Advise malcolm on whether the police acted lawfully with regards to the stop and search.

The police have been granted powers to stop and search a person under the Police and Criminal Evidence Act 1984, the Criminal Justice Act 2003, the Misuse of Drugs Act 1971, the Terrorism Act 2000 and the Criminal Justice and Public Order Act 1994.

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Malcolm is running down a busy street with a large bag, trying to catch a train in order to get to a concert on time. He is stopped by a police officer who identifies himself as PC Newman and asked to remove his shoes and his bag is searched. As nothing is found Malcolm is told he can go. Advise Malcolm on whether the police acted lawfully with regards to the stop and search.

 

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 such as stolen property or articles made, adapted or intended for use in a burglary or for criminal damage, including paint spray cans, are in the person's possession.

 

In recent years there have been problems arising from the possession and lighting of illegal fireworks on the streets and public places and as a result fireworks have been added to the list of prohibited articles by the Serious Organised Crime and Police Act 2005 (Part 3) and are also included in the revised PACE Code A 2013 for the police officers Statutory Powers of stop and search. The powers under section 1 of PACE include the power to search vehicles as well as persons.

 

In this case the question arises as to whether PC Newman has reasonable suspicion that Malcolm is carrying stolen goods or prohibited articles as the police can only stop and search if they have such reasonable suspicion. According to Malcolm he is trying to catch a train in order to get to a concert on time and he is running down a busy street with a large bag. The act of running down a busy street with a large bag may be enough to give rise to a suspicion, but the reasonable suspicion must be that he is carrying stolen goods or prohibited articles in the bag – the proximity to the train station may be relevant here as it is not uncommon for passengers to have to run for their train if they are late.

 

What amounts to reasonable suspicion has been tested in the courts. In Castorina v Chief Constable of Surrey (1988) the Court of Appeal held that that this does not mean that there had to be sufficient grounds for an ordinary person to think that a person is guilty - it is sufficient that an ordinary person may suspect that the defendant was guilty. There has to be 'reasonable cause' for suspicion not 'honest belief'.

 

We are told that the location is a busy street and this will satisfy the meaning of a public place and a place where there is public access.

 

Code of Practice A, which provides guidance and advice for the police about what amounts to reasonable suspicion, may be helpful here. An important safeguard concerns the question of reasonable suspicion and Code A provides that reasonable suspicion cannot be substantiated by personal factors alone such as the individual's age, ethnic origin, hairstyle, manner of dress or known previous conviction. Reasonable grounds for suspicion depend on the circumstances in each case. It may rely on intelligence or information about a person, or some specific behaviour by the person concerned. No doubt PC Newman would be questioned closely about what gave rise to any suspicion.

 

In addition, the police officer must state their name and the name of their station and specify the purpose of the search and the grounds for the search. This needs to be done prior to the search and is thought to safeguard against speculative searches. As the information needs to be given prior to the search the officer is aware that they must personally justify their actions. It is also considered a safeguard in that the officer conducting the search will know that by giving their name and station he will be readily identified in the event that the individual decides to make a complaint arising out of the fact that they were stopped and searched. If the police officer was not in uniform it would be necessary for the officer to show their warrant card to the person about to be searched. The person who has been stopped should also be made aware that they are entitled to a copy of a record of the search if one is conducted and they should be told how to get a copy.

 

In Malcolm's case the officer needed to give the name of the station where he was based and the purpose of the search and the grounds. Malcolm should also have been made aware that a written record of the search would be required to be made and he should have been advised of how to obtain a record of this if it was not provided at the time of the search. This needed to be done even if the information was not requested. It seems as though PC Newman did not give his station or any reason for the search or make reference to any written report of the 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 had consequently been charged with assaulting the police.

 

As the power to stop and search applies to a public place the search is restricted. The officer carrying out the search may request the outer coat, jacket or gloves to be removed. The Act is quite specific as to what is included in the search i.e. prohibited articles, so any extensive search or delay may be considered unreasonable or excessive. A search may be expected to take only minutes and is not the same as a full or intimate search which is likely to carried out at a designated police station. In this specific case it is doubtful whether Malcolm should have been asked to remove his shoes – unless the search had been carried out in a police van or if it had been conducted under the Terrorism Act 2000.

 

In conclusion it is likely that the stop and search was not lawful for the reasons that insufficient information was given at the outset of the proposed search by PC Newman– he did not supply the name of his station, no reason for the search was given, no reference was made to any written account and insufficient information regarding police powers to stop and search or regarding his rights were provided.

 

In addition Malcolm was requested to remove his shoes in a public place and this went beyond what is recommended under Code A and this would be considered excessive unless the police were exercising powers under the Terrorism Act 2000. Under Code A an officer could place his or her hand inside the pockets of the outer clothing, or he could have felt round the inside of collars, socks and shoes if it had been reasonably necessary in the circumstances to look for the object of the search or to remove and examine an item reasonably suspected to be the object of the search.

 

The issue of whether the police had reasonable suspicion may also arise in that the proximity of the train station could well have been a plausible reason for Malcolm's behaviour. This aspect may not be sufficient grounds for challenging the lawfulness of the stop and search on its own but coupled with the other failings it is likely to be included in any complaint made by Malcolm. If Malcolm decides to complain he will need to contact the relevant police station initially or complete an online complaint form on the Independent Police Complaints Commission site and it will be forwarded automatically to the relevant police force.

 

 

(Word count 1275)

Stop and search: on the streets with the police

Theresa May steps up campaign to end unfair police use of stop and search

Your rights - Stop and Search

A quarter of police stop and searches are illegal:

 

In this essay we look at the way PC Newman dealt with the stop and search and whether or not it was lawful.

 

Reference is made to:

 

Police identification;

 

Reasonable suspicion;

 

Written report;

 

Removal of clothing/shoes;

 

Public place;

Rights of the individual.

The links provided will enable you to carry out further research and assist in your understanding of the police powers to stop and search.

 

 


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