There is much still to do on stop and search

Professor Ben Bowling
Wednesday, 7 May 2014

Theresa May’s plans to reform police stop and search powers deserves a cautious welcome. It is to the Home Secretary’s credit that she grasped the nettle. As one Home Office insider put it, “she didn’t have to take this issue on – it’s not like this has been driven by the Daily Mail”.

They have a point. I can’t recall any previous Home Secretary wading so willingly into a debate about a massively controversial police power; neither can I recall a politician of her rank who has quite explicitly taken the position that justice, fairness and effectiveness require that police stop and search powers should be curtailed and used less frequently.

I think that it is to Teresa May’s credit that she initiated this debate through a public consultation that generated more than 5,000 individual and organisational responses. It’s also to her credit that she admitted that as many as a quarter of a million searches could have been carried out illegally last year, that racial disparity is a cause for concern and that too many searches, at least 90 per cent, are fruitless. This has been a running sore for decades and it is encouraging to see a Home Secretary with the courage to confront the abuse of police power.

The rhetoric is good and the case is solid. Moreover, it’s backed up with more good news on police practice. The Metropolitan Police have reduced their overall use of stop and search by 20% in the past two years and the use of ‘suspicionless searches’ under s.60 Criminal Justice & Public Order Act has fallen by a staggering 90% in the same period.

This change comes on the back of the abolition of the massively unpopular s.44 of the Terrorism Act and the fact that s47A (the more tightly-draw replacement power) has never been used. And while stop and search has reduced in the Met, as the Home Secretary pointed out in her statement to the House of Commons, “stabbings have fallen by a third and shootings by forty per cent” and complaints against the police have fallen too.

This is all very good news. In my opinion, the police should never be permitted to stop someone on the street, detain them for on-street interrogation and search through their pockets, bags, vehicle and personal belongings unless there is an objective reason to suspect them of wrongdoing.

The Home Secretary says that “nobody wins when stop and search is misapplied… it’s a waste of police time”. But, in my opinion, it’s worse than useless – it is an abuse of state power, damages the quality of life of those against who it is used (especially those who are targeted repeatedly), undermines trust and confidence in the police and has, over time, contributed to the criminalisation of whole sections of society.

So far so good. But what about the reform package that Teresa May set out last week?

A revision of the PACE Code of Practice? Ok – this was recommended by numerous organisations including StopWatch; but let’s acknowledge that we’ve been here before and that the police routinely ignore the Code.

Last year, Her Majesty's Inspectorate of Constabulary found that 27per cent of search records didn’t even state the grounds for the search (many of them passing scrutiny by supervising officers).

Telling chief constables that they must open up stop and search records to public scrutiny? This is, in fact, already required by the Code of Practice; yet another example of the police ignoring the rules that are supposed to govern their conduct.

Renewing codes of practice, reviewing training and launching yet another voluntary ‘best practice’ scheme are typical of Home Office officials booting difficult issues into the long grass.

There are, however, some hints of a tougher push for fairness and justice. The proposals for training include an assessment of officers fitness to use stop and search powers – if officers don’t understand the law or cannot show they know how to use stop and search powers, Teresa May told Parliament, “they will not be allowed to use them”.

Furthermore, the revised Code of Practice will emphasise that “where officers are not using their powers properly they will be subject to formal performance or disciplinary proceedings.”

The question now will be whether the Home Secretary’s bark has any bite. She is pleading with the police to obey the law, conform to Codes of Practice and improve their training. Rather than actually changing the law or taking any more decisive action she threatens to legislate if these reforms fail, as fail they might.

This resort to threat and exhortation confirms the rumours circulating earlier in the year that despite the depth of the Home Secretary’s concern about the unlawful use of stop and search powers wasting police time and damaging public confidence, Prime Minister David Cameron stymied attempt to take the steps that would bring about lasting change in the way in which the police use their intrusive and coercive powers.

I would have liked to seen the Home Secretary go much further.

In my opinion, suspicionless searches under s60 are unjustified in terms of their contribution to detecting and preventing crime; the power is open to abuse and is insufficiently circumscribed. They should be abolished entirely or used only if authorised by an independent public official such as a magistrate or a judge.

More should be done to reduce the proportion of PACE searches being conducted without suspicion. I think that there should be a ‘reasonable person’ test of police officers’ reasons for stopping a person to ensure there is objective information on which their decisions were based. There should be legal consequences for officers who exceed their powers and redress for those affected without having to take civil action against the police.

Although the reforms don’t go as far as they could have, I think that organisations such as StopWatch, Liberty, Release, the Equality and Human Rights Commission and many others that have been injecting research evidence into this debate and pressing for reform, can claim a small victory. The issue is now firmly back on the agenda and the reforms point in the right direction. They go further in the right direction than any recent reforms. We will have to wait and see what comes of the Home Secretary’s promise to legislate “if the numbers do not come down”.

Dozens of researchers, lawyers, youth groups and non-governmental organisations as well as thousands of private individuals contributed to the consultation, many of whom are active in this field. Our work is far from over. The tasks ahead include scrutinising the draft Codes of Practice when they are published, contributing to training and development of best practice, monitoring the use of police powers, and scrutinising policing practice on a day-to-day basis. We rely on the police as a public service to investigate crime effectively and to contribute to safer communities.

In my opinion, the key to this is to give life to the idea of ‘policing by consent’. This requires that we hold the police to account for the ways in which they serve the public.

The police have awesome powers. These powers can be used to protect our freedom and to help keep us safe. But these same powers can also make us less free and feel less safe.

It is unrealistic and unhelpful to expect perfect police, but with a continued effort from all levels of government, with the support of the leadership of the British police service and with the active engagement of local communities, we have grounds to hope that the proposed reforms will result in stop and search being used more fairly and rationally and much less frequently.