Stop and search: what can we learn from history?
In the latest of our History & Policy series, James Whitfield explains how the police can learn lessons from mistakes of the past to help prevent their powers of stop and search alienating sections of the community in the future
Why does stop and search provoke controversy?
In 1983 a Home Office report identified the controversial nature of police powers to stop and search. The report claimed that the issue is at the heart of a much wider debate about policing in general and is fired by the conflict between those who argue that the control of crime lies primarily in the exercise of stop and search, and those who maintain that civil liberties are likely to be threatened if such powers are unchecked.
Historically, the power of police to stop, search and detain on reasonable suspicion for anything stolen or unlawfully obtained was confined to London and a number of other cities and towns – each of which had been granted local legislation for the purpose.
In those areas where no such power existed, police not infrequently used the so-called “ways and means Act” – which some claimed to be a euphemism for deceit – in order to obtain compliance from those they wished to stop and search. Meanwhile Section 4 of the Vagrancy Act 1824, which controversially became known as the ‘sus’ law, enabled police to stop and search certain individuals they suspected of frequenting or loitering in a public place with intent to commit an arrestable offence.
The 1970s saw a growing drive for greater police accountability in the use of stop and search, as black men – particularly young black men – increasingly took exception to the manner and frequency with which they were stopped and searched.
Yet, at the time, proving that they were being treated unfairly was difficult. This was illustrated on 16 April 1973, when The Times reported that, “The Metropolitan Police… stated last week that no statistics were kept on searches because none were requested by the home secretary and the commissioner of police did not feel that they were of sufficient interest or importance”.
Representative pressure groups, such as the West Indian Standing Conference and the Scrap Sus Campaign, highlighted the uses and abuses of stop and search and ‘sus’ – and, in doing so, galvanised support for a revision of the law. This culminated in the abolition of ‘sus’ in 1981, and the recommendations of the Royal Commission on Criminal Procedure (also in 1981), which, among other things, found that the police were allowing too many weak cases to go to court.
Then, in 1984, Section 1 of the Police and Criminal Evidence Act (PACE) standardised the power of police to stop and search for stolen or prohibited articles throughout England and Wales.
How did the law change police stop and search practices?
PACE determined that there must be an objective basis for police suspicion to stop and search – such as reliable information received from a member of the public, or that the person stopped had been seen acting suspiciously.
It also stated that “personal factors”, such as mode of dress or skin colour, were not sufficient grounds to stop and search. Section 3 of PACE placed a duty on police officers carrying out a search to make a written record of the procedure and to inform the individual concerned of their right to obtain a copy. However, the Act placed no obligation on police to record circumstances where an individual was stopped but not searched.
In 1999, the Macpherson Inquiry report into the murder of Stephen Lawrence stated that all police stops should be recorded, a recommendation that was finally implemented in April 2005. In February 2008, Sir Ronnie Flanagan, chief inspector of constabulary, suggested that the bureaucratic process of ‘stop and account’ (as opposed to stop and search) needed to be streamlined to help make it as effective as possible in reducing crime and promoting trust and confidence in minority communities.
How has stop and search developed since PACE?
The politicisation of policing in recent years, an increasingly influential media, and the perceived need for politicians to be seen to be tough on crime in response to public concerns have all contributed to the augmentation of police stop and search powers – in a number of cases, without the police having to show reasonable suspicion for their actions.
In the main, these relate to public disorder and terrorism: the Criminal Justice and Public Order Act 1994 (S.60) empowers police to stop and search members of the public in anticipation of acts of violence; while the Terrorism Act 2000 (S.44) enables police to stop and search persons and vehicles in order to look for articles that could be used in acts of terrorism.
But how are these political and legal factors being felt on the streets? Well, Ministry of Justice figures published in October 2007 reveal that black and Asian people are more likely to be stopped and searched than their white counterparts. This is especially the case in London where, in 2005/06, black people were more than seven times more likely to be searched than whites.
Outside London, they are 4.8 per cent more likely to be searched. During that same period, the number of Asian people searched under Terrorism Act powers increased by 84 per cent compared to figures for the previous year – a statistic that was undoubtedly influenced by acts of terrorism in London in July 2005.
What does history teach us?
The police service has long regarded stop and search as an essential tool in the prevention and detection of crime. However, it has proved one of the principal causes of some people’s apprehension and suspicion of the police.
A former Metropolitan Police commissioner observed that a contributory factor to the difficulties experienced between police and Caribbean immigrants in the 1960s was the fact that officers did not understand the immigrants’ “street culture” and tended to suspect that they were probably “up to no good”.
At a time when the police service was almost exclusively white, this lack of understanding led many police officers to regard those who transgressed as stereotypical of Caribbean society as a whole – an attitude that alienated the immigrant community and led to mutual mistrust and resentment.
The campaign of the 1970s to amend the law on stop and search and the subsequent implementation of the Police and Criminal Evidence Act (PACE) certainly proved instrumental in changing police attitudes and practices – and shows how legislation that is both oppressive and open to abuse can, with enough popular support, be consigned to history.
So, a quarter of a century after its introduction, can stop and search under PACE meet the police’s needs without alienating large segments of the population? There’s no doubt that it is most likely to be successful when it is conducted on the basis of good intelligence; be it observations by the police themselves or information provided by reliable members of the public. In such circumstances, police can justify their actions on the grounds that they are based upon reasonable suspicion that the person they are dealing with may have committed an offence.
However, in recent years the issue of alienating young people and members of minority ethnic communities has raised its head again in the wake of new legislation augmenting police power to stop and search in order to tackle problems associated with terrorism and violent gun/knife crime. In neither of these cases do police have to show reasonable suspicion to justify their actions; in short, any member of the public can be stopped and searched, whether suspected or not of committing an offence.
There’s an obvious risk of sparking resentment among people who are stopped and searched under violent crime and anti-terrorism laws purely on the basis of their appearance. In such circumstances, it is essential that lessons are learned from the failings of the past.
Traditionally, the police’s main priorities were the prevention and detection of crime and the prosecution of those who broke the law. Constabularies paid less attention to the development of a meaningful rapport with the community that they served.
Today, there are more police officers and support staff than ever before, and community policing teams across the country are working with local people to reduce crime and the fear of crime. What’s more, all police staff now receive cultural and racial awareness training; perhaps most significantly of all, the primary aim of police recruitment is now to provide a multi-ethnic workforce that is a reflection of the community in which the force operates.
Despite these changes the old problem remains: finding an acceptable balance between stop and search that prioritises personal liberty, but which may risk exposing the public to unacceptable levels of crime; and stop and search that minimises the opportunity for the commission of crime, but threatens our individual rights and freedoms.
Three lessons from history
1. Relations between police and some members of ethnic minorities were badly damaged in the past because the power to stop and search and the use of the ‘sus’ law were not always applied appropriately and fairly.
2. By focusing largely on a law and order agenda, police failed to develop a rapport with all sections of society and missed an opportunity to gain an understanding of their cultures and lifestyles.
3. Stop and search is an infringement of the liberty of the individual concerned. In such circumstances, it is absolutely essential that police action is based exclusively on, and does not exceed, powers granted by statute.
James Whitfield is visiting research fellow in the Open University’s Department of History. He is author of Unhappy Dialogue: The Metropolitan Police and Black Londoners in Post-War Britain (Willan Publishing, 2004)