Question 1
Introduction
In 1960 a survey conducted for the Willink Commission showed that a majority of the public had great respect for the police but by the mid-1970s this positive relationship between the police and the public was being lost.1 There were concerns that the balance between the rights of the citizen and the powers that the police may exercise were being lost. The police have special powers to stop and search someone suspected of having committed a criminal offence but because at this stage the suspect, in this case Arnold, is deemed innocent, it is said there is a careful balance to be struck between the liberties of the individual and the protection of society.2 In response to the claims that the balance between the individuals rights and the community interests had been lost the government established the Philips Commission. The Report of the Philips Commission had as its philosophical base the 'notion of a fundamental balance between the interests of the community in bringing offenders to justice and the rights and liberties of persons suspected of having committed criminal offences`.3 On recommendations of the Philips Commission the government created new legislation to safeguard the rights of the citizen while at the same time allowing the police to exercise their powers and carry out their duties. This new legislation came in the form of the Police and Criminal Evidence Act 1984 ('PACE`). Alongside PACE came detailed guidelines contained in Codes of Practice. Among the safeguards for the individual were: the criterion of reasonable suspicion; notification requirements; and recording requirements. The formal protections provided for Arnold by PACE have not been abided by and the constable has infringed on his rights.
Reasonable Suspicion
'The exercise of a power to stop and search has always been triggered by a requirement of reasonable suspicion that the constable will find on the person searched a specific article evidencing the commission of an offence to which the power attaches`.4 I am unsure as to whether the uniformed police constable had reasonable grounds for suspecting that Arnold had in his possession a stolen article. If the constable stopped Arnold arbitrarily then he is in direct conflict with PACE, s.1(3). He may have stopped and searched Arnold in the general hope of finding stolen goods but there is no power to do this. It is possible that generalising or stereotyping of Arnold played a part in the constable`s decision to stop and search him e.g. Arnold`s race and/or manner of dress may have led the constable to reasonably suspect that he had shoplifted and subsequently to stop and search him.
Student No: 032897843
The constable has no authority to do this. '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', and Arnold`s age, race, or appearance, or a combination of these, cannot be used as the reason for the constable to stop and search him.5 However the constable can make a generalisation from Arnold`s behaviour. If he was acting covertly or was seen attempting to hide something then the constable may (depending on surrounding circumstances such as time of day) ...
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Student No: 032897843
The constable has no authority to do this. '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', and Arnold`s age, race, or appearance, or a combination of these, cannot be used as the reason for the constable to stop and search him.5 However the constable can make a generalisation from Arnold`s behaviour. If he was acting covertly or was seen attempting to hide something then the constable may (depending on surrounding circumstances such as time of day) link this behaviour to the possibility that a stolen article is being carried. The grounds for the constable reasonably suspecting that Arnold was in possession of something unlawfully obtained would be valid.
Although it says in Code A, para 2.3 that a person`s behaviour can justify a stop and search it is preferred that a constable`s grounds for reasonably suspecting that a person is carrying a stolen article is linked to specific information or intelligence. If the constable had received reliable information that someone matching Arnold`s description was seen shoplifting, whether or not this on its own would be allowed to constitute for reasonable suspicion in the mind of the constable I am not sure. In a case appealed in the High Court6 it was heard that a radio message describing the appearance and behaviour of the defendant was received by a Constable Parker and a Constable King. Constable Parker stopped the defendant and the defendant was subsequently detained. Constable King assisting in the detention was allegedly assaulted by the defendant. The question was whether there was evidence of reasonable suspicion by Constable Parker that the defendant had committed an arrestable offence and thus Constable King assisting in the detention was acting in the execution of his duty at the time of the alleged assault. Lord Justice Shaw and Mr. Justice Kilner Brown upheld the decision of the magistrate of the court of first instance saying that the text of the radio message could not in itself have given reasonable ground for suspecting that it was the defendant who was said to be loitering with intent to commit an arrestable offence. There was no satisfactory evidence which would constitute a reasonable suspicion in the mind of Constable Parker and so the detention of the defendant was unlawful and Constable King, who was assisting in the detention was not acting in the execution of his duty at the time of the alleged assault.
'Searches are more likely to be effective, legitimate, and secure public confidence when reasonable suspicion is based on a range of factors'.7 It is difficult to say what counts for reasonable suspicion, and what does not, though it is thought that 'there must be an objective basis for that suspicion based on facts, information, and/or intelligence which are relevant to the likelihood of finding an article of a certain kind'.8 A good way of looking at it is to think of the material on which the reasonable suspicion depends being susceptible to objective evaluation: if an impartial third party, presented with the specific observations of the constable in the face of a particular incident together with any other information known to the constable, would
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agree that there were reasonable grounds for suspecting possession of the specific article sought by the person in question.9 The justices in the case of King v Gardner support this statement. Kilner Brown J. states that 'the first thing that has to be considered in cases such as this, whenever matters have to be considered as to what is a reasonable suspicion or what may be adequate grounds for giving rise to a reasonable suspicion, is the evidence as a whole'. 'What has to be assessed is whether or not this was a reasonable belief on the part of the officer and whether there was sufficient evidence as a whole, in an objective sense, to justify a finding that the officer had a reasonable ground for suspicion'. Shaw L.J. pointed out that 'as soon as the term ''reasonable'' or ''reasonably'' has to be considered it is not merely a subjective question , namely what was in the mind of that man, but it has to be looked at in a general objective context, namely the situation as a whole.'
The constable stopped and asked Arnold whether he had been shoplifting. Questioning of the suspect is permitted to allay or confirm suspicion, not to find grounds for it. The constable must have reasonable suspicion that Arnold had in his possession a stolen article before he stopped him. If the constable did have reasonable suspicion it is difficult to see how this question would confirm his suspicion. He should have asked questions about Arnold`s behaviour or presence in circumstances which gave rise to the suspicion if indeed he did have reasonable grounds for suspecting that Arnold was carrying stolen goods. A brief conversation or exchange is desirable as it is a chance to explain the grounds for the stop/search, to gain co-operation and reduce any tension there might be surrounding the stop/search.10
Conduct of the search
The constable must notify Arnold, before he commences the search, the matters specified in PACE, s.2(3). These matters are the constable`s name and the police station to which he is attached, the object of the proposed search, the constable`s grounds for proposing to make it, and Arnold`s entitlement to a copy of the record of the search. It is clear that the constable has not performed any of these actions and so has breached the mandatory requirements of PACE, s.2(3). It is important that police officers do not disregard these notification requirements not only because they were designed to safeguard the rights of the citizen but also because any evidence obtained from the search may be excluded. This occurred in a case in Acton Crown Court.11
There are actions to be taken on completion of the search and these form the recording requirements. As it was not impracticable to do so, the constable should have made a record of the search on the spot. Arnold should then have been given a copy of the record of the search, and if he was not given one, he should have been informed of his entitlement to a record of the search if an application is made within twelve months. The constable must ask Arnold of his name, address and date of birth but Arnold is under no obligation to divulge this information. The constable has no
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right to detain him to find out. Section 3(6) of PACE and para. 4.4 of Code A state the details that the constable must include in the record of the search and these include the name of the person searched, or (if it is withheld) a description, a note of the person`s self defined ethnic background, the date and time when it was made, the place where it was made, the object of the search, the grounds for the search, the constable`s identity, a note of any injury or damage to property resulting from the search and whether anything, and if so what, was found. It is clear that the constable has failed to complete the notification and recording requirements and so the search is rendered unlawful.
Conclusion
The safeguards of reasonable suspicion, notification and recording requirements were set down to stop police officers abusing their powers but they do not feel constrained by these requirements when making decisions to stop and search. Constables described their reasons for stopping and searching individuals as 'just a matter of instinct...something indefinable'.12 This may have played a part in the constable`s decision to stop and search Arnold, and if so, he had no legal power to stop him. The constable may argue that Arnold consented to the search as he raised no objection when the constable said 'in that case, you won`t mind me checking what you have in your pockets.' Arnold`s consent is not informed and para. 1.5 of Code A now says that an officer may not search a person, even with his or her consent, where there is no search power. Police officers should be polite and show respect for people being searched. The constable saying to Arnold 'Now I know why you agreed to be searched', could be regarded as being rude. This type of action is likely to make the public more remote from the police. The stop and search powers are already a source of tension between the public and the police and this type of attitude displayed by the constable towards Arnold makes matters worse.
[1,998 words including footnotes]
Bibliography
Police and Criminal Evidence Act, 1984, ('PACE`).
PACE Code A.
Home Office Research and Statistics Directorate, Research Findings No. 49, PACE ten years on: a review of research, 1997.
King v Gardner, (1979) 71 Cr App R 13.
R. v Fenneley, [1989] Crim LR 142.
White, R, The English Legal System in Action, Oxford University Press, 3rd ed.
White, R, The English Legal System in Action, Oxford University Press, 3rd ed (cited in this paper as 'White') at 75.
2 White, n.1 above, at 76.
3 White, n.1 above, at 46 (cited from Report of the Royal Commission on Criminal Procedure (Phillips Commission) (London: HMSO, 1981, Cmnd. 8092-1)).
4 White, n.1 above, at 84. See also S.1(3), Police and Criminal Evidence Act 1984 (PACE).
5 Code A, para. 2.2.
6 King v Gardner, (1979) 71 Cr App R 13.
7 Code A, para. 2.5.
8 Code A, para. 2.2.
9 White, n.1 above, at 86.
0 Code A, Note 2.
1 R. v Fenneley, [1989] Crim LR 142.
2 White, no.1 above, at 89.
