Can stop and search without suspicion be justified?

The police use of stop and search as a crime prevention tool has for decades been the subject of considerable debate. There is particular concern over the increasing use of stop and search and how this has disproportionately targeted ethnic minorities.

Stop and search again came under scrutiny when in December 2015, the Supreme Court in R (on the application of Roberts) v Commissioner of Police of the Metropolis [2015] UKSC 79, considered a challenge brought by Mrs Roberts against the police for searches they carried out on her, under section 60 of the Criminal Justice and Public Order Act 1994 (CJPOA).

Unlike most police powers of stop and search, there is no requirement under this provision for an officer to have reasonable grounds to suspect the person being searched of carrying prohibited items. This differs from most other search powers – for example, searches under the Misuse of Drugs Act 1971 require an officer to have reasonable grounds to suspect an individual of possessing controlled drugs. Although the test of ‘reasonable suspicion’ is not a particularly difficult one for a police officer to meet, it provides at least some safeguard against the powers being used arbitrarily.

By contrast, section 60 CJPOA allows for searches without specific grounds for suspicion, in an area where an officer of or above the rank of inspector reasonably believes that incidents involving serious violence may take place, and that such an order is likely to prevent their occurrence. Such an authorisation can be given for up to 24 hours, and extended for a further 24 hours by a superintendent. Once the authorisation is in place a police officer may stop and search any person or vehicle in the area for weapons, even if there are no grounds specific to that individual for suspecting they will find them.

At the time she was detained Mrs Roberts, a mother of one, was a 37 year old of African-Caribbean heritage employed as a support worker providing in-class support for young people with disabilities and learning difficulties. She was travelling on the bus when a ticket inspector called the police as she had not paid her fare. On arrival the police performed a section 60 search on the basis that Mrs Roberts was in a known area for gang violence and appeared to be concealing something in her bag. Mrs Roberts was arrested for various offences and cautioned for obstructing the search. Mrs Roberts brought a challenge in the High Court, alleging her search and detention was unlawful and in breach of her European Convention rights under Article 5 (right to liberty and security) and Article 8 (right to privacy).

Mrs Roberts’ caution for obstructing the search was quashed but her civil action was unsuccessful. The court found her detention was not in breach of Article 5 and although her right to privacy was infringed, this had been in accordance with the law. Mrs Roberts appealed on the basis that section 60 searches are not in accordance with the law as the removal of the need for reasonable suspicion meant there was nothing to prevent stop and search decisions being made on an arbitrary and discriminatory basis.

In dismissing Mrs Robert’s appeal Lady Hale found that these “suspicionless searches” did interfere with a person’s right to respect for private life, but they pursued a legitimate aim and therefore police use of this power was justified.

In giving judgment Lady Hale acknowledged that in this country there is a desire that as far as possible law abiding citizens should be free to enjoy being in public without the fear they may be detained and subject to physical interrogation by the police. Lady Hale referred to R (Gillan) v Commissioner of Police of the Metropolis [2006] UKHL 12, where Lord Bingham considered similar police powers to conduct suspicionless searches although in that case under the Terrorism Act. In that case Lord Bingham stated,

‘The exercise of power by public officials, as it affects members of the public, must be governed by clear and publicly accessible rules of law. The public must not be vulnerable to interference by public officials acting on any personal whim, caprice, malice, predilection or purpose other than that for which the power was conferred’.

Lady Hale’s judgment however is firmly in support of section 60 searches and in giving her reasons she stressed that the aim was to reduce the risk of violence involving knives and other offensive weapons often where gang crime is suspected,

“It must be borne in mind that many of these gangs are largely composed of young people from black and minority ethnic groups. While there is concern that members of these groups should not be disproportionately targeted, it is members of these groups who will benefit most from the reduction in violence, serious injury and death that might result from such powers.”

Allowing the police to perform searches without the need for suspicion disproportionately affects ethnic minorities, but Lady Hale seems to conclude the current approach strikes the right balance. Nevertheless many law abiding members of black and other ethnic minority groups may find it strange that being singled out for routine stop and searches by police looking for weapons is something they should be grateful for.

In reality many will be worried the judgment will be used to justify policing based on negative stereotypes of ethnic minorities. Such concerns are supported by a Ministry of Justice study which finds that nationally in 2010/11 black people were 37 times more likely than white people to be stopped for a section 60 search. Despite this arrests were made following only 2.3% of searches which is broadly similar across all ethnic groups.

Lady Hale referred to another terrorism case (Beghal v Director of Public Prosecutions [2015] UKSC 49) which challenged police or immigration officers’ powers to question members of the public at ports and borders even when there is no suspicion against them. Often these powers are targeted against particular groups but Lady Hale noted it was held this was an important power which ‘would either have to be abandoned or exercised in a far more invasive and extensive way, by questioning everyone passing through ports and airports’.

Whether it is terrorism or knife crime it is right that the police have appropriate powers to protect the public. The consequences of knife crime are devastating and can never be overstated but the judgment assumes that suspicionless searches are key in tackling this. Lady Hale takes the position it is the ‘randomness and therefore the unpredictability of the search which has the deterrent effect and also increases the chance that weapons will be detected’. The effectiveness of suspicionless searches is however in dispute and it is reported that in 2009-2010 only 0.32% (one in 300) resulted in arrest for possession of an offensive weapon. It is therefore questionable that the degree of intrusion and inconvenience is proportionate to the actual impact on reducing crime, and whether instead police resources should be spent on less discriminatory and more effective investigative strategies.

Another issue that the judgment does not convincingly address is the effect of the arbitrary use of stop and search powers on tensions between police officers and the communities they police. The concern held by Mrs Roberts and many within ethnic minorities is that section 60 searches allow law abiding members of the public to be detained by police officers without justification and for no reason other than their ethnic background. The resulting distrust in police is likely to be damaging, which in turn can have implications for cooperation with police investigations.

Lady Hale appears to suggest that there are sufficient safeguards to ensure the police are accountable for their actions. Reference is made to the availability of judicial remedies for breaches of human rights and / or breaches of the Police and Criminal Evidence Act 1984 (PACE) which governs police conduct. However the police are not required to seek prior court approval to authorise section 60 searches. When the authorisation is in place the intentionally broad discretion that is afforded to police officers makes it is difficult to see how they will fail to justify searches conducted because of racial profiling.

Lady Hale suggests that because police and crime commissioners are directly elected and scrutinised by local police and crime panels this makes them accountable and presumably therefore provides sufficient barriers to improper use of section 60 searches. The reality is that many on the receiving end of stop and search are under 18 and therefore can have no involvement in the election process. In any event the rate of disproportionate searches of ethnic minorities, who are nonetheless law abiding, is worrying and indicates greater safeguards are needed. Instead rulings such as this appear to support disproportionate stop and search and coupled with government proposals to scrap the Human Rights Act show we are perhaps headed in the opposite direction.

While the government’s proposals to repeal the Human Rights Act 1998 are often justified on the basis that human rights have “gone too far”, this judgment shows the court being willing to find that the interference with Mrs Roberts’ private life was justified. It is to be hoped that the question of stop and search will be carefully considered in future cases, to ensure there are sufficient safeguards in place to adequately protect the private lives of all citizens, regardless of ethnic background.