Implementation of police powers entails a precarious balancing act that poses a risk to the freedom and liberty of individuals in society but is permitted on the basis that it offers a means by which crime can be prevented and thus the safety and protection of those same individuals can be optimised. One of the fundamental problems of the criminal justice system is that it is reliant on human action and discretion and, as such, is difficult to enforce in a consistent and fair manner.
In order to attempt to regulate the exercise of police powers The Police and Criminal Evidence Act (PACE) was passed in 1984 and officially came into force in the United Kingdom in 1986. The act was based on the recommendations of a 1991 report produced by the Royal Commission on Criminal Procedure and was a response to concerns raised by the public through organisations such as the Scrap Sus Campaign (1979) and through the Confait report of Sir Henry Fisher.
PACE was implemented with the intention of providing a clear, unambiguous set of rules for the execution of police powers which allowed the police force some of the increased powers for which they had previously lobbied, such as stop and search authorities, but simultaneously protected the human rights of any suspects. This paper examines the provisions of the Police and Criminal Evidence Act 1984 and considers the extent to which their intentions have been successful in ensuring that investigation and interrogation procedures are conducted in a in a fair and reliable manner.
Each of the 8 Codes of Practice that accompany PACE will be assessed and their ability to implement a legal process that is grounded in a judicial as opposed to a disciplinary sphere analysed. It is worth noting that whilst ever attempt has been made to cover the PACE legislation in detail, it is not possible to review every single element of the law within the scope of this paper.
For this reason a number of key areas have been selected and used as the basis for which the effectiveness of the law can be assessed. PACE Code A: Stop and Search Powers Code A of PACE addresses the rights of police officers to stop and search a person or a vehicle in a public place, providing that they have reasonable grounds to suspect that such a person or vehicle is carrying stolen or illegal items .
Under this code, police officers must base their assessment of the individual or vehicle under scrutiny on the basis of a real suspicion of guilt of a crime as opposed to physical characteristics: A persons colour, age, hairstyle or manner of dress, or the fact that he is known to have previous convictions for possessions of an unlawful article, cannot be used alone or in combination with each other as the sole basis of which to search that person (para 2. 1)
The stop and search elements of PACE have been highly controversial and have led to a multitude of issues. Firstly, accusations of racism and unfairness are continually leveraged at the police force and, as a 1997 NACRO evaluation of a pilot project conducted in Tottenham found, “police continued to make stereotypical assumptions about black people, [and] the use of search powers was not effectively managed and supervised”. One of the main causes of these criticisms is the interpretation of the term “reasonable grounds”.
What constitutes reasonable grounds is a very subjective issue and whilst the lawmakers have attempted to objectify it by declaring it as being based upon what an average person would consider to be reasonable, it remains highly prejudiced. For this reason, the subjective nature of this element of Code A is often cited as a major force in the abuse of stop and search powers and an argument that the requirements of PACE are not conducted in a fair and reliable manner:
The Police Federation had serious concerns that the methodology previously used to record was unreliable and often resulted in misleading, inaccurate and sometimes malicious observations being made which often insinuated police bias and disproportionality A further issue in the implementation of this Code pertains to the relationship between informed consent and PACE searches. Brown in his 1997 research for the Home Office established that searches were consistently based on reasonable suspicion and that many of the searches that had been supposedly based on informed consent had not truly been conducted on a voluntary basis.
He found, instead, that they had been used as a means by which police officers could bypass PACE requirements. . This was further impounded by the fact that, where consent had been given, it was often not informed as per the requirements of Code A. Instead it was found to be often based on an individual’s ignorance to their rights under PACE as opposed to a reflection of their true wishes. Although there clearly are major flaws in the current implementation of Code A, many people argue that such authorities are essential in ensuring that police are able to perform their duties effectively.
One such person is Sir W MacPherson, whose 1999 enquiry into the death of Stephen Lawrence revealed weaknesses within the PACE legislation. However, despite his criticisms of the statute, he maintained that PACE had a valuable role to play in modern day society and stop and search rights were vital in the fulfilment of policing roles. The Macpherson Inquiry has led to the implementation of an annual review of PACE legislation with the intention of improving its ability to facilitate the fair and just implementation of police investigational procedures.