held. It is made clear in s.117 of PACE that force could only be used as a last resort (if the person is an unwilling party').11That is if the bag carried by James for some reason could not be searched.
As James did not put up much resistance it is obvious that the officers in question acted illegally towards him, and were not conforming with the requirement of PACE. Thus there will be consequences to their actions (which will be briefly outlined later)
However in spite of their illegal actions in the stop and search of James, it did lead to several articles being found in his bag, which could have been stolen or prohibited articles used in a burglary or theft. Nevertheless we are not told what types of articles were found. In order for James to be prosecuted, the officers have to prove that reasonable suspicion did exist.
(b) It is quite clear after reviewing James case that his search was not legally permissible as reasonable steps were not taken to provide him with the notification and record requirement (under s 2 and 3 of PACE). Importantly there was no reasonable suspicion to justify the stop in the first place. The officers however may argue that there was reasonable suspicion as he was caring a bag at 2.00 am. at a time where crime may be at its highest. (This may be for the courts to decide).
Therefore, as a result of their breach of the provisions of PACE 1984 and codes of practice the officers will have to deal with the consequences of their actions. There are a number of solutions in regards to police misconduct. Firstly if the defence can prove the officers did not sensibly exercise their powers, the articles, which were found on James, will be excluded from evidence (they will be found to be inadmissible).12 This in a way may prevent the officers from acting unlawfully in the future.
Secondly he can choose to make a formal complaint against the officers. 13This may result in disciplinary proceedings against the officers in question.
Thirdly, James so infuriated by the actions of the officers may also choose the option of suing them (bring a civil action against them). As a result of this he may be awarded damages in compensation. In saying this it is very rare that such action is taken, and if it were the damages would be very small. As well this fact it is stated under s.66 of Pace that failure to comply with the requirement of the code does not necessarily mean that the officer would be subjected to criminal proceedings.14
To sum up when examining the behaviour of the officers, whichever form of remedy chosen, they will be consequences as a result of their unlawful action. It is more than likely that James would be advised to make a complaint about their misconduct.
S.1 (3), Police and Criminal Evidence 1984.
2 Research by Smith and Gray 1983.
3 Code A, note 1AA.
4 S.1 (7a), PACE.
5 Code A, Para. 1.6.
6 S.60, Criminal Justice and Public Order Act 1994, as amended by s.8, Knives Act 1997.
7 Code A, Para. 2.2
8 Code A, Para. 2.3
9 S.3 (1b) PACE
0 See white, R. The English Legal System In Action, Oxford University Press, 3rd ed, pg 88.
1 Code A, para. 3.2.
2 Code A, Para.
3 Part IV, Police Act 1996.
4 Code A, Para. 1.2
