Fe Fi Fo Fum, I smell the weed of an Englishman…

“It’s a pity mobile phones can’t record scents as well as scenes and sounds, isn’t it ?”

That is a thought that has been at the forefront of my mind on many occasions in recent times, particularly when I was writing my recent blog about the great benefit which the prevalence of mobile phones can offer society in terms of providing a proper record of Police interactions with individuals.

Mobile phone films can give us a full colour, ‘surround- sound’ picture of what was going on during a Police stop-and-search event, but they cannot testify to the truth or otherwise of Officer assertions that they can “smell cannabis” – often the only justification the Police can produce for the stop/search.

I have acted for numerous clients who are adamant that neither they nor anyone in their vicinity was or had been smoking weed, but that nevertheless Officers have made the accusation, seemingly secure in the knowledge that no-one after the event is going to be able to disprove it. From my knowledge of the wider facts of their cases, I am strongly inclined to believe my clients in this regard and can therefore only assume that the Officer has some other motivation for wanting to carry out a stop search (suspicion based on personal characteristics? needing to make an arrest quota?) that he is masking behind the ‘phantom smell’ of cannabis.

A classic example of this is the case of my client Tariq Stanley, whose complaint is currently being investigated by the Metropolitan Police. Tariq was sitting in his BMW car outside his home, watching a You Tube video on his phone (having earlier smoked a tobacco cigarette outside the car)  when the following scene unfolded (as this is the subject of ongoing investigation, I have redacted the Officer’s name)  –

  1. Towards the end of the video, I saw a marked police van pull up in the car park of another block of flats 100 meters or so away. I saw at least six uniformed officers get out. They congregated and were talking to each other. I paid them little attention. After a short time, I noticed one Officer approach in my direction. I understand this officer to be PC G.
  1. PC G continued his approach and I formed the impression that he was going to speak to me. I removed the headphones so they were around my neck. I remained sat in the car. PC G came up to the driver side window and said to me, “what are you doing here?” I told him that I lived here and pointed to my flat, which was directly above us. He said that I had a nice car.
  1. PC G then asked if I smoked. I told him that I had not long had a cigarette. PC G then told me that he smelt cannabis. I told him I didn’t smoke cannabis and I had not smoked cannabis.  I told him that he was lying. There was no smell of cannabis emanating from either myself or the car. The cigarette I had smoked contained tobacco only. I do not smoke cannabis. I had not been in the car for four or five days and no one else had access to it other than my girlfriend. She does not smoke cannabis.
  1. PC G said “I want to search you.”  I said he could, that I had nothing on me. He said  “Get out.” 

I have another ongoing case against Merseyside Police, which began after a young motorist (my client’s son) was stopped, with the Officer who pulled him over alleging that he had smelt cannabis as the young man’s car was passing him (he must have a nose like the Bisto kids) – despite the fact that my client’s son’s car window had been up. The young man did not know whether to laugh or cry at such a ridiculous assertion, but had no ‘objective’ way to disprove the allegation – which the Officer was now repeating for the benefit of any future audience of his ‘body camera’ – other than to insist that the officer carry out a drugs test upon him. Ultimately, and perhaps unsurprisingly, the officer declined to arrange such a test and let my client’s son go about his business – instead having seized the opportunity to arrest my client himself after he arrived on the scene to advocate on behalf of his son.

The ‘I smell cannabis’ line is probably the easiest ‘go to excuse’ of lazy/ borderline corrupt Policing practice, allowing an Officer to claim a ‘legitimate’ justification for the search of a person or vehicle, which would otherwise be forbidden by Code A of the Police and Criminal Evidence Act 1984 (PACE).

That similar problematic policing methods are also prevalent on the other side of the Atlantic was starkly highlighted by the comments made by New York City Judge April Newbauer in July 2019, when she deplored the practice of NYPD Officers trotting out the same formula time and time again with these scathing words –

“The time has come to reject the canard of marijuana emanating from nearly every vehicle subject to a traffic stop…So ubiquitous has police testimony about odors from cars become that it should be subject to a heightened level of scrutiny if it is to supply the grounds for a search.”

My own case experience, which leads me to echo the words of the New York Judge,  is borne out by a rigorous investigation/ statistical analysis carried out the College of Policing in 2017. A report entitled “Searching for Cannabis” concluded that “The smell of cannabis was not associated with outcomes…”. Out of a sample of 2,000 stop/search events the College of Policing team found that searches with the smell of cannabis recorded in their grounds were no more or less likely to result in a ‘Criminal Justice’ (CJ) outcome (i.e an arrest, caution, fine etc). This is a striking finding, as if the Officer was genuinely smelling cannabis on a person, wouldn’t you expect a greater likelihood of that individual being found in possession of the substance, than the search of someone who was not smelling of it? To my mind, borne out my own experience as highlighted above, this indicates that in many of these incidents, the Officers were simply lying about the smell of cannabis, to justify a search which had no other grounds.

Of course, the College of Policing did not suggest that falsehoods from the Officers were an explanation for the apparent discrepancy, but the results clearly caused that body real concern as the conclusion which they drew from the report and advocated to Chief Constables was that “a focus of suspect behaviour is much more important than the smell of cannabis in Officers’ grounds for search and is likely to lead to more productive searches in Criminal Justice terms.”

Whilst stopping short of advising that the (alleged) smell of cannabis should never constitute reasonable grounds (on its own) for a search, the College was clearly leaning heavily in that direction, and the current Authorised Professional Practice guidelines for use of stop and search powers warn that “it is not good practice for an officer to base his or her grounds for search on a single factor, such as the smell of cannabis alone…”

The College was doubtless also influenced in coming to this conclusion by a HM Inspectorate of Constabulary  legitimacy inspection in 2017 which found a difference in ‘find rates’ for black people subject to  drug searches of 29% against a higher ‘find rate’ of 37% for white people, suggesting “that weaker grounds might be used to search black people.” For what it is worth, both Tariq Stanley, and my client’s son in the Merseyside Police case, are black.

Sadly however, even the somewhat watered-down guidance issued by the College of Policing in 2017, was far from universally accepted, and was indeed explicitly rejected by many senior officers, including the Chief Constable of Merseyside Police, Andy Cooke who took to Twitter to boldly proclaim –

Smell of cannabis is sufficient to stop search and I will continue to encourage my officers to use it…”

Indeed, the smell of cannabis might have been shown to be a statistically valid ground for a stop search…if Officers’ claims to have smelt it were always scrupulously truthful.

If Police Officers, and Chief Constables, won’t listen to the logical guidance of their own professional body (the College of Policing) – then is a more radical alternative therefore necessary to tackle this problem?

There are many compelling arguments as to why cannabis should be decriminalised…It would move an industry which can be used to fund organised crime into the ‘straight’ economy, to the financial benefit of society; and it would allow the Police to concentrate their resources on controlling harder, far more dangerous and debilitating drugs, and violent crime. After all, you do not need to be an experienced police officer, lawyer or criminologist to realise that far more crimes of violence are committed under the influence of perfectly legal drug known as alcohol than by those using cannabis, which is also less addictive than alcohol and has recognised benefits to health (in professionally regulated circumstances). Certainly, countries such as Canada and Portugal which have legalised cannabis in recent times have hardly gone off the rails as a result.

But furthermore, a very simple and practical benefit that I can see accruing from such decriminalisation would be to remove any temptation for Officers to use the alleged scent of cannabis as an excuse where no other lawful reason exists to stop and search a person. This would, at a stroke, abolish the need for thousands of totally unnecessary Police-public interactions, saving Policing funds and resources and building up a greater trust between the Police and the communities they serve.

Many more people would escape being left with a bad taste in their mouths, and a distrust in the Police, because of the phantom smell of cannabis.

Author: iaingould

Actions against the police solicitor (lawyer) and blogger.