Stop and Search

In the absence of a lawful arrest, the police have no general power to detain anyone for questioning. There are a number of statutory powers, however, which have become increasingly important in the past twenty years or so. The statutory provisions listed below are no more than a representative selection.

Police and Criminal Evidence Act 1984 s.1

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

(a) in any place to which at the time ... 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,

(b) in any other place to which people have ready access at the time ... but is not a dwelling.

(2) A constable may search any person or vehicle, or anything which is in or on a vehicle, for stolen or prohibited articles and 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.

(4) If a person is in a garden or yard occupied with and used for the purposes of a dwelling ... 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 of a person who resides in the dwelling.

(7) An article is prohibited if it is an offensive weapon or [made or adapted or intended for use in theft or any similar offence].

Misuse of Drugs Act 1971 s.23(2)

If a constable has reasonable grounds to suspect that any person is in possession of a controlled drug ... he may search that person, and detain him for the purpose, or search any vehicle in which he suspects the drug may be found ...

Sporting Events (Control of Alcohol &c) Act 1985 s.7(2)

A constable may search a person he has reasonable grounds to suspect is committing an offence under this Act [e.g. of possessing intoxicating liquor at or on the way to a designated sporting event] ...

Road Traffic Act 1988 ss.164-165

Any person driving a motor vehicle on a road, or believed to have been the driver of a motor vehicle at a time when an accident occurred, or believed to have committed an offence in relation to the use of a motor vehicle ... must on being so required by a constable produce his licence and give his name and address and date of birth and produce [an insurance certificate and test certificate] for examination.

Criminal Justice and Public Order Act 1994 s.60

(1) Where [a senior police officer] reasonably believes that incidents involving serious violence may take place at any locality in his area, and it is expedient to do so to prevent their occurrence, he may give an authorisation that the powers to stop and search persons and vehicles conferred by this section shall be exercisable at any place within that locality for a period not exceeding twenty-four hours.

(4) This section confers on any constable in uniform power to stop and search [any person or vehicle] for offensive weapons or dangerous instruments.

(4A) This section also confers on any constable in uniform power 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.

(5) A constable may stop any person or vehicle whether or not he has any grounds for suspecting that the person or vehicle is carrying weapons or vehicles of that kind.

Terrorism Act 2000 s.44

(1) An authorisation under this subsection authorises any constable in uniform to stop a vehicle in an area or at a place specified in the authorisation and to search -

(a) the vehicle;   

(b) the driver of the vehicle;

(c) a passenger in the vehicle;   

(d) anything in or on the vehicle or carried by the driver or a passenger.

(2) An authorisation under this subsection authorises any constable in uniform to stop a pedestrian in an area or at a place specified in the authorisation and to search -

(a) the pedestrian; 

(b) anything carried by him.   

(3) An authorisation ... may be given only if the person giving it considers it expedient for the prevention of acts of terrorism.

(4) An authorisation may be given ... by a police officer ... who is of at least the rank of assistant chief constable ...

The exercise of all statutory "stop and search" powers (with a few very limited exceptions) is governed by Code A, issued by the Home Secretary under the Police and Criminal Evidence Act 1984. The Code also applies to "consent searches", which must not be carried out in circumstances where there would be no statutory power to search except where submission to a search is a condition of admission to a sports ground or other premises.

Most "stop and search" powers (though not those under the Criminal Justice and Public Order Act 1994 or the Terrorism Act 2000) depend on the constable's having "reasonable grounds for suspecting" that the person to be searched is in possession of certain items, and the Code seeks to explain what such grounds might be. Reasonable suspicion may exist on the basis of information received such as the description of a suspected offender, or on reliable information that members of a particular gang (perhaps identifiable by a gang "uniform") habitually carry weapons or drugs (Paragraph 2.6). But reasonable suspicion can never be supported on the basis of personal features alone, such as a person's colour, age, religion, hairstyle or manner of dress, or the fact that he is known to have a previous conviction, without supporting intelligence (Paragraph 2.2).

None of this affects a constable's right to speak to a person in the ordinary course of his duties, without detaining him against his will (Note 1). If the person then says or does something that arouses the constable's reasonable suspicions, he may then exercise his statutory powers. But there is no power to detain a person against his will in order to find grounds for a search (Paragraph 2.11), and a refusal to answer questions after being detained does not in itself provide such grounds (Paragraph 2.9), even though an innocent explanation of suspicious conduct might in other circumstances allay the constable's suspicions. The "reasonable grounds" must exist before the statutory powers are exercised: a search cannot be justified retrospectively by grounds of suspicion coming to light only after detention has begun.

Tomlinson v DPP (1992) Legal Action 92/5 21, QBD

A man was was stopped shortly after midnight in Soho, by two police officers who had watched him "walking aimlessly" for about fifteen minutes. When he refused to explain his actions the officers tried to search him for drugs, but he resisted and was eventually arrested for assaulting a constable in the execution of her duty. Allowing his appeal, Nolan LJ said the officers had no reasonable grounds for suspecting the man of possessing drugs: the prevalence of drugs in an area cannot in itself justify the detention and search of an individual.

All stops and searches, says paragraph 3.1 of Code A, must be carried out with courtesy, consideration and respect for the person concerned: this has a significant impact on public confidence in the police. Any statutory requirements must also be observed, otherwise the search may be unlawful.

Police and Criminal Evidence Act 1984 s.2(2)

If a constable contemplates a search, other than a search of an unattended vehicle ... it shall be his duty ... to take reasonable steps before he commences the search to bring to the attention of the appropriate person (i) if he is not in uniform, documentary evidence that he is a constable; and (ii) whether he is in uniform or not, [the constable's name and police station, the object of the search, the constable's grounds for proposing to make it, and the person's right to a written record of these matters.]

Osman v DPP (1999) Times 28/9/99, QBD

Authorisation had been given under s.60 of the 1994 Act for persons attending the Mile End Park Fair to be searched for weapons. A youth Osman approached the fair and was stopped by police officers, who told him they intended to search him; Osman was uncooperative and was subsequently convicted of assaulting a police officer in the execution of his duty. Quashing his conviction, Sedley LJ said statutory powers to stop and search are strictly governed by s.2 of the Police and Criminal Evidence Act 1984; as the officers had not given Osman their names and station, the search was unlawful even though they could have been identified by their shoulder numbers.

Police and Criminal Evidence Act 1984 s.117

Where any provision of this Act ... confers a power on a constable ... the officer may use reasonable force, if necessary, in the exercise of the power.

However, a constable exercising a power to search should always seek the person's (albeit reluctant) cooperation, using reasonable force only as a last resort (Paragraph 3.2). Every reasonable effort must be made to minimise any embarrassment that a person being searched may experience (paragraph 3.1), and the search must be restricted to a reasonable search for the item suspected of being carried (paragraph 3.3).

Searches in public (which includes an otherwise empty street) must be restricted to a superficial examination of outer clothing, though the constable may try to feel through other clothing, subject of course to the "minimum embarrassment" requirement. A person cannot normally be required to remove more than an outer coat, jacket and/or gloves (paragraph 3.5), but section 60AA of the Criminal Justice and Public Order Act 1994 allows a constable to require the removal of any item worn to conceal a person's identity. If a more detailed search is thought necessary it must be carried out in private (e.g. in the back of a nearby police van), and, if it involves the removal of further clothing other than hats and/or shoes, by an officer of the same sex as the person searched.

Special rules apply to "intimate searches", which can be carried out only after a person has been arrested and only under very restrictive conditions. These must normally be carried out by a doctor or nurse, except as a last resort when all other approaches have failed and the authorising officer is satisfied that the risk of injury from the article being sought is sufficiently severe to justify such action.

After a search has been carried out, the officer concerned must make a written record unless it is wholly impracticable to do so (e.g. because of public disorder), including the person's name if he is willing to give it, his ethnic origin, the object of the search, the grounds for making it, and its outcome, and must give a copy of this record to the person searched.

A similar record must be made when a police officer stops a person in a public place (without searching them) and asks them to account for their presence or behaviour (Paragraph 4.12), but no record need be made of ordinary conversations, nor of questions asked by officers seeking to establish the facts of a particular incident.