STOP AND SEARCH by ian macdonald, retired

Who Goes There?

Stop checks are often in the news and not for good reasons. In December 2011 the Home Secretary Theresa May ordered an HMIC review after renewed concern over the police use of the powers in the wake of the riots of that Summer. The inspection found that in the 8,783 stop searches that they examined that over a quarter either had no grounds recorded, or they had been conducted without sufficient justification. 37% of suspects told HMIC that they were not told the reason they had been stopped, 42% claimed that they did not understand the reason given and 47% said that they felt they had not been treated with respect. They would do, wouldn’t they? HMIC accepted that the findings did “not necessarily mean that all those searches were unlawful and carried out without the required grounds” but criticised the ways in which stop searches are both conducted and recorded .

They then went on to express their concerns that if things don’t improve the powers of stop/search may be rendered ineffective, and public support for police would be diminished. This alarmed the Government. Ms May announced a six-week public consultation on stop and search, to find out whether it was ‘a ‘vital power’ in the fight against crime, or a ‘waste of police time which undermined public confidence in the police.’ It seems strange that we didn’t know which of these two very different things it was.. It could have been either, or neither, it was unlikely to be both.

We were also told that in future all complaints of racism against Metropolitan Police officers were to be automatically referred to the Independent Police Complaints Commission. This might not have been a good idea, given their previous record of deciding not to investigate them. The IPCC also promised to conduct a “thematic review” of past and current allegations of racism to identify any trends. This may have been less challenging but also less productive. The IPCC Commissioner, Mike Franklin had observed that “the police must not hide behind statistics and must recognise that actual recorded allegations of racism are probably an indication of much wider disaffection and dissatisfaction.” He also said that “allegations of racism are often difficult to prove as in many cases they are a complainant’s word against an officer or officers, but that does not necessarily mean it did not happen.” This was true, but it wasn’t a solution.

Stop and search was and probably still is linked to racial tensions. Members of minority groups are firmly of the view that they are unfairly targeted, and have been for some time. They are frustrated that their word is not upheld against that of police officers, and that they are only believed when there is corroborative evidence in the form of other witnesses, injuries or phone images. This is called evidence. Statistics seem to show that stop checks on minority groups are more likely to be conducted, although it may be that they are more likely to be recorded, as Officers look to ‘cover their backs.’
The powers for police officers to stop, search and if anything came of it arrest people are supposed to be conducted under the code of practice appended to the Police and Criminal Evidence Act, which stipulates that the reason for the encounter must be recorded. Stop checks are consistently linked to searches for drugs or weapons, and ‘reasonable grounds’ include seeing someone resembling someone who is wanted, observing suspicious behaviour on the part of the suspect or having ‘contextual information’ about crime patterns within an area. Records indicate that around a million stops take place each year, and that ’only’ 9% of them lead to arrests. (That is 90,000 offenders who would have otherwise got away).

They have always been controversial. HMIC formed the view that these failures to record details showed a lack of attention to a law created protect the public from abuse. (Although stop checks were created to stop them from getting robbed or injured.) They stressed that they have to be for something, that people cannot be stopped and searched because they look ‘a bit dodgy.’ They have emphasised the requirement to build reasonable grounds for what are individual encounters in individual situations, and they have sought to remind officers that they are exercising the most intrusive powers that they have, and that this is something that they must care about. How times have changed…

The Vagrancy Act of 1824 was created ‘for the Punishment of idle and disorderly Persons, and Rogues and Vagabonds’, and to appease a folk law panic caused by demobbed survivors of the Napoleonic Wars, who were by then widely considered to be a public threat rather than damaged heroes. We must ensure that the same thing doesn’t happen to the survivors of Iraq and Afghanistan. There are far too may soldiers in prisons and in care. The Act stipulated that before the Police could arrest people they had to have a reasonable belief that they were frequenting a public place with intent to commit what is now called an ‘arrestable offence’.

We now leap forward to 1971, by which time the Liverpool and Bootle Constabulary saw the powers given by the Act – referred to elsewhere as the ‘Sus Laws’ – as a key tactic in combating inner city crime and disorder. Indeed they may have been the only one.

The act stipulated that for individuals who, on the basis of their previous lifestyles were reputed to be thieves, (generally through previous convictions) one suspicious action was enough. For the rest, two suspicious acts were required. The first of these acts established them as a “suspected person” and the second provided evidence of their intent to commit an offence. Two witnesses were required to substantiate the charge, which was facilitated by having police officers patrolling together. This was the norm in what was then called Liverpool 8, but is now named Toxteth. Indeed it was cruelly alleged that the area was so dangerous that they patrolled in threes, inside the station. Surveillance in the 1970s was in its infancy, underdeveloped and unsupervised. In Liverpool 8 it consisted of officers climbing to the top of the nearby Metropolitan Cathedral, observing what was going on below with binoculars and calling in plainclothes colleagues for the strike. Suspects could be and were arrested for their conduct alone, with the evidence against them often alleging that they had been seen by two officers to try car door handles twice. Offenders were also arrested for ‘going equipped for theft’ when found in possession of drugs, weapons and ‘implements.’ Implements were typically filed down car keys and single scissor blades, then capable of both opening and starting most motor vehicles. Local youths, and their families and friends, particularly amongst black and ethnic minority communities, felt that these powers were used to target them, and to trample their civil rights. Rumours of officers fabricating evidence were prevalent amongst both the community and the Force.

Liverpool and indeed Bootle police officers seldom if ever admitted to lying about what they saw, or to ‘planting’ incriminating articles on suspects, and very few Toxteth residents claimed that they had been a victim. This is not to say that it did not go on. Officers claimed that they knew of it happening to suspected offenders and residents claimed that they knew of it happening to innocent victims. They were probably talking about the same people. There were plenty of rumours and innuendo about officers engaging in ‘gardening’ which was a nickname for ‘planting’, which was itself a nickname for placing rather than finding drugs, weapons or implements whilst searching suspects. Tensions built, and the ‘Sus’ laws became discredited. The Chief Constable, Kenneth ’Lumpy Head’ Oxford, (police nicknames are generally accurate and always cruel. Believe me.) banned the Operational Support Division from entering Liverpool 8. It took more than this to stop them. They hung around the borders and sneaked in and searched and arrested startled residents and passers by. In their evidence to Custody Sergeants and local Magistrates they claimed that these arrests had occurred outside of Liverpool 8, in similar sounding roads. This really confused the prisoners, who were now surprised to find out both why and where they had been arrested. A story circulated about two officers, one with a reputation for ruthlessness, the other for naivety. They stopped and searched two suspected youths, and found nothing. They then swapped over, and each searched each the other’s suspect. The naive officer found, to his delight and his prisoner’s apparent astonishment a scissor blade, which his colleague appeared to have missed. He boasted of his newly discovered searching prowess for weeks to come. His ruthless colleague smiled enigmatically. In July of 1981 the Toxteth riots, which can in retrospect can be viewed as the longest and most violent episode of vengeance in English history, erupted. The ‘Sus Laws’ were repealed few weeks after. Too little too late.

The OSD were in the forefront of the riots, and most of their Inspectors were seriously injured. New Inspectors were drafted in. Although the Sus Laws had been repealed stop and search flourished, despite the carnage that it had generated. Old habits die hard. One of the new Inspectors, never a noted thief taker, was therefore delighted when together with his new team he leapt out of a personnel carrier to search a group of suspicious youths and found one of them in possession of a filed down car key. He arrested him for ‘going equipped.’ His team were clearly impressed by what they considered was his sleight of hand. After charging the offender he protested that this was a ‘straight’ job, but to no avail, they winked, tapped their noses and pretended that they believed him. He was concerned to find that he appeared to have gone up in their esteem, rather than down.

These allegations and denials have rendered stop and search a contentious and confused business. It was designed to combat some very poor behaviours such as carrying drugs, weapons, stolen goods. The powers were paralleled in English law only by those of the breathalyser, another unpopular but potentially life saving piece of legislation. Both enable police officers to compel citizens to cooperate with them in ways that jeopardised their freedom, whether by blowing into tubes for analysis or opening up their clothes for examination. It is interesting but mysterious to note that although stop searches were seen as racist there were far fewer accusations that breathalysers were used in a discriminatory way. In either case the use of these police powers saved lives, but no one knew that a breathalyser on a drunk driver or a stop check on someone carrying a knife saved their life, or the life of a loved one. ‘Brilliantly planned and executed roadblock saves grandmother from getting run over’ or ‘fantastic stop check saves youth from getting stabbed’ were unlikely headlines.

The murder of Stephen Lawrence highlighted stop and search as a manifestation of institutional racism in the police, but by 2013 HMIC were of the belief that the powers were being used “almost habitually,” largely because they had slipped down the agenda of police chiefs. There was confusion about how they were best used, probably because they weren’t analysed properly by looking through the stop check forms in search of anything useful. They seemed to be deployed in response to patterns of disorder, rather than to try and anticipate them. HMIC attributed these problems to three things. They were, an absence of training as to what constitutes reasonable grounds, poor supervision, and an absence of oversight on the part of senior officers. They may have been right. Conducting stop checks was and always will be a very tricky business. If the person being searched has nothing on them then they and their families and friends and passers by are likely to be affronted, outraged, aggressive, even violent. If they are carrying something illegal or if they carrying something illegally they may also become any of these, and they may seek to escape, perhaps by attacking their innocent searcher. Police Officers undertaking stop searches do need training in what they can and cannot do. This is relatively easy. However to conduct stop checks in a positive, tranquil and effective manner they need training in how to do it. This is trickier. Some officers are ‘by nature’ and by demeanour better at this kind of sensitive and demanding work than others. Nature and demeanour are difficult things to train. More and better training, through repeated exercises in which actions are linked to relevant conflict theories and students receive constant feedback are able to view their performances on playback will help, but some of them will end up rolling on the floor with those that they are trying to search anyway. Every police officer has a colleague who always picks on the wrong ones….

Poor supervision is to blame for most things, and is again easier to identify than correct. Good supervisors are few and far between, and they are often promoted to more strategic roles, where opportunities to use their skills in handling staff at ‘street level’ are diminished and perhaps lost. The skills for conducting stop checks and for making sure that they are properly conducted are of a similar type. They are based on assertion, rather than either aggression or manipulation, which are both approaches that cause friction and discontent.

An absence of oversight on the part of senior officers is a relatively new and novel accusation. Oversight is another rare skill. Many senior managers look at things too closely, and are better at the detail than the overall picture. Others take so distant a view that they are rendered unable to see what is actually happening. The obvious answer would appear to be to take a middle view, but this not the solution, for it identifies neither the detail nor the bigger picture. Compromises never work. Skilled managers zoom in and out, looking at specific incidents in great detail and then pulling away to look at the situations trends and patterns that are creating them, so that their understanding is complete and their responses are informed, measured and effective.

Few bosses can truthfully claim that they were any good at either conducting or supervising or overseeing stop checks. Most of them had no idea how many stop checks were being conducted, nor did they know who was conducting them, nor did they know upon whom they were being conducted, nor whether or not they resulted in arrests or complaints. They were too busy with important things like parking in the yard, dogs fouling pavements, golfers practising on school playing fields, youths causing annoyance and police officers running away with each other’s partners and demanding new bits of Velcro to attach things to belts. In what had become the Merseyside Police in the early 1990s their indifference and ignorance was brought to a shuddering stop when the Force Complaints and Discipline Team, driven by the formidable Julie Ann Wallace Jones, began auditing complaints and grabbing officers who had acquired three or more in the course of a year and asking them what they were playing at.

One ambitious and intimidated Chief Inspector dutifully zoomed in the two officers in his charge who had been highlighted.. One did too many stop checks, the other did none. The one who did too many was using them to harass local criminals but was annoying rather than arresting them. He was told him that if that if he was going to stop and search people then he should arrest at least some of them, and if he didn’t he would be placed on the front desk of the station. This was a punishment posting. He was outraged, but he reformed. The complaints stopped and he went on to greater things.

The other officer specialised in drinking, bouncing cheques with the licensees on his beat and shouting. His Superintendent expressed his reluctance to conduct his staff appraisal. He explained that the previous year the officer had cried throughout and he had been unable to complete the process. The Chief Inspector boldly volunteered to take his place, explaining that he could conduct the Officer’s appraisal and raise the matter of his generating complaints and the same time. He by now considered himself an expert on stop checks. His boss gracefully accepted. The Chief Inspector prepared for the interview. He knew that he couldn’t threaten to put the Officer on the front desk. This had already been tried and had failed, as the constable was so offensive that he managed to generate more complaints with innocent callers than amongst the Licensees on his beat. The Chief Inspector wrote an action plan for him and put it in the draw of his desk. He had recently read a chapter of a book on management which mentioned that if somebody started crying the interviewer should wait until he had finished and then recommence the interview.

The interview began. He asked the officer how he was. The officer started crying. The Chief Inspector gave him some tissues and waited for him to stop. He didn’t. After a while the Chief Inspector decided to carry on. He asked him how many arrests he had made in the previous year. ‘Seven’ the constable wailed. This didn’t sound too bad. He was asked how many of them had been handover shoplifters. And sobbed ‘Seven.’ This didn’t sound too good. When asked him how many stop checks he has made he blubbered ‘Loads.’ When asked how many of them he had put in the stop check book he blew his nose on several of the proffered tissues and replied ‘None.’ The Chief Inspector sternly told him to record them in future. He asked him how many breathalysers he had had in the past year. The distraught constable took a deep breath, bit his knuckle, steadied himself and replied ‘Two, but the second time I hadn’t even been drinking.’ The Chief Inspector sternly issued the still weeping officer with his action plan, which included targets for arrests, stop checks and periods of sobriety. He was breathalysed early the following week and subsequently left the service. The book remained unread, some of the tissues survived.
So how are the issues around stop search to be resolved? The present approach is heavy handed and ponderous, with HMIC and the IPCC increasingly taking the lead on operational issues. This is easy to do, but to yield to temptation does not guarantee success. It would appear that in recent years the line managers and the internal inspection teams of individual forces have either not looked at how stop checks are being conducted or they have not looked at them properly, or they have looked at them properly but their findings have been ignored. This has made the HMIC’s findings both revelatory and damning. They may have at least and at last have placed this important and sensitive issue on the agenda, and created the opportunity to use stop checks sensitively and effectively.

The simpler quicker cheaper and more effective approach that the Merseyside Police Complaints and Discipline Department took was to have a look at the records that line managers had failed to scan, highlight repeat offenders and then tell their managers to get to grips with them. Grizzled veterans told recruits that ‘If you don’t get complained about you aren’t doing the job properly.’ This of course didn’t mean that if they did generate complaints that they were doing the job properly. This was proved by the two officers whom Complaints and Discipline had highlighted. After they were confronted complaints about them dropped to none, as one behaved himself and the other was eventually dismissed. The overall number of complaints also fell, drastically, as other saw what was going on and decided that they didn’t want to be a part of it.

So Julie Ann and her team had devised a model that may still prove useful. It accepted that busy and distracted line mangers wouldn’t notice everything that was going on, but expected that they would act to sort things out once they were brought to their attention.

Stop checks can indeed be a ‘vital power’ in the fight against crime, or they may yet prove ‘a waste of police time which undermined public confidence in the police.’

Time will tell….

Ian MacDonald
Retired ACC Merseyside Police
August 2013