Opinion: David Allen Green's guided tour of UK stop and search law

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DAVID ALLEN GREEN: Hello. I'm David Allen Green, and I am a legal commentator for the Financial Times.

I have been asked to give a guided tour to police stop and search powers. These are the powers of a police officer to stop any individual. A police officer can detain you and search you. The police officer can even use reasonable force, handcuffs, for this search. These searches are not voluntary, and, from one perspective, they are indistinguishable from being arrested. It is an exertion of state coercive force. You may think that you can go about your business without being stopped by a police officer unless there is a very good reason. You would be wrong. Police officers need merely reasonable suspicion for some searches, and need no suspicion at all for others. You may also think it is a simple area of law. You would also be wrong. This is a complicated area of law, as this guided tour will show.

We will start the guided tour not with a legal instrument, but with a briefing from the House of Commons library from just last December. This is their briefing on stop and search powers. House of Commons briefings are not partisan documents. As each of them say at the end, the House of Commons library is there to provide impartial briefing and an evidence base for MPs. These are not sensational documents. They are not written to persuade, but to inform.

And this is the House of Commons library briefing paper on stop and search powers. And if we go down this document to its summary, you will see, straightaway, a headline, controversy. Stop and search is a highly controversial police power. Not a controversial police power, but a highly controversial police power. And again, this is set out in a document which is impartial guidance to employees. There were four bullet points, with passages in bold. The use of stop and search has only a marginal impact on crime reduction, according to academic research. Black people are 10 times more likely to be searched than white people. There is evidence that there's disproportionate use of stop and search powers against black and minority ethnic individuals, and that this is damaging to police-community relations. And that when stop and search is not conducted in line with legislation and guidance, it is incompatible with human rights legislation. These are not the conclusions of a partisan pressure group. This is the House of Commons library giving impartial advice to members of parliament.

Stop and search has its origins not in any modern day legislation, but the 1824 Vagrancy Act, which remarkably, in part, is still in force. It was this legislation which gave rise to the so-called sus laws, were controversial too say the least, if not notorious in the 1970s, and were repealed in the early 1980s. They were in turn replaced by Section 1 of the Police and Criminal Evidence Act, otherwise known as PACE. Section 1 of PACE provided, when it was first enacted, we have a general power of a police officer to search somebody for stolen items if they had a reasonable suspicion.

Over time, since 1984, if we look at the government's own website, you will see that stop and search police powers have been extended not only to stolen property and things you could use to commit an offensive with, but illegal drugs and weapons, especially knives.

You can, under Section 60 of another piece of legislation, be stopped and searched even without reasonable suspicion in certain circumstances, in particular, if the area you are in has been designated for those searches. These powers are now used routinely by many police officers. You will be stopped and you will be searched, either under Section 1 or under Section 60. And under Section 60, they don't need any reason whatsoever. You can be stopped almost randomly.

Section 1 and Section 60 provide the legal framework for most stops and searches. But there are other provisions which police officers need to have respect to. One is the Code A Code of Practise, which is a very big document as you can see. But if we look at say, for example, paragraph 3.2, you will see that reasonable force can be used as a last resort, if necessary, to conduct a search or detain a person for the purposes of a search, which means that a police officer can just handcuff you if they believe that is what is necessary for the search to be done. This is not an arrest, technically. But it is fairly indistinguishable from being an arrest on the receiving end.

As well as Code A, you have other documents, which will be of relevance to the police officer. There was also the College of Policing guidance on best Practise, and as you can see, there are a number of provisions here which deal with ensuring that the power is used fairly. And if you click into them, you will see that it is important, according to the College of Police, that the decision to stop and search another person be fair. When an officer decides to stop and search a person, they must be sure that their decision to stop and search that particular person is made for the right reasons. It must be impartial and based on the facts. Officers must not consciously use their power in an unfair or discriminatory way.

And if you scroll downwards, you will see the College of Policing asks, why does fair matter? And the first paragraph of their answer is that fair decision making in stop and search matters because it affects how people perceive the police, not just for the individual who is searched, but also groups and wider communities of which that individual is a member.

So that is the law. That is the code of Practise. That is for guidance. What is the reality? How is stop and search used in Practise? Well, according to Stopwatch, the organisation which monitors the use of stop and search powers, the reality is disturbing. If you look at their major report, The Colour of Injustice-- Race, Drugs, and Law Enforcement, and go down to the tables on page 14 of this report, you will see the disproportionality of stop and searches by self-defined ethnicity.

And if you scroll down a little bit further, you will see the stops and searches for drugs by self-defined ethnicity. And the whole of this report shows that in the application of stop and search, it is those from black and minority ethnic groups who are disproportionately affected by the searches.

If we go on to see what current position is since the report, you will see that according to Stopwatch in October 2019, there is a widening racial disparity in stops and searches. And so what we have is the power of individual police officers to stop and search individuals, which when taken in the aggregate, means that certain members of society are disproportionately targeted year after year after year.

You may think that being stopped and searched, which is not being arrested, certainly not being imprisoned, is a small price to pay, a temporary inconvenience to your day, all for a good purpose. But, to adopt such a perhaps complacent attitude is to show your privilege. When there is a police officer literally in your face, demanding that you do for certain things with the backing of coercive power, it isn't a pleasant experience. It is not a pleasant experience if it happens once in your life. But if you're from a community where it happens again and again, then it's going to have effects. It is going to have an impact on how those communities see and regard the police.

And so there are externalities here. There are issues of community relations as the College of Policing itself identifies in its guidance. And at a time where policing by consent is more important than at almost any other time, it is important that the powers of stop and search are looked at with anxious scrutiny. There is little evidence that it has any significant impact on detection or even deterrent of crime. There is ample evidence that it is having a detrimental effect on community relations between the police and black and minority ethnic groups.

And so it is time for police, the government, and those who are tempted to support the government and the police to stop and think about stop and search.