The Legitimacy And Criticism

Introduction

Stop and search powers were given to the police with the objective of providing them with the necessary powers to respond to crime. Generally considered to be the widest of police powers, stop and search powers are given to the police in different democratic countries of the world (Bowling & Marks, 2015). These powers are special powers given to the police under specific legislations. An example can be seen in the Criminal Justice and Public Order Act 1994, which gave powers to the police to stop and search perceived offenders, as a response to the perceptions of increasing youth crime (Critcher, 2003).

Stop and search powers allow police to legitimately stop and search individuals that they suspect of being involved in some criminal activity (Bowling & Marks, 2015). Therefore, the basis of police powers is suspicion of the police. As the basis of exercising these powers is suspicion, it is not necessary that the persons subjected to these powers will actually be offenders or criminals; any suspicion on the part of the police that the individuals may be involved in criminal activity is sufficient for exercising these powers by the police (Bowling & Marks, 2015). The wide range of the police powers for exercising stop and search has exposed the exercise of these powers to criticism (Bowling & Philip, 2007). This essay critically analyses the stop and search powers.

Stop and Search Powers

The Police and Criminal Evidence Act 1984 (PACE 1984) is the principal legislation for the exercise of the stop and search powers. The exercise of these powers is for the purpose of allaying or confirming their suspicions about an individual, without having to arrest the individual. This is provided in the PACE 1984, Code A, Section 1.4 as follows:

“The primary purpose of stop and search powers is to enable officers to allay or confirm suspicions about individuals without exercising their power of arrest. Officers may be required to justify the use or authorisation of such powers, in relation both to individual searches and the overall pattern of their activity in this regard, to their supervisory officers or in court.”

The initial justification for the exercise of stop and search powers was that these powers were meant to prevent violent offences at sporting and other large-scale events (Quinton, Bland, & Miller, 2000, p. 11). In particular, football matches had seen such violent activity, which was used to justify these powers being given to the police authorities (Quinton, Bland, & Miller, 2000). Over the period of time, stop and search powers were also applied to other objectives, particularly for counter-terrorism. It may be noted that Schedule 7 of the Terrorism Act 2000, empowers the police to stop and search suspected people.

The Criminal Justice Act 2003 is also relevant here as under this Act, changes were made to the stop and search powers at two levels, allowing officers to search suspected individuals for articles associated with criminal damage or for prohibited articles as offensive weapons (Taylor, et al., 2004 ). The criticism of stop and search powers flows from the subjective criterion or discretion that is involved in the use of these powers (Rogers, Lewis, John, & Read, 2012). The subjective element of discretion leads to the possibility of unfairness (Rogers, Lewis, John, & Read, 2012). This is especially seen in the context of use of stop and search powers with respect to ethnic minorities, particularly Black and Ethnic Minorities, where the criminal victimisation of such targeted communities becomes a possibility (Skogan & Frydl, 2004). Dissatisfaction of the Ethnic communities with the criminal justice system and the police is an area that has been uncovered in studies (Skogan & Frydl, 2004; Bowling & Marks, 2015).

Ethnic Minorities have largely negative experiences with the police with regard to stop and search powers exercised by the police (Bowling & Marks, 2015). This has been noted in the use of the police powers even against some of the prominent members of the community, as observed in a study:

“Police powers to stop and search individuals in public remain amongst the most contentious aspects of British policing. The issue was highlighted by both the Scarman and Stephen Lawrence inquiries into particular policing incidents. It became particularly controversial at the turn of the millennium when prominent people of African Caribbean origin, including the late Bernie Grant MP, Lord Taylor of Warwick, Lord Herman Ouseley and the Most Revd. and Rt. Hon. Dr. John Sentamu Archbishop of York, disclosed their personal experiences of being unjustifiably stopped and searched” (Bowling & Phillips, 2007, p. 936).

If the experiences of the prominent members of the community are of this nature, then it can be inferred what the experiences of the common members of the community can be. Studies that have considered the experiences of the Ethnic minorities with respect to the exercise of the stop and search powers by the police do point at a link between exercise of power and ethnicity (Bland, Miller, & Quinton, 2000; Quinton, Bland, & Miller, 2000). In one study, more than 100 police officers were interviewed, and the findings of the study suggested that the use of the powers of stop and search by the police was at times based on appearance and behaviour of the suspected individuals (Bland, Miller, & Quinton, 2000). Yet another study particularly mentioned ethnicity as one of the factors on the basis of which suspicion in police officers may be aroused (Quinton, Bland, & Miller, 2000). The factors that are found to lead to suspicion for the police and make them stop and search individuals include clothing of the individual, vehicle that the individual is driving, and ethnicity (Quinton, Bland, & Miller, 2000). Police may perceive individuals to be suspicious if they are behaving in a way that makes them appear to be ‘out of place’, or ‘stand out’” (Bland, Miller, & Quinton, 2000, p. 23).

Two reports must be mentioned here because not only these reports were important in pointing out the drawbacks in the criminal justice system, these reports were able to link these drawbacks to the issue of racism and its impact on the police forces. This issue is important in the context of stop and search powers because this is the area where these powers of the police are the most subjected to criticism (Bland, Miller, & Quinton, 2000). The two reports are the reports of the findings of independent inquiries. The first is the Scarman report, which revealed the use of indiscriminate powers by the police against the minorities (Scarman, 1981). The second is the report of the Stephen Lawrence Inquiry, which pointed at the lack of public trust in the police due to the exercise of discretionary powers, such as, stop and search powers (Macpherson, 1999).

The Scarman Inquiry was set up after the 1981 Brixton riots. The Scarman Inquiry report focussed on the failures of policing and the issues related to personnel and training, which were considered to be important to understanding the gaps in policing (Neal, 2003). The Scarman Inquiry also highlighted the problems of racial disadvantage and discrimination that the Black and Ethnic Minorities faced and resented in their contact with the police (Casey, 2013). The Scarman Inquiry attributed the Brixton riots to the resentment that was building up in the community over a period of time (Casey, 2013). The Report of the Inquiry into the Matters into the Death of Stephen Lawrence also pointed at the resentment of minorities and lack of public trust and confidence in police, specifically mentioning the exercise of stop and search powers by the police (Macpherson, 1999). These reports are insightful into understanding the way criminal justice system has endemic issues of racism and how these impact public trust as well as how this impacts the use of discretionary powers by the police.

Criticism of stop and search powers has also come from the judicial opinion. Example can be given of a case decided by the European Court of Human Rights, wherein the exercise of stop and search powers was held to be a coercive act, consistent with exercise of powers of detention by the state (Gillan and Quinton v United Kingdom (2010) 50 E.H.R.R. 45 [57], 2010). This points at a coercive element of the act of exercise of stop and search powers.

Another criticism of stop and search powers goes to the issue of effectiveness of these powers. For instance, a study found that over 100,000 stop and search decisions taken under the Terrorism Act 2000, did not show any positive result as to the satisfaction of the suspicion of the decision making authority (Parmar, 2012). Results such as these in studies show how ineffective the exercise of powers of stop and search can be. Recently, a study by the Home Office (2015) also found that there were significant discrepancies in the number of people stopped and searched and the number of people charged. Home Office (2015) reported that stop and search procedure led to arrests only in 14 percent cases of all the times where such powers were exercised. Such statistics and reports expose the exercise of powers of stop and search to a question of whether these powers are efficient or not.

The discrepancies in the stop and search decisions and actually charged individuals, brings to the fore the issue of those who are unnecessarily stopped and searched and what they feel about this. One study revealed that individuals who are subjected to stop and search orders undergo embarrassment, anxiety and even fear (Stone & Pettigrew, 2000). Therefore, there is a problem where on one hand, police exercises the stop and search powers against suspected individuals, many times, due to the race or ethnicity of the individuals, and in most instances, the use of these powers is not justified by confirmation of the suspicion. Added to this is the problem that individuals who are subjected to the stop and search powers, also undergo feelings of embarrassment and fear. The negative experience of being profiled by the police can even lead to loss of confidence in the police as the “subjective experience of feeling profiled may be as damaging to confidence in the police as the objective fact of being profiled” (Tyler & Wakslak, 2004, p. 254).

The possibility of criticism can be reduced if there is satisfaction of neutral observers of police action (Bowling, Phillips, & Sheptycki, 2012). The use of “hunches” and “intuition” for making subjective decisions by the police reduces the satisfaction of neutral observers because these replace objective indicators for the use of the powers with the more subjective indicators of belief and suspicion.

Stop and search powers may be justified on the point of effectiveness by arguing that the exercise of these powers has some deterrence value. The exercise of stop and search powers may be useful for their deterrent value against certain kind of individuals who may have the tendency to commit crimes (Geller & Fagan, 2010). The use of stop and search powers have been justified by the police on the ground that the use of such powers can lead to deterrence against commission of crimes (Quinton,, 2012). Two reports suggest that there is little or no deterrence value in the use of such stop and search powers (Equality and Human Rights Commission, 2013; Open Society Justice Initiative, 2009). According to these reports, there was no link or no significant link between stop and search powers and a decline in crime rate (Equality and Human Rights Commission, 2013; Open Society Justice Initiative, 2009). However, an important point made in both these reports was that the efficiency of the stop and search powers can be improved by establishing reasonable grounds for searches, which will lead to the establishment of standards that the police will have to follow. This can improve police efficiency, fairness and legitimacy of the stop and search orders. This can also help reduce arbitrary stop and search decisions (Equality and Human Rights Commission, 2013; Open Society Justice Initiative, 2009).

Stop and search powers if exercised judiciously, can be useful for the police. There are two significant points to be considered here in this context. First, stop and search powers may be used to prevent potential criminal activity or violent behaviour by allowing the police to break up and move on groups of people that are acting in a suspicious manner. Second, stop and search powers are useful measures for social control. Therefore, the proponents of stop and search powers may argue that these powers are necessary and useful for maintaining social control. However, this argument is not a strong argument, when the costs of the exercise of the powers are considered. The exercise of these powers create lower levels of public confidence in police forces as there are allegations of racial prejudice that are attached to the exercise of these powers. Continue your exploration of An Interpretative Phenomenology Approach to a Study Investigating with our related content.

Conclusion

Stop and search powers are justified as being essential for police forces to prevent suspicious people from committing violent activities. However, the effectiveness of these powers is questionable because there is significant discrepancy between the number of people stopped and searched and the actual number of people charged with any offences. Therefore, the use of these powers can be questioned on the basis of their effectiveness in identifying potentially criminal individuals. At the same time, there are negative effects of stop and search powers on the people against whom these powers are exercised. These negative effects include feelings of embarrassment and fear. Moreover, even after the use of stop and search powers, no necessary link is seen between the use of these powers and lowered crime rates. Therefore, it can be argued that the stop and search powers are not effective or even necessary.

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