In this series of blog posts solicitor Iain Gould considers how the police are misusing their stop and search powers. As a specialist in civil actions against the police Iain represents people who have suffered as a result of the police’s misconduct. Giving examples from his clients’ cases, Mr Gould highlights issues with stop and search for lawmakers and the public alike.
At the recent Conservative Party Conference, the Prime Minister asserted (amid coughs and splutters, falling set design and a prankster brandishing a P45) that since 2014, government action meant that “the number of black people being stopped and searched has fallen by over two thirds”.
Whilst the number of black people being stopped and searched by the police has indeed fallen by two thirds, this is in fact since 2010-11 and not 2014.
Furthermore, the sad fact is that black people are still four times more likely than white people to be stopped.
The Metropolitan Police Commissioner recently went on record to defend the continuing use of stop and search and the Home Secretary later added her support saying that “we have given the police the powers they need and officers who use stop and search appropriately, within reasonable grounds and in a targeted and intelligence led way, will always have my full support.”
So what are these powers?
As is often the case, the powers available to the police to stop and search persons and vehicles are myriad.
Most – but significantly not all – are circumscribed by the requirement that there be reasonable suspicion that something prohibited will be found. This will usually be under Section 1 of the Police and Criminal Evidence Act 1984 (PACE) – stolen or prohibited articles or certain articles with a blade or sharp point – or Section 23 of the Misuse of Drugs Act – controlled drugs.
Section 2 of PACE provides safeguards which govern the exercise of all but one pre-arrest search power (the only one exempt is Section 27 of the Aviation Security Act) namely that for a search to be lawful the officer must take reasonable steps to provide the following information:
a)His/her name and police station;
b)The object of the proposed search;
c)His/her grounds for the search; and
d)The availability of the search record at any time within the preceding 12 months.
The officer conducting the search is also required to create a search record recording the object of the search, the grounds for making it, date, time and place of conduct, whether anything was found and if so what, and any injury or damage to property which resulted.
The requirements of S.2 are strictly applied; if the officer does not comply, the stop and search will be unlawful.
An unlawful stop and search will almost inevitably give rise to a claim for false imprisonment (ie for the period of time that the individual is detained) and assault and/or battery (in respect of the apprehension and/or application of physical force) which can then lead to an award of compensation.
Here’s an example of a case that I concluded recently against the Metropolitan Police.
My client, KG and his younger brother SG (both black males) were walking along a road in East London. SG was going to a fancy dress party. He’d borrowed some crutches from KG and was going as a man who’d broken his leg. As they got to a convenience store, KG went in to get a drink. As he was doing so, 2 PCSOs who had been following the pair, approached SG and began to quiz him as to why he was carrying crutches (given that according to the officers he had no discernible reason as to why he should have them). SG explained that he was going to a party. KG came out of the store and challenged the officers as to their actions, explaining that the crutches were his and that his brother was going to a party. KG took the crutches from his brother. He accepts that he was annoyed and that he said, “What? Is it a crime for a black man to be carrying a pair of crutches?” The officers said it was suspicious but failed to explain why.
As a side note, it does beg the question why a person carrying crutches should raise more suspicion than a person carrying other items that they have no apparent use for, but I digress.
KG was outraged. He knew neither he nor his brother were carrying drugs and told the officers to “search the fucking crutches then”.
The PCSOs called for backup and told KG that he was detained pending their arrival. KG continued to swear repeatedly saying “Search the fucking crutches”. When the officers refused, KG sought to walk off but in response, one of the officers grabbed his arm to which KG replied “Don’t fucking touch me”, and again, “Search the fucking crutches”.
After about 10 minutes or so, 2 police constables arrived, PC W and PS H. The officers conferred with the PCSOs. PC W was asked to search KG because it was believed that he had drugs secreted on him or inside the crutch notwithstanding, as PC W later admitted, that crutches being used to conceal drugs “was a new one for him”. PC W explained to KG that the PCSOs believed he may have drugs on him, provided his details, what station he came from and how KG could have a copy of the search record at the end.
By this stage, a group of people had gathered to watch events. Both KG and his crutches were searched under S.23 Misuse of Drugs Act and nothing incriminating was found. One of the PCSO’s began to write out a form which KG believed to be a stop and search form which was then handed to him. On checking however, Mr G discovered that he’d been handed a fixed Penalty Notice for breaching Section 5 of the Public Order Act. The officers then left without issuing a stop and search form because (they later asserted) to do so was impractical because of concerns that their continued presence was creating ‘a situation’.
Of course it is blindingly obvious that if the officers were able to issue a Fixed Penalty Notice for minor disorder, surely they were also able to issue a stop form, but they did not.
On review, the following issues were relevant to establishing liability for both false imprisonment and assault/battery.
- Under paragraph 2 of Schedule 4 of the Police Reform Act 2002, a PCSO has power to detain a person when they have reason to believe that person has committed a relevant offence and who fails to comply with the requirement to give their name and address. ‘Reason to believe’ is of course a higher threshold than ‘Reason to suspect’. In other words, it was not sufficient for the PCSOs to suspect that crutches could contain drugs; they needed information to indicate that KG’s crutches did contain drugs. Accordingly, there was no legal power for them to detain and physically restrain KG from leaving.
- For the search of KG to be lawful, PC W had to (as well as complying with Section 2 PACE) establish that he himself had reasonable suspicion that KG was in possession of a controlled drug. Just because the PCSO told him of their suspicions was not good enough. Accordingly, the search was unlawful.
In all, KG was detained for approximately 15/20 minutes. He suffered no physical injury as such, but certainly did suffer insult to his feelings, being left with a hurtful sense of injustice on the basis of racial bias.
After a lengthy complaint process, I am pleased to confirm that, despite as usual making no formal apology or admission of liability, the Metropolitan Police were clearly persuaded by my argument that KG had been unlawfully detained and assaulted and agreed to pay him £2,200 damages plus legal costs.
As is so often the case, KG remains dissatisfied. He believes that he and his brother were stopped because they are black. Such an assumption is understandable because there appears no other reason for the stop.
Whether the stop was conducted because of racial discrimination or not, the impression that KG and his brother have is that the PCSOs were motivated by discrimination, whether conscious or unconscious and that they were targeted unfairly.
I leave you with a quote from the Editorial of the Times in April 2017; “Stop and search is an incendiary policing tool if not used with care….in practical terms the damage such apparent unfairness inflicts on community relations can eclipse any improvement in public safety”.