At the end of last year policing’s main inspection and standards bodies – HMICFRS, the College of Policing and the IOPC – published a joint report responding to the Criminal Justice Alliance’s (CJA) super-complaint on Section 60 stop and search and the arrangements in place for community scrutiny of all stop and search practices.
Super-complaints are an important and relatively new addition to the police accountability landscape, enabling designated independent bodies (like the CJA, an umbrella network of organisations campaigning for criminal justice reform) to trigger official investigations into systemic policing issues that may be damaging the public interest.
The case against Section 60 – a power that allows police officers to search for weapons, where a senior officer deems there to be a heightened risk of serious violence, without the grounds for suspicion normally required under Section 1 of PACE – is summed up by the title of the complaint: that it does More Harm Than Good.
Set against minimal arrest rates and a lack of evidence on crime reduction, ‘suspicion-less’ searches – the CJA argues – exacerbate discrimination (Black people are 18 times as likely to be stopped under Section 60 that White people), induce trauma, undermine community co-operation and impede police effectiveness. The complaint calls for the law to be repealed and, failing that, for stringent safeguards to be applied, including mandating compliance with the College of Policing’s Best Use of Stop and Search Scheme.
Section 60 has always been controversial. Since coming into force in the 1990s (primarily as a power for tackling football hooliganism) its use has fluctuated wildly, peaking at the height of the Met’s Operation Blunt in 2008/9, when more than 150,000 Section 60 searches were carried out, then crashing to less than 1,000 per year following reforms brought in by then Home Secretary Theresa May, then creeping back to around 18,000 searches in 2019/20, during a controversial government pilot that (in part) catalysed the CJA’s complaint.
It’s worth noting that usage has since fallen back to around 4,300 searches per year and that less than one percent of all police searches are currently conducted under Section 60, but this susceptibility to political context – and hence the inherent potential for re-escalation – was one of the reasons we took a long look at the power during the Strategic Review of Policing in England and Wales.
Although eventually concluding that there could be ‘extraordinary circumstances’ in which the power was justified, and hence stopping short of recommending repeal, we were concerned about the civil liberties implications, the impact on police legitimacy, and the data and accounts of recent police practice. We called for more stringent constraints on authorisation, a shift in violence reduction strategy and reductions in the quantity, and improvements in the quality, of all stop and search.
In light of this, it is concerning to read HMICFRS et. al’s recent report findings. They place the issue of repeal firmly beyond their scope (although the CJA contends that they could, and should, have recommended legislative review) and conclude that the ‘balance of harm’ question is currently unanswerable (again contested), but they also detail an extensive catalogue of flawed police practice – in relation to training, briefing, PACE compliance, handcuffing, Body Worn Video, risk assessment, safeguarding, supervision, and community and equalities impact monitoring – that begs the question of whether police practice in this area is currently safe.
Three lines of thought unwind from the investigation. The first relates to compellability and the apparently persistent inability of police forces to get their stop and search house in order. There is a conspicuous tension between the report’s verdict that:
“Concerningly…forces aren’t paying enough regard to the detailed legal requirements, or to the NPCC’s guidance, or to the College of Policing’s APP. It shouldn’t be necessary…to remind the police to comply with their long-standing statutory responsibilities and to follow the guidance, especially for something as controversial as Section 60”,
and its list of recommendations for internal reviews, changes to the (voluntary) training curriculum and updates to practice guidance, that themselves amount to (yet another) set of strongly worded reminders.
For all the investigators’ thoroughness (notwithstanding the telling caveat that they were unable to interview a single person who had experienced a Section 60 stop) the credibility of the process rests on its potential to instigate change where it is found to be needed. For all the accuracy of scrutineers’ bite, and the tenacity of their chew, one wonders if their teeth are just not big enough.
Second, it begs the question of whether the blueprint for the regulatory safety net that has developed around Section 60 is actually plausible. Can we imagine a realistic world in which the police are substantially compliant with all the layers of law, guidance and specified best practice across a large majority of the varied scenarios in which they deem it necessary to authorise and deploy section 60 at short notice? – One wonders, for instance, whether guidelines around evaluation and impact assessment could actually generate significant insight, or whether there are any adequate ways of effectively communicating with the public when a Section 60 is authorised. It’s also worth noting that many forces have very little experience of using the power and (with training requirements geared to usage level) these seem inevitably less likely to do it well when they need to.
If widespread compliance is genuinely achievable, we need to ask what more might be required to catalyse the step change in professionalism that would bring it about. If it is not, we need to call out the delusion and double speak than allows the gap between ‘best’ an actual practice to persist.
Finally, the debate highlights the need for more sophisticated frameworks for thinking about harm in policing. The term is increasingly part of the vernacular: along with threat and risk it has become central to the machinery of operational triage, policing has been sensitised to the way it can be ‘hidden’, and harm indices have been developed to aid prioritisation and evaluation, based on recorded crime levels.
In areas like vehicle pursuit, firearms deployment or informant handling police are acutely aware of the harm their actions could cause, and rigorously apply regulatory processes to control and mitigate it (just imagine if police gun use was found to be as extensively non-compliant as Section 60!). But in these cases, the collateral harm that might ensue tends to be immediate, obvious, physical, and catastrophic. Processes for revealing, assessing and mitigating the chronic, insidious, social harms that attend practices like suspicion-less stop and search are much less well-developed (despite some exploratory academic attention): weighing the goods and harms of police practice needs, not just a better evidence-base, but better ways of calibrating what we value.