Stop and search

Legal application

Whichever stop and search power is being used, it must be exercised in a way which is compatible with the enabling legislation, the applicable code of practice (Code A in most cases) and with human rights law. This includes ensuring that the extent of the search is limited to what is necessary and proportionate in the circumstances to achieve a legitimate aim.

Although Code A does not give express guidance on proportionality of police action, paragraph 1.1 requires stop and search powers to be used fairly, responsibly, with respect for the people being searched and without unlawful discrimination. This cannot be achieved without an inherent requirement of proportionality.

Human rights check – II

  • Actions by public authorities, including the police, which restrict individual rights must be necessary in a democratic society.
  • Necessary means necessary to achieve one of the aims specified in the relevant Convention article.
  • Assessing if a restriction is necessary means asking two questions:
    • Is the restriction for a legitimate aim?
    • Is the means proportionate to the aim?
  • For stop and search this means ensuring that:
    • a stop and search encounter is being carried out for a legitimate purpose (as set out in the relevant legislation)
    • a stop and search is the most proportionate tool available to achieve the aim in the particular circumstances
    • the extent of the search is tailored to the particular circumstances and object of the search, keeping the degree of intrusion to the minimum required to achieve the aim.

(Principles extracted from European Court of Human Rights case-law.)

Most proportionate: decision to search

The decision to search must be objectively proportionate to the circumstances.

Where an officer has a legal power to search a particular person, ie, has objectively reasonable grounds to suspect that an identified individual is in possession of a prohibited item, or the preconditions apply for one of the ‘no suspicion’ powers, the decision to search is likely to be proportionate, with proportionality considerations being more applicable to the extent of the search.

Where the officer has information or intelligence that relates to a wider group, proportionality comes into play when deciding how widely the officer can search. A search for a single item of spray paint, for example, may not justify searching a very large group of demonstrators, but such a search may be justified where an unidentified individual is reasonably suspected of carrying a firearm.

Code A guidance note 9A sets out that the decision must be judged on a case by case basis according to the circumstances applicable at the time of the proposed searches. Regard must be had to:

  • the number of items suspected of being carried
  • the nature of those items and the risk they pose and
  • the number of individuals to be searched.

A group search is only justified if it is necessary and proportionate to conduct one, based on the facts and having regard to the nature of the suspicion.

The case of Howarth v Commissioner of Police of the Metropolis [2011] EWHC 2818 (Admin) concerned the searches of a number of demonstrators on a train suspected of carrying molasses to cause criminal damage, as the group had done on previous occasions. The question asked was whether the searches went beyond the reasonable responses of a police officer to the intelligence received.

Key considerations included that:

  • intelligence and past experience gave a reasonable anticipation of significant damage
  • the group, while not small, was confined to a number of passengers on a train
  • steps were taken to identify those searched as protestors
  • the searches were of the type commonly used in public places and on entrance to entertainment and travel venues
  • the organisers of the demonstration had not liaised with the police in advance, which justified an enhanced concern.

The court concluded, based on these factors, that the searches were not excessive in character having regard to the nature of the suspicion held.

Most proportionate: detention for the purpose of search

Code A says:

Reasonable force is a last resort and should be used only if necessary to conduct the search or to detain for that purpose.

(See paragraph 3.2 for full text)

All persons stopped and searched must be informed at the outset that they are ‘being detained for the purposes of a search’ so as to activate the section 117 Police and Criminal Evidence Act 1984 (PACE) power to use reasonable force. The physical act of searching a person is a use of force even if it does not involve any element of restraint or physical compulsion, and the issue when assessing reasonableness is the degree of force used.

Although section 117 of PACE allows officers to use reasonable force to carry out a stop and search if necessary, their starting point should always be to seek cooperation from the person. Officers should only consider it necessary to escalate to a forcible search where the person resists or makes it clear they are unwilling to cooperate.

Reasonable force should be as set out in section 3 of the Criminal Law Act 1967, ie, reasonable in the circumstances to prevent crime – for example, to prevent the officer from being assaulted – or to effect a lawful arrest. Officers should not routinely handcuff people in order to carry out a stop and search. They must judge each case on its merits in line with conflict management principles and be able to justify any use of force, including the use of handcuffs. Any force used should be proportionate to the aim of preventing crime.

Most proportionate: the search

Stop and search: Three levels of intrusiveness

On the street Out of public view, eg, a police van Out of public view, in a nearby police station or other nearby location, but NOT in a police vehicle
JOG

A search involving no removal of clothing other than an outer coat, jacket or gloves.

PACE Code A, paragraph 3.5

YES

Police officer of any sex can search.

PCSO of any sex who is designated under the PRA can search for alcohol and/or tobacco.

√ YES

Police officer of any sex can search.

√ YES

Police officer of any sex can search.

MTS

A search involving the removal of more than JOG but not revealing intimate parts of the body.

PACE Code A, paragraph 3.6

X NO √ YES

Police officer must be of same sex as person being searched, unless only headgear or footwear is removed.

√ YES

Police officer must be of same sex as person being searched, unless only headgear or footwear is removed.

EIP

A search involving the removal of more than JOG which exposes intimate parts of the body.

PACE Code A, paragraph 3.7

X NO X NO √ YES  following consultation with a supervisor

Consultation with a supervisor required prior to searching. (APP requirement)

Police officer must be of same sex as person being searched.

Must be conducted in accordance with paragraph 11 of PACE Code C, Annex A.

JOG: jacket outer coat and gloves    MTS: more thorough search    EIP: search exposing intimate parts of the body 

General principles

Code A specifies a number of general principles which are relevant to proportionality and minimising intrusion on liberty.

  • Officers should complete the search as soon as possible and take no longer than is reasonable. What is reasonable depends on the circumstances, eg, it could include the time it takes for an appropriate adult to attend prior to searching a child.
  • Officers must detain and search the person at or within reasonable travelling distance of the place where they are stopped. What is reasonable depends on the mode of transport used for travelling to the alternative location.
  • The extent and thoroughness of the search must not be excessive. If the search power being used requires the officer to have reasonable grounds, the extent of the search must depend on the nature of those grounds and the object of the search. For example, if they are based on information that the person has hidden a stolen item in their pocket, the search should be limited to the pocket, unless there are additional grounds or the person has had an opportunity to move the item. The officer may need to search more extensively where the item is small and may be concealed anywhere.
  • If the officer is using a ‘no suspicion’ search power, there is no specific restriction on the nature of the search but it must be reasonable bearing in mind the items being looked for, eg, a large weapon is unlikely to be hidden in an inner breast pocket.

While conducting the search, officers should at all times be mindful of the particular practical and communication needs of children and vulnerable people.

Code A does not specify a location for conducting searches of children or vulnerable adults. In either case, however, if the officer considers that an appropriate adult needs to be present for the search and no such adult is available at the scene, they should make arrangements for an appropriate adult to attend as soon as possible or consider taking the person to another location where one will be available, eg, their home or a police station.

Guidance note 1BA indicates that whenever a child under 10 is suspected of carrying unlawful items for someone else, or is found in circumstances that suggest their welfare and safety may be at risk, force safeguarding procedures should be initiated. Children under 10 should only be stopped and searched in exceptional circumstances. Where it is necessary to do so, regardless of the extent of search, every effort should be made for the search to be conducted in a child-friendly location in the presence of an appropriate adult. This could mean taking the child to their home to be searched in the presence of their parent or guardian. Where this is not operationally possible, the search should as a minimum take place in a safe and controlled area, a police station being preferable to the street or in a police vehicle. All searches of children under 10 should be referred to the safeguarding team as a priority.

No more than JOG in public

There is no power for an officer to require the person being searched to remove any clothing in public apart from their jacket, outer coat and gloves (JOG), although the officer may ask the person to do so voluntarily (Code A, guidance note 7). If the officer does ask the person to voluntarily remove more than JOG in public, they should make it clear that the person is not obliged to comply.

The only exception is where an item is believed to be worn to deliberately conceal identity, when removal can be required under section 60AA CJPOA (Code A, paragraph 3(5)). If an officer requires the removal of headgear, a face covering or other disguise under section 60AA and the person refuses to comply, the officer cannot forcibly remove the item but the person is committing an imprisonable offence and can be arrested.

If it is reasonably necessary in the circumstances (bearing in mind the object being looked for, eg, not a large package of drugs or other bulky item), under Code A, paragraph 3.5 the officer may, as part of a JOG search:

  • place their hand in the inside pocket of outer clothing
  • feel around the inside of collars, socks and shoes
  • search hair as long as there are no restrictions on the removal of headgear, eg, for religious reasons.

If there are religious sensitivities to asking the person to remove headgear, either to enable the officer to search hair as part of a JOG search as mentioned above, or when requiring removal under section 60AA, the officer should allow it to be removed out of public view. Where practicable, the removal should be carried out in the presence of an officer of the same sex as the person and out of sight of the opposite sex. (Code A, Guidance Note 4)

Under paragraph 7 schedule 4 of the Police Reform Act 2002, designated police community support officers may only search to the extent reasonably required to find the object of the search and cannot require the removal of more than JOG in public.

More thorough search out of public view

Code A distinguishes between a more thorough search (MTS) (Code A, paragraph 3.6) and a search exposing intimate parts of the body (EIP search) (Code A, paragraph 3.7), so these are addressed separately.

An MTS is any search involving the removal of more than JOG but not exposing intimate parts of the body, ie, removal of any item of clothing which is not covering an intimate part of the body. Revealing any intimate part of the body escalates the search from MTS to EIP which is subject to additional restrictions as set out below. An MTS can be conducted if necessary on reasonable grounds. It must be conducted out of public view, in a police van or at a police station. An empty street is still a public place.

Unless only headgear or footwear is removed, the MTS should be conducted:

  • by an officer of the same sex
  • not in the presence of the opposite sex unless specifically requested by the person.

Search involving exposure of intimate parts of the body

A search exposing intimate parts of the body (an EIP search), also referred to as strip search, is the most intrusive form of search permitted under stop and search powers. It should not be a routine extension of the initial search if nothing is found. As with searches involving a lesser degree of intrusion, it must only be used where it is necessary and reasonable, bearing in mind the object of the search.

APP requirement

Officers identifying a need for an EIP search must consult a supervisor prior to carrying out the search, to explore the reasons why it is necessary and proportionate in the circumstances. The supervisor’s role in this context is to support and encourage good decision making by providing suitable challenge. The officer who identifies the need for the EIP search – and not the supervisor – is responsible for the decision to proceed with the EIP search (having taken due regard of the advice given by the supervisor), unless the supervisor gives a lawful order instructing the officer not to carry out the search. This supervisory guidance and support beforehand, rather than after the fact, aims to protect officers from complaints, ensure the appropriate use of police powers, and reassure the public about the oversight of intrusive searches.

If an officer cannot contact a supervisor within a reasonable timeframe, the officer must balance the need to have the ethical discussion with a supervisor against the need to conduct the EIP search within a reasonable timeframe, ie, one that does not antagonise the person being searched or delay the search for an unreasonable time.

If an officer decides to proceed with an EIP search following consultation with their supervisor, the officer should include the reasons for extending the search as part of the search record, as well as confirming that supervisory consultation took place, with whom and when. If they were unable to contact a supervisor, they should still record their reasons for extending the search, as well as the steps taken to contact a supervisor.

Searches exposing intimate parts of the body must be conducted at a nearby police station or other location out of public view, not in a police vehicle.

If a body-worn video camera is available, officers should record the encounter in accordance with force policy, but should cover the camera (or direct it away from the person) whenever intimate body parts are exposed. Audio recording should remain activated.

Code A specifies that searches involving exposure of intimate parts of the body must be conducted in accordance with paragraph 11 of Annex A of Code C:

  • The officer carrying out the search must be of the same sex as the detainee.
  • The search must be conducted where the person cannot be seen by:
    • anyone who does not need to be present
    • any member of the opposite sex apart from an appropriate adult specifically requested by the person being searched.
  • Unless there is a risk of serious harm to the person or to someone else, there must be a minimum of two persons present in addition to the person being searched. One of those must be the appropriate adult if the person is a child or vulnerable adult unless, in the case of a child, the child and appropriate adult both agree that the adult should not be present during the search.
  • Proper regard shall be given to the sensitivity and vulnerability of the person and every reasonable effort made to secure the person’s cooperation and minimise embarrassment. They should not normally be required to remove all their clothes at the same time, eg, a person should be allowed to remove clothing above the waist and redress before being required to remove further clothing, subject to necessity in the circumstances.
  • If necessary to assist the search, the person may be asked to facilitate a visual examination of the genital and anal area but no physical contact may be made with any body orifice.
  • The strip search should be conducted as quickly as possible and the person allowed to dress as soon as it is completed.

Paragraph 11 is clear that, unless there is a risk of serious harm to the person or someone else, an appropriate adult must be present for an EIP search of a child or vulnerable person. Unless an appropriate adult is available at another safe and controlled location out of public view and not a police vehicle, eg, the child’s home, such a search may, in practice, need to be conducted at a police station.

If, as a result of a search exposing intimate parts of the body, an item the officer is searching for can be seen in a body orifice other than the mouth, it cannot be seized as that would constitute an intimate search. Intimate searches are not permitted under any circumstance under stop and search powers.

Intimate search – only post-arrest

An intimate search may only be carried out on a person after they have been arrested and is governed by the provisions of Code C.

Page last accessed 20 January 2018