In 1970s Brixton, black men and women felt victimised by the police.
They were frequently stopped and searched in the street if an officer decided that they looked ‘suspicious’. This definition was kept vague under the ‘Sus laws’, and the police abused this power regularly.
40 years later, we can wonder how much has changed. The McPherson Report of 1999 found clear racial disparity in the use of Stop-and-search powers, but little was done about this. Even after Theresa May’s report in 2013, stop-and-search numbers fell, but mainly those conducted against white people. Government figures released on 19 March 2020 show that Black people are still stopped and searched at 10 times the rate of White people in London.
During the Black Lives Matter protests of this year, police have continued to use their broad stop-and-search powers. These searches have been used on people in protests and on their way to protests and some argue that they are being used as a tool of intimidation, particularly against black men and women.
However, the legislation has moved on since the ‘Sus laws’. The police have to fulfil certain requirements and there are protections in place for the individual being searched. In this article we will give a brief explanation of what to expect during a stop-and-search and what powers the police actually have. This should help you understand if the police overstep their mark, and if a search is unlawful.
Is this a stop-and-search or a stop-and-account?
When the police initially stop you to ask you questions, you might be unsure exactly what powers they have. It is important to clarify whether you are about to be searched or whether they are merely asking questions.
The first question you should ask if you are uncertain is “Am I being detained?”. If the answer is ‘no’, then this is a stop-and-account. If the answer is ‘yes’ then you may be being arrested or searched.
A stop-and-account occurs when an officer stops an individual to ask them questions. This does not relate to an arrest and they cannot detain you. This means that you are not obliged to answer their questions, give them your details or stay with them. You can stay silent or walk away. A stop-and-search occurs when an officer stops an individual with the intent of searching them. As we will explain, this does give the police the power to detain you.
What is the procedure for a stop-and-search?
The first point to know is that you cannot be stopped and searched just because you are black. This is unlawful and breach of the Equality Act 2010. You cannot be searched because of any ‘protected characteristic’ you have – so that is your race, age, disability, gender reassignment, religion or belief, sex, sexual orientation, marriage/civil partnership and if you’re pregnant.
If you are stopped by the police for a search, they cannot simply start the search without any reason or justification (unless a s.60 Order is in place, which we explain further down.) They must give you certain information first. The police use the mnemonic GO WISELY to remember what they must say, so we use that as one way to check they are following their own guidance. GO WISELY means:
Grounds: the officer must tell you the grounds for their suspicion of you.
Object: the officer must give you an explanation of exactly what object or article you are being searched for.
Warrant: if they are not in uniform, the officer must show you their warrant card to confirm they are an officer.
Identity: the officer must tell you their name and collar/shoulder number (you should note these down).
Station: the officer must tell you which police station they are from (again, note this down).
Entitlement: you are entitled to a copy of the search record within 3 months, and they must either give this record to you or tell you how to get a copy.
Legal: the officer must tell you which law they are using.
You: they must tell you that you are detained for the purposes of a search.
Everyone being searched should be aware of these requirements as an officer who neglects one is conducting an unlawful search.
Can the police make me remove my clothes?
During the search officers can only require you to remove an outer layer of clothing (a jacket, gloves, hat, or shoes) in public. This initial search can be conducted by any police officer. You can request to be searched by an officer of the same gender, but it is down to the officers’ discretion whether they agree at this point.
If they ask you to remove more than this, they must have reasonable grounds. This cannot simply be that they haven’t found anything in the initial search. If more items need to be removed, this must be done out of public view, for example, a police station. This does not mean you are being arrested. The search also has to be carried out by an officer who is the same gender as you are. For trans people, see the section below.
If you are being searched under section 60 stop-and-search powers (see the ‘types of searches’ below; an officer must tell you which they are using), you could be required to remove additional items in public.
If you wear any items of religious clothing, such as a hijab or turban, this cannot be removed in public – it must be removed out of public view and by an officer of the same sex. The Equality Act means you cannot be discriminated against because of your religion, so if you feel you have been stopped and searched because of your religion, or the police fail to conduct the search in a way that respects your religion, this is not lawful.
What if I am transgender or non-binary?
If you are transgender or non-binary, you can specify which gender you identify as or which gender you would like to be treated as. If you do so, you should be asked to sign something which keeps a record of this, and you can then ask to be searched by an officer of your self-identified gender.
Unfortunately, this is still only treated as a preference, and the police can disagree with this preference if, for example, they have reason to believe that you “predominantly live” as another gender.
However, the Equality Act means you should not be discriminated against because you are trans, and if it seems that this is what they are doing, then the police are acting illegally. You do not have to have undergone any medical treatment or obtained a Gender Recognition Certificate (GRC) for this to apply.
If you are non-binary, you may not be protected by the Equality Act in the exact same way. However, if you make your preferences clear, then you can make a police complaint if you believe you are mistreated.
Can I leave before/while they search me?
In most cases, unless you are being arrested, you are not being detained and can leave at any point. This is important to keep in mind if the police stop you in the street and ask you questions.
However, stop-and-search sits in a weird mid-point. During a stop-and-search, you are not under arrest but you are being detained. This means that, until the search is complete, you are not allowed to walk away, and the police can use force if you try. Force could include physically holding you, or handcuffs.
Force must only be used as a last resort. The officers must ask you to comply first and only if you resist them can they use any force. If they do, this force must be reasonable. ‘Reasonable’ means what an ordinary person would consider reasonable in the circumstances. If an officer grabs you or tries to put you in handcuffs when you have not been resisting, this is unlawful.
What are the three main types of search?
There are three main laws which are used for stop-and-searches during and around protests. Each has their own grounds which the police must use as a basis for their search. There are also powers connected to firearms and terrorism, but these should not be relevant to protest searches.
The ‘Standard’ Stop-And-Search:
These are conducted under Section 1 of the Police and Criminal Evidence Act 1984. In order to stop you under this law the police must have “reasonable grounds” to suspect that you are carrying “stolen or prohibited articles”.
“Prohibited articles” means weapons, fireworks and anything which can be used to commit a crime.
2. The ‘Drug related’ Stop-And-Search’
These are conducted under Section 23 of the Misuse of Drugs Act 1971. In order to stop you under this law, the police must have “reasonable grounds” to suspect that you are carrying “controlled drugs”.
3. ‘No-suspicion’ searches
These searches are conducted under Section 60 of the Criminal Justice and Public Order Act 1994: ‘Section 60’ searches give the police a blanket power to search anyone within a specific area, regardless of the actual behaviour of that person.
Under Section 60 the police can designate any area as a search area if they reasonably believe that a violent incident may or has taken place and/or that people are carrying dangerous weapons in that area.
These areas have no technical limit in size and have been known to stretch to an entire London borough, but the police are told to make them as small as possible and must clearly identify the area.
The police can search anyone within that area, as long as it is related to the violent incident in question.
What are “reasonable grounds”?
The “reasonable grounds” for ‘Section 1’ or ‘Section 23’ searches must be based on objective information and cannot be due to personal factors such as your age or race.
Valid grounds include:
If the police have received a report that someone is carrying a weapon or prohibited object and the individual matches the description they have of that person
For example, if the police have received reliable information that a tall male wearing a red jacket was seen carrying a weapon then they may have reasonable grounds to search a tall male wearing a red jacket who they see in the area.
Simply being the same race is not enough for them to claim a ‘match’).
If the individual is clearly part of a particular group, and that group has a documented history of carrying certain objects and using them for criminal damage/injury or other relevant crime
For example, if a gang have been known to carry and use guns and the members of the gang all wear a distinctive piece of clothing to show their membership, then the police may have reasonable grounds to search someone wearing that distinctive piece of clothing for a gun.
This is often used in relation to gangs or protest groups, so look out for police trying to stretch it for use at peaceful protests).
If the individual is acting suspiciously
For example, if an individual seems to be carrying an object and is looking into the windows of parked cars, the police may have reasonable grounds to search them for an object which could be used to steal from the cars.
The officer MUST be able to explain this suspicion with reference to specific aspects of the individual’s behaviour; a hunch is NOT enough)
What are not “reasonable grounds”?
It’s not a “reasonable ground” if:
The police stop you because of any ‘protected characteristic’ you have from the Equality Act 2010 – so that is your race, age, disability, gender reassignment, religion or belief, sex, sexual orientation, marriage/civil partnership or if you’re pregnant.
For example, the police cannot search an individual simply because they are a black teenager.
The police stop you because they know you have a previous conviction.
For example, the police cannot search an individual simply because they know that this individual has been caught carrying drugs previously.
The police stop you because of a generalisation or stereotype they have that a certain category of person is more likely to be involved in criminal activity.
For example, the police cannot simply search an individual because they are Muslim and the police believe they are more likely to carry a weapon.
Can I film my stop-and-search?
You always have the right to film the police in a public space. The only way the police can stop you is if they believe that the footage may be used for terrorism purposes, and this should not be relevant to filming a Stop-and-Search.
If possible, ask a witness to film for you. If you are witness to a Stop-and-Search, ask the individual being searched if they are happy for you to film them. Firstly, this is out of respect for the individual, and secondly this means the police cannot object on the grounds that you are infringing the privacy of the individual.
If you choose to film your own Stop-and-Search, this is still legal. You should make the police aware that this is what you intend to do, reach to your phone slowly so that they do not misinterpret this as a threat, and keep your phone at a safe distance so that it does not obstruct the search. If the police claim that your phone is obstructing them then you can compromise by keeping it running but putting it in your pocket so that it still records the audio.
After the event, it is best to store the recording somewhere safe and send it to the person being searched. Sharing it on social media straight away might be tempting, but this can cause issues if you intend to use it as evidence later on and so should be avoided.
What happens after the search?
If the police complete a search of your outer clothes and find nothing, you should be released. You should also be given a record of your search, or told how to access a copy of it. It is also worth keeping your own record.
Finding nothing in an initial search of your outer clothing is not grounds for the police to conduct a further search.
If they do find something or have reasonable grounds to conduct a further search this must be done somewhere private but close to where you were stopped, and by an officer of your own sex.
If the police do find anything which they believe links you to a crime, they might arrest you. It is at this point that they will have to conduct the arrest procedure.
What can I do if I feel the police have acted unlawfully or mistreated me?
If you believe that the police have acted unlawfully you may feel too intimidated to do anything about it at the time. Flagging up issues at the time so that the police know you are aware is always valuable, but it is not essential.
After the event you can raise a complaint with the police directly or through the Independent Office for Police Conduct. If you do not feel that your complaint is properly dealt with, or if you would like assistance with your complaint, please feel free to contact us on our contact page.
We will also shortly be uploading a post on police complaints procedure.
Key points during a Stop-and-Search:
Try to remain calm; a Stop-and-search is not an arrest, but if you resist the police during the search it could be grounds for an arrest.
Ensure the police officer tells you the grounds for the search and what they hope to find (go through the full GO WISELY if you can).
If the police officer simply asks to search more than your outer clothing, you can refuse this. If they claim to have grounds for this, you must be taken somewhere private and have an officer of the same sex as you conduct the search.
The fact that they have not found anything in your outer clothing is not grounds to search further.
Ask for a copy of the search record immediately. If they state that you can pick a copy up later, take your own note of the search and do follow up the copy of the record later.