Can Law Effectively Regulate the Use of Stop-Search Powers?

The essence of the stop search powers that the police have is seemingly oriented more towards crime control than due process. The vague limitations put on specific requirements police have to fulfil before they have the right to stop and search emphasises this point, as it leaves the police with a good deal of discretion as to whether they can stop and search somebody. This was demonstrated in a Home Office circular where it was suggested that all stop/searches should be recorded, whereas it is obvious in practice that this isn't the case, and little is actually done to improve the situation.

The fact that if consent is obtained, there don't have to be reasonable grounds for suspicion in order to perform a stop and search, demonstrates the amount of discretion the police are given in practice in deciding whether or not to stop and search. In theory, the situation should be sound. There are regulations as to when a policeman can stop and search a member of the public, and further limitations on these regulations. There is a requirement for non-consensual searches to be recorded, and further requirements for supervisors in the form of senior officers to ensure these records are being sufficiently completed.

What powers do the police have when it comes to stop/searches? The Police and Criminal Evidence Act (PACE) of 1985 says that it is necessary for the Police to have reasonable grounds before they stop and search someone. The reasonable suspicion necessary before a stop and search can take place is 'clarified' within the PACE Act: "Whether a reasonable ground for suspicion exists will depend on the circumstances in each case, but there must be some objective basis for it.

An officer will need to consider the nature of the article suspected of being carried in the context of other factors such as the time and place and the behaviour of the person concerned or those with him. " The problem is, no matter how many attempts are made at defining such elastic a term as "reasonable suspicion", the reason as to why there can never be specific criteria fulfilled is given in the proposed clarification given by the PACE Act; that it will always depend on the circumstances.

Police, having read these requirements, are likely to continue as they were before in their practice of stopping and searching, generally reverting to their instinct as to whether someone is acting suspiciously, and worrying about having to defend their decision in the future if so needed. Perhaps after putting so much trust in the police officers in practice, as surely is realised, the authorities are assuming that the police are capable of correctly, or at least legitimately judging each and every situation.

The fact that maybe they aren't, perhaps due to a lack of effective training, alongside the influences of "Cop Culture," of which it seems new members of the force quickly become part, may indicate some of the problems involved in attempting to implement the aforementioned supposedly sound theory. It seems that too much discretion is given to the police. A policeman's role, from his point of view, is a crime control occupation.

Due process is probably more accurately described as an outlying inconvenience for the policeman, rather than a strictly adhered to necessity. So much of a policeman's job is left up to his judgement, and this includes, whatever may be said theoretically, deciding whether or not someone is acting suspiciously. What constitutes suspicious behaviour is decided on the job, by the policeman or policemen, and that decision will relate directly to each of the officers' personal experiences.

This could be seen, in some circumstances, as prejudiced behaviour. Surely officers won't make such simple links between for example black people, believing that because in their experience they have dealt with a number of black people, that they are more likely to be criminals, because although subjectivity will always play a large part in deciding whether a person is suspicious or not, some objectivity needs to be maintained in their decision, to ensure they aren't making snap judgements that would be difficult to justify.

This type of situation could possibly fuel a certain amount of discrimination. For example, the rise in the past few years of incidences of terrorism could lead to the police discriminating against fundamentalist Muslims if not simply all Muslims, and this is only justified if these people are acting suspiciously in the context of the surrounding situation.

A fundamentalist Muslim praying, for example, won't very often be construed to be suspicious behaviour, but one seen to be attempting to conceal something while passing through customs for example, would be viewed in almost all instances to be suspicious. If the aforementioned victimisation occurred, it seems likely that a catch 22 situation would arise, in that the victims of such discrimination would notice that it was present, and wouldn't feel comfortable in the presence of a police officer, whether talking to one, or being across the street from one.

This type of over-awareness can lead people to act in an unnatural way which may be construed to be suspicious behaviour, meaning more stops of a certain race or religion may occur, furthering the reaction of this group of people to police officers due to their feeling of victimisation. As has been discussed above, it seems the theory behind how a police officer should behave before and during a stop and search is all that can be expected.

The whole situation relies on so much judgement that it would be very difficult to punish officers behaving incorrectly, and this would only lead to more problems. It doesn't seem that the situation can be regulated by producing further rules that policemen should follow and implement on their colleagues, one possible solution to such discrimination ever arising would be to populate the police force with minority groups. Two results would be achieved in doing so. Firstly, policemen would become more familiar with the minority populations, meaning racist/prejudiced attitudes would dissipate.

Secondly, the policemen representing such minority groups are likely to have a greater ability to establish whether or not certain members of the public from their minority groups are, in fact, acting suspiciously, or whether certain behaviours were, for example, a typical religious or cultural normality, which maybe the majority of the police force wouldn't have the ability to recognise and understand. This would reduce offence being caused, and would substantially educate the entire police force on what is suspicious and what isn't, hopefully eliminating discrimination and victimisation.