STOP AND SEARCH: YOUR RIGHTS

Stop and search UK: your rights

Where can the search take place?

The PACE (POLICE AND CRIMINAL EVIDENCE ACT) power of stop and search may be used by the police in most public and some private places as follows:

  • A place to which, at the time of the proposed stop and search, the public – or any section of the public – has access as a matter of legal right or because there is permission.
  • Any place – other than a dwelling – to which people have ready access at the time of the proposed stop and search.

These categories are obviously very wide and can include private property, for example front gardens and car parks. Whether you have “ready access” might depend on whether a gate or door is locked, or whether a plot of land is fenced.

However, a constable may not search you or your vehicle if you are on land that is used for the purpose of a dwelling, without having reasonable grounds for believing that you do not reside in the dwelling and are not in the place with the express or implied permission of a person who does reside in the dwelling. There is clearly a heavy responsibility on the constable in such cases, since the reasonable grounds must be justified objectively. These provisions are intended to protect such people as window cleaners, post and milk deliverers and casual visitors.

 

What can the police search for?

The power to stop and search in PACE enables a constable to search for stolen or “prohibited articles” or knives, with the exclusion of short-bladed penknives. PACE defines two categories of prohibited article:

  • An offensive weapon.
  • An article made or adapted for use in connection with one of a list of offences including burglary, theft, taking a conveyance without authority (or being carried in one), obtaining property by deception and criminal damage.

Virtually any article could come within this second definition but there would have to be some evidence of the use of the article or the intention of the person making, adapting or carrying it, otherwise a constable would not have reasonable grounds to search.

The police also have power to stop and search for specific items under a number of other statutes. Most particularly, the Misuse of Drugs Act 1971 enables a constable to stop and search you or your vehicle for “controlled drugs”.

 

Stopping and detaining

A police officer who has reasonable grounds for suspicion can stop and detain you in order to conduct the search. Before doing the search they can ask you questions to confirm or eliminate that suspicion. If their suspicion is eliminated by the questioning or any other circumstances, you are free to leave and you must be told this. The police have no powers to stop you in order to find grounds that would justify a search.

Any police officer, whether or not in uniform, may search you personally, but usually only a constable in uniform may stop a vehicle. A police officer may detain you or your vehicle for a search, but the police officer must inform you as soon as the detention begins.

The detention may only last for as long as is reasonably required to permit a search to be carried out at the place of detention or nearby. You cannot be compelled to remain with your vehicle while the vehicle is searched, but you may wish to do so. Police officers have other powers to stop a vehicle, for example to check whether it is roadworthy or stolen, but not to search it.

If you are lawfully detained for a search, but no search in fact takes place (for instance because the grounds for suspicion are eliminated), the detention in the first place is not unlawful.

 

Statutory Undertakers – Other police forces

‘Statutory undertakers’ are bodies authorised by statute to run a railway, transport, dock or harbour undertaking, the larger of which employ their own police forces. For example, the British Transport Police, whose members have the powers of constables within a geographically limited area. Members of these forces have many of the same powers as members of regular police forces, subject to certain limitations. These are not the same as private security organisations that enjoy no special ‘policing’ powers.

A constable employed by a statutory undertaker may stop, detain and search any vehicle – but not a person – before it leaves a goods area on the premises of the statutory body. Such stops are carried out routinely and need not be justified by any suspicion nor recorded. There is no statutory limitation on what may be searched for and Code A does not apply to these searches.

The Ministry of Defence has its own police force, which has the same powers as civilian police officers.

 

Search records

A constable, who has carried out a search under any power to search without or before making an arrest, must make a written record on the spot, unless there are exceptional circumstances that make this wholly impracticable. If a record cannot be made at the time it must be made as soon as practicable afterwards, unless there are very good reasons for not being able to do so, for example, an inability to obtain information owing to large numbers involved.

Code A requires the search record to include your name, or if the police do not know your name, a description of you and a note of your ethnic origin. The record must identify the person making it and state the object of the search, the grounds for making it, the date, time and place, whether anything – and if so what – was found, and whether any – and if so what – injury or damage resulted from the search.

You should be given a copy of the record immediately. If this is not possible you can obtain a copy of the record for a period of up to twelve months (unless a record was exceptionally not made in the circumstances described above).

You are entitled to a record even if the police only detain you in order to do a search but do not perform a search because the grounds for the search are eliminated. Similarly you can have a record where the police request you, in a public place, to account for yourself. This does not apply to general conversations or in the exceptional circumstances described above.

 

Reasonable grounds for suspicion

Most stop and search powers can only be exercised where the constable is acting on “reasonable suspicion”. This includes the power to search a person for illegal drugs under the Misuse of Drugs Act 1971 and the power to search for stolen or prohibited items under PACE. The meaning of “reasonable suspicion” is found in Code A.

There must be some basis for the officers belief, related to you personally, which can be considered and evaluated by an objective third person. Mere suspicion based on hunch or instinct might justify observation but cannot justify a search.

However, reasonable suspicion can sometimes exist without specific information or intelligence and on the basis of some level of generalisation stemming from the behaviour of a person. For example, if an officer encounters someone on the street at night obviously trying to hide something, this clearly constitutes conduct that might reasonably lead the officer to suspect that stolen or prohibited articles are being carried.

The power must be used fairly, responsibly, with respect for people being searched and without unlawful discrimination. This would include discrimination on grounds of race, colour, ethnic origin, nationality or national origin. Accordingly, reasonable grounds for suspicion cannot be based solely on attitudes or prejudices towards certain types of people, such as membership of a group within which offenders of a certain kind are relatively common : for example, young football fans. Nor can it be based solely on your skin colour, age, hairstyle, mode of dress or previous convictions.

 

Incidents involving serious violence: section 60 of the Criminal Justice and Public Order Act 1994

Under Section 60 of the Criminal Justice and Public Order Act 1994, a police officer of the rank of inspector or above may issue a written authorisation for additional search powers on the basis of a reasonable belief that incidents involving serious violence may take place or that people are carrying dangerous instruments or offensive weapons in the area without good reason. The powers relate to pedestrians and vehicles in a specified locality, for a specified period, not exceeding 48 hours at a time.
Where an authorisation has been issued, any constable in uniform may stop and search any pedestrian or anything carried by the pedestrian, or any vehicle or anyone in it, for offensive weapons and dangerous instruments and may seize any such items which are found. In addition, the police may require you to remove any item which they reasonably believe you are wearing wholly or mainly for the purpose of concealing your identity. They can seize such items and any you were intending to wear wholly or mainly for that purpose. This clearly includes removal of head and face coverings. Where the covering is worn for religious reasons the police have to be sensitive about the removal and it should not be removed in public and, if possible, not in the presence of anyone of the opposite sex.

Very importantly, under these powers, the police do not need to have any suspicion that they will find the items for which they may search. Code A applies, except for the provisions on reasonable suspicion, where searches may take place and on the minimisation of embarrassment. It is unclear whether these powers to stop and search may be exercised on private premises. The stops and searches are subject to the same safeguards concerning provision of information, the nature of the search and record keeping as the powers under PACE. In addition, a pedestrian or driver of a vehicle who has been stopped is entitled to a written statement to that effect within twelve months of the search.

Failure to stop or to remove an item worn by you when required to do so under these new powers is a summary offence, with a maximum sentence of imprisonment of 51 weeks. In addition, it will also amount to an offence of obstructing a police officer in the exercise of his or her duty.

It was thought that powers to search anyone in a particular locality without any reasonable suspicion might be in breach of Article 8 or Article 5 of the Convention. A recent ruling by the High Court suggests that unless it can be shown the power has been exercised arbitrarily, no breach of the Convention will be found : see R (on the application of Gillan and another) v Metropolitan Police Commissioner and another).

 

Conducting the search Information to be given before search

Prior to conducting a search under any power to search before or without arrest, a constable must take reasonable steps to bring the following to your attention:

  • If the constable is not in uniform, proof that he or she is a constable, which Code A says must be by showing a warrant card.
  • Information on police powers to stop and search and the individuals rights in these circumstances.
  • The constables name and police station.
  • The object of the proposed search.
  • The constables grounds for proposing to search.
  • The availability of a search record and how to obtain one if one is not made at the time of the search.

T he search may not be commenced until the constable gives you such information, and the information must be given even if not requested.

The search

In carrying out a search the police may request, but cannot force you to remove any clothing in public other than an outer coat, jacket or gloves. This is so even if the street is empty. Code A permits the police to put their hands in the pockets of outer clothing and feel around inside collars, socks and shoes if this is reasonably necessary in the circumstances. Similarly, subject to the restriction on removal of headgear, they can search your hair in public. A more thorough search, for instance involving the removal of a hat or shoes, or a strip search may take place in private, but it must be near to where you were stopped. Thus it could take place, for example, in a police van. No search involving exposure of intimate parts of the body may take place in a police van. Code A states that such searches must be by a police officer of your sex and must be in the absence of any one of the opposite sex, unless you specifically request otherwise.

The power to search a vehicle includes a power to search anything in or on it. If an unattended vehicle is searched, a notice to this effect must be left behind, inside the vehicle if reasonably practicable. The notice must state the police station to which the constable is attached, that any claims for compensation should be made to that police station, and that you are entitled to a copy of the search record if requested within twelve months of the search.

A constable may use reasonable force, if necessary, in the detention and conduct of the search, but force can only be necessary if you are first given the opportunity to cooperate and refuse.

Seizure

The police may seize anything for which they have a power to search, for example, under PACE, stolen or prohibited items. However they may also seize any other item if it is not practicable to determine what it is at the time of search or if it is attached to an item which they do have power to seize.

 

Police powers to stop and search persons and vehicles (without arrest)

Part 1 of PACE empowers any constable acting with reasonable grounds for suspicion to stop, detain and search you or your vehicle, or anything in or on your vehicle for certain items. Any items found may be seized.

The provisions of PACE are supplemented by a Code of Practice on stop and search, Code A. The contents of Code A must be observed by the police, although the remedy for failure to observe is usually to make a police complaint – or if prosecuted to raise an objection in court – rather than to take legal proceedings against the police.

PACE also provides some safeguards for other well-used police powers of search.

The police do not have general powers, apart from those specified in a statute, to stop and search you. You should always ask a police officer to explain on what basis they are searching you. If no search power exists you should not be searched unless you are entering sports grounds or other premises and your consent to the search is a condition of entry.

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