Stop and search

Legal basis

Each stop and search encounter must have a basis in law. The officer carrying out the stop and search must only do so using one of the powers provided for in legislation and it must be the right power in the particular circumstances.

The most widely used powers require the officer to have reasonable grounds for suspicion. Other powers do not, but only apply where a number of preconditions exist and should be used with particular care.

In its 2015 report, Stop and Search Powers 2: Are the police using them effectively and fairly?, HM Inspectorate of Constabulary expressed concern about the use of powers akin to stop and search under section 163 of the Road Traffic Act 1988 and the Police Reform Act 2002. The limits of these powers are also set out in this section.

Human rights check – I

  • Public authorities, including the police, must act in accordance with the law.
  • Laws must be accessible: a person must have an adequate indication of what the legal rules are.
  •  Laws must be foreseeable: the rules must be precise enough to enable the person to foresee the consequences of their behaviour.
  • Where the law allows discretion, it should be:
    • for a legitimate aim
    • clear in scope and in the manner of its exercise
    • accompanied by legal safeguards.

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

Powers requiring reasonable grounds for suspicion

The ‘reasonable grounds for suspicion’ test is key to fair decision making in stop and search and its application is examined in greater detail under that theme.

The most commonly used powers requiring reasonable grounds for suspicion are those under section 1 of the Police and Criminal Evidence Act 1984 (PACE) and section 23 of the Misuse of Drugs Act 1971 (MDA). The Psychoactive Substances Act 2016 also introduces new powers to stop and search persons and vehicles where there are reasonable grounds to suspect that the person has committed or is likely to commit an offence under the Act or that the vehicle contains evidence of an offence.

Section 1 of the Police and Criminal Evidence Act 1984

Section 1(2)(a) of PACE provides police officers with the power to stop and search any person, vehicle, or anything which is in or on a vehicle, for stolen or prohibited articles, points and blades, or fireworks. Prohibited articles include offensive weapons and articles with which a person is going equipped to steal or cause criminal damage. Section 1(2)(b) gives the accompanying power to detain individuals and vehicles for the purpose of conducting a search.

Section 1(3) specifies that the power only applies where the officer has reasonable grounds to suspect that the relevant article will be found.

Section 23 of the Misuse of Drugs Act 1971

Section 23(2) of the MDA provides that a constable may search a person suspected of being in possession of a controlled drug and detain them for the purpose of the search. They may also search any vehicle or vessel in which they suspect the drug may be found, and can require the person in control of the vehicle or vessel to stop it for that purpose.

This provision specifies that the person must be suspected of being in possession of the drug, not merely to have used it or been present during its use by others. With respect to a vehicle, the provision similarly requires the officer to suspect that the drug may be found in it. This has significant implications for stop searches involving cannabis and what can amount to reasonable grounds.

Reasonable grounds for suspicion must relate to the likelihood that the object in question will be found. There is no stated case which says that the smell of cannabis alone cannot provide reasonable grounds. Some forces have, however, examined the proportion of searches where the smell of cannabis is recorded as a ground which have a positive outcome. They have tended to find the arrest rate to be lower compared to searches based on other grounds. For example, an analysis of Leicestershire Police stop and search records (2011–13) has suggested that relatively few searches based on the smell of cannabis resulted in arrest (4 per cent compared to 10 per cent of searches based on the behaviour of the suspect and 17 per cent based on information or intelligence). This study1 does not distinguish between searches where the smell of cannabis is the only factor and those where the smell of cannabis is combined with other factors.

Based on the likelihood of finding the object searched for where there are no other supporting factors, the smell of what the officer believes to be cannabis on its own will not normally justify:

  • the search of a person who smells of cannabis
  • the search of other people in the same group as a person who smells of cannabis
  • the search of a vehicle which smells of cannabis
  • the search of the driver of a vehicle which smells of cannabis
  • the search of passengers in a vehicle which smells of cannabis.

This does not mean that the perceived smell of cannabis cannot form part of an officer’s grounds for a search. If an officer smells what they believe to be cannabis, they should consider the circumstances as a whole. Are there any other factors which, if combined with the smell of cannabis, make it likely that drugs will be found if the search of that person or vehicle takes place?

Other factors could include the person’s behaviour or demeanour, a current drugs marker on the vehicle, specific intelligence about the person or the presence of drugs paraphernalia.

For example, in R (Smith) v DPP [2002] EWHC 113 (Admin), where an officer:

  • saw a rear seat passenger in a vehicle fidgeting and moving his arm behind his back
  • stopped the vehicle under section 163 of the Road Traffic Act 1988
  • smelled what he believed to be cannabis when he opened the door of the vehicle and
  • saw some Rizla cigarette papers on the dashboard

the Administrative Court found that the search was lawful. It noted that it was the passenger’s behaviour in the back of the vehicle which led to the officer’s reasonable suspicion and that this was reinforced by the smell on approaching the vehicle.

Officers should consider and record all of the information available to them, including their own observations of suspicious behaviour, not just the smell of what they believe to be cannabis.

Where passive drugs dogs are deployed as part of a high-profile crime operation (eg, where the deployment is not based on specific intelligence), an indication given by the dog should be treated in the same way as the smell of cannabis, ie, by considering the circumstances as a whole and how likely it is that drugs will be found.

If an officer believes they smell cannabis or a passive drugs dog gives an indication but there are no other apparent supporting factors to justify a search, they may use the smell or dog’s reaction as an indicator to consider a stop and account. Talking to the person or people concerned or carrying out additional checks on a vehicle may reveal new factors that might provide reasonable grounds for a search.

Officers may feel under pressure to be seen to respond to public concerns about groups or individuals smelling of cannabis. Where there are insufficient grounds for a lawful search, officers can still take a proactive approach to the public’s concern by reminding the individuals involved that controlled drugs are illegal and that gaining a criminal record may have an impact on their future.

A driver’s demeanour or manner of driving may lead an officer to suspect that the person is driving while unfit through drink or drugs under section 4 of the Road Traffic Act 1988, ie, their ability to drive is impaired. Whether or not there are grounds to justify a search, the officer should consider carrying out a preliminary (or field) impairment test to help them decide if arrest may be the appropriate response.

The Psychoactive Substances Act 2016

The Psychoactive Substances Act 2016 (PSA) came into force on 25 May 2016. A psychoactive substance is defined as any substance which is capable of producing a psychoactive effect in a person who consumes it and is not an exempted substance under Schedule 1 to the Act.

Offences under the Act (PSA offences) are:

  • producing (section 4)
  • supplying or offering to supply (section 5)
  • possession with intent to supply (section 7)
  • importing or exporting (section 8)
  • possession in a custodial institution (section 9).

Simple possession is not an offence unless it occurs inside a custodial institution.

Section 36 PSA creates a power to stop and detain a person for the purpose of search where a police officer has reasonable grounds to suspect that the person has committed, or is likely to commit, a PSA offence. As simple possession is not a PSA offence, there is no power to search for simple possession.

Sections 37 and 38 create similar powers in respect of vehicles, and vessels and aircraft. An officer may require a vehicle stopped under section 37 to be taken elsewhere as directed if it is impracticable to search it where it was initially stopped.

Under section 43, officers searching a person under sections 36–38 may seize and retain any item found in the course of the search

  • to determine if a PSA offence has been committed or
  • where the officer reasonably believes the item to be
    • evidence that a PSA offence has been committed
    • a psychoactive substance (whether or not it is evidence of an offence).

Section 43 only applies where psychoactive substances are found during a search under sections 36–39 (or the officer is otherwise lawfully on premises) and not under any other stop and search power.

Under section 49, items seized under section 43 can only be retained for as long as necessary in all the circumstances and in particular for:

  • use as evidence at trial for a PSA offence
  • forensic examination
  • investigation in connection with a PSA offence.

A psychoactive substance which is not evidence of an offence (ie, a quantity consistent with simple possession) can, therefore, be seized if found during a search under sections 36–38, but not retained.

Section 50, however, allows an officer to dispose of a psychoactive substance where:

  1. the officer reasonably believes the item is a psychoactive substance which, if it had not been seized, was likely to be consumed by an individual for its psychoactive effects
  2. the item is not evidence of a PSA offence (ie, simple possession)
  3. the officer has no reason to believe the substance was being used for an exempted activity under Schedule 2 of the Act by a person entitled to do so and
  4. the search was carried out in a place to which the officer had lawful access without a warrant.

In such circumstances, section 50 allows the officer to dispose of the item immediately as they see fit, subject to local force policy on seizure, retention and disposal of a PSA. Any substances disposed of should be properly recorded and disposed of safely. In particular, they should not be disposed of down drains or other water courses.

Seized substances should be treated as if they are a controlled drug and packaged in accordance with local force policy.

Psychoactive substances may come in a form similar to controlled drugs and be difficult to identify. If an officer suspects simple possession of a controlled drug, but the person to be searched suggests that it is a psychoactive substance, the officer may still carry out a search under section 23 MDA where they have reasonable grounds to suspect that the person is in possession of a controlled drug. Section 23 MDA has its own power to seize items found.

Other stop and search powers

Other powers which require an officer to form a reasonable suspicion and which apply in specified circumstances include:

A fuller list of powers can be found in Annex A of Code A. It is not a definitive list.

Powers requiring the existence of preconditions

Stop and search powers that do not require an officer to have specific reasonable grounds for suspicion (‘no suspicion’ search powers) give rise to potential for abuse and their use is strictly regulated.

Section 60 of the Criminal Justice and Public Order Act 1994 (CJPOA) provides for a power to stop and search in anticipation of or after serious violence – it is currently the most far-reaching search power as it allows ‘no suspicion’ searches in a defined area, so prior authorisation based on an objectively held reasonable belief is a prerequisite.

Three separate powers to search premises also include a power to search any person found there without prior specific grounds relating to the individual, but the search of the premises itself requires a number of pre-conditions to be met. One of the powers is under schedule 5 of the Terrorism Act 2000, and thus not addressed here.

Section 60 of the Criminal Justice and Public Order Act 1994

Section 60 and the relevant sections of Code A should be read in conjunction with the College of Policing and Home Office (2014) Best Use of Stop and Search Scheme (BUSSS). This scheme raised the threshold for the application of section 60 in order to reduce its use. Although it is not binding in law, there is an expectation that participating forces will respect the scheme’s provisions in the absence of exceptional circumstances. If a force uses the power outside the terms of the scheme, it must inform the Home Office and the public of the fact.

This APP sets out section 60 use in accordance with the BUSSS. A comparison table highlights where the BUSSS standard for authorisation is higher than the Code A standard. The remainder of the content applies in either case, and those wishing to refer to the Code A standard may simply insert the detail of the Code A standard into the existing text.

What are section 60 powers?

Section 60 powers allow a constable in uniform to stop and search any pedestrian, or anything carried by them, or any vehicle, its driver and any passenger, for offensive weapons or dangerous instruments. The constable can make any search they think fit, whether or not they have any grounds to suspect that the person or vehicle is carrying the above items.

Such wide powers must be used only where necessary and in a proportionate manner. Their use must therefore be authorised, and their geographical scope and duration limited.

Senior officer authorisation
Comparison table of BUSSS and Code A – authorisation requirements
BUSSS standard Code A standard
Authorising officer minimum rank Assistant chief constable or commander Inspector
Level of urgency Necessary – this is also a legal obligation under human rights law Expedient
Incidents involving serious violence Will take place May take place
Initial maximum duration 15 hours 24 hours
Extension maximum duration First extension maximum 9 hours (total 24 hours)

Extension beyond 24 hours maximum 15 hours

24 hours

Use of section 60 powers may only be authorised by a senior officer of at least assistant chief constable or commander rank.

In order to grant an authorisation, the senior officer must reasonably believe that one or more of the permitted grounds applies and that it is necessary to use section 60 powers to achieve a legitimate aim.

Permitted grounds are that:

  • incidents involving serious violence will take place in the police area
  • persons are carrying dangerous instruments or offensive weapons without good reason in the police area or
  • an incident involving serious violence has taken place in the police area and a dangerous instrument or offensive weapon used in the incident is being carried by a person in the locality.

Legitimate aims are to:

  • prevent serious violence
  • to find dangerous instruments or weapons after an incident involving serious violence or
  • to apprehend persons carrying weapons.

Code A guidance note 11 states that the senior officer must base their reasonable belief on objective factors. Examples given include a history of violence/antagonism between particular groups, previous violent incidents at particular events, significant increase in knife-point robberies in a particular area. This emphasises the importance of intelligence-led authorisations.

It is the responsibility of the senior officer granting the authorisation to ensure that its purpose is clearly articulated and communicated to officers. This should include briefing officers on the intelligence that underpins the authorisation.

The scope of the authorisation (duration and geographical area) must also be limited by what is necessary to achieve the legitimate aim.

  • Duration: minimum period considered necessary up to a maximum of 15 hours.
  • Geographical area: no wider than necessary and with clear boundaries identified by named streets.

Code A says:

The authorisation must specify grounds, locality and duration.

It must be in writing unless serious violence has already taken place and it is not practicable to give it in writing. If given orally, it must be recorded in writing as soon as practicable.

(See paragraph 2.13 for full text)

Extension by an officer of senior rank is possible where:

  • violence or the carrying of dangerous instruments or offensive weapons has occurred and
  • continued use of the powers is necessary to prevent or deal with the activity or find the items.

A first extension can be up to a maximum of 9 hours (making a total of 24 hours) and any extension beyond 24 hours is for a maximum of 15 hours.

The BUSSS says:

Participating forces must communicate with the public in an area where a section 60 authorisation is to be put in place, in advance if practicable, and afterwards. They should also inform the public of the purpose and outcomes of each section 60 operation.

(See section 4 of the BUSSS for full text)

Officer use of section 60 powers

When a section 60 authorisation is in force, officers using stop and search powers should know:

  • that it is in force
  • the grounds for which it was issued
  • the geographic limits of where it applies
  • the start and end times of the current authorisation.

They should be able to explain all of these details to any member of the public stopped.

Section 60 does not justify the blanket use of stop and search powers. Officers should consider the circumstances which have generated the authorisation and limit their searches to those persons likely to be involved. The power does allow officers to search anyone within the locality, but they should use judgement when exercising it and be guided by the purpose of the authorisation. Code A, paragraph 2.14A specifies that officers must not stop and detain people for the purpose of search:

  • for reasons unconnected to the purpose of the authorisation
  • on the grounds of any of the protected characteristics of the Equality Act 2010.

Removal of face coverings

Where a section 60 or section 60AA authorisation is in force, officers have a power to require the removal of disguises. This is not a search power, but may take place at the same time as or become relevant during a stop and search under section 60.

If either authorisation is in force and an officer reasonably believes that an item is being worn as a disguise (a person is wearing it wholly or partly for the purpose of concealing identity), they can seize the item.

The key factor is the purpose for which the item is being worn. Head or face coverings may be worn for religious reasons, so it is not enough that the covering does in fact conceal identity – there must be reason to believe that it is being worn at least partly for the purpose of disguise.

There is no power to stop and search for disguises, but if one is being carried, or is discovered during a search for something else, it can be seized where the officer reasonably believes it is intended to be used to conceal anyone’s identity.

Powers to search persons when searching premises

The following powers to search premises include an associated power to search any person found on the premises during the search.

Section 139B Criminal Justice Act 1988

Where a constable has reasonable grounds to suspect that a bladed or pointed article or offensive weapon is on school premises, they may search the premises and any person on them for any such article or weapon.

Section 23(3) Misuse of Drugs Act 1971

Where there are reasonable grounds to suspect that controlled drugs or certain documents are in the possession of a person on a particular premises, a warrant may be issued under this section to search the premises. Any person on the premises may be searched as long as this is specified in the warrant.

Code A says:

Prior grounds specific to the individual being searched are not required, but the decision to search them should still be based on objective factors relevant to the reason for searching the premises, not personal prejudice.

(See paragraph 2.29 for full text)

Powers akin to stop and search

HM Inspectorate of Constabulary recommendation 6:

The College of Policing should make sure that the relevant authorised professional practice include instruction and guidance about how officers should use the Road Traffic Act 1988 power to stop motor vehicles and the Police Reform Act 2002 powers to search for and seize alcohol and tobacco from young people in a way that is effective and fair.

HMIC (2015) Stop and search powers 2: are the police using them effectively and fairly?

Vehicle stops under section 163 of the Road Traffic Act 1988

Section 163 RTA states that a person driving a mechanically propelled vehicle on a road must stop if required to do so by a constable. Not to do so is an offence. There are no procedural requirements for the stop and there is no associated search power.

The officer can ask the driver for their licence and ask the driver and passengers questions, in effect a stop and account. The officer may only search the vehicle or persons in it if one of the stop and search powers applies in the circumstances, eg, if there is intelligence giving reasonable grounds to suspect that drugs or a weapon are being carried in the vehicle. If no power applies, no search can take place.

Although the officer does not need to have any particular reason to stop the vehicle and there is no obligation to explain why the vehicle has been stopped, explaining why the officer decided to stop the vehicle – in line with a procedural justice approach – is likely to improve the quality of the encounter and how it is perceived by the person stopped2.

In addition, officers are subject to the public sector equality duty under section 149 of the Equality Act 2010. In the exercise of their functions, the officer must have due regard to the need to eliminate unlawful discrimination, harassment and victimisation. They are therefore not permitted to stop a vehicle solely based on relevant protected characteristics, including the race, age or religious dress of the driver or passengers.

Police Reform Act 2002 powers to search for and seize alcohol and tobacco

Under section 38 of the Police Reform Act 2002 (PRA), police community support officers (PCSOs) may be designated with the search powers set out in schedule 4 of the Act.

Code A, Annex C specifies that when exercising any of the powers, a PCSO must have regard to any relevant provisions of the code, including conduct of searches and steps to be taken prior to a search.

Designated PCSOs have the power to seize alcohol in a public place from a person under 18 and to seize tobacco or cigarette papers from a person under 16 who is found smoking in a public place. They have a similar power to seize anything they reasonably believe to be alcohol, or a container for alcohol, from anyone they reasonably believe is or has been consuming, or intends to consume, alcohol in a designated public place, whether under a Designated Public Place Order, or a Public Spaces Protection Order.

Paragraph 7A of schedule 4 grants a power to search in such cases where:

  • the PCSO has required the person to surrender the alcohol or tobacco
  • the person has failed to comply with the request and
  • the PCSO reasonably believes the person is in possession of the item.

If all of these elements are present, the power to search is activated, but the PCSO must still obtain the person’s consent in order to proceed to search. When proposing to search, the PCSO must inform the person that it is an offence for them to withhold consent without a reasonable excuse. If they do not consent, the PCSO cannot search the person but can require them to give their name and address. Failing to give their name and address allows a designated PCSO to detain them for up to 30 minutes until the arrival of a constable. The constable will have the option of arresting them for the offence of withholding consent without a reasonable excuse and searching them post-arrest or of exercising a wider stop and search power if there are reasonable grounds to do so.

The legislation specifies some limitations to the extent of the search:

  • The PCSO can search only to the extent reasonably required to find the object of the search.
  • They cannot require the removal of more than a jacket, outer coat and gloves (JOG) in public.

If the PCSO finds controlled drugs in the course of the search, those drugs can be seized without the person’s consent. Under paragraph 7E of schedule 4 of the Act, this includes psychoactive substances where the PCSO reasonably believes that it is unlawful for the person to have the substance in their possession, eg, where the quantity is such as to point to intent to supply. In these circumstances, the PCSO may also require the person to provide their name and address, failure to do so being an offence. The PCSO has specific duties under paragraph 7E(4) to explain to the person the retention and disposal provisions (sections 49-51 and 53) of the Psychoactive Substances Act 2016. The PCSO must also follow any instructions given by a police officer regarding the substance.

By definition, the powers to seize alcohol and tobacco from those under 18 and under 16 involve interaction with children and young people. PCSOs must give particular regard to the specific information on engaging with children when using these powers.

Stop and account

Stop and account does not depend on a legal power. It can be used in any circumstance, as long as it does not breach the public sector equality duty by being based on protected characteristics.

This means, however, that there is no corresponding power to detain a person to talk to them or ask them to account for themselves. They cannot be arrested for not stopping to talk to the officer or answer their questions.

Page last accessed 23 July 2018