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Stop and Search: PACE Code of Practice for the Exercise by Police Officers of Statutory Powers of Stop and Search; Police Officers and Police Staff of Requirements to Record Public Encounters (Code A) 

Stop and Search: PACE Code of Practice for the Exercise by Police Officers of Statutory Powers of Stop and Search; Police Officers and Police Staff of Requirements to Record Public Encounters (Code A)
Chapter:
Stop and Search: PACE Code of Practice for the Exercise by Police Officers of Statutory Powers of Stop and Search; Police Officers and Police Staff of Requirements to Record Public Encounters (Code A)
Author(s):

Glenn Hutton

, Gavin McKinnon

, and Paul Connor

DOI:
10.1093/law/9780198829836.003.0004
Page of

Subscriber: null; date: 21 March 2019

A thick grey line down the margin denotes text that is an extract of the PACE Code itself (i.e. the actual wording of the legislation). This material is examinable for both Sergeants and Inspectors.

4.4.1 Introduction

Code A deals with the exercise by police officers of statutory powers of stop and search and has been incorporated into this chapter with the addition of keynotes in appropriate places. This permits additional useful and explanatory detail to be presented to candidates that would not ordinarily be mentioned in any standard version of the code.

The Best Use of Stop and Search Scheme is designed to enable forces to use stop and search strategically in an effort to improve confidence and trust. Forces are expected to adhere to the components of the scheme subject to exceptional circumstances. However, it is important to note that nothing in the scheme is binding in law; statute and case law on stop and search therefore remain unaffected by the scheme. While the Scheme does not form part of the examination syllabus officers wishing to be familiar with its contents as a matter of professional awareness should see <https://www.gov.uk/government/publications/best-use-of-stop-and-search-scheme> for further details.

4.4.2

PACE Code of Practice for the Exercise by Police Officers of Statutory Powers of Stop and Search; Police Officers and Police Staff of Requirements to Record Public Encounters (Code A)

This code applies to any search by a police officer and the requirement to record public encounters taking place after midnight on 19 March 2015.

1.0 General

1.01 This Code of Practice must be readily available at all police stations for consultation by police officers, police staff, detained persons and members of the public.

1.02 The notes for guidance (included within the keynotes of this chapter) are not provisions of this code, but are guidance to police officers and others about its application and interpretation. Provisions in the annexes to the code are provisions of this code.

1.03 This code governs the exercise by police officers of statutory powers to search a person or a vehicle without first making an arrest. The main stop and search powers to which this code applies are set out in Annex A, but that list should not be regarded as definitive. In addition, it covers requirements on police officers and police staff to record encounters not governed by statutory powers. This code does not apply to:

  1. (a) the powers of stop and search under;

    1. (i) Aviation Security Act 1982, section 27(2);

    2. (ii) Police and Criminal Evidence Act 1984, section 6(1) (which relates specifically to powers of constables employed by statutory undertakers on the premises of the statutory undertakers).

  2. (b) searches carried out for the purposes of examination under Schedule 7 to the Terrorism Act 2000 and to which the Code of Practice issued under paragraph 6 of Schedule 14 to the Terrorism Act 2000 applies.

  3. (c) the powers to search persons and vehicles and to stop and search in specified locations to which the Code of Practice issued under section 47AB of the Terrorism Act 2000 applies.

4.4.3

1 Principles governing stop and search

1.1 Powers to stop and search must be used fairly, responsibly, with respect for people being searched and without unlawful discrimination. Under the Equality Act 2010, section 149, when police officers are carrying out their functions, they also have a duty to have due regard to the need to eliminate unlawful discrimination, harassment and victimisation, to advance equality of opportunity between people who share a relevant protected characteristic and people who do not share it, and to take steps to foster good relations between those persons. The Children Act 2004, section 11, also requires chief police officers and other specified persons and bodies to ensure that in the discharge of their functions they have regard to the need to safeguard and promote the welfare of all persons under the age of 18.

1.2 The intrusion on the liberty of the person stopped or searched must be brief and detention for the purposes of a search must take place at or near the location of the stop.

1.3 If these fundamental principles are not observed the use of powers to stop and search may be drawn into question. Failure to use the powers in the proper manner reduces their effectiveness. Stop and search can play an important role in the detection and prevention of crime, and using the powers fairly makes them more effective.

1.4 The primary purpose of stop and search powers is to enable officers to allay or confirm suspicions about individuals without exercising their power of arrest. Officers may be required to justify the use or authorisation of such powers, in relation both to individual searches and the overall pattern of their activity in this regard, to their supervisory officers or in court. Any misuse of the powers is likely to be harmful to policing and lead to mistrust of the police. Officers must also be able to explain their actions to the member of the public searched. The misuse of these powers can lead to disciplinary action.

1.5 An officer must not search a person, even with his or her consent, where no power to search is applicable. Even where a person is prepared to submit to a search voluntarily, the person must not be searched unless the necessary legal power exists, and the search must be in accordance with the relevant power and the provisions of this Code. The only exception, where an officer does not require a specific power, applies to searches of persons entering sports grounds or other premises carried out with their consent given as a condition of entry.

1.6 Evidence obtained from a search to which this Code applies may be open to challenge if the provisions of this Code are not observed.

4.4.4

2 Types of stop and search powers

2.1 This code applies, subject to paragraph 1.03, to powers of stop and search as follows:

  1. (a) powers which require reasonable grounds for suspicion, before they may be exercised; that articles unlawfully obtained or possessed are being carried such as section 1 of PACE for stolen and prohibited articles and section 23 of the Misuse of Drugs Act 1971 for controlled drugs;

  2. (b) authorised under section 60 of the Criminal Justice and Public Order Act 1994, based upon a reasonable belief that incidents involving serious violence may take place or that people are carrying dangerous instruments or offensive weapons within any locality in the police area or that it is expedient to use the powers to find such instruments or weapons that have been used in incidents of serious violence, and

  3. (c) Not used.

  4. (d) the powers in Schedule 5 to the Terrorism Prevention and Investigation Measures (TPIM) Act 2011 to search an individual who has not been arrested, conferred by:

    1. (i) paragraph 6(2)(a) at the time of serving a TPIM notice;

    2. (ii) paragraph 8(2)(a) under a search warrant for compliance purposes; and

    3. (iii) paragraph 10 for public safety purposes.

      See paragraph 2.18A.

  5. (e) powers to search a person who has not been arrested in the exercise of a power to search premises (see Code B paragraph 2.4).

4.4.4.1

Keynote

This Code does not affect the ability of an officer to speak to or question a person in the ordinary course of the officer’s duties without detaining the person or exercising any element of compulsion. It is not the purpose of the Code to prohibit such encounters between the police and the community with the cooperation of the person concerned and neither does it affect the principle that all citizens have a duty to help police officers to prevent crime and discover offenders. This is a civic rather than a legal duty; but when a police officer is trying to discover whether, or by whom, an offence has been committed he/she may question any person from whom useful information might be obtained, subject to the restrictions imposed by Code C. A person’s unwillingness to reply does not alter this entitlement, but in the absence of a power to arrest, or to detain in order to search, the person is free to leave at will and cannot be compelled to remain with the officer.

The ‘relevant protected characteristics’ referred to in para. 1.1 include: age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

It is important to emphasise that Code A of the PACE Codes of Practice applies to any search by a police officer, i.e. the principles and processes created by Code A must be followed in all searches (there are exceptions for certain powers under the Aviation Security Act 1982 and those exercised by statutory undertakers).

Code A does not allow the routine searching of people with their consent and only permits very limited use of the power as a condition of entry (e.g. to a sports ground) (para. 1.5). This means the practice of conducting ‘voluntary’ searches in the street or other public places is not permitted.

There are many specific statutory authorities providing the police (and others) with powers to stop people and vehicles and search them (see Annex A of this Code at appendix 4.1). Perhaps the most important of these is the general power for police officers to stop and search people and vehicles under s. 1 of the Police and Criminal Evidence Act 1984 (PACE) referred to at para. 2.1(a).

A summary of s. 1 of the Police and Criminal Evidence Act 1984 is that it provides a constable with the power to stop, detain and search a person and/or a vehicle (or anything in or on a vehicle) for stolen articles, prohibited articles, bladed or sharply pointed articles and for fireworks. While such a summary is useful, a more detailed analysis of the power is required.

The Police and Criminal Evidence Act 1984, s. 1 states:

  1. (1) A constable may exercise any power conferred by this section—

    1. (a) in any place to which at the time when he proposes to exercise the power the public or any section of the public has access, on payment or otherwise, as of right or by virtue of express or implied permission; or

    2. (b) in any other place to which people have ready access at the time when he proposes to exercise the power but which is not a dwelling.

  2. (2) Subject to subsection (3) to (5) below, a constable—

    1. (a) may search—

      1. (i) any person or vehicle;

      2. (ii) anything which is in or on a vehicle, for stolen or prohibited articles or any article to which subsection (8A) below applies or any firework to which subsection (8B) below applies; and

    1. (b) may detain a person or vehicle for the purpose of such a search.

  3. (3) This section does not give a constable power to search a person or vehicle or anything in or on a vehicle unless he has reasonable grounds for suspecting that he will find stolen or prohibited articles or any article to which subsection (8A) below applies or any firework to which subsection (8B) below applies.

  4. (4) If a person is in a garden or yard occupied with and used for the purposes of a dwelling or on other land so occupied and used, a constable may not search him in the exercise of the power conferred by this section unless the constable has reasonable grounds for believing—

    1. (a) that he does not reside in the dwelling; and

    2. (b) that he is not in the place in question with the express or implied permission of a person who resides in the dwelling.

  5. (5) If a vehicle is in a garden or yard occupied with and used for the purposes of a dwelling or on other land so occupied and used, a constable may not search the vehicle or anything in or on it in the exercise of the power conferred by this section unless he has reasonable grounds for believing—

    1. (a) that the person in charge of the vehicle does not reside in the dwelling; and

    2. (b) that the vehicle is not in the place in question with the express or implied permission of a person who resides in the dwelling.

  6. (6) If in the course of such a search a constable discovers an article which he has reasonable grounds for suspecting to be stolen or a prohibited article or an article to which subsection (8A) below applies or a firework to which subsection (8B) below applies, he may seize it.

  7. (7) An article is prohibited for the purposes of this Part of this Act if it is—

    1. (a) an offensive weapon; or

    2. (b) an article—

      1. (i) made or adapted for use in the course of or in connection with an offence to which this sub-paragraph applies; or

      2. (ii) intended by the person having it with him for such use by him or by some other person.

  8. (8) The offences to which subsection (7)(b)(i) above applies are—

    1. (a) burglary;

    2. (b) theft;

    3. (c) offences under section 12 of the Theft Act 1968 (taking motor vehicle or other conveyance without authority);

    4. (d) fraud (contrary to section 1 of the Fraud Act 2006); and

    5. (e) offences under section 1 of the Criminal Damage Act 1971 (destroying or damaging property).

  9. (8A) This subsection applies to any article in relation to which a person has committed, or is committing or is going to commit an offence under section 139 of the Criminal Justice Act 1988.

  10. (8B) This subsection applies to any firework which a person possesses in contravention of a prohibition imposed by fireworks regulations.

  11. (8C) In this section—

    1. (a) ‘firework’ shall be construed in accordance with the definition of ‘fireworks’ in section 1(1) of the Fireworks Act 2003; and

    2. (b) ‘fireworks regulations’ has the same meaning as in that Act.

  12. (9) In this Part of this Act ‘offensive weapon’ means any article—

    1. (a) made or adapted for use for causing injury to persons; or

    2. (b) intended by the person having it with him for such use by him or by some other person.

4.4.4.2

Keynote

Search in a Garden, Yard or Land Connected to Dwelling

If the person to be searched is in a garden, yard or other land occupied with and used as part of a dwelling, the power to search will not apply unless the officer has ‘reasonable grounds for believing’ that the person does not live there and that he/she is not there with the permission (express or implied) of any person who does live there.

If the garden or yard is attached to a house that is not so ‘occupied’, the restriction at s. 1(4) would not appear to apply.

Similar restrictions are placed on the searching of vehicles found in such places by s. 1(5). For the meaning of ‘in charge’ of a vehicle, see Road Policing, chapter 3.1. For these purposes ‘vehicle’ includes vessels, aircraft and hovercraft (s. 2(10) of the 1984 Act).

4.4.4.3

Keynote

Prohibited Articles

‘Offensive weapon’ is defined as any article made or adapted for use for causing injury to the person, or intended by the person having it with him for such use or by someone else. There are three categories of offensive weapons: those made for causing injury to the person; those adapted for such a purpose; and those not so made or adapted, but carried with the intention of causing injury to the person. A firearm, as defined by s. 57 of the Firearms Act 1968, would fall within the definition of offensive weapon if any of the criteria above apply.

The power under s. 1 of the Police and Criminal Evidence Act 1984 does not authorise an officer in plain clothes to stop a vehicle (s. 2(9)(b)).

The power is restricted to those places set out in s. 1(1)(a) or (b) of the 1984 Act. This does not mean that the search itself must be carried out there; in fact Code A, paras 3.6 and 3.7 require certain searches to be carried out away from public view (see para. 4.4.5).

The power under s. 1 of PACE applies where the officer has ‘reasonable grounds for suspecting’ that he/she will find stolen or prohibited articles or articles falling under s. 139 of the Criminal Justice Act 1988 (bladed or sharply pointed articles; see chapter 4.12) or any firework to which s.1(8B) of the 1984 Act applies (possession of a firework in contravention of a prohibition imposed by fireworks regulations—for example, possession of an adult firework in a public place when the person is under 18).

The existence of reasonable grounds for suspicion is at the heart of the power under s. 1 and for that reason, Code A devotes considerable attention to the concept.

(a) Stop and search powers requiring reasonable grounds for suspicion— explanation

General

2.2 Reasonable grounds for suspicion is the legal test which a police officer must satisfy before they can stop and detain individuals or vehicles to search them under powers such as section 1 of PACE (to find stolen or prohibited articles) and section 23 of the Misuse of Drugs Act 1971 (to find controlled drugs). This test must be applied to the particular circumstances in each case and is in two parts:

  1. (i) Firstly, the officer must have formed a genuine suspicion in their own mind that they will find the object for which the search power being exercised allows them to search (see Annex A, second column, for examples); and

  2. (ii) Secondly, the suspicion that the object will be found must be reasonable. This means that there must be an objective basis for that suspicion based on facts, information and/or intelligence which are relevant to the likelihood that the object in question will be found, so that a reasonable person would be entitled to reach the same conclusion based on the same facts and information and/or intelligence.

    Officers must therefore be able to explain the basis for their suspicion by reference to intelligence or information about, or some specific behaviour by, the person concerned (see paragraphs 3.8(d), 4.6 and 5.5).

2.2A The exercise of these stop and search powers depends on the likelihood that the person searched is in possession of an item for which they may be searched; it does not depend on the person concerned being suspected of committing an offence in relation to the object of the search. A police officer who has reasonable grounds to suspect that a person is in innocent possession of a stolen or prohibited article, controlled drug or other item for which the officer is empowered to search, may stop and search the person even though there would be no power of arrest. This would apply when a child under the age of criminal responsibility (10 years) is suspected of carrying any such item, even if they knew they had it.

Personal factors can never support reasonable grounds for suspicion

2.2B Reasonable suspicion can never be supported on the basis of personal factors. This means that unless the police have information or intelligence which provides a description of a person suspected of carrying an article for which there is a power to stop and search, the following cannot be used, alone or in combination with each other, or in combination with any other factor, as the reason for stopping and searching any individual, including any vehicle which they are driving or are being carried in:

  1. (a) A person’s physical appearance with regard, for example, to any of the ‘relevant protected characteristics’ set out in the Equality Act 2010, section 149, which are age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex and sexual orientation (see paragraph 1.1), or the fact that the person is known to have a previous conviction; and

  2. (b) Generalisations or stereotypical images that certain groups or categories of people are more likely to be involved in criminal activity.

2.3 Not used.

Reasonable grounds for suspicion based on information and/or intelligence

2.4 Reasonable grounds for suspicion should normally be linked to accurate and current intelligence or information, relating to articles for which there is a power to stop and search, being carried by individuals or being in vehicles in any locality. This would include reports from members of the public or other officers describing:

  • a person who has been seen carrying such an article or a vehicle in which such an article has been seen.

  • crimes committed in relation to which such an article would constitute relevant evidence, for example, property stolen in a theft or burglary, an offensive weapon or bladed or sharply pointed article used to assault or threaten someone or an article used to cause criminal damage to property.

2.4A Searches based on accurate and current intelligence or information are more likely to be effective. Targeting searches in a particular area at specified crime problems not only increases their effectiveness but also minimises inconvenience to law-abiding members of the public. It also helps in justifying the use of searches both to those who are searched and to the public. This does not, however, prevent stop and search powers being exercised in other locations where such powers may be exercised and reasonable suspicion exists.

2.5 Not used.

Reasonable grounds for suspicion and searching groups

2.6 Where there is reliable information or intelligence that members of a group or gang habitually carry knives unlawfully or weapons or controlled drugs, and wear a distinctive item of clothing or other means of identification in order to identify themselves as members of that group or gang, that distinctive item of clothing or other means of identification may provide reasonable grounds to stop and search any person believed to be a member of that group or gang.

2.6A A similar approach would apply to particular organised protest groups where there is reliable information or intelligence:

  1. (a) that the group in question arranges meetings and marches to which one or more members bring articles intended to be used to cause criminal damage and/or injury to others in support of the group’s aims;

  2. (b) that at one or more previous meetings or marches arranged by that group, such articles have been used and resulted in damage and/or injury; and

  3. (c) that on the subsequent occasion in question, one or more members of the group have brought with them such articles with similar intentions.

These circumstances may provide reasonable grounds to stop and search any members of the group to find such articles. See also paragraphs 2.12 to 2.18, ‘Searches authorised under section 60 of the Criminal Justice and Public Order Act 1994’, when serious violence is anticipated at meetings and marches.

Reasonable grounds for suspicion based on behaviour, time and location

2.6B Reasonable suspicion may also exist without specific information or intelligence and on the basis of the behaviour of a person. For example, if an officer encounters someone on the street at night who is obviously trying to hide something, the officer may (depending on the other surrounding circumstances) base such suspicion on the fact that this kind of behaviour is often linked to stolen or prohibited articles being carried. An officer who forms the opinion that a person is acting suspiciously or that they appear to be nervous must be able to explain, with reference to specific aspects of the person’s behaviour or conduct which they have observed, why they formed that opinion (see paragraphs 3.8(d) and 5.5). A hunch or instinct which cannot be explained or justified to an objective observer can never amount to reasonable grounds.

2.7 Not used.

2.8 Not used.

Securing public confidence and promoting community relations

2.8A All police officers must recognise that searches are more likely to be effective, legitimate and secure public confidence when their reasonable grounds for suspicion are based on a range of objective factors. The overall use of these powers is more likely to be effective when up-to-date and accurate intelligence or information is communicated to officers and they are well-informed about local crime patterns. Local senior officers have a duty to ensure that those under their command who exercise stop and search powers have access to such information, and the officers exercising the powers have a duty to acquaint themselves with that information (see paragraphs 5.1 to 5.6).

Questioning to decide whether to carry out a search

2.9 An officer who has reasonable grounds for suspicion may detain the person concerned in order to carry out a search. Before carrying out the search the officer may ask questions about the person’s behaviour or presence in circumstances which gave rise to the suspicion. As a result of questioning the detained person, the reasonable grounds for suspicion necessary to detain that person may be confirmed or, because of a satisfactory explanation, be dispelled. Questioning may also reveal reasonable grounds to suspect the possession of a different kind of unlawful article from that originally suspected. Reasonable grounds for suspicion however cannot be provided retrospectively by such questioning during a person’s detention or by refusal to answer any questions asked.

2.10 If, as a result of questioning before a search, or other circumstances which come to the attention of the officer, there cease to be reasonable grounds for suspecting that an article of a kind for which there is a power to stop and search is being carried, no search may take place. In the absence of any other lawful power to detain, the person is free to leave at will and must be so informed.

2.11 There is no power to stop or detain a person in order to find grounds for a search. Police officers have many encounters with members of the public which do not involve detaining people against their will and do not require any statutory power for an officer to speak to a person (see paragraph 4.12). However, if reasonable grounds for suspicion emerge during such an encounter, the officer may detain the person to search them, even though no grounds existed when the encounter began. As soon as detention begins, and before searching, the officer must inform the person that they are being detained for the purpose of a search and take action in accordance with paragraphs 3.8 to 3.11 under ‘Steps to be taken prior to a search’.

4.4.4.4

Keynote

Reasonable Grounds for Suspicion

Innocent possession (mentioned at para. 2.2A) means that the person does have the guilty knowledge that they are carrying an unlawful item which is required before an arrest on suspicion that the person has committed an offence in respect of the item sought (if arrest is necessary—see PACE Code G) and/or a criminal prosecution can be considered. It is not uncommon for children under the age of criminal responsibility to be used by older children and adults to carry stolen property, drugs and weapons and, in some cases, firearms, for the criminal benefit of others, either:

  • in the hope that police may not suspect they are being used for carrying the items; or

  • knowing that if they are suspected of being couriers and are stopped and searched, they cannot be arrested or prosecuted for any criminal offence.

Stop and search powers therefore allow the police to intervene effectively to break up criminal gangs and groups that use young children to further their criminal activities.

Whenever a child under 10 is suspected of carrying unlawful items for someone else, or is found in circumstances which suggest that their welfare and safety may be at risk, the facts should be reported and actioned in accordance with established force safeguarding procedures. This will be in addition to treating the child as a potentially vulnerable or intimidated witness in respect of their status as a witness to the serious criminal offence(s) committed by those using them as couriers. Safeguarding considerations will also apply to other persons aged under 18 who are stopped and searched under any of the powers to which this Code applies. See para. 1.1 with regard to the requirement under the Children Act 2004, s. 11, for chief police officers and other specified persons and bodies to ensure that in the discharge of their functions they have regard to the need to safeguard and promote the welfare of all persons under the age of 18.

In some circumstances preparatory questioning may be unnecessary, but in general a brief conversation or exchange will be desirable not only as a means of avoiding unsuccessful searches, but to explain the grounds for the stop/search, to gain cooperation and reduce any tension there might be surrounding the stop/search process.

Where a person is lawfully detained for the purpose of a search, but no search in the event takes place, the detention will not thereby have been rendered unlawful.

The issue of when an officer has reasonable grounds for suspicion has been developed by the courts for many years. This common law development is supported by the inclusion of specific guidance on search powers that require reasonable grounds for suspicion.

‘Suspicion’ requires a lower degree of certainty than ‘belief’. A statutory requirement for ‘belief’ imposes a greater degree of certainty on the officers concerned (Baker v Oxford [1980] RTR 315). Accordingly, police officers using powers that impose such an extra requirement must be prepared to justify their belief. Suspicion can be based on any evidence, even if the evidence itself would be inadmissible at trial (e.g. because it is hearsay).

The courts have accepted that reasonable grounds for suspicion can arise from information given to the officer by a colleague, an informant or even anonymously (O’Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286).

The courts have held that it must be shown that any such grounds on which an officer acted would have been enough to give rise to that suspicion in a ‘reasonable person’ (Nakkuda Ali v Jayaratne [1951] AC 66).

However, the mere existence of such circumstances or evidence is not enough. The officer must actually have a ‘reasonable suspicion’ that the relevant articles will be found. If, in fact, the officer knows that there is little or no likelihood of finding the articles, the power could not be used (R v Harrison [1938] 3 All ER 134).

Paragraph 2.6 makes provision for the searching of members of gangs or groups who habitually carry knives unlawfully, weapons or drugs and wear a distinctive item of clothing or other means of identifying themselves with such a group, but only where there is reliable information or intelligence that members of the group or gang do so. Other means of identification might include jewellery, insignias, tattoos or other features which are known to identify members of the particular gang or group.

A decision to search individuals believed to be members of a particular group or gang must be judged on a case-by-case basis according to the circumstances applicable at the time of the proposed searches and in particular having regard to: (a) the number of items suspected of being carried; (b) the nature of those items and the risk they pose; and (c) the number of individuals to be searched. A group search will only be justified if it is a necessary and proportionate approach based on the facts and having regard to the nature of the suspicion in these cases. The extent and thoroughness of the searches must not be excessive. The size of the group and the number of individuals it is proposed to search will be a key factor and steps should be taken to identify those who are to be searched to avoid unnecessary inconvenience to unconnected members of the public who are also present. The onus is on the police to be satisfied and to demonstrate that their approach to the decision to search is in pursuit of a legitimate aim, necessary and proportionate.

Searches authorised under section 60 of the Criminal Justice and Public Order Act 1994

2.12 Authority for a constable in uniform to stop and search under section 60 of the Criminal Justice and Public Order Act 1994 may be given if the authorising officer reasonably believes:

  1. (a) that incidents involving serious violence may take place in any locality in the officer’s police area, and it is expedient to use these powers to prevent their occurrence;

  2. (b) that persons are carrying dangerous instruments or offensive weapons without good reason in any locality in the officer’s police area; or

  3. (c) that an incident involving serious violence has taken place in the officer’s police area, a dangerous instrument or offensive weapon used in the incident is being carried by a person in any locality in that police area, and it is expedient to use these powers to find that instrument or weapon.

2.13 An authorisation under section 60 may only be given by an officer of the rank of inspector or above and in writing, or orally if paragraph 2.12(c) applies and it is not practicable to give the authorisation in writing. The authorisation (whether written or oral) must specify the grounds on which it was given, the locality in which the powers may be exercised and the period of time for which they are in force. The period authorised shall be no longer than appears reasonably necessary to prevent, or seek to prevent incidents of serious violence, or to deal with the problem of carrying dangerous instruments or offensive weapons or to find a dangerous instrument or offensive weapon that has been used. It may not exceed 24 hours. An oral authorisation given where paragraph 2.12(c) applies must be recorded in writing as soon as practicable.

2.14 An inspector who gives an authorisation must, as soon as practicable, inform an officer of or above the rank of superintendent. This officer may direct that the authorisation shall be extended for a further 24 hours, if violence or the carrying of dangerous instruments or offensive weapons has occurred, or is suspected to have occurred, and the continued use of the powers is considered necessary to prevent or deal with further such activity or to find a dangerous instrument or offensive weapon that has been used. That direction must be given in writing unless it is not practicable to do so, in which case it must be recorded in writing as soon as practicable afterwards.

2.14A The selection of persons and vehicles under s. 60 to be stopped and, if appropriate searched should reflect an objective assessment of the nature of the incident or weapon in question and the individuals and vehicles thought likely to be associated with that incident or those weapons. The powers must not be used to stop and search persons and vehicles for reasons unconnected with the purpose of the authorisation. When selecting persons and vehicles to be stopped in response to a specific threat or incident, officers must take care not to discriminate unlawfully against anyone on the grounds of any of the protected characteristics set out in the Equality Act 2010 (see paragraph 1.1).

2.14B The driver of a vehicle which is stopped under section 60 and any person who is searched under section 60 are entitled to a written statement to that effect if they apply within twelve months from the day the vehicle was stopped or the person was searched. This statement is a record which states that the vehicle was stopped or (as the case may be) that the person was searched under s. 60 and it may form part of the search record or be supplied as a separate record.

4.4.4.5

Keynote

Section 60 of the Criminal Justice and Public Order Act 1994

Section 60 of the 1994 Act states:

  1. (1) If a police officer of or above the rank of inspector reasonably believes—

    1. (a) that incidents involving serious violence may take place in any locality in his police area, and that it is expedient to give an authorisation under this section to prevent their occurrence,

    2. (aa) that—

      1. (i) an incident involving serious violence has taken place in England and Wales in his police area;

      2. (ii) a dangerous instrument or offensive weapon used in the incident is being carried in any locality in his police area by a person; and

      3. (iii) it is expedient to give an authorisation under this section to find the instrument or weapon; or

    3. (b) that persons are carrying dangerous instruments or offensive weapons in any locality in his police area without good reason, he may give an authorisation that the powers conferred by this section are to be exercisable at any place within that locality for a specified period not exceeding 24 hours.

  2. (2) (repealed)

  3. (3) . . .

  4. (3A) . . .

  5. (4) This section confers on any constable in uniform power—

    1. (a) to stop any pedestrian and search him or anything carried by him for offensive weapons or dangerous instruments;

    2. (b) to stop any vehicle and search the vehicle, its driver and any passenger for offensive weapons or dangerous instruments.

The powers under s. 60 are separate from and additional to the normal stop and search powers which require reasonable grounds to suspect an individual of carrying an offensive weapon (or other article). Their overall purpose is to prevent serious violence and the widespread carrying of weapons which might lead to persons being seriously injured by disarming potential offenders or finding weapons that have been used in circumstances where other powers would not be sufficient. They should not therefore be used to replace or circumvent the normal powers for dealing with routine crime problems. A particular example might be an authorisation to prevent serious violence or the carrying of offensive weapons at a sports event by rival team supporters when the expected general appearance and age range of those likely to be responsible, alone, would not be sufficiently distinctive to support reasonable suspicion (see Code A, para. 2.6).

4.4.4.6

Keynote

Authorisation

The reasonable belief on the part of the officer authorising the use of the power under s. 60 must have an objective basis, for example: intelligence or relevant information such as a history of antagonism and violence between particular groups; previous incidents of violence at, or connected with, particular events or locations; a significant increase in knife-point robberies in a limited area; reports that individuals are regularly carrying weapons in a particular locality or information following an incident in which weapons were used about where the weapons might be found.

Although the word ‘necessary’ does not appear in s. 60(1), the effect of Article 8 of the European Convention on Human Rights is that necessity remains relevant to each decision as to whether an authorisation is justified. Any authorisation made under s. 60 must be made only when the officer believes it is necessary. In practice, in addition to expediency, which is explicit in the 1994 Act, the authorising officer must also have considered the authorisation necessary to prevent serious violence or to find dangerous instruments or weapons after an incident involving serious violence, or to apprehend persons carrying weapons.

It is for the authorising officer to determine the period of time during which the power may be exercised and in any event must not exceed 24 hours. The officer should set the minimum period he/she considers necessary to deal with the risk of violence, the carrying of knives or offensive weapons or to find dangerous instruments or weapons that have been used. A direction to extend the period authorised under the power may be given only once (by a superintendent or above for a further period not exceeding 24 hours). So the maximum period a s. 60 authorisation could last for would be 48 hours—thereafter further use of the powers requires a new authorisation.

It is for the authorising officer to determine the geographical area in which the use of the powers is to be authorised. In doing so the officer may wish to take into account factors such as the nature and venue of the anticipated incident or the incident which has taken place, the number of people who may be in the immediate area of that incident, their access to surrounding areas and the anticipated level of violence. The officer should not set a geographical area which is wider than he/she believes necessary for the purpose of preventing anticipated violence, the carrying of knives or offensive weapons or for finding a dangerous instrument or weapon that has been used. It is particularly important to ensure that constables exercising such powers are fully aware of where they may be used. If the area specified is smaller than the whole force area, the officer giving the authorisation should specify either the streets which form the boundary of the area or a divisional boundary within the force area. If the power is to be used in response to a threat or incident that straddles police force areas, an officer from each of the forces concerned will need to give an authorisation.

If it appears to an officer of or above the rank of superintendent that:

  • having regard to offences that have been, or are reasonably suspected to have been, committed

  • in connection with any activity falling within the authorisation, and

  • it is expedient to do so

he/she may authorise the continuation of the authority to exercise the powers under s. 60(1) for a further period of 24 hours (s. 60(3) and Code A, para. 2.14).

This authorisation must be in writing, signed by the officer giving it, and must specify:

  • the grounds on which it is given

  • the locality in which it is to operate, and

  • the period during which the powers are exercisable

and any direction for the authorisation to continue must also be given in writing at the time or reduced into writing as soon as it is practicable to do so (s. 60(9)).

4.4.4.7

Keynote

Interpretation

‘Serious violence’ is not defined in the 1994 Act but, although violence could relate to property, the whole tenor of the section suggests that it is aimed at tackling violence against people. ‘Dangerous instruments’ are bladed or sharply pointed instruments, while offensive weapons have the same meaning as that under s. 1(9) of the Police and Criminal Evidence Act 1984. For the purposes of s. 60, ‘carrying’ will mean ‘having in your possession’ (s. 60(11A)), a much wider meaning than carrying usually conveys.

4.4.4.8

Keynote

Powers, Offences and Entitlements

A significant difference between this power and the general powers of stop and search (which are not affected by the granting of this power (s. 60(12))), is that it does not require any grounds at all for the officer to suspect that the person/vehicle is carrying offensive weapons or dangerous instruments (s. 60(5)). However, para. 2.14A is clear in that it states that the stopping of people and/or vehicles should reflect the purpose of the authorisation and should be capable of ‘objective assessment’. A further difference is that the power under s. 60 authorises officers in uniform to stop vehicles in order to search them and their occupants.

The power allows the stopping and searching of pedestrians, vehicles (including caravans, aircraft, vessels and hovercraft) and passengers. If a dangerous instrument or anything reasonably suspected to be an ‘offensive weapon’ is found during the search, the officer may seize it (s. 60(6)).

The general requirements governing searches imposed by Code A apply to this power.

Failing to stop (or to stop a vehicle) when required to do so under this power is a summary offence punishable with one month’s imprisonment and/or a fine (s. 60(8)(a)).

Powers to require removal of face coverings

2.15 Section 60AA of the Criminal Justice and Public Order Act 1994 also provides a power to demand the removal of disguises. The officer exercising the power must reasonably believe that someone is wearing an item wholly or mainly for the purpose of concealing identity. There is also a power to seize such items where the officer believes that a person intends to wear them for this purpose. There is no power to stop and search for disguises. An officer may seize any such item which is discovered when exercising a power of search for something else, or which is being carried, and which the officer reasonably believes is intended to be used for concealing anyone’s identity. This power can only be used if an authorisation under section 60 or an authorisation under section 60AA is in force.

2.16 Authority for a constable in uniform to require the removal of disguises and to seize them under section 60AA may be given if the authorising officer reasonably believes that activities may take place in any locality in the officer’s police area that are likely to involve the commission of offences and it is expedient to use these powers to prevent or control these activities.

2.17 An authorisation under section 60AA may only be given by an officer of the rank of inspector or above, in writing, specifying the grounds on which it was given, the locality in which the powers may be exercised and the period of time for which they are in force. The period authorised shall be no longer than appears reasonably necessary to prevent, or seek to prevent the commission of offences. It may not exceed 24 hours.

2.18 If an inspector gives an authorisation, he or she must, as soon as practicable, inform an officer of or above the rank of superintendent. This officer may direct that the authorisation shall be extended for a further 24 hours, if crimes have been committed, or is suspected to have been committed, and the continued use of the powers is considered necessary to prevent or deal with further such activity. This direction must also be given in writing at the time or as soon as practicable afterwards.

4.4.4.9

Keynote

Section 60AA of the Criminal Justice and Public Order Act 1994

The Criminal Justice and Public Order Act 1994, s. 60AA states:

  1. (1) Where—

    1. (a) an authorisation under section 60 is for the time being in force in relation to any locality for any period, or

    2. (b) an authorisation under subsection (3) that the powers conferred by subsection (2) shall be exercisable at any place in a locality is in force for any period,

      those powers shall be exercisable at any place in that locality at any time in that period.

  2. (2) This subsection confers power on any constable in uniform—

    1. (a) to require any person to remove any item which the constable reasonably believes that person is wearing wholly or mainly for the purpose of concealing his identity;

    2. (b) to seize any item which the constable reasonably believes any person intends to wear wholly or mainly for that purpose.

  3. (3) If a police officer of or above the rank of inspector reasonably believes—

    1. (a) that activities may take place in any locality in his police area that are likely (if they take place) to involve the commission of offences, and

    2. (b) that it is expedient, in order to prevent or control the activities, to give an authorization under this subsection,

      he may give an authorisation that the powers conferred by this section shall be exercisable at any place within that locality for a specified period not exceeding twenty-four hours.

The purpose of the powers under s. 60AA is to prevent those involved in intimidatory or violent protests using face coverings to conceal identity.

These provisions are wider than those under s. 60 in that they are not restricted to anticipated outbreaks of serious violence. This is not simply a preventive power and can be used where the ‘activities’ are already under way.

4.4.4.10

Keynote

Authorisation

The authorisation process closely follows that of an authorisation under s. 60 of the Act, i.e. the authorising officer reasonably believes that activities may take place in any locality in his/her police area that are likely (if they take place) to involve the commission of offences. This reasonable belief must have an objective basis, for example where the authorising officer is aware of previous incidents of crimes being committed while wearing face coverings to conceal identity. The requirements in relation to the further authority of a superintendent (or above) and the manner and form in which any authority is to be given are broadly similar to those set out in s. 60.

An authorisation (whether to grant the use of the power or to extend it) shall be in writing unless it is not practicable to do so. An oral authorisation will state the matters which would otherwise have been specified in a written authorisation (grounds for the search, locality and time period) and be recorded in writing as soon as it is practicable to do so.

The limitations and requirements as to the time and geographical extent of any authorisation are the same (see para. 4.4.4.9).

4.4.4.11

Keynote

Interpretation

Any officer exercising these powers must reasonably believe that the person wearing the item is doing so wholly or mainly for the purpose of concealing his/her identity or he/she intends to wear it wholly or mainly for that purpose. Therefore if the person is a cyclist wearing a face mask to prevent the inhalation of traffic fumes, or a motorcyclist wearing a crash helmet, the fact that its effect is to conceal his/her identity will not be enough—concealing his/her identity has to be the whole purpose/main purpose of the wearer.

The expression ‘item’ is wide and would include balaclavas, scarves and crash helmets (if the officer believes that such items are being worn wholly or mainly to conceal identity). It is not specifically restricted to face coverings and extends to anything that could be worn wholly or mainly for the purpose of concealing identity (e.g. where offenders swap clothing after an offence). The purpose of the legislation is primarily to ensure that people are not allowed to commit offences anonymously in situations of public disorder.

4.4.4.12

Keynote

Religious Sensitivities

Specific guidance in relation to religious sensitivities is provided by Code A. Many people customarily cover their heads or faces for religious reasons, e.g. Muslim women, Sikh men, Sikh or Hindu women or Rastafarian men or women. A police officer cannot order the removal of a head or face covering except where there is reason to believe that the item is being worn by the individual wholly or mainly for the purpose of disguising identity, not simply because it disguises identity. Where there may be religious sensitivities about ordering the removal of such an item, the officer should permit the item to be removed out of public view (perhaps in a police van or a police station if there is one nearby). Where practicable, the item should be removed in the presence of an officer of the same sex as the person and out of sight of anyone of the opposite sex.

4.4.4.13

Keynote

Powers and Offences

Unlike s. 60, there is no specific power under this section to stop vehicles but, given that this is a power for police officers in uniform, the general power under s. 163 of the Road Traffic Act 1988 could be used.

There is no power to search for face coverings etc. under this power. The Divisional Court has held that the predecessor to this power (the old s. 60(4A)) neither involved nor required a ‘search’ and that therefore the provisions of s. 2 of the Police and Criminal Evidence Act 1984 did not apply (DPP v Avery [2001] EWHC Admin 748). The court went on to hold that, although the power amounted to a significant interference with a person’s liberty, it was justified by the type of situation envisaged by the legislators whereby the police may need to call upon the law. Clearly if an item is found during a lawful search for other articles (say under s. 60(4)) which does not require any ‘reasonable belief’ by the officer, face coverings and masks could then be seized under subsection (b). The procedure to be followed in relation to the retention and disposal of items seized under s. 60 is set out in the Police (Retention and Disposal of Items Seized) Regulations 2002 (SI 2002/1372).

4.4.4.14

Keynote

Offence Criminal Justice and Public Order Act 1994, s. 60AA(7)


  • Triable summarily

  • One month’s imprisonment and/or a fine

The Criminal Justice and Public Order Act 1994, s. 60AA states:

  1. (7) A person who fails to remove an item worn by him when required to do so by a constable in the exercise of his power under this section shall be liable.

The wording of this offence is absolute. There is no requirement that the person failed without reasonable excuse or without good reason etc.; simply that he/she failed to remove an item worn by him/her. However, it must be shown that:

  • the requirement was made (and presumably understood)

  • it was made by a police officer in uniform

  • in the exercise of powers authorised under s. 60

in the reasonable belief that the person was wearing the item wholly or mainly for the purpose of concealing his/her identity.

Searches under Schedule 5 to the Terrorism Prevention and Investigation Measures Act 2011

2.18A Paragraph 3 of Schedule 5 to the TPIM Act 2011 allows a constable to detain an individual to be searched under the following powers:

  1. (i) paragraph 6(2)(a) when a TPIM notice is being, or has just been, served on the individual for the purpose of ascertaining whether there is anything on the individual that contravenes measures specified in the notice;

  2. (ii) paragraph 8(2)(a) in accordance with a warrant to search the individual issued by a justice of the peace in England and Wales, a sheriff in Scotland or a lay magistrate in Northern Ireland who is satisfied that a search is necessary for the purpose of determining whether an individual in respect of whom a TPIM notice is in force is complying with measures specified in the notice (see paragraph 2.20); and

  3. (iii) paragraph 10 to ascertain whether an individual in respect of whom a TPIM notice is in force is in possession of anything that could be used to threaten or harm any person.

See paragraph 2.1(e).

2.19 The exercise of the powers mentioned in paragraph 2.18A does not require the constable to have reasonable grounds to suspect that the individual:

  1. (a) has been, or is, contravening any of the measures specified in the TPIM notice; or

  2. (b) has on them anything which:

    • in the case of the power in sub-paragraph (i), contravenes measures specified in the TPIM notice;

    • in the case of the power in sub-paragraph (ii) is not complying with measures specified in the TPIM notice; or

    • in the case of the power in sub-paragraph (iii), could be used to threaten or harm any person.

2.20 A search of an individual on warrant under the power mentioned in paragraph 2.18A(ii) must carried out within 28 days of the issue of the warrant and:

  • the individual may be searched on one occasion only within that period;

  • the search must take place at a reasonable hour unless it appears that this would frustrate the purposes of the search.

2.21 Not used.

2.22 Not used.

2.23 Not used.

2.24 Not used.

2.24A Not used.

2.25 Not used.

2.26 The powers under Schedule 5 only allow a constable to conduct a search of an individual only for specified purposes relating to a TPIM notice as set out above. However, anything found may be seized and retained if there are reasonable grounds for believing that it is or it contains evidence of any offence for use at a trial for that offence or to prevent it being concealed, lost, damaged, altered, or destroyed. However, this would not prevent a search being carried out under other search powers if, in the course of exercising these powers, the officer formed reasonable grounds for suspicion.

4.4.5

3 Conduct of searches

3.1 All stops and searches must be carried out with courtesy, consideration and respect for the person concerned. This has a significant impact on public confidence in the police. Every reasonable effort must be made to minimise the embarrassment that a person being searched may experience.

3.2 The cooperation of the person to be searched must be sought in every case, even if the person initially objects to the search. A forcible search may be made only if it has been established that the person is unwilling to co-operate or resists. Reasonable force may be used as a last resort if necessary to conduct a search or to detain a person or vehicle for the purposes of a search.

3.3 The length of time for which a person or vehicle may be detained must be reasonable and kept to a minimum. Where the exercise of the power requires reasonable suspicion, the thoroughness and extent of a search must depend on what is suspected of being carried, and by whom. If the suspicion relates to a particular article which is seen to be slipped into a person’s pocket, then, in the absence of other grounds for suspicion or an opportunity for the article to be moved elsewhere, the search must be confined to that pocket. In the case of a small article which can readily be concealed, such as a drug, and which might be concealed anywhere on the person, a more extensive search may be necessary. In the case of searches mentioned in paragraph 2.1(b) and (d), which do not require reasonable grounds for suspicion, officers may make any reasonable search to look for items for which they are empowered to search.

3.4 The search must be carried out at or near the place where the person or vehicle was first detained.

3.5 There is no power to require a person to remove any clothing in public other than an outer coat, jacket or gloves except under section 60AA of the Criminal Justice and Public Order Act 1994 (which empowers a constable to require a person to remove any item worn to conceal identity). A search in public of a person’s clothing which has not been removed must be restricted to superficial examination of outer garments. This does not, however, prevent an officer from placing his or her hand inside the pockets of the outer clothing, or feeling round the inside of collars, socks and shoes if this is reasonably necessary in the circumstances to look for the object of the search or to remove and examine any item reasonably suspected to be the object of the search. For the same reasons, subject to the restrictions on the removal of headgear, a person’s hair may also be searched in public (see paragraphs 3.1 and 3.3).

3.6 Where on reasonable grounds it is considered necessary to conduct a more thorough search (e.g. by requiring a person to take off a T-shirt), this must be done out of public view, for example, in a police van unless paragraph 3.7 applies, or police station if there is one nearby. Any search involving the removal of more than an outer coat, jacket, gloves, headgear or footwear, or any other item concealing identity, may only be made by an officer of the same sex as the person searched and may not be made in the presence of anyone of the opposite sex unless the person being searched specifically requests it (see Code C, Annex L).

3.7 Searches involving exposure of intimate parts of the body must not be conducted as a routine extension of a less thorough search, simply because nothing is found in the course of the initial search. Searches involving exposure of intimate parts of the body may be carried out only at a nearby police station or other nearby location which is out of public view (but not a police vehicle). These searches must be conducted in accordance with paragraph 11 of Annex A to Code C except that an intimate search mentioned in paragraph 11(f) of Annex A to Code C may not be authorised or carried out under any stop and search powers. The other provisions of Code C do not apply to the conduct and recording of searches of persons detained at police stations in the exercise of stop and search powers.

4.4.5.1

Keynote

A search of a person should be completed as soon as possible.

A person may be detained under a stop and search power at a place other than where the person was first detained only if that place, be it a police station or elsewhere, is nearby. Such a place should be located within a reasonable travelling distance using whatever mode of travel (on foot or by car) is appropriate. This applies to all searches under stop and search powers, whether or not they involve the removal of clothing or exposure of intimate parts of the body (see Code A, paras 3.6 and 3.7) or take place in or out of public view. It means, for example, that a search under the stop and search power in s. 23 of the Misuse of Drugs Act 1971 which involves the compulsory removal of more than a person’s outer coat, jacket or gloves cannot be carried out unless a place which is both nearby the place he/she was first detained and out of public view, is available. If a search involves exposure of intimate parts of the body and a police station is not nearby, particular care must be taken to ensure that the location is suitable in that it enables the search to be conducted in accordance with the requirements of para. 11 of Annex A to Code C.

A search in the street itself should be regarded as being in public for the purposes of paras 3.6 and 3.7, even though it may be empty at the time a search begins.

Although there is no power to require a person to do so, there is nothing to prevent an officer from asking a person voluntarily to remove more than an outer coat, jacket or gloves.

Steps to be taken prior to a search

3.8 Before any search of a detained person or attended vehicle takes place the officer must take reasonable steps, if not in uniform (see paragraph 3.9), to show their warrant card to the person to be searched or in charge of the vehicle to be searched and whether or not in uniform, to give that person the following information:

  1. (a) that they are being detained for the purposes of a search;

  2. (b) the officer’s name (except in the case of enquiries linked to the investigation of terrorism, or otherwise where the officer reasonably believes that giving their name might put him or her in danger, in which case a warrant or other identification number shall be given) and the name of the police station to which the officer is attached;

  3. (c) the legal search power which is being exercised; and

  4. (d) a clear explanation of:

    1. (i) the object of the search in terms of the articles or articles for which there is a power to search; and

    2. (ii) in the case of

      • the power under section 60 of the Criminal Justice and Public Order Act 1994 (see paragraph 2.1(b)), the nature of the power, the authorisation and the fact that it has been given;

      • the powers under Schedule 5 to the Terrorism Prevention and Investigation Measures Act 2011 (see paragraph 2.1(e) and 2.18A):

        • ~ the fact that a TPIM notice is in force or, (in the case of paragraph 6(2)(a)) that a TPIM notice is being served;

        • ~ the nature of the power being exercised.

        For a search under paragraph 8 of Schedule 5, the warrant must be produced and the person be provided with a copy of it.

      • all other powers requiring reasonable suspicion (see paragraph 2.1(a)), the grounds for that suspicion. This means explaining the basis for the suspicion by reference to information and/or intelligence about, or some specific behaviour by, the person concerned (see paragraph 2.2).

  5. (e) that they are entitled to a copy of the record of the search if one is made (see section 4 below) if they ask within 3 months from the date of the search and:

    1. (i) if they are not arrested and taken to a police station as a result of the search and it is practicable to make a record on the spot, that immediately after the search is completed they will be given, if they request, either:

      • a copy of the record, or

      • a receipt which explains how they can obtain a copy of the full record or access to an electronic copy of the record, or

    2. (ii) if they are arrested and taken to a police station as a result of the search, that the record will be made at the station as part of their custody record and they will be given, if they request, a copy of their custody record which includes a record of the search as soon as practicable whilst they are at the station.

3.9 Stops and searches under the power mentioned in paragraph 2.1(b) may be undertaken only by a constable in uniform.

3.10 The person should also be given information about police powers to stop and search and the individual’s rights in these circumstances.

3.11 If the person to be searched, or in charge of a vehicle to be searched, does not appear to understand what is being said, or there is any doubt about the person’s ability to understand English, the officer must take reasonable steps to bring information regarding the person’s rights and any relevant provisions of this Code to his or her attention. If the person is deaf or cannot understand English and is accompanied by someone, then the officer must try to establish whether that person can interpret or otherwise help the officer to give the required information.

4.4.5.2

Keynote

This Code A requirement is mirrored by the specific requirements of s. 2 of the Police and Criminal Evidence Act 1984.

The Police and Criminal Evidence Act 1984, s. 2 states:

  1. (1) A constable who detains a person or vehicle in the exercise—

    1. (a) of the power conferred by section 1 above; or

    2. (b) of any other power—

      1. (i) to search a person without first arresting him; or

      2. (ii) to search a vehicle without making an arrest,

    need not conduct a search if it appears to him subsequently—

    1. (i) that no search is required; or

    2. (ii) that a search is impracticable.

  2. (2) If a constable contemplates a search, other than a search of an unattended vehicle, in the exercise—

    1. (a) of the power conferred by section 1 above; or

    2. (b) of any other power, except the power conferred by section 6 below and the power conferred by section 27(2) of the Aviation Security Act 1982—

      1. (i) to search a person without first arresting him; or

      2. (ii) to search a vehicle without making an arrest,

  3. it shall be his duty, subject to subsection (4) below, to take reasonable steps before he commences the search to bring to the attention of the appropriate person—

      1. (i) if the constable is not in uniform, documentary evidence that he is a constable; and

      2. (ii) whether he is in uniform or not, the matters specified in subsection (3) below; and the constable shall not commence the search until he has performed that duty.

  4. (3) The matters referred to in subsection (2)(ii) above are—

    1. (a) the constable’s name and the name of the police station to which he is attached;

    2. (b) the object of the proposed search;

    3. (c) the constable’s grounds for proposing to make it; and

    4. (d) the effect of section 3(7) or (8) below, as may be appropriate.

Having stopped a person for the purposes of searching him/her, there is no requirement for the officer to conduct the search if it appears that to do so is not necessary or that it is impracticable.

The officer carrying out the search must take reasonable steps to bring the matters at s. 2(3)(a)–(d) to the person’s attention before starting the search. This information must be given whether it is requested or not. Whether reasonable steps have been taken to communicate information will ultimately be a question of fact for the court to decide and what is ‘reasonable’ will vary with the particular circumstances of each search (e.g. what is reasonable outside a busy city centre nightclub may well be different from that which is required on a rural public footpath). The courts have taken a firm position in interpreting and applying these requirements. For example, the requirements for officers to provide details of their names and police stations still apply even though that information is discernible from the officers’ uniform; failure to provide the information in such circumstances will make any subsequent search unlawful and will mean that the person being searched may use reasonable force to resist it (Osman v DPP (1999) 163 JP 725). The requirement to provide the name of the officer concerned applies even if the officer conducting the search and the person who is subject to the search are well known to each other (R (Michaels) v Highbury Corner Magistrates’ Court (2009) EWHC 2928 (Admin)). In a further case, the Divisional Court held that the officers conducting the stop and search had not informed the suspect of their intention to search him at an early enough stage before laying their hands on him. The suspect, who was standing with his hands in his pockets and who was suspected of drugs offences, had struggled with the officers when they took hold of him and had been arrested. The magistrates’ court held that, where it was obvious that the people apprehending a suspect were police officers and where an officer was genuinely concerned for the safety of a fellow officer, it was not essential to comply with all the requirements of s. 2(3). However, the Divisional Court disagreed, quashing the conviction and holding that, where police officers contemplated a statutory search, they were required (by s. 2(2)) to comply with s. 2(3) before commencing the search (Bonner v DPP [2004] EWHC 2415 (Admin)).

The ‘effect of section 3(7) or (8)’ referred to in s. 2(3)(d) means the person’s entitlement to a copy of any search record made.

The ‘appropriate person’ is the person to be searched or the person in charge of the vehicle to be searched (s. 2(5)).

4.4.6

4 Recording requirements

(a) Searches which do not result in an arrest

4.1 When an officer carries out a search in the exercise of any power to which this Code applies, and the search does not result in the person searched or person in charge of the vehicle searched being arrested and taken to a police station, a record must be made of it, electronically or on paper, unless there are exceptional circumstances which make this wholly impracticable (e.g. in situations involving public disorder or where the recording officer’s presence is urgently required elsewhere). If a record is to be made, the officer carrying out the search must make the record on the spot unless this is not practicable, in which case, the officer must make the record as soon as practicable after the search is completed.

4.2 If the record is made at the time, the person who has been searched or who is in charge of the vehicle that has been searched must be asked if they want a copy and if they do, they must be given immediately, either:

  • a copy of the record, or

  • a receipt which explains how they can obtain a copy of the full record or access to an electronic copy of the record.

4.2A An officer is not required to provide a copy of the full record or a receipt at the time if they are called to an incident of higher priority.

(b) Searches which result in an arrest

4.2B If a search in the exercise of any power to which this Code applies results in a person being arrested and taken to a police station, the officer carrying out the search is responsible for ensuring that a record of the search is made as a part of their custody record. The custody officer must then ensure that the person is asked if they want a copy of the record and if they do, that they are given a copy as soon as practicable.

4.4.6.1

Keynote

When the search results in the person searched or in charge of a vehicle which is searched being arrested, the requirement to make the record of search part of the person’s custody record does not apply if the person is granted ‘street bail’ after arrest (s. 30A of the Police and Criminal Evidence Act 1984) to attend a police station and is not taken in custody to the police station. An arrested person’s entitlement to a copy of the search record which is made as part of his/her custody record does not affect his/her entitlement to a copy of his/her custody record or any other provisions of PACE Code C, section 2 (Custody Records).

(c) Record of search

4.3 The record of a search must always include the following information:

  1. (a) A note of the self-defined ethnicity, and if different, the ethnicity as perceived by the officer making the search, of the person searched or of the person in charge of the vehicle (as the case may be);

  2. (b) The date, time and place the person or vehicle was searched;

  3. (c) The object of the search in terms of the article or articles for which there is a power to search;

  4. (d) In the case of:

    • the power under section 60 of the Criminal Justice and Public Order Act 1994 (see paragraph 2.1(b)), the nature of the power, the authorisation and the fact that it has been given;

    • the powers under Schedule 5 to the Terrorism Prevention and Investigation Measures Act 2011 (see paragraphs 2.1(e) and 2.18A):

      • ~ the fact that a TPIM notice is in force or, (in the case of paragraph 6(2)(a)), that a TPIM notice is being served;

      • ~ the nature of the power, and

      • ~ for a search under paragraph 8, the date the search warrant was issued, the fact that the warrant was produced and a copy of it provided and the warrant must also be endorsed by the constable executing it to state whether anything was found and whether anything was seized, and

    • all other powers requiring reasonable suspicion (see paragraph 2.1(a)), the grounds for that suspicion.

  5. (e) subject to paragraph 3.8(b), the identity of the officer carrying out the search.

4.3A For the purposes of completing the search record, there is no requirement to record the name, address and date of birth of the person searched or the person in charge of a vehicle which is searched and the person is under no obligation to provide this information.

4.4 Nothing in paragraph 4.3 requires the names of police officers to be shown on the search record or any other record required to be made under this code in the case of enquiries linked to the investigation of terrorism or otherwise where an officer reasonably believes that recording names might endanger the officers. In such cases the record must show the officers’ warrant or other identification number and duty station.

4.5 A record is required for each person and each vehicle searched. However, if a person is in a vehicle and both are searched, and the object and grounds of the search are the same, only one record need be completed. If more than one person in a vehicle is searched, separate records for each search of a person must be made. If only a vehicle is searched, the self-defined ethnic background of the person in charge of the vehicle must be recorded, unless the vehicle is unattended.

4.6 The record of the grounds for making a search must, briefly but informatively, explain the reason for suspecting the person concerned, by reference to information and/or intelligence about, or some specific behaviour by, the person concerned (see paragraph 2.2).

4.7 Where officers detain an individual with a view to performing a search, but the need to search is eliminated as a result of questioning the person detained, a search should not be carried out and a record is not required. [See paragraph 2.10]

4.8 After searching an unattended vehicle, or anything in or on it, an officer must leave a notice in it (or on it, if things on it have been searched without opening it) recording the fact that it has been searched.

4.9 The notice must include the name of the police station to which the officer concerned is attached and state where a copy of the record of the search may be obtained and how (if applicable) an electronic copy may be accessed and where any application for compensation should be directed.

4.10 The vehicle must if practicable be left secure.

4.10A Not used.

4.10B Not used.

4.4.6.2

Keynote

Once again, Code A is mirrored by the requirements of s. 3 of the Police and Criminal Evidence Act 1984.

The Police and Criminal Evidence Act 1984, s. 3 states:

  1. (6) The record of a search of a person or a vehicle—

    1. (a) shall state—

      1. (i) the object of the search;

      2. (ii) the grounds for making it;

      3. (iii) the date and time when it was made;

      4. (iv) the place where it was made;

      5. (v) except in the case of a search of an unattended vehicle, the ethnic origins of the person searched or the person in charge of the vehicle searched (as the case may be); and

    2. (b) shall identify the constable who carried out the search.

  2. (6A) The requirement in subsection (6)(a)(v) above, for a record to state a person’s ethnic origins is a requirement to state –

    1. (a) the ethnic origins of the person as described by the person, and

    2. (b) if different, the ethnic origins of the person as perceived by the constable.

Officers should record the self-defined ethnicity of every person stopped according to the categories used in the 2001 census question listed in Annex B. The person should be asked to select one of the five main categories representing broad ethnic groups and then a more specific cultural background from within this group. The ethnic classification should be coded for recording purposes using the coding system in Annex B. An additional ‘Not stated’ box is available but should not be offered to respondents explicitly. Officers should be aware and explain to members of the public, especially where concerns are raised, that this information is required to obtain a true picture of stop and search activity and to help improve ethnic monitoring, tackle discriminatory practice, and promote effective use of the powers. If the person gives what appears to the officer to be an ‘incorrect’ answer (e.g. a person who appears to be white states that he/she is black), the officer should record the response that has been given and then record his/her own perception of the ethnic background by using the PNC classification system. If the ‘Not stated’ category is used the reason for this must be recorded on the form.

It is important for monitoring purposes to specify if the authority for exercising a stop and search power was given under s. 60 of the Criminal Justice and Public Order Act 1994.

Where a person is lawfully detained for the purpose of a search, but no search in the event takes place, the detention will not thereby have been rendered unlawful.

The requirements of s. 3 will apply to the searches of vehicles, vessels, aircraft and hovercraft (s. 3(10)).

It has been held that a failure to make a record of a search does not thereby render the search unlawful (Basher v DPP [1993] COD 372). However, it is not only the lawfulness of a search that is of concern to police officers and the general principles set out in Code A should be borne in mind at all times.

In situations where it is not practicable to provide a written copy of the record or immediate access to an electronic copy of the record or a receipt of the search at the time (see para. 4.2A), the officer should consider providing the person with details of the station at which the person may attend for a record. A receipt may take the form of a simple business card which includes sufficient information to locate the record should the person ask for the copy, e.g. the date and place of the search, a reference number or the name of the officer who carried out the search (unless para. 4.4 applies).

Where a stop and search is conducted by more than one officer the identity of all the officers engaged in the search must be recorded on the record. Nothing prevents an officer who is present but not directly involved in searching from completing the record during the course of the encounter.

In the case of unattended vehicles, s. 2 of the Police and Criminal Evidence Act 1984 states:

  1. (6) On completing a search of an unattended vehicle or anything in or on such a vehicle in the exercise of any such power as is mentioned in subsection (2) above a constable shall leave a notice—

    1. (a) stating that he has searched it;

    2. (b) giving the name of the police station to which he is attached;

    3. (c) stating that an application for compensation for any damage caused by the search may be made to that police station; and

    4. (d) stating the effect of section 3(8) below.

  2. (7) The constable shall leave the notice inside the vehicle unless it is not reasonably practicable to do so without damaging the vehicle.

Recording of encounters not governed by Statutory Powers

4.11 Not used.

4.12 There is no national requirement for an officer who requests a person in a public place to account for themselves, i.e. their actions, behaviour, presence in an area or possession of anything, to make a record of the encounter or to give the person a receipt (see paragraph 2.11).

4.12A Not used.

4.13 Not used.

4.14 Not used.

4.15 Not used.

4.16 Not used.

4.17 Not used.

4.18 Not used.

4.19 Not used.

4.20 Not used.

4.4.6.3

Keynote

Where there are concerns which make it necessary to monitor any local disproportionality, forces have discretion to direct officers to record the self-defined ethnicity of persons they request to account for themselves in a public place or who they detain with a view to searching but do not search. Guidance should be provided locally and efforts made to minimise the bureaucracy involved. Records should be closely monitored and supervised in line with paras 5.1 to 5.4 and forces can suspend or reinstate recording of these encounters as appropriate.

A person who is asked to account for him/herself should, if he/she requests, be given information about how to report his/her dissatisfaction about how he/she has been treated.

4.4.7

5 Monitoring and supervising the use of stop and search powers

General

5.1 Any misuse of stop and search powers is likely to be harmful to policing and lead to mistrust of the police by the local community and by the public in general. Supervising officers must monitor the use of stop and search powers and should consider in particular whether there is any evidence that they are being exercised on the basis of stereotyped images or inappropriate generalisations. Supervising officers must satisfy themselves that the practice of officers under their supervision in stopping, searching and recording is fully in accordance with this Code. Supervisors must also examine whether the records reveal any trends or patterns which give cause for concern and, if so, take appropriate action to address this. (See paragraph 2.8A.)

5.2 Senior officers with area or force-wide responsibilities must also monitor the broader use of stop and search powers and, where necessary, take action at the relevant level.

5.3 Supervision and monitoring must be supported by the compilation of comprehensive statistical records of stops and searches at force, area and local level. Any apparently disproportionate use of the powers by particular officers or groups of officers or in relation to specific sections of the community should be identified and investigated.

5.4 In order to promote public confidence in the use of the powers, forces in consultation with police and crime commissioners must make arrangements for the records to be scrutinised by representatives of the community, and to explain the use of the powers at a local level.

Suspected misuse of powers by individual officers

5.5 Police supervisors must monitor the use of stop and search powers by individual officers to ensure that they are being applied appropriately and lawfully. Monitoring takes many forms, such as direct supervision of the exercise of the powers, examining stop and search records (particularly examining the officer’s documented reasonable grounds for suspicion) and asking the officer to account for the way in which they conducted and recorded particular searches or through complaints about a stop and search that an officer has carried out.

5.6 Where a supervisor identifies issues with the way that an officer has used a stop and search power, the facts of the case will determine whether the standards of professional behaviour as set out in the Code of Ethics [<http://www.college.police.uk/What-we-do/Ethics/Pages/Code-of-Ethics.aspx>] have been breached and which formal action is pursued. Improper use might be a result of poor performance or a conduct matter, which will require the supervisor to take appropriate action such as performance or misconduct procedures. It is imperative that supervisors take both timely and appropriate action to deal with all such cases that come to their notice.

4.4.7.1

Keynote

Arrangements for public scrutiny of records should take account of the right to confidentiality of those stopped and searched. Anonymised forms and/or statistics generated from records should be the focus of the examinations by members of the public.