'The Rise and Fall of Suspicionless Searches' (King's College London Law School Research Paper - 2016-20) by Ben Bowling and Estelle Marks
examines
the extraordinary rise and fall of police powers to stop-and-search without suspicion in public places in England and Wales. Suspicionless searches – authorised by s.60 Criminal Justice and Public Order Act 1994 and s.44 Terrorism Act 2000 – rose to a peak of 360,000 in 2009 and then declined radically to fewer than 1,000 in 2015. The paper seeks to explain changes in the use of suspicionless search powers drawing on a theory of the relationship between law and policing by examining the police ‘working environment’ comprised of three structures: law, politics and work. The paper concludes with a consideration of attempts to reform stop-and-search powers and the implications for the future of suspicionless searches.
The authors comment
The paper falls into seven parts. First, we consider the principles that
circumscribe police power – specifically the doctrine of the ‘rule of law’ and the axiom
that the state should be restrained from interfering with the private life and liberty of
the individual without good grounds. We consider, specifically, the proposition that
there should be no power to stop-and-search unless there is reasonable suspicion that
the person stopped is involved in criminal activity. The paper then draws on police
research to grind a theoretical lens through which to examine the relationship between
‘law in the books’ (in the form of statutes and cases) and ‘law in action’ (in the form of
stop-and-search practice).
In light of this theoretical framework we examine stop-and-search in more detail and in
particular the creation of novel powers to search people without suspicion. In part III,
we turn to official statistics to tease out changes in of the use of stop-and-search
powers. We then consider possible explanations for the rise and subsequent fall of the
powers, by examining changes in the social and political context within which police
powers are exercised, the role of legislative, judicial and civil society organisations and
changes within police forces. We then consider the recent Home Office review of stop-and-
search powers and the current political landscape and finally, we examine the
implications for the future of police powers to search without reasonable suspicion.
Our argument, in a nutshell, is that the dramatic changes in police use of suspicionless search powers can be explained by the nature of the police ‘working environment’ comprised of three structures: law, politics and work. The statutes that granted the
power to search people without suspicion were the result of a political process;
however, the way in which they were used and how extensively, were shaped by a
much more complex relationship between law, politics and work. Case law, in a
permissive or restrictive capacity, contributed to the working environment in which
police use their discretionary powers. Significant changes in working practice came
about through internal changes in police operational policy and occupational culture;
these were, in turn, the result of interaction with the external legal and political
environment. The example of suspicionless searches helps to explain how statute and
case law, the political environment and the internal world, or habitus, of policing shape
police operational practice.
They conclude
A twenty-year experiment with suspicionless searches in England and Wales seems to
have come to conclusive end. The powers rose exponentially from the mid-1990s to
2009 and then dropped dramatically; s.44 has been repealed; s.47A has never been
used, and new guidance leaves s.60 significantly curtailed. The extent of the use of
suspicionless search powers in 2015 was but the faintest echo (less than 1 per cent) of
the extensive and aggressive enforcement that characterised policing five years earlier.
Searches under PACE have come under scrutiny and their number is falling. A reform
process that began in earnest in 2009 has gradually tightened police discretion, and the
Home Secretary is attempting to reduce stop-and-search in general and squeeze
suspicionless searches out of police practice altogether by using all the political and administrative levers available to her. The fall in the use of these powers is claimed as a victory for those who assert the principle that police should only ever be permitted to
search a person where there are genuine reasonable grounds to suspect wrongdoing.
However, a significant shift in the security situation could trigger a resurgence of
suspicionless searches. For this reason, it would be better if the powers were repealed
by primary legislation. The theoretical and substantive evidence suggests that while the
power to stop-and-search without suspicion remains on the statute book the danger
persists that their use could increase without public debate or political consideration of
the serious invasion of individual rights that these powers entail.
