Using section 60 in line with the Code of Ethics
Montell Neufville says that in stop and search encounters, the biggest issues surround how section 60 powers are used.
The problem with the use of section 60 is not actually anything to do with this power in my opinion. As a police ethics adviser and trainer it is down to officers of more than one rank failing to apply the Code of Ethics in all their work and decision-making.
The Black Lives Matter worldwide campaign has caused many police forces and police crime commissioners to reflect on whether their powers are being used fairly. Well, in many cases many police forces have not put in place the systems and procedures to ensure they carry out their roles in line with the Code of Ethics.
Here is a short scenario:
An officer approaches a person and says: “There is a section 60 in place so I am going to stop and search you.”
“What for, why I haven’t done anything,” says the young man.
“I’m not saying you have but with a section 60 I can stop and search anyone I choose,” the officer says.
“But why? Why me not him my friend or why not those people over there?” replies the young man.
“I don’t have to give a reason, I’m choosing to stop and search you. To protect you or me I’m going to place you in handcuffs. Do you have anything on you that could hurt you or me?” adds the officer.
“No and why are you going to handcuff and search me? I don’t have anything and haven’t done anything,” says the young man.
Honesty and integrity
Let us first look at upholding the integrity of the force. What do you think of this exchange? Is the person right to ask the police officer to explain why they have singled this gentlemen out? Should the power be used when there appears to be no legitimate policing reason to stop that young gentleman?
Let us explore two situations. In the first, the police officer genuinely thought they can stop anyone for any reason and randomly picked out that gentleman. He happened to look different from everyone else around. Was the officer correct? Does he have this power?
In the second, the officer knew he could abuse his powers and “get away with it”. If the subject did not like it they would be arrested for obstructing an officer in the performance of his duties.
Authority, respect and courtesy
A key element of the code of ethics states: “I will act with self-control and tolerance. I will use my powers and authority lawfully and proportionately, and will respect the rights of all individuals”
In this example, the standard clearly is not being adhered to.
So what is this law that can be used in such intrusive an ineffective ways? Why is it that when this power is used it tends to be used disproportionately on young black males and does not appear to be used to tackle crime. To understand this it is important to read the actual legislation.
Section 60 of the Criminal Justice and Public Order Act 1994 gives police the power to search people in a defined area during a specific time period when they believe, with good reason, that serious violence will (or may) take place and it is necessary to use this power to prevent such violence.
The key sentence is “will/may take place and its necessary to use this power to prevent the violence”. This does not mean the power can be used indiscriminately in a way that does not meet the impartiality test.
The objective of using the power is for officers to confirm or ally their suspicions that a person is carrying a dangerous object or offensive weapon; or that an incident involving serious violence has taken place and a dangerous instrument or offensive weapon used in the incident is being carried in the locality. If this were the test then why would an officer think it is OK to search people who clearly do not have any offensive weapons on their person or they do not believe is carrying an offensive weapon?
In my view, when approving the legislation Parliament made an error with section 60 legislation when it had the line that stated “without reasonable suspicion”, as it allows for this tactic to be used in a way that is discriminatory and not for legitimate impartial reasons. For this reason, section 60 stop and searches should have greater policing reasons “to fight crime and protect the public”. Officers should always give a reason to every individual stopped and searched to build trust and confidence and to demonstrate they are acting with impartiality, and in line with the Code of Ethics.
Supervision, scrutiny and accountability are key factors to ensure the ‘trust and confidence’ of communities in the use of policing powers. For section 60s, authorisations must be justified on the basis that the exercise of the power is a proportionate and necessary response for achieving the purpose for which Parliament provided the power. This legislation has to be authorised by a senior officer, so the senior officer should have to account why he or she authorised this in the first place and what the outcome was after the authorisation. Was it necessary and how do you know it prevented serious violence?
Taking responsibility for section 60
Who should monitor and manage the use of section 60s to ensure that they are used for the purpose Parliament intended? First of all, the authorising officer must justify why they took the action on a person. They are accountable for their actions. Secondly, every rank officer should satisfy themselves that their colleagues are acting in a way which is fair and they are using their powers legitimately. Thirdly, sergeants should ensure that both they and constables in their teams can satisfy members of the community that there was a legitimate policing purpose for every encounter and every occasion the powers were used.
For police constables and sergeants who have been told to carry out section 60s they must be aware that how they carry this out is down to the individual. They are accountable for their own individual decision-making.
In addition, let us look at a couple of other ethics standards: Orders and instructions: “I will, as a police officer, give and carry out lawful orders only. Equality and diversity: “I will act with fairness and impartiality. I will not discriminate unlawfully or unfairly.”
If any one group in society is targeted for no policing reason or without a description of a person or persons likely to be carrying weapons, this could clearly be a case of discriminating and using the powers unfairly contrary to the code of ethics.
Section 60 is not a fishing rod, used to tell people on the streets that officers have the power to search them, handcuff and then act as if this is the whole purpose of the laws – to demonstrate control. Section 60 powers are often used after a stabbing to demonstrate that the police are doing something about this, while the main reason for its use should be to help police officers find a person or people who are still carrying weapons.
This law was introduced to deal with football hooligans, particularly when rival football fans or ‘firms’ arranged to meet. It is now used almost as a response to satisfy politicians and the media rather than to achieve a legitimate a policing outcome.
The actual time period this law is in place should be the exact amount of time required to search for the said offensive weapons (up to a maximum of 15 hours). How do members of communities subject to a stop and search under a section 60 know if this was legitimate? The police are required to publicise a section 60 is in force, where it is in force and how long it will be in force, as well as who has authorised it. The problem is where this is promoted. Perhaps police forces should publicise this in a place where an officer can show a member of the public a website or app confirming this is in place.
Section 60s can be authorised by an officer of, or above, the rank of inspector. Under the ‘Best Use of Stop and Search’ scheme reforms agreed by all police forces, this was raised to an assistant chief constable or their equivalent rank. They often wanted more information to satisfy themselves that serious violence may or will take place in the designated area and that these powers could prevent this, or at least detect those going ‘equipped’.
Let us now consider challenging and reporting improper behaviour: “I will report, challenge or take action against the conduct of colleagues which has fallen below the standards of professional behaviour.” If this standard is followed, individual officers should question and challenge colleagues whom they are not convinced are doing the right thing. I know this does happen in some cases.
Like in every field there should be feedback and reflection. This means that if there are no weapons but high levels of disproportionality. The use of section 60 appears to be a carbon copy of the ‘sus’ laws. ‘Sus’ allowed the police to stop, search and arrest anyone they suspected might commit an offence. This was based on the hunch or opinion of an officer.
‘Sus’ swiftly became a blunt tool for particular (not all) police officers to use against black people. Its excessive and discriminatory use was ultimately a large contributing factor to the ‘race riots’ that spread across the UK during the 1980s.
‘Sus’ was repealed in when the Police and Criminal Evidence 1984 Act (PACE) was enacted in 1985 (passed in 1984). This put in statue the requirement for reasonable suspicion in what would come to be the second most commonly used stop and search power, the most used power being the Misuse of Drugs Act 1973
In 2018, black people were 40 times more likely to be stopped and searched under section 60 than white people. Under PACE this varied from around three times to around nine times in most parts of the country. The biggest issue is that the ‘find rates’ from section 60s is pitifully low and senior officers do nothing about the way officers who report to them are using these powers.
Is it clear that when carrying out stop and searches under section 60, police officers are meeting the standard of “I will act and make decisions on merit, without prejudice and using the best available information”. Not if there is not a justifiable reason to search every individual.
Police officers should remember that these community members are often the very same people they may wish to engage as officers or staff members, may be victims of crime, may complain about hate crimes, may even be people who support other victims and deter people who make criminal choices in their communities.
‘Silence is not an option’ is a phrase, but also doing nothing is an offence under the Code of Ethics
Montell Neufville is a police ethics adviser, trainer and chair of a police community scrutiny panel.