20 March 2014

An Uphill Struggle for Police Accountability

Joanna Fleck's avatar

Guest blogger Joanna Fleck discusses the challenges of obtaining a stop and search receipt after the event and questions why these requests are having to be made under the Data Protection Act.

When a police officer conducts a stop and search under the Police and Criminal Evidence Act 1984 (PACE) they are required to make a record of this and to provide a copy of that record to the subject of the search. If they do not do so (for whatever reason) that person can request a copy of the record within three months of the date of the search. There are no qualifications to this right.

As part of an ongoing case, I made requests for stop and search slips on behalf of my client. One related to a stop within the last three months, the other to a stop within the last year.

The PACE requirement was amended in 2011 to reduce the time limit to request a slip from 12 months to three months. This change was not widely publicised and many may not be aware. In cases for instance where a young person is stopped several times by the same police officer or in the same area, it makes it much harder to get hold of information to establish a pattern (and to establish potential unlawful behaviour on the part of the police).

To obtain a slip from a search over three months ago, the request would need to be made via a Data Protection Act request. This is a much more arduous process that simply making a request in person at your local police station. Two different Metropolitan Police boroughs responded telling me that my client needed to complete a ‘Subject Access Request’, under the Data Protection Act 1998 to obtain the stop and search slip. The obligatory Metropolitan Police form for an SAR request is 4 pages long, with another 3 pages of guidance. The ‘subject’ is required to provide several ID documents and a £10.00 fee (payable by cheque). This form can only be submitted by post (and explicitly states it is not accepted at the local police station). Such requirements are designed to protect us from other people unlawfully accessing personal, private data. The fee is to cover the costs for the holder of personal information of complying with the requests.

The Data Protection Act has brought about some important changes to the way information about us is held, and has (I think) given people a better understanding of their right to access data held about them. However, it is not an appropriate mechanism for all situations. Some documents are supposed to be readily accessible, in the interests of openness and accountability. A similar PACE entitlement is for access to the custody record by any person detained at a police station, within 12 months of the detention. There is, understandably, no requirement to specifically make a ‘subject access request’ in order to obtain it. It is therefore worrying if police forces were routinely requiring people to go down this route to obtain slips, even within the statutory three month period. What is more concerning is that the lengthy application form and, more importantly, the fee, is completely disproportionate in these circumstances and would be prohibitive to most people accessing the slips. On both occasions I telephoned the respondent to my request directly and explained, and then argued, that my client had a right to the slipse slips under PACE. This was not merely a request for personal data, it was an entitlement enshrined in statute and, most importantly, the only way in which stop and search powers are formally monitored.

If I were feeling cynical, I might link a reluctance to allow people easy access to the slips to the fact that we would regularly see a failure to record any the reasonable grounds to stop and search. A 2013 study by Her Majesty’s Inspectorate of Constabulary (HMIC) found that 27% of the 8,783 stop and search records did not have reasonable grounds for suspicion recorded, a figure that the HMIC rightly regarded as ‘alarming’. It also expressed concern over what it saw as “worrying gaps” in the frontline supervision of police officers and this shows just how important that access to stop and search slips is in ensuring that officers are held to account for the decisions they make. Reducing the time limit for requesting the slips makes accountability even harder.

However, I think part of the problem may simply be a lack of awareness or training on the part of staff and officers. On one telephone call I overheard the person dealing with request say to someone that they did not know anything about PACE. But the consequence is the same either way: people effectively being denied their statutory right, and another layer of protection against arbitrary and oppressive acts of the state falling away.

As a police actions lawyer, I spend most of my days in conversation or correspondence with police officers, police staff and lawyers representing the police. It is my job to know the law and how it applies to particular situations. It still took me four phone calls and even more emails to finally get confirmation that they had now started looking for the records and would send them to me. If anyone receives a similar response from a police force, I would advise them to be persistent. There is no formal way to challenge this kind of practice. It is simply a matter of asserting your rights, and continuing to assert them. Know the law you are relying on [in this case s. 3(7) and (9) of the Police and Criminal Evidence Act 1984]. Simply by knowing your rights you may find yourself more knowledgeable than the person you are speaking to. I run stop and search workshops in schools and colleges. When I tell young people the rules police must follow, I’m often told that’s just not how it works. So many have no expectation that the rules will be followed and I find myself unable to assure them of the opposite.

At a time when even police forces and government ministers are joining the calls of organisations like StopWatch to reform stop and search powers and improve community confidence, problems like this show political statements and declarations of will are not enough: all those involved in the exercise of this intrusive power must be properly trained and should fully understand the protections that PACE offers.

Meanwhile, my client and I are still waiting.

Joanna Fleck is a solicitor at Tuckers Solicitors Police Actions Department.