Stop and search

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Criminal Evidence Act 1984 (Codes of Practice) (Revisions to Code A) Order 2008

Police and Criminal Evidence Act 1984 (Codes of Practice) (Revisions to Code A) Order 2008 (No. 2638)

This Order brings into operation on 27 October 2008 the revision of paragraph 4 of the Police and Criminal Evidence Act 1984 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 (“PACE Code A”) which was laid before Parliament on 6 October 2008.

The revision of paragraph 4 of PACE Code A (recording requirements including recording of encounters not governed by statutory powers) enables constables in Leicestershire, Staffordshire, Surrey, West Midlands, Essex, Greater Manchester, Lancashire, Merseyside, Nottinghamshire, South Wales, West Yorkshire and Thames Valley to conduct a pilot study. This pilot will mean that constables in those force areas will no longer be required to record all encounters not governed by statutory powers in accordance with paragraph 4 of PACE Code A. The constables will only need to record information on the ethnicity of the person. A receipt will also be made available to the person. A new Annex E (replacement of the need to make or provide a record of the encounter with the ability to provide a receipt and to record only the person’s self-defined ethnicity) is inserted into PACE Code A.

SI 2008/2638 - Explanatory Memorandum (PDF - 81 kb) The Order brings into force on 27 October 2008 a change to Code of Practice A (Code A) under the Police and Criminal Evidence Act 1984 (PACE) which enables police officers operating from certain specified locations, and exercising their powers in their force areas, to provide a receipt rather than a full record when they undertake an encounter in accordance with paragraphs 4.11 – 4.20 of Code A. The amended part of Code A which has been laid before Parliament together with this Order will amend that part of the existing Code, which has been in operation since 1 February 2008.

Advising a client at the police station

Advising a client at the police station, when they have been arrested in consequence of a Stop and Search. NB:Stop and search powers not exercised in accordance with PACE Codes of Practice, will render any consequent arrest unlawful. See case law below

The law has provided the police with Powers of Stop and Search for many years. These powers varied from one part of the country to another prior to implementation of the Police and Criminal Evidence Act 1984. There are still many statutory powers providing the police (and others) with powers to stop and search people and vehicles. See Appendix A of Code A PACE Codes of Practice.

Section 1 and 2 of the Police and Criminal Evidence Act 1984 gave a general power to the police to stop and search people and vehicles in any place to which the public has access at the time on payment or otherwise. Both the specific powers given under statute and the general power given under the Police and Criminal Evidence Act must be carried out in accordance with code A of PACE Codes of Practice.

Note: Rice v Connolly [1966] QB 414; [1966] 2 All ER 649

Lord Goddard CJ stated:

"It seems to me quite clear that though every citizen has a moral duty or, if you like, a social duty to assist the police, there is no legal duty to that effect, and indeed the whole basis of the common law is the right of the individual to refuse to answer questions put to him by persons in authority, and to refuse to accompany those in authority to any particular place, short, of course, of arrest."

This does not mean a police officer cannot lawfully stop and search a person when he has the requisite reasonable grounds to do so, but it does mean that a suspect has the right to remain silent and therefore refusing to answer questions will not provide grounds for arrest.

If the search is in public the police officer can require the person to take off only:

  • Their outer coat, jacket and gloves.

If a more thorough search is necessary, it must be conducted:

  • Out of public view; and
  • By an officer of the same sex as the person being searched

Incidents involving serious violence

Section 87 Serious Crime Act 2007: Incidents involving serious violence: powers to stop and search

Section 60(1) of the Criminal Justice and Public Order Act 1994 sets out police powers to stop and search in anticipation of violence occurring. Section 87 of the Serious Crime Act 2007 extends these powers to enable stop and search operations within a particular locality after an incident of violence has occurred.

The officer authorising the operation must be of or above the rank of inspector and, in the circumstances set out in the amendment made to section 60 by the Serious Crime Act, the authorisation may be given orally if it is not practicable to give written authorisation, but the officer must put this in writing as soon as practicable.

The officer may designate any locality within his area as falling within the stop and search area, but must always make this – and the grounds and duration of the Section 60 procedure - clear when authorising the operation, whether this is done orally or in writing

The power to stop and search can be used whether or not the police have a reasonable suspicion that a person is carrying dangerous instruments or offensive weapons. This section extends the powers in section 60 of that Act to add a further circumstance in which they can be used; where a serious violent incident has occurred, and the police believe that the weapon used in the incident is being carried in the locality and it is expedient to give an authorisation to find the weapon. The purpose of this is to assist the police in locating the weapon used in the incident, and in apprehending the offender.

In this particular circumstance, the police would be able to make an authorisation orally in the first instance, to be followed in writing as soon as is practicable. In the existing two circumstances they will continue to need to make any authorisation in writing.

Power to stop and search at aerodromes

Section 12 Criminal Justice and Police Act 2006: Power to stop and search at aerodromes

Section 12 of the Criminal Justice and Police Act 2006 inserts new section 24B in Part 3 of the Aviation Security Act 1982 (policing of airports) following the recommendation made by the Rt. Hon. John Wheeler in his report on airport security (published by the Department for Transport, 2002). This enables a police constable to stop and search, without warrant, any person, vehicle or aircraft in any area of an aerodrome, whether designated or non-designated, for stolen or prohibited articles, where he has reasonable grounds to suspect that he will find such articles. Designation takes place under Part 3 of the Aviation Security Act 1982. If applied to an aerodrome, it allows police constables additional powers that are not available at non-designated aerodromes. The term aerodrome, as defined by section 38(1) of the 1982 Act, is used rather than airport, as it has wider meaning and covers major airports as well as airfields used only by private flying clubs.

New section 24B(4) enables a constable to seize items discovered during a search which he reasonably suspects to be stolen or prohibited articles.

New section 24B(5) defines a prohibited article as something made or adapted for use in the course of or in connection with criminal conduct, or an article intended for such use by the person having it with him or by some other person.

New section 24B(6) defines "criminal conduct" as conduct which constitutes an offence in the part of the UK in which the aerodrome is situated or conduct which would constitute an offence in that part of the UK if it occurred there.

New section 24B(9) prevents a constable from entering a dwelling during the exercise of the powers conferred by section 24B.

Paragraph 8(4) of Schedule 14 repeals subsections (1), (4), and (5) of section 27 of the Aviation Security Act 1982. These are no longer necessary since the search powers in new section 24B are exercisable at both designated and non-designated airports.

Extension of powers to stop and search

Section 1 Criminal Justice Act 2003: Extension of powers to stop and search

Section 1 of the Criminal Justice Act 2003 extends the definition of prohibited articles under section 1 of the Police and Criminal Evidence Act 1984 (PACE) so that it includes articles made, adapted or intended for use in causing criminal damage. It does this by amending the list of offences in section 1(8) of PACE to include offences under section 1 of the Criminal Damage Act 1971. The effect is to give police officers power to stop and search where they have reasonable suspicion that a person is carrying, for example, a paint spray can which they intend to use in producing graffiti.

Section 1(1) of the Criminal Damage Act 1971 makes it a criminal offence for a person to destroy or damage any property belonging to another without lawful excuse if he intends to destroy or damage that property or is reckless as to whether that property would be destroyed or damaged. Section 1(2) of that Act creates a related offence of destroying or damaging property with intent to endanger life.

Explanation of powers to stop and search

Code A2.1: This code applies to powers of stop and search as follows:

  • (a) powers which require reasonable grounds of suspicion, before they may be exercised; that articles unlawfully obtained or possessed are being carried, or under Section 43 of the Terrorism Act 2000 that a person is a terrorist;
  • (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 (The constable does not need reasonable grounds of suspicion to conduct a search);
  • (c) authorised under section 44(1) and (2) of the Terrorism Act 2000 based upon a consideration that the exercise of one or both powers is expedient for the prevention of acts of terrorism (The constable does not need reasonable grounds of suspicion to conduct a search);
  • (d) 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).
  • (e) under Section 23 Misuse of Drugs Act: 1971 if a constable has reasonable grounds to suspect that any person is in possession of a controlled drug the constable may (a) search that person, and detain him for the purpose of searching him; (b) search any vehicle or vessel in which the constable suspects that the drug may be found, and for that purpose require the person in control of the vehicle or vessel to stop it; (c) seize and detain, for the purposes of proceedings under this Act, anything found in the course of the search which appears to the constable to be evidence of an offence under this Act.
Steps to be taken prior to a search

Code A3.8: Before any search of a detained person or attended vehicle takes place the officer must take reasonable steps to give the person to be searched or in charge of the vehicle the following information:

  • (a) that they are being detained for the purposes of a search
  • (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 his or her 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;
  • (c) the legal search power which is being exercised; and
  • (d) a clear explanation of:
  • (i) the purpose of the search in terms of the article or articles for which there is a power to search; and
  • (ii) in the case of powers requiring reasonable suspicion (see paragraph 2.1(a)), the grounds for that suspicion; or
  • (iii) in the case of powers which do not require reasonable suspicion (see

paragraph 2.1(b), and (c)), the nature of the power and of any necessary authorisation and the fact that it has been given.

Police and Criminal Evidence Act 1984

1. Power of constable to stop and search persons, vehicles etc:

(l) A constable may exercise any power conferred by this section:

  • (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
  • (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) Subject to subsections (3) to (5) below, a constable:

  • (a) may search:
  • (i) any person or vehicle;
  • (ii) anything which is in or on a vehicle, for stolen or prohibited articles or any article to which subsection (8A) below applies; and
  • (b) may detain a person or vehicle for the purpose of such a search.

(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.

(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:

  • (a) that he does not reside in the dwelling; and
  • (b) that he is not in the place in question with the express or implied permission person who resides in the dwelling.

(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:

  • (a) that the person in charge of the vehicle does not reside in the dwelling; and
  • (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) If in the course of such a search a constable discovers an article which he has reasonable grounds for suspecting to be a stolen or prohibited article or an article to which subsection (8A) below applies, he may seize it.

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

  • (a) an offensive weapon; or
  • (b) an article:
  • (i) made or adapted for use in the course of or in connection with an offence to which this sub-paragraph applies, or
  • (ii) intended by the person having it with him for such use by him or by some other person.

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

  • (a) burglary;
  • (b) theft;
  • (c) offences under section 12 of the Theft Act 1968 (taking motor vehicle or other conveyance without authority); and
  • (d) offences under section 15 of that Act (obtaining property by deception); and
  • (e) offences under section 1 of the Criminal Damage Act 1971 (destroying or damaging property). (as amended by Criminal Justice Act 2003)

(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.

(9) In this Part of this Act "offensive weapon" means any article:

  • (a) made or adapted for use for causing injury to persons; or
  • (b) intended by the person having it with him for such use by him or by some other person.

Sections 1(2)(a) and 1(8B) of PACE are amended by section 115 of the SOCAP to enable constables to stop and search individuals suspected of possessing prohibited fireworks. The prohibited possession offences relate to:

  • anyone under 18 being in possession of fireworks in a public place.
  • any member of the public in possession of display grade (or category 4) fireworks.

2. Provisions relating to search under section 1 and other powers:

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

  • (a) of the power conferred by section 1 above; or
  • (b) of any other power--
  • (i) to search a person without first arresting him; or
  • (ii) to search a vehicle without making an arrest, need not conduct a search if it appears to him subsequently:
  • (i) that no search is required; or
  • (ii) that a search is impracticable.

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

  • (a) of the power conferred by section 1 above; or
  • (b) of any other power, except the power conferred by section 6 below and the power conferred by section 2 (2) of the Aviation Security Act 1982:
  • (i) to search a person without first arresting him; or
  • (ii) to search a vehicle without making an arrest, 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:
  • (i) if the constable is not in uniform, documentary evidence that he is a constable, and
  • (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.

(3) The matters referred to in subsection (2)(ii) above are--

  • (a) the constable's name and the name of the police station to which he is attached,
  • (b) the object of the proposed search;
  • (c) the constable's grounds for proposing to make it; and
  • (d) the effect of section 3(7) or (8) below, as may be appropriate.

(4) A constable need not bring the effect of section 3(7) or (8) below to the attention of the appropriate person if it appears to the constable that it will not be practicable to make the record in section 3(1) below.

(5) In this section "the appropriate person" means:

  • (a) if the constable proposes to search a person, that person; and
  • (b) if he proposes to search a vehicle, or anything in or on a vehicle, the person in charge of the vehicle.

(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-

  • (a) stating that he has searched it;
  • (b) giving the name of the police station to which he is attached;
  • (c) stating that an application for compensation for any damage caused by the search may be made to that police station; and
  • (d) stating the effect of section 3(8) below.

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

(8) The time for which a person or vehicle may be detained for the purposes of such a search is such time as is reasonably required to permit a search to be carried out either at the place where the person or vehicle was first detained or nearby.

(9) Neither the power conferred by section 1 above nor any other power to detain and search a person without first arresting him or to detain and search a vehicle without making an arrest is to be construed-

  • (a) as authorising a constable to require a person to remove any of his clothing in public other than an outer coat, jacket or gloves; or
  • (b) as authorising a constable not in uniform to stop a vehicle.

(10) This section and section 1 above apply to vessels, aircraft and hovercraft as they apply to vehicles.

3. Duty to make records concerning searches

(1) Where a constable has carried out a search in the exercise of any such power as is mentioned in section 2(1) above, other than a search:

  • (a) under section 6 below; or
  • (b) under section 27(2) of the Aviation Security Act 1982, he shall make a record of it in writing unless it is not practicable to do so.

(2) If: (a) a constable is required by subsection (1) above to make a record of a search; but

  • (b) it is not practicable to make the record on the spot, he shall make it as soon as practicable after the completion of the search.

(3) The record of a search of a person shall include a note of his name, if the constable knows it, but a constable may not detain a person to find out his name.

(4) If a constable does not know the name of a person whom he has searched, the record of the search shall include a note otherwise describing that person.

(5) The record of a search of a vehicle shall include a note describing the vehicle.

(6) The record of a search of a person or a vehicle:

  • (a) shall state
  • (i) the object of the search
  • (ii) the grounds for making it;
  • (iii) the date and time when it was made;
  • (iv) the place where it was made;
  • (v) whether anything, and if so what, was found;
  • (vi) whether any, and if so what, injury to a person or damage toi property appears to the constable to have resulted from the search, and
  • (b) shall identify the constable making it.
  • (7) If a constable who conducted a search of a person made a record of it, the person who was searched shall be entitled to a copy of the record if he asks for one before the end of the period specified in subsection (9) below-

Links

  • NPIA Stop and Search in Relation to Terrorism
  • Home Office circular 2 / 2005 Implementation of the recording of stops by 1 April 2005: Non-statutory or so-called 'voluntary' stops must also be recorded.

Case law

Michaels v Highbury Corner Magistrates Court & Anor (03 November 2009)

Michaels v Highbury Corner Magistrates Court & Anor [2009] EWHC 2928 (Admin) (03 November 2009) The claimant was convicted of an offence of obstructing police officers contrary to section 23(4) of the Misuse of Drugs Act 1971. The issue in this case is whether that conviction should stand. The fact that the suspect was known to the officer who commenced the search was held to be no excuse for the officer failing to give his name and station prior to search as stipulated under section 23 Misuse of Drugs Act 1971. The officer must also provide the same information under Section 2 Police and Criminal Evidence Act 1984. See also: B v Director of Public Prosecutions [2008] EWHC 1655 (Admin) (03 July 2008); Bonner v Director of Public Prosecutions [2004] EWHC 2415 (Admin) (07 October 2004); Bristol, R. v [2007] EWCA Crim 3214 (04 December 2007); Osman v Southwark Crown Court [1999] EWHC Admin 622 (1st July, 1999).

W, R v Chief Constable of Kent Police) (06 May 2009)

W, R (on the application of) v Chief Constable of Kent Police [2009] EWHC 2264 (Admin) (06 May 2009) The first two claimants - both of whom are children aged 11 - and the third claimant David Morris sought permission to challenge their stop-and-searches under Section 1 of the Police and Criminal Evidence Act 1984. LORD JUSTICE KEENE: I agree. It is clear that these proceedings raise issues of some general public importance. Large demonstrations are a feature of our democracy and the proper policing of them is itself a matter of some public importance. I can see that the claimants had been selected as suitable test cases despite their individual claims for damages. Issues therefore of public law do seem to arise

B v Director of Public Prosecutions (03 July 2008)

B v Director of Public Prosecutions [2008] EWHC 1655 (Admin) (03 July 2008) B was convicted by the West London Youth Court of the offences of obstructing a police constable in the execution of his duty, and using threatening or abusive words or behaviour contrary to section 4 of the Public Order Act. B appealed by way of case stated. The magistrates found that the search of the appellant was lawful notwithstanding an admitted failure to comply with the Police and Criminal Evidence Act Code of Conduct. They concluded that PC Townsend had taken reasonable steps to comply with his duties under section 2(2)(b) of the Police and Criminal Evidence Act 1984. They did not specify what those steps were or why they had not resulted in the production of the warrant card. It is common ground the provisions of section 2(2)(b) apply to a Misuse of Drugs Act search. The justices posed three questions for the opinion of the High Court. The court gave the following answers:

"(1) Was the court entitled to find that notwithstanding the failure of PC Townsend to produce documentary evidence to the appellant, that he had taken all reasonable steps to comply with his duty as provided by section 2(2)(b)(i) of the Police and Criminal Evidence Act and the Code of Conduct?"

The answer is "no",

"(2) If not, did that failure render the search unlawful?"

The answer is "yes".

"(3) If the search and use of force on the appellant were unlawful, can the appellant properly be convicted of an offence pursuant to section 4(1)(a) of the Public Order Act 1986?"

The answer is "yes", but only if the conduct used in resisting any unlawful force was excessive.

Applying those answers to the facts of this case, it must follow that the conviction for obstruction of the police must be quashed and an acquittal substituted. The appellant was entitled to use reasonable force to resist the search, and conviction for threatening words or behaviour could be founded on reasonable force or threat of force to resist such a search. Since the justices appear to have included the appellant's resistance to the search as at least part of the basis of the conviction for threatening words, the conviction cannot stand.

Bristol, R. v (04 December 2007)

Bristol, R. v [2007] EWCA Crim 3214 (04 December 2007) Unlawful stop and search: The appellant was convicted of intentionally obstructing a constable contrary to section 23(4)(a) of the Misuse of Drugs Act 1971. The officers failed to comply with section 2(3) Police and Criminal Evidence Act 1884. Conviction quashed.

Gillan, R v. Commissioner of Police for the Metropolis & Anor UKHL 12 (8 March 2006)

Gillan, R (on the application of) v. Commissioner of Police for the Metropolis & Anor [2006] UKHL 12 (8 March 2006) These appeals concerned ‘Stop and Search’ provisions: sections 44-47 of the Terrorism Act 2000. The appellants challenged the use made of the provisions. Appeals dismissed.

Osman v Southwark Crown Court (1st July, 1999)

Osman v Southwark Crown Court [1999] EWHC Admin 622 (1st July, 1999) The Court found the search was unlawful becuause the police failed to give their names to the defendant before searching him. Convicions for assaulting police officers quashed.

Samuels v Commissioner of Police For Metropolis (3 March 1999)

Samuels v Commissioner of Police For Metropolis [1999] EWCA Civ 883 (3 March 1999) The Court of confirmed, however, that a failure to cooperate in answering questions cannot in itself give rise to a reasonable ground for suspicion.

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