Stop and Search

The Anatomy of a Police Power

Rebekah Delsol, M. Shiner, M. Shiner

• Publisher: Palgrave Macmillan
• Year: 2015
• ISBN:
  9781137336101
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

This book reviews the key controversies surrounding the police power to stop and search members of the public. It explores the history and development of these powers, assesses their effectiveness in tackling crime and their impact on public trust and confidence as well as on-going attempts at regulation and reform.

1

Introduction

Rebekah Delsol and Michael Shiner

Stop and search is one of the most common forms of adversarial contact between the police and public, bringing citizens face-to-face with the coercive power of the state. It also provides a visible reminder of what policing is fundamentally about. Although the police ‘force’ has been repackaged into a ‘service’, it remains a ‘dirty work’ occupation (Hughes, 1962) that has to deal with ‘inherently contentious situations’ as a matter of routine (Reiner, 2010: 253). How officers respond to such situations involves considerable discretion. Whether incidents are treated as crimes is often a matter of judgement, and attending officers may well leave the scene having done little more than listened to the disputants, offered words of advice and, perhaps, ‘moved people on’ (Sanders et al., 2010). Banton (1964) famously observed that police officers spend far more time ‘keeping the peace’ than enforcing the law, but the pursuit of peace is often backed up by the threat of force. If conflict escalates or disputants refuse to submit to police authority, officers can invoke their legal powers, and ‘no amount of public relations work can entirely abolish the sense that there is something of the dragon in the dragon-slayer’ (Bittner, 1970: 6–7). Force or the threat of force remains essential to the police function even though it is typically disguised. According to Manning (2003: 37), the police, in modern welfare states, are ‘beneficiaries and guardians of symbolic violence’. Their authority may seem natural and inevitable, yielding instinctive forms of compliance, but it is the product of a carefully cultivated power relationship: ‘The police in every society are insulated in some fashion from those they police – by civil laws, traditions, legal conventions such as the common law, civilian review boards, and other modes of accountability’ (Manning, 2003: 37).

Somewhat provocatively, perhaps, Klockars (1988: 257) framed the issue in the following terms: ‘The only reason to maintain police in modern society is to make available a group of persons with a virtually unrestricted right to use violent and, when necessary, lethal means to bring certain types of situations under control.’ This ‘fact’, he argues, is as fundamentally offensive to the core values of modern society, which seek to eliminate violence as an acceptable means of conducting human affairs, as it is unchangeable. ‘To reconcile itself to its police’, therefore, ‘modern society must wrap it in concealments and circumlocutions that sponsor the appearance that the police are either something other than what they are or are principally engaged in doing something else’ (Klockars, 1988: 257). Following Bittner (1970), Klockars suggests that legalisation is probably the most powerful circumlocution currently mystifying the institution and functions of police in modern society. Despite a sizeable body of law covering police behaviour, he argues, courts have little control over what the police actually do. This is due, in part, to the highly selective way in which the police enforce the law and ‘the enormous influence on police discretion of such things as suspect demeanour, complainant preferences, and a host of other factors that have nothing to do with “the law” ’ (Klockars, 1988: 243). Professionalisation is said to be another circumlocution on the grounds that the tasks and situations routinely encountered by the police are too varied and complex ‘to be covered by the crude provisions of general bureaucratic regulations’ (Klockars, 1988: 246).

Klockars (1988: 240) does not advocate the abolition of the police, noting that ‘no one whom it would be safe to have home to dinner argues that modern society could be without police’. Rather, he opposes the ‘creation of immodest and romantic aspirations that cannot, in fact, be realized in anything but ersatz terms’ (1988: 257). This does not lead him to question the need for regulations governing police conduct, however, and part of his objection to legalisation is that it tends to discourage police accountability to political authorities by creating the impression that courts oversee and control police practice. We might, therefore, be equally wary of having anyone home for dinner who argues that modern society could do without formal regulations governing the ability of the police to use force. To dismiss legal and bureaucratic controls as circumlocutions is, perhaps, to understate their importance and to gloss over the nuances involved in the construction of police legitimacy. It is a characteristic of democratic societies that police are subject to the rule of law; can intervene in the lives of citizens only under limited and carefully controlled circumstances; and are publicly accountable (Marx, 2001). Codifying police powers in this way serves an important normative function, outlining what is expected of police, as well as creating a system through which they may be called to account for misconduct. We cannot assume that changes in regulations and procedures will necessarily translate into changes in practice, but the legal powers that are made available to police are indicative of the political and social context in which they operate. The recent trend has been towards the prioritisation of crime control over ‘due process values’ and this is a matter of concern ‘from a standpoint of principled legality’ (Reiner, 2010: 212).

Stop and search is one of the most controversial powers available to police officers in England and Wales. In a recent independent review, Her Majesty’s Inspectorate of Constabulary (HMIC, 2013: 2) noted:

For decades the inappropriate use of these powers, both real and perceived, has tarnished the relationship between constables and the communities they serve, and in doing so has brought into question the very legitimacy of the police service. Thirty years after the riots in Brixton, concerns about how the police use stop and search powers were again raised following the riots in England in August 2011.

The 1981 Brixton ‘riots’ were a pivotal moment in the history of British policing, which signalled a loss of hard-earned legitimacy. What Reiner (2010: 68) refers to as the ‘golden age’ of policing rested on a series of disarming policy choices that encouraged a low-profile, legalistic stance built around bureaucratic organisation, the rule of law and the strategy of minimal force. By the 1950s, ‘policing by consent’ had been achieved to the maximum degree that it is ever possible, and the British police were firmly established as a symbol of national pride. From the late 1950s, the tacit contract between police and public began to fray as social and political changes created a more challenging policing environment. The rise of the Sixties counter-culture and associated protest movements heralded a renewed politicisation of policing. ‘A more crucial change’, however, ‘was the catastrophic deterioration of relations with the black community’ as ‘a vicious cycle of interaction developed between police stereotyping and black vulnerability to the situations that attract police attention’ (Reiner, 2010: 94–5). What happened in Brixton was characterised by the subsequent inquiry led by Lord Scarman (1981: para. 3.110) as ‘essentially an outburst of anger and resentment by young black people against the police’. This anger and resentment was attributed, in part, to the adoption of policing priorities and practices that did not command local support and impacted disproportionately on black and minority ethnic communities. Particular criticism was reserved for the heavy-handed use of stop and search in the form of operation ‘Swamp 81’, which was identified as the immediate trigger of the disorder.

The broader message of the Scarman Report was, in some ways, a familiar one, echoing Reith’s (1956: 287–8) insistence that the fundamental principle of policing is ‘the process of transmuting crude physical force, which must necessarily be provided in all human communities for securing observance of laws, into the force of public insistence on law observance’. According to Scarman, the functions of the police, which he identified as the prevention of crime, the protection of life and property, and the preservation of public tranquillity, should be pursued with regard to two fundamental principles: namely, ‘consent and balance’ and ‘independence and accountability’. The nub of Scarman’s approach was that, where necessary, the maintenance of public tranquillity should be prioritised over law enforcement. This is the opposite of what had been happening in Brixton, and the ‘riots’ illustrate what can happen when the iron fist forgets about the velvet glove. The solution recommended by Scarman was to rebuild ‘consent’ using a variety of means, including increased consultation and improved accountability through lay station visitors and independent review of complaints against the police.

Although Scarman’s message was not entirely new, it provoked a ‘fundamental reorientation of police thinking’ (Reiner, 1985: 199). Following the ‘riots’ and publication of the Inquiry report, several chief constables sought to redirect policing activities in ways that would restore public confidence and relegitimate the force, giving rise to a flurry of ‘community policing’ initiatives. It was precisely this kind of intervention that Klockars (1988: 258) was so critical of, arguing it was the latest in a long line of circumlocutions: the ‘song of community policing’, he claimed, like the songs of legalisation, militarisation and professionalisation before it, ‘is about some very good things we might gladly wish, but which, sadly, cannot be’.

Since the Brixton ‘riots’ and their immediate aftermath there have been two ‘revolutions’ in the development and legitimation of police powers in England and Wales (Reiner, 2010: 207). The first was the introduction of the 1984 Police and Criminal Evidence Act (PACE). For most of its history the legitimacy of the British police had been nourished by the minimisation of its legal powers and the myth of the constable as a ‘citizen in uniform’ with no special powers beyond the ordinary member of the public. PACE replaced this myth with the principle of a ‘fundamental balance’ between police powers and procedural safeguards. An accompanying code of practice was devoted to stop and search and to identifying the circumstances under which such powers can be legally deployed by officers (see Home Office, 2013a). After little more than a decade, the ‘fundamental balance’ was superseded by a proliferation of police powers which lack balancing safeguards and a whittling away of the due process provisions introduced by PACE. What this meant for stop and search was the rise of ‘exceptional’ powers that are free of the normal procedural safeguards regulating their use, and the paring back of requirements governing officers’ accountability for their use of the powers. Such developments have been justified by claims about the need to rebalance the system in favour of victims due to the threats posed by crime, anti-social behaviour and, more recently, terrorism. This ‘shift in legitimatory myths reveals dramatic transformations in the politics of policing and security, and involves deep issues of principle about the relationship between state and citizens in a democratic society’ (Reiner, 2010: 208).

It was in the midst of the second, post-PACE, revolution that several contributors to this collection came together to form StopWatch, a coalition of civil society organisations, academics, lawyers, community workers, activists and young people, which campaigns for fair and accountable policing (see http://www.stop-watch.org/). StopWatch works to:

•   promote effective, accountable and fair policing;

•   inform the public about the use of stop and search;

•   develop and share research on stop and search and alternatives;

•   organise awareness-raising events and forums;

•   provide legal support challenging stop and search.

Since its inception in 2010, StopWatch has led a wide-ranging campaign challenging the disproportionate use of stop and search against people from black and minority ethnic groups, the increased use of exceptional stop and search powers, and the weakening of accountability mechanisms. Collectively, we have carried out and commissioned research, written reports and submitted evidence to various commissions and inquiries; organised seminars and presented papers at conferences; participated in consultations, sat on boards and committees, lobbied politicians and attended parliamentary events; supported legal challenges and signposted people to lawyers for legal advice; organised public hearings, produced factsheets and delivered training; written blogs, placed stories in national newspapers, spoken on the radio and appeared on television; made films, organised a flashmob and produced a play.

Much of this activity lies outside the traditional arena of academia or, indeed, policy work, but can usefully be thought of as an exercise in public criminology in the sense that it represents an explicit attempt to engage in, and shape, political and public debate about a key area of policing. As noted by Loader and Sparks (2011), the crime control climate has become considerably hotter and more volatile in recent times, and, like other criminologists who have made forays into this hostile environment, we have sought to employ ‘cooling devices’: that is to say, we have responded ‘to an emotive and politicized penal field by seeking to reassert the values and institutions that hot penal politics tends to devalue or disregard – legality and justice, scientific evidence and techniques, and bureaucratic rationality’ (Loader and Sparks, 2011: 9). In so doing, our aim has been to contribute to ‘a better politics of crime and its regulation’ through what Loader and Sparks (2011: 117) refer to as ‘democratic under-labouring’. While such an approach is committed, first and foremost, to the generation of knowledge, it is said to have most to offer when due attention is also paid to normative aspects of crime and justice. One of StopWatch’s principal functions is to inject rigorous criminological knowledge into debates about policing, challenging misinformation and promoting a more evidence-based approach. But this function operates alongside a commitment to ensuring that impacted communities have a voice in the debate (we consider these voices to be a vital source of evidence). In terms of the styles of engagement identified by Loader and Sparks (2011), StopWatch combines the roles of ‘scientific expert’ and ‘social movement theorist/activist’.

Most of the contributors to this collection are members of StopWatch, and many of the chapters were developed for a Roundtable event that took place at John Jay College of Criminal Justice, New York, on 10 and 11 August 2011.¹ The event focused on racial disparities in police-initiated stops in the UK and the US. It began less than a week after the fatal police shooting of black Londoner Mark Duggan, which sparked some of the most serious rioting in recent British history. According to press reports, the riots were ‘a sort of revenge’ against the police, that were partly fuelled by anger and resentment over stop and search (Prasad, 2011). Despite the best efforts of Lord Scarman and all that followed, it seems the lessons of Brixton have not been learned. What, then, is to be done about stop and search?

The following collection is comprised of eight substantive chapters. Lee Bridges starts things off by reviewing the development of stop and search powers in England and Wales as well as regulations governing their use. His analysis pays particular attention to the role of the Police and Criminal Evidence Act 1984, the impact of the Stephen Lawrence Inquiry and the subsequent weakening of existing regulations through, among other things, the use of ‘exceptional’ counter-terrorism powers. By way of conclusion, Bridges considers recent moves to reassert regulatory authority over police stop and search activity. The next chapter, by Michael Shiner and Rebekah Delsol, considers how the use of stop and search fits with the broader politics of crime control. Drawing on official statistics, government surveys and observational studies, they argue that stop and search should not be understood as a straightforward response to crime, suggesting that its use has been shaped by the emergence of a more punitive political climate. In developing these claims, Shiner and Delsol examine trends in stop and search, variations between forces, the types of offence that are targeted by police and the characteristics of the people who are stopped and searched. Particular attention is paid to debates about the disproportionate focus on black and minority ethnic groups and the role of police racism. The issue of police racism is examined in more detail by Paul Quinton, who addresses a specific gap in the literature by looking at officer decision-making at a micro level. He begins by identifying several different mechanisms through which ethnic disparities might be produced, before going on to assess them based on the literature and observational fieldwork in several police forces.

Chapters 5 to 7 focus on the impact of stop and search. Rebekah Delsol assesses claims that stop and search provides a ‘powerful tool’ in the ‘fight against crime’. Her analysis is organised around the observation that any judgement about the effectiveness of an intervention should take account of its costs as well as its benefits. In the absence of robust experimental evidence covering England and Wales, the apparent crime-fighting benefits of stop and search are assessed on the basis of arrest rates, the extent to which this activity is intelligence-led and the type of offences that are targeted. Drawing on these indicators, as well as the more general literature, the benefits of stop and search are said to be outweighed by the costs, which include damage to community relations, particularly with black and minority ethnic communities, and loss of trust and confidence in the police. The costs of stop and search are explored further by Ben Bradford, who contrasts the uncertainty surrounding the effectiveness of this tactic with the extensive evidence of its associated harms. Drawing on procedural justice theory, he identifies a series of unintended consequences, arguing that stop and search is likely not only to damage people’s sense that the police are fair, but also to undermine police legitimacy, damage cooperation between police and public, encourage a turn towards ‘self-help’ violence, drag people differentially into the criminal justice system and promote, rather than inhibit, offending. Tara Lai Quinlan and Zin Derfoufi consider the costs and benefits of stop and search in the context of counter-terrorism policing. Using official statistics and the reports produced by the Independent Reviewer of Terrorism Legislation, as well as the broader literature, they argue that counter-terrorism policing, including increased use of ‘exceptional’ stop and search powers, has been counter-productive, alienating the very communities whose cooperation is most needed to combat the threat of terrorism.

The penultimate chapter, by Michael Shiner, focuses on regulation and reform. Drawing a distinction between conflict and consensus modes of regulation, he argues that the consensus-oriented approach that has been developed in England and Wales has been limited by structural constraints, political barriers and police resistance. While recent developments have continued along familiar lines, it is argued that established approaches have failed to get to grips with an unavoidable central paradox, whereby the police cannot be relied upon to ensure robust regulation themselves, yet are likely to resist and subvert external efforts to this end. As a possible way out of the current impasse, Shiner argues for responsive regulation on the basis that it combines the strengths of conflict and consensus approaches. In the final chapter, Ben Bowling and Estelle Marks consider stop and search in a transnational and comparative context, examining its use by a wide range of different police-like agencies, including domestic police, border guards, customs officers, private security and military officers in policing roles. They also explore the range of purposes for which stop and search is deployed and the main justifications for its use. Having identified particular challenges associated with constraining police powers that are globally connected, Bowling and Marks call for an agenda for transnational and comparative research. Only in this way, they argue, can we hope to ensure such powers are used in ways that are accountable, transparent and fair.

Note

1.  For details see http://www.jjay.cuny.edu/centers/race_crime_justice/1935.php [accessed 18 July 2013].

2

The Legal Powers and their Limits

Lee Bridges

This chapter traces the development of ...

Table of contents

• Cover
• Title Page
• Copyright
• Dedication
• Contents
• List of Figures and Tables
• Foreword
• Acknowledgements
• Notes on Contributors
• 1. Introduction
• 2. The Legal Powers and their Limits
• 3. The Politics of the Powers
• 4. Race Disproportionality and Officer Decision-Making
• 5. Effectiveness
• 6. Unintended Consequences
• 7. Counter-Terrorism Policing
• 8. Regulation and Reform
• 9. Towards a Transnational and Comparative Approach
• 10. Conclusion
• References
• Index