20 October 2014
Briefing on Stop and Search and PCC developments: July- September 2014
This briefing covers the following major developments between July and September:
- Independent Review into the use of counter-terrorism powers in 2013
- Best Use of Stop and Search Scheme (BUSSS)
- Schedule 7 Examinations and Detentions at Ports - figures for 2012-2013
- West Midlands’ PCC by-election
- South Yorkshire PCC by-election
- Home Office Consultation on PACE Code A
1. Review into the use of counter-terrorism powers in 2013
The annual report of the counter-terrorism watchdog, David Anderson QC, was published in July 2014. As the independent reviewer of the operation of counter-terrorism legislation, he has statutory responsibilities for producing annual reports into how specific terrorism powers are used, including anti-terrorism related stop and search powers.
Section 43 is a street search power which requires reasonable suspicion to believe that a person may be a terrorist in order to search them for items to prove their involvement in terrorism.
Anderson described it as "unfortunate" that section 43 data was not published by police forces outside of London and repeated his recommendation to all other police forces "to consider what they could do to make this information publicly available". Figures on section 43 usage are usually merged and published with other general search powers and so it is difficult to ascertain the true extent of its use compared to the non-terrorism street powers.
Figures for the Metropolitan Police Service showed a decline in use from 614 in 2012 to 491 in 2013- a total reduction of 20% compared to the previous year- with an arrest rate of 7%. Of the 491 searches, 34% were of people from white ethnicities, 32% were Asian, 14% were black, 9% were Chinese or other ethnicities and the remaining 10% were either mixed or were of people whose ethnicity was not recorded.
Schedule 7 is the widest-ranging search power in the UK used at ports and airports. The law provides officers with a power to ‘examine’ people for up to an hour or physically ‘detain’ them for a further 5 hours without requiring any level of suspicion to do so; no combination of an examination and detention can last beyond the maximum legal period of 6 hours (see our recent briefing on this power for more details).
Anderson welcomed recent declines in the use of schedule 7 but also highlighted how the figures did not "reflect the substantial number of people who are asked only “screening questions"... though several persons tend to be asked screening questions for every one who is subject to an examination". Screening questions are brief encounters which involve counter-terrorism officers asking travellers a number of questions about their journey such as their destination, the people they are travelling with, the length of stay, other countries previously visited and typically involve an inspection of a person’s passport. These encounters are a key part of officers’ decision-making process in deciding whether to carry out a further examination or to physically detain the person and so not recording these encounters means that the true extent of schedule 7 encounters remain unknown.
Anderson also welcomed the recent government consultation on the power and the subsequent legislative changes brought about earlier this year but felt that "they had ducked some important issues". He raised concerns about the lack of suspicion required to use the more intrusive powers, the lack of safeguards relating to the taking of data from electronics and the failure to make clear that people’s statements made in the course of their examination or detention are inadmissible in court. The legislative changes maintained the lack of suspicion required to detain a person and Anderson disagreed with the introducing the threshold of individualised reasonable suspicion- something advocated by Parliament’s Joint Committee on Human Rights and StopWatch. Instead, he recommended the lower threshold of ‘reasonable grounds’ as a requirement to use powers such as making and retaining copies of data on electronic devices and this, he argued, would protect people detained whilst maintaining officers’ operational flexibility. Related to this, Anderson recommended "clear and proportionate rules governing the data taken from electronic devices", that the government should indicate how it would protect legally privileged material and what "proper safeguards" it would introduce. The third issue he felt the legislation had missed related to detainee’s compulsion to answer questions not being expressly rendered inadmissible in criminal proceedings. People detained under the power do not have the right to silence or to refuse answering questions and it is not clear whether statements made are admissible as evidence for criminal trial even answers may have been given under duress and the threat of prosecution for failing to comply with questioning and so Anderson recommended the introduction of a statutory bar to govern how admissions under Schedule 7 are used in criminal trial.
These are also long standing concerns raised by StopWatch and were included in our submission to the consultation.
2. Best Use of Stop and Search Scheme (‘BUSSS’)
The Home Office recently announced that all police forces had signed up to its Best Use of Stop and Search Scheme (BUSSS) which is a voluntary scheme designed to "achieve greater transparency, community involvement in the use of stop and search powers and to support a more intelligence-led approach, leading to better outcomes” and "improve public confidence and trust". The scheme does not change the law but all forces signed up to the scheme are required to:
- record a broader set of data on stop and search outcomes,
- provide the public with opportunities to accompany police on patrols where searches may take place (witnessing a search is not guaranteed because officers cannot search a person just to show observers how these are conducted),
- introduce a 'community trigger' whereby a "high volume of complaints" would necessitate that the police explain to local community scrutiny groups how they are being used.
Police forces have flexibility to define what their ‘community trigger’ will entail but must provide members of their local communities the chance to influence this. Where complaints are “particularly low”, each complaint would set off the trigger and require scrutiny by police-community consultative groups and an explanation of the search.
The scheme also introduced more substantive changes to how Section 60 is used from now including the requirement to:
- raise the level of authorisation required for section 60 to at least the rank of assistant chief constable (or a commander in London),
- reduce the authorisation period down to 15 hours from 24 hours (with a possible extension to an additional 9 hours taking it up to 24 hours and a further extension of 15 hours),
- authorise the use of the power only where there was reasonable belief that serious violence ‘will’ (as opposed to ‘may’) take place and it is deemed necessary to prevent this, and
- provide the public with advanced notice of a Section 60 authorisation (where practicable) but certainly afterwards in order to enable the public to judge the purpose and success of the operation.
Although the scheme is voluntary, the Home Secretary reserves the right to “withdraw membership of the Scheme where there is evidence that a force is not in compliance with its terms". Forces are expected to adhere to all aspects of the scheme except under exceptional circumstances in which case they must inform the Home Office and also provide an explanation to the public outlining why they had to depart from the relevant parts of the scheme.
More information on the scheme and what it entails can be found here: https://www.gov.uk/government/publications/best-use-of-stop-and-search-scheme
3. Schedule 7 Examinations and Detentions at Ports - figures for 2012-2013
Figures on the use of Schedule 7 to the Terrorism Act 2000 in 2012-2013 have been published by the Home Office. This is a part of a regular series of annual statistical bulletins on the operation of police terrorism powers produced by the Home Office. Schedule 7 is the widest ranging power to search and detain in the UK (read our briefing for more information).
There was a 22% reduction in Schedule 7 examinations down to 44,118 in 2012/13 from 56,257 in the previous year. Similar to previous years, only approximately 1% of examinations led to a detention but unlike previous years the ethnicity of people examined and detained that year were not released.
Quarterly figures, however, do contain ethnicity data and in addition to a useful commentary but covers January to December 2013 which is a different reporting period to the annual bulletin (April 2012- March 2013). These figures show that people from Asian and Chinese and other backgrounds continue to be examined and detained for longer periods of time and therefore subjected to the more extreme aspects of the power. This includes having to undergo a thorough search and questioning; have biometric data taken (usually fingerprints but also DNA samples); and information from electronic items, like mobile phones, laptops and tablet computers, scanned and retained. David Anderson Q.C., the UK’s counter-terrorism watchdog, recently said that these figures did not necessarily suggest that the powers are being used in a racially discriminatory manner but given that the figures on arrests and convictions arising from the power are not published, it is hard to whether the use of these powers and existing police tactics are effective or not.
StopWatch produced a useful briefing earlier this year outlining the legislative changes made to Schedule 7 at the beginning of 2014, this can be view at: http://www.stop-watch.org/get-informed/research/up-to-date-briefing-on-schedule-7-stops-examinations-and-detentions-at-port
4. West Midlands’ PCC by-election
Following the sudden passing away of Bob Jones, David Jamieson has been elected as the West Midland’s new Police and Crime Commissioner.
5. South Yorkshire PCC by-election
Dr Alan Billings was elected as South Yorkshire’s new Police and Crime Commissioner following the resignation of Shaun Wright.
Shaun Wright’s resignation statement can be read here: http://www.southyorkshire-pcc.gov.uk/News-and-Events/News-Archive/2014/Shaun-Wright-Resignation-Statement.aspx
6. Home Office Consultation on ‘reasonable suspicion’
The Home Office held a public consultation on changes that it proposed to redefining what ‘reasonable suspicion’ entails, the legal basis for most powers to stop and search, as defined in Code of Practice A of the Police and Criminal Evidence Act 1984 (PACE). PACE enshrines the main powers and duties of police officers in, amongst other things, stopping and searching people, arresting them and conducting criminal investigations. PACE Code A governs stop and search and provides officers with practice advice on how to interpret and use their legal powers.
The proposed changes sought to link the concept of reasonable suspicion more directly to (a) the existence of “genuine suspicion” that a person is carrying a dangerous, stolen item or prohibited item (such as drugs) and (b) that likelihood that the object of the search will be found.
In its submission to the consultation, StopWatch welcomed the Home Secretary’s revision of the code and made a series of recommendations to cover the following areas that were missing from the consultation:
- Safeguards for young and vulnerable persons are explicitly incorporated,
- People are not targeted on the basis of broad generalisations and stereotypes,
- That paragraphs sanctioning the use of force reflect existing law and guidance,
- Clear explanations are required as to what is being looked for during a search, and the officer's grounds for suspecting an individual of carrying the articles,
- The rights of Independent Observers are covered,
- The rules on the extent to which a search can occur in different situations are drafted in a more accessible way,
- Strip searches are recorded and the guidance on when they are permitted is more clear,
- The provisions of Code A extend to stop and search under Schedule 7 Terrorism act 2000,
- More guidance on Stop and Account is contained within Code A including a requirement that leaving a stop and account does not constitute reasonable grounds for suspicion,
- Searches of the age of children and young people is recorded, and
- ‘Intelligence’ should be clearly defined.