Stop and Search: a guide

Stop and search - a guide

From January 1 this year police have swapped a stop and search form described as “a foot long,” for a simple receipt, and while some welcome the cut in red tape, critics point to Home Office figures that seem to support fears the powers will be overused.

The police’s right to stop and search without arrest is controversial, and has often been the faultline for friction between officers and the communities they police. In the run up to the inner city riots of 1981, police in Brixton stopped more than 1,000 people in just six days on grounds of only ‘suspicion’, causing a surge in tensions.

After a critical public enquiry, the hated ‘sus’ laws were dropped and replaced with clearly defined and limited powers to stop and search. But fast-forward 20 years and section 44 of the Terrorism Act 2000 has reintroduced those powers to stop without “reasonable suspicion.” An example of how broadly the police interpret these powers include bundling 82-year-old Labour supporter Walter Wolfgang out of the Labour Party conference after he heckled Jack Straw in 2005, to public outcry.

Figures for 2006-07, the most recent year available, show that the police carried out a total of 2,907,539 stops or searches – 4.8 per cent of the population, or nearly one in 20 of us. Only around 12 per cent of those resulted in an arrest, and this does not necessarily mean that charges were brought and someone found guilty of an offence.

More zealous stopping and searching has thrust unlikely groups of people into the path of police, among them photographers and trainspotters.

Public photography is perfectly legal, except in situations where a subject might have “a reasonable expectation of privacy,” such as a bathroom. But hobbyist and professional photographers have experienced harassment from staff, security guards and police in the name of security.

British Transport Police figures that record 62,584 section 44 stops at railway stations last year, and another 87,000 stops or searches under other laws, demonstrate the extent to which trainspotters have come under fire.

In October, 15-year-old schoolboy Fabian Sabbara was stopped and threatened with arrest under the Terrorism Act for taking pictures of Wimbledon station on his mobile phone, despite explaining it was for his GCSE course work.

Chris Milner, deputy editor at Railway Magazine, said that though train operators and police broadly agreed that rail enthusiasts posed no problem, frontline staff and managers were ignorant of – or ignored – the guidelines.

He said: “A lot of us remember [former Met Police chief] Iain Blair saying after the 2005 bombs: who’s got pictures, evidence that might help us? When there’s an incident they want our help, yet every day staff tell us not to take photos.”

Milner said he had travelled extensively around Europe and never been approached for taking pictures, but in the UK staff always had a reason to hand to stop photographers.

“It’s a shame,” he added. “Photography has never been more popular, and yet so restricted.”

Freelance photographer Carmen Valino was stopped in Canary Wharf by police who radioed to base every detail, from her name, address and description to the make and model of her camera and lenses. “They stopped me again later and asked me why I was still here, as if I had no right to be,” she recalled. And last month two press photographers were prevented by police from covering protests outside the Greek Embassy.

Yet guidelines from the Association of Chief Police Officers’ guidelines are clear: “Members of the media have a duty to take photographs and film incidents and we have no legal power or moral responsibility to prevent or restrict what they record. It is a matter for their editors to control what is published or broadcast, not the police.”

With the latest Metropolitan police figures recording more than triple the number of stop and searches, 157,000 for the year to September 2008, it is clear that having to explain ourselves and empty our pockets to the police will become more common for us all.

The Law

Powers to stop and search begin with the Vagrancy Act 1824, allowing constables to stop “a suspected person or reputed thief” on grounds of suspicion alone. Lord Scarman’s report into the inner city riots led to an end to this ‘sus’ law, culminating in the Police and Criminal Evidence Act 1984 (PACE). This gives police the power to stop and search if they have reasonable suspicion that an offence has been or is about to be committed, including looking for drugs, firearms or weapons, tools for damaging property or theft, (eg. spray paint, jemmy) or stolen goods.

The Criminal Evidence and Public Order Act 1994, section 60, was aimed at seizing weapons from football hooligans. It allows officers to search for weapons, but only in situations where a senior officer believes it necessary to prevent “serious violence,” and those stopped do not have to give name, address or other details.

The Terrorism Act 2000, section 43 and 44, allows police to stop and search if they believe someone to be a terrorist, if “expedient for the prevention of acts of terrorism,” or if looking for “articles that could be used for terrorism whether or not there are grounds for suspecting that such articles are present” – essentially, regardless of whether officers believe a crime has been or may be committed.

Your rights, as described by Liberty

Police conducting a search must: identify themselves and their police station; explain why you are being searched, under which powers and what they are searching for; take a written record of the search, unless impractical to do so; record your name and address if known; ethnic origin; date, time and place of the search; any objects found or damaged during the search, and any injury resulting from the search. But police have no powers to search you in order to find something that would provide grounds to justify the search.

You are entitled to a record of the search on the spot, or can obtain a copy for 12 months if this is not practical. You are not required to give your name, address or date of birth. You should be searched by an officer of the same gender. You cannot be compelled to give DNA or fingerprints or be photographed during the search.

Under a section 44 search, though police need not have “reasonable suspicion” that a crime has or may be committed, to use the powers lawfully he must reasonably believe you to be involved in terrorist activity. Under these powers, you may be arrested and subsequently compelled to give DNA and fingerprints.

Ministry of Justice stop and search statistics

2000/01 2001/02 2002/03 2003/04 2004/05 2005/06 2006/07
Search 686,114 713,683 869,164 738,016 839,977 878,153 955,113
Stop 1,400,745 1,868,570
s.60 11,203 18,639 50,562 40,193 41,301 36,248 44,659
s.44 21,577 29,407 32,062 44,543 37,197
Stop – chance of being stopped by ethnic origin
Black x2.9 x2.4
Asian x1.3 x1.1
Search – chance of being stopped by ethnic origin
Black x6 x8 x5.8 x6.4 x6 x6.8 x7.1
Asian x1.7 x1.9 x1.8 x2.1 x2.2
Arrest % 14% 13% 13% 13% 11% 12% 12%

 

[This article originally appeared in The Big Issue, February 2009]

 

Who independently polices the IPCC?

When Peter Mahon was unlawfully removed from his house by police, he did not expect to spend four years chasing his case through the complaints process and courts.

Asleep on his sofa in November 2004, he was woken at 1.30am by two uniformed police officers who told him to leave or be arrested. The officers intervened in a civil dispute between Mahon and his ex-partner following the end of their relationship over rights to the house they had bought together in Hemel Hempstead.

Mahon, an actor, musician and filmmaker in his 50s, said: “The first thing [the police] asked me was, “Is this your house? Is your name on the deeds? They said they’d arrest me if I didn’t leave. They didn’t give any explanation.”

The solicitors Mahon sought advice from were astonished. “They didn’t believe me,” Mahon recalled. “They told me the police couldn’t do that. I said, I know – but they just have.”

Mahon lodged complaints first with Hertfordshire Constabulary and then the IPCC – the Independent Police Complaints Commission, an independent body established in 2004 seen as offering greater police accountability than its predecessors.

His complaint was that officers PC Hughes and PC Thornton had no right to remove him, but threatened him with arrest if he didn’t leave in order to prevent a breach of the peace – even though Mahon had been asleep when they entered and was, as Thornton later acknowledged, not threatening and calm throughout. Hughes’ notes made no mention of Mahon being abusive or threatening.

After four years of chasing the case through the system, Mahon was told the upshot would be that a senior officer would “have a word” with PC Thornton. PC Hughes, had resigned when the investigation began, without being interviewed.

The police receive around 30,000 complaints a year for anything from verbal abuse or malicious arrest to physical assault or death in custody. Though Peter Mahon’s case is far from the most serious it demonstrates how difficult it can be for complainants to receive an apology or sense of redress.

Few complaints brought against the police are upheld – according to the IPCC, 89 per cent of the 14,558 investigations last year found the claims unsubstantiated. Of 3,592 appeals, 72 per cent were rejected. Fewer still lead to serious disciplinary action; across the 43 divisions of England and Wales a total of 257 officers were disciplined as a result of a complaint: six were sacked, nine asked to resign, one demoted, 24 fined, 10 reprimanded, 97 given a written warning and for 106 no further action was taken. It is incredibly rare for an officer to face criminal prosecution.

The outcomes of high-profile cases, such as the shooting of Jean Charles de Menezes in July 2005, and less serious complaints such as Mahon’s have led critics to conclude that after five years the IPCC is failing to deliver.

Mahon’s complaint was not investigated by Hertfordshire Constabulary’s professional standards department until November 2005, which rejected Mahon’s complaint in April 2006. The IPCC, to whom Mahon appealed, also rejected it in June that year.

Both investigations relied heavily on the officers’ testimony and did not include taking any further evidence from Mahon or anyone else. Caseworkers at the IPCC deal with appeals on paperwork alone, without conducting further investigations.

Frustrated after 18 months, Mahon took the unusual step of seeking judicial review of the IPCC’s ruling from the Court of Appeal in September 2007. Granting judicial review, Lord Justice Auld said he felt “considerable unease about the circumstances of the case,” adding: “Given the information available beforehand to the police officers concerned, their conduct in awakening and removing Mr Mahon from his home in the middle of the night in the claimed belief of an apprehended breach of the peace, the matter deserved in my view a more vigorous and thorough investigation by Hertfordshire Constabulary.”

The IPCC agreed to review the case, and in October 2008 concluded: “The evidence indicates that the officers did not have sufficient grounds to arrest Mr Mahon for breach of the peace. The fact that Mr Mahon was asleep does not indicate that harm was sufficiently imminent for a breach of the peace to be threatened.”

But when Hertfordshire Constabulary were asked to review the case again, it informed Mahon in December only that it would have “words of advice” with the remaining officer.

Nick Hardwick, chairman of the IPCC’s commissioners, told The Big Issue that he was awaiting the full report required from Hertfordshire Constabulary, but admitted it had taken far too long.

“Stripping away the bureaucracy behind this, if the force had said to Mr Mahon in Christmas 2004, yes, actually officers have made a mistake and got the law wrong on this. We’re really sorry about this, please accept our apologies. If it had said that, this would never have come so far. Four years later, Mr Mahon must be beside himself with rage, which is terrible. The system itself is worse that what happened to him in the first place.”

A change of culture was required in dealing with complaints resolved locally by the force, rather than by the IPCC’s investigators, Hardwick said: “It’s about PC Bloggs being able to say, sorry, it was late, I’d had a long day, I got it wrong and I’ll refresh myself on breach of the peace law, for example. If that is done well, complainants like Mr Mahon would be happy.

“Almost half the complaints against the police are for incivility or other neglect of duty. Relatively minor if taken alone, but the scale of them is huge. Dealing with these better is crucial to the police’s relationship with the public.”

The Police Action Lawyers Group, representing those complaining against the police, are not surprised that a comparatively minor case could have taken years to achieve, effectively, nothing. The PALG spokesmen resigned from their IPCC advisory board role last year expressing their “dismay and disillusionment” with “consistently poor quality of decision-making at all levels.”

But Hardwick replied: “It has improved. Have we still got a long way to go? Absolutely.”

Mahon, a father of two who has recorded several albums under the moniker Pete Bite and acted in EastEnders and The Bill, intends to sue. He said: “I stopped acting, stopped working on films, stopped regular work at all. This has taken over my life, and years of my time. This could have been sorted out the next day – they get slapped on the wrist, I get my keys back and go home. But with every lie they told about me I just got angrier and more determined.

“I’m trying to prove that you can take on the police and win. The problem is that the bad coppers lie and the good coppers stay silent.”

 

[This article originally appeared in The Big Issue, February 2009]