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James is running down the street carrying a rucksack on his way to an organised demonstration against university fees. He is wearing a mask. Two police officers stop him and ask him to remove his mask. James refuses and asks the police officers to identify themselves and explain why they have stopped him. The police officers refuse to do so. They push James to the ground and search him. Explain whether or not James’ stop and search was lawful.
The police have been granted powers to stop and search a person under not only the Police and Criminal Evidence Act 1984, but the Criminal Justice Act 2003, the Misuse of Drugs Act 1971, the Terrorism Act 2000 and the Criminal Justice and Public Order Act 1994. PACE is supplemented by Code A. It is necessary to consider what happened to James in the context of the powers available to the police as supported by Code A.
Section 1 of Police and Criminal Evidence Act 1984 provides that the police have the power to stop and search a person in a public place if they have reasonable suspicion that prohibited articles, stolen property or articles made, adapted or intended for use for burglary or criminal damage are in the person's possession. We are told that James was stopped when he was running down a street. A street is a public place for the purposes of a stop and search under Section 1 PACE and therefore this part of the stop is lawful.
The question arises as to whether the police officers have reasonable suspicion under section 1 of PACE that James is carrying stolen goods or prohibited articles – the police can only stop and search if they have such reasonable suspicion. Guidance on what amounts to reasonable suspicion is provided by Code A. The fact that James is running with a rucksack towards a demonstration may be reasonable enough suspicion depending whether the police have reason to suspect he has stolen or prohibited articles in his bag. James is wearing a mask and he is running and this may give rise to reasonable suspicion. We are not given any other information about James' appearance and in any event reasonable suspicion can not be based on matters such as age, race or personal appearance. A revised Code A has now been issued (March 2015) following a review of police practice by the Home Secretary and this includes more advice and guidance as to what amounts to reasonable suspicion and now emphasises the requirement for an objective basis for the suspicion.
Section 60 was enacted as a means of enabling the police to deal with a threat of imminent violence. It was an extremely controversial measure when first introduced and was originally intended to deal with violent protests and disturbances at football grounds, raves, protests and the like. There is no requirement to show reasonable suspicion and the power can be used so long a a senior officer has authorised its use in the area concerned. It does not require the police officer to exercise any discretion in the same way as PACE.
In the case of James it should be checked to see whether the authorisation of a senior police officer has been given. If this is in place then the stop was lawful as no reasonable suspicion is required. If the authorisation was not in place then the stop is unlawful.
The use of Section 60 powers vary from region to region but it is claimed the Metropolitan Police force used s.60 more so than any other power to stop and search. We are not told about the whereabouts of the organised protest against tuition fees but the location of the protest that James was running towards may have a bearing upon the existence of any authorisation as there may be parts of the country where these powers are not routinely used by the police in that particular area.
Police forces have been reminded of the case of R V Roberts and whilst Anne Roberts did not win her appeal (Anne Roberts could not produce a valid ticket for her fare when challenged on public transport) it confirms that although the word “necessary” does not appear in section 60(1), the effect of Article 8 of European Convention on Human rights is that necessity remains relevant to each decision as to whether an authorisation is justified. The context of any authorisation now becomes the focus of attention along with any considerations by the senior officer and this must include whether the authorisation is necessary to prevent serious violence or to find dangerous weapons after an incident involving serious violence, or to apprehend someone carrying weapons. The recent announcement by the Home Secretary in 2014 has made it clear that the use of Section 60 must also be authorised by a chief officer who must reasonably believe that violence “will” take place rather than “may” take place in the future following concerns about the over use of this police power.
As regards the removal of the mask, the police are only allowed to remove a jacket, outer coat and gloves in a public place. However, under Section 60AA Criminal Justice and Public Order Act 1994 the police have the power to ask James to remove the mask if it is reasonably believed that it is being used to wholly or mainly conceal his identity and in places where Section 60 is in use.
James refuses to take off his mask and asks the police officers to identify themselves and explain why they have stopped him. The police officers refuse to do so. Code A gives advice and guidance on the matter of the stop and search itself. There are a number of safeguards in place concerning the power to stop and search. One proviso is that if the police officer is not in uniform he or she must produce evidence that they are a police officer. This seems reasonable as some people may genuinely be concerned as to whether the person purporting to be a police officer is who they say they are.
The fact that James asked the police to identify themselves and explain why they have stopped him does not appear unreasonable in itself. The fact that the officers have failed to identify themselves and their station or given a reason for the stop and search or informed James of the object of any search leads us to believe the two police officers are therefore acting unlawfully with the result that the stop and search are both unlawful. In James' case we are not told whether the police officers are in uniform but whether they are or not they do not appear to have followed the correct guidance and identified themselves as police officers or given a reason for stopping James making this part of the stop unlawful.
There is no mention of James struggling or not co-operating but the case of Osman v DPP (1999) may be relevant to the unlawfulness of the stop through lack of identification of the officers, their station and any explanation as to the reason and purpose of the stop and search. The courts have indicated that if this requirement is not met the search will be treated as unlawful Osman v DPP (1999). The Divisional court in this case took the view that the officer's failure to give their names or station, made the search unlawful and as a result the defendant could not be held guilty of assaulting a police officer in the execution of their duty. The defendant had resisted the search and as a result had been charged with assaulting the police. In James' case the unlawfulness of the part of the stop through lack of identity and explanation by the officers may mean that any force used to push James to the floor is in itself unlawful because any subsequent action on their part becomes unlawful due to their failure to provide information required of them. The pushing of James to the ground and searching him amounts to an assault as the stop and search is unlawful due to the non-compliance with the powers and code of practice.
In any event, the police are only allowed to use reasonable force if necessary in the circumstances. The police officers cannot justify pushing a suspect to the floor as a matter of course. The use of force has to be proportionate and there may be situations where force is not necessary. There is no mention of James struggling or not co-operating therefore it may not be reasonable to ‘push’ James to the floor making this part of the search unlawful.
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