12 August 2019

Section 60 – a brief history of mission creep

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If you are surprised by the latest expansion in the scope of section 60 legislation, don't be

Do not be fooled – the slippery slope is real.

The UK Government's latest move to lift restrictions over using section 60 stop and search expands – to an unprecedented extent – the powers of the police to search anyone in a designated area over a limited time period in order to prevent violent crime.

Now, inspectors will be able to use section 60 without seeking the authorisation of a senior officer.

But this was always a possibility. In fact, a brief look at section 60's history shows that the legislation has been written and rewritten with an in-built degree of flexibility conducive to ever-growing police powers.

Originally created to tackle football hooliganism, Section 60 of the Criminal Justice and Public Order Act 1994 is a power designed to provide an exceptional response to anticipated violence. It allows for police to be authorised to search any person or vehicle for weapons in an area where serious violence is reasonably anticipated. This authorisation lasts 24 hours and can be extended by another 24 hours.

Between its introduction in primary legislation and the latest iteration (2008):

  • rank responsibility for authorising the power fell from superintendent to inspector;*
  • an inspector not only can act in anticipation of violent crime occurring in their area, but also after an incident involving serious violence has taken place;
  • an inspector also gained the authority to act on the reasonable belief that persons are carrying dangerous instruments or offensive weapons in their area 'without good reason';
  • a superintendent gained an extra 18 hours in the power to extend a section 60's initial period (from an additional six to 24 hours);
  • any authorisation given was diminished from having to be put in writing immediately, to not needing to be given in writing until it is "practicable to do so" – a distinction which now rests on the reliability of an oral account being accurately inscribed in hindsight.

However, it is in the introduction of guidance for how to use section 60 – the Best Use of Stop and Search Scheme (BUSS) – that the most far reaching changes have happened. When, as home secretary, Theresa May introduced BUSS to the House of Commons in 2014, she remarked that her intention was 'to revise the Police and Criminal Evidence Act Code of Practice A to make clear what constitutes “reasonable grounds for suspicion” – the legal basis upon which police officers carry out the vast majority of stops'.

May did so by advising that:

  1. the level of authorisation of a section 60 be raised to that of a senior officer – that is, an assistant chief constable, commander of the Metropolitan Police, or commander of the City of London Police or above;
  2. in anticipation of serious violence, the authorising officer must reasonably believe that an incident involving serious violence 'will' take place rather than 'may';
  3. the maximum duration of the initial authorisation be limited to 15 hours; and
  4. participating forces must communicate with the public in the areas where a section 60 authorisation is to be put in place in advance (where practicable) and afterwards.

And subsequently invited all police forces in England and Wales to sign up.

However, invitations can be ignored. It took nearly four years for all police forces to fully sign up to the scheme, with nearly two thirds (28) found neither to be compliant nor participating as late as 2017.

What's more, that which is tightened can be reversed. As prime minister, May herself oversaw one of her home secretaries – Sajid Javid – rollback her own scheme's rules by lifting the first two conditions. The changes were meant to apply to the seven police forces who collectively accounted for over 60% of total national knife crime. But with another change in home secretary comes yet a further encroachment of individual liberties. Fewer than six months on, Priti Patel has removed the third condition of the scheme, effectively killing it off.

So, now we find ourselves following the loosest interpretation of section 60 as it stands, a piece of legislation so ineffective that, according to Home Office records, no more than 8% of searches in its name in any given year have ever found offensive weapons, yet a power that is fast becoming as broad in its scope as the repealed section 44 at the height of its infamy.**

If you are surprised by the latest expansion in section 60's scope, don't be. One can only infer from the way the legislation was originally written that it was always designed to curtail people's civil liberties at a moment's notice.

Meanwhile, from tackling football hooliganism to protecting the youth from knife crime, the history of section 60 continues to play out as a textbook exercise in mission creep. If sacrificing you and your fellow citizens' fundamental individual liberties over 100% of a police area for 48 hours in exchange for an up to 8% chance of the police discovering a dangerous weapon seems like overkill to you, then section 60 is not the law-and-order panacea that will keep you safe at night.

Written by Eugene K, communications volunteer for StopWatch UK coalition.

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* this power was de facto always conferred to inspectors on the grounds that they reasonably believe 'that incidents involving serious violence are imminent and no superintendent is available'. Nowadays, 'if an inspector gives an authorisation under subsection (1) he must, "as soon as it is practicable to do so", cause an officer of or above the rank of superintendent to be informed'

** It is important to note that the 8% refers to the discovery of offensive weapons, not necessarily arrests for possession of those weapons, which are far rarer. In fact, at the height of section 60 (circa 2008/9), less than half of one percent of searches under the power (< 0.5%) led to arrest for possession of a dangerous weapon.

Photo by Chris Eyles from FreeImages.