Suspicionless Stop and Search: You’re Joking,not Another one!

Abstract

Police stop and search powers have been on the statute book for many years and are widely regarded as being an important tool in the prevention or detection of criminal offences. Whilst most of these powers require that an officer has ‘reasonable grounds to suspect’ that a person is in possession of a prohibited item or article before they may be exercised, the last 30 or so years has seen the emergence of ‘suspicionless’ stop and search powers on the statute book. These have proved to be controversial for a number of reasons, not least because they permit random stop and searches to occur which rarely result in officers finding what they were looking for, and have the potential to strain relations between the police and the communities they serve. Official data also makes clear that they have consistently been used in a racially disproportionate way. Under the Public Order Act 2023, a new suspicionless stop and search power has been created which is exercisable by the police in the context of peaceful protests. The case against it was strongly made in the House of Lords and beyond Parliament. Regrettably, it was not accepted by a government which was also unwilling to amend the legislation so as to enhance the safeguards designed to prevent the misuse of the power.

Introduction

On 19 April 2017, the then Prime Minister, Theresa May MP, secured an overwhelming majority ¹ in the House of Commons in favour of a motion calling for a snap general election in a bid to secure ‘the strong and stable leadership the country needs to see us through Brexit and beyond’. ² On being informed by a BBC journalist that an election was to be held on 8 June 2017, ‘Brenda from Bristol’ remarked: ‘You’re joking, not another one’. ³ Her response went viral, not least because it summed up the mood of many. Nearly seven years on, and in the very different context of police powers of stop and search, her words are nevertheless apposite to describe how many may feel about the enactment of another suspicionless stop and search power. Having dropped the power from what became the Police, Crime, Sentencing and Courts Act 2022, the Government managed to secure its enactment in s.11 of the Public Order Act 2023. ⁴

Suspicionless Stop and Search

A statutory power to stop and search a person in a public place in the absence of ‘reasonable suspicion’ is not a new concept. Suspicionless, ‘without suspicion searches’ ⁵ , ‘no-suspicion stop and searches’, ⁶ or ‘without cause’ ⁷ stop and search powers have previously been enacted in both the Criminal Justice and Public Order Act 1994 ⁸ and the Terrorism Act 2000. ⁹ Indeed, it has rightly been observed that suspicionless stop and searches pre-date these statutory enactments in the sense that it has not been uncommon for stop and searches requiring the presence of ‘reasonable suspicion’ to have been carried out in its absence, ¹⁰ thereby making them suspicionless and unlawful. ¹¹ During the Public Order Bill's progress through Parliament, the then Government sought to justify the introduction of the new power as follows:

In the fast-paced context of a protest, it can be challenging to assert the appropriate level of suspicion needed for a suspicion-led search. In addition, the use of suspicionless stop and search is not inconsistent with the right to engage in peaceful protest, as it would be targeted only at preventing the guerrilla tactics employed by some. ¹²

As the Joint Committee on Human Rights has observed, ‘powers to stop and search without even the need for reasonable suspicion are highly controversial’. ¹³ The fact that they are controversial helps to explain why, as noted above, they have hitherto been reserved for exceptional situations where public safety is at risk due to serious violence or terrorism. Suspicionless stop and search powers have also attracted controversy in terms of their use. Official data from the Home Office has illustrated, for example, that the police rarely find what they are looking for when using these powers. Thus, for example, for the year ending 31 March 2023, of the 4280 searches made under s.60 of the 1994 Act, only 43 persons were found to be carrying an offensive weapon. ¹⁴ Even when the use of the s.60 power was at its zenith in 2008/09, ¹⁵ the 150,174 searches resulted in a mere 1182 persons (0.8%) being found in possession of offensive weapons. ¹⁶

Since it has been suggested that national arrest rates ‘provide a useful proxy measure for the effectiveness of stop and search’ given the ‘absence of robust experiential data’, ¹⁷ it is noteworthy that an arrest following a s.60 stop and search has been a consistently rare outcome. Thus, during the period 2001/02–2022/23, the annual arrest rate ranged from 2% (in 2009/10 and 2010/11) to 12% (in 2016/17). The fact that this ‘high’ was achieved in the same year that the number of s.60 searches was at its lowest (622), suggests a more targeted and evidence-based use of the power in that year. Since then, the arrest rate declined to a mere 3% in 2021/22, and experienced a modest increase in 2022/23, when it was 5%. Throughout the entire 22-year period covered by the data, an average annual arrest rate of 4.6% is hardly suggestive of a discerning use of the s.60 power. ¹⁸ It also compares unfavourably with the arrest rate for stop and searches under s.1 of PACE (and associated legislation) during the same period. ¹⁹

In due course, data on the use of the power under s.11 of the Public Order Act 2023 will be collected by police forces in England and Wales and published annually by the Home Office. This reflects a commitment made on behalf of the former Government to ensure that stop and search data collection includes ‘a breakdown of both suspicion-led and suspicionless searches, cross-referenced with protected characteristics such as age, sex and ethnicity’. ²⁰ Given that it has recently been accepted that there is a ‘lack of publicly available data and information on section 60 authorisations’, ²¹ and recommended that the Home Office should require all police forces to return annual data relating to matters such as the number, location and duration of s.60 authorisations, as well as the number of searches made under each authorisation, it is not unreasonable to suggest that the same reporting requirements also ought to apply to s.11 authorisations.

Opposition in Parliament

Parliamentary opposition to the new suspicionless stop and search power was most pronounced in the House of Lords. Initially, it took the form of attempts to remove not only this power from the Bill, ²² but also the power of stop and search based on reasonable suspicion. ²³ This was despite the view expressed on behalf of the Government that:

Stop and search is a vital tool used to crack down on crime and to protect communities. It is entirely appropriate that these measures are extended to tackle highly disruptive protest offences. ²⁴

A motion to remove the power based on reasonable suspicion was withdrawn by its mover, Lord Paddick, when it became apparent that it did not have the support of Labour peers. ²⁵ A motion to remove the suspicionless stop and search power fared rather better, however, being carried by 285 votes to 208 at the Bill's Report stage. ²⁶ In moving it, Lord Coaker expressed concern that a power previously reserved for ‘murder, terrorism or knife or gun crime’ ²⁷ was now being extended to protests, and that there was a danger that its use ‘will make [the] fragile relationship between the police and those local communities ²⁸ even worse’. ²⁹ In his opinion, providing the police with a suspicionless stop and search power in the present context was ‘a totally disproportionate reaction to what is happening, but the consequences are serious and dramatic, and potentially catastrophic’. ³⁰ Other peers who spoke in the debate shared Lord Coaker's concerns. Thus, for example, Baroness Chakrabarti predicted that a suspicionless stop and search power ‘will be used against young people all over London ³¹ on the day of a protest’, and that it will ‘cause such strife and will poison relationships between the police service and the people it serves’. ³² Similarly, the Lord Bishop of Manchester professed that he had ‘the greatest concerns where stop and search is undertaken without suspicion’, given that ‘such powers are even more at risk of simply being used against young people who look wrong or are in the wrong place’. ³³

House of Commons support for the suspicionless stop and search power in the Public Order Bill meant, however, that it disagreed with the Lords’ amendment to remove it by 281 votes to 236, ³⁴ with the result that the relevant clause was restored to the Bill. Rather than give way to the elected chamber completely, Lord Coaker adopted a different tactic; seeking to amend the power so as to improve or add to the safeguards to which it would be subject. The first attempt, which secured the support of a majority of peers who voted, ³⁵ involved a package of amendments not unlike those which formed part of the Best Use of Stop and Search (BUSS) scheme introduced by the then Home Secretary, Theresa May MP, and which applied to s.60 of the Criminal Justice and Public Order Act 1994. ³⁶ They included, for example, increasing the seniority of the rank of officers able to either grant authorisations to use the suspicionless stop and search power, ³⁷ or to extend their use, ³⁸ as well as reducing the duration of an authorisation from 24 to 12 h. ³⁹ Additionally, Lord Coaker proposed a new subsection which would have imposed a duty on a chief superintendent to take ‘reasonable steps’ to inform the public when an authorisation was in place. He informed the House of Lords that he had got the idea from the former Metropolitan Police Commissioner, Lord Hogan-Howe, who had previously indicated that the practise was commonplace in central London. ⁴⁰ It is noteworthy that in speaking on behalf of the then Government, whilst Lord Sharpe was ‘sympathetic’ to this particular amendment, he thought that a statutory communication requirement would introduce an undesirable inconsistency between the new provision and s.60 of the 1994 Act. ⁴¹

This is a weak and uncompelling argument. Any inconsistency between s.60 and the new suspicionless stop and search power could have been easily removed by amending the statutory regime under the 1994 Act, as happened previously by virtue of s.8 of the Knives Act 1997. More fundamentally, however, citing the potential for inconsistency between statutory powers as a reason for not looking again at the safeguards relating to a new suspicionless stop and search power was not a very principled objection to the proposed amendment. The police have previously been able to cope with differences in stop and search regimes without there being evidence of confusion. ⁴² Thus, the BUSS scheme saw them work to a set of voluntary restrictions which were tighter than those set down in s.60 itself. Moreover, aspects of the now repealed suspicionless stop and search power under the Terrorism Act 2000 were different to those under s.60, such as the seniority of an officer able to grant an authorisation ⁴³ as well as its duration. ⁴⁴

The House of Commons’ rejection ⁴⁵ of Lord Coaker's amended version of the suspicionless stop and search power might have been the end of the matter. After all, given its position as an unelected revising chamber, the House of Lords does not have a democratic mandate to insist that its will is fully reflected in the legislation which Parliament enacts. However, two important developments which occurred ‘after the Government threw out our mitigation completely’, ⁴⁶ emboldened Lord Coaker to pursue the matter further: the publication of the Casey Review; ⁴⁷ and the publication of a report by the Children's Commissioner into the strip-searching of children. ⁴⁸ Here is not the place to discuss the findings and recommendations made in either report. ⁴⁹ Nevertheless, it should be noted that Baroness Casey formed the view that ‘stop and search is currently deployed by the Met ⁵⁰ at the cost of legitimacy, trust and, therefore, consent’, ⁵¹ which caused her to make the following recommendation:

The use of stop and search in London by the Met needs a fundamental reset. The Met should establish a charter with Londoners on how and when stop and search is used, with an agreed rationale, and provide an annual account of its use by area, and by team undertaking stop and searches. Compliance with the charter should be measured independently, including the viewing of Body Worn Video footage. As a minimum, Met officers should be required to give their name, their shoulder number, the grounds for the stop and a receipt confirming the details of the stop. ⁵²

It is worth noting in passing that several aspects of this detailed recommendation are already reflected in statute. Thus, for example, an officer who intends to carry out a stop and search under any statutory power, including s.11 of the Public Order Act 2023, is under a duty to inform the person to be searched of various matters prior to the search, including the officer's name, ⁵³ as well as their grounds for proposing to make it. ⁵⁴ Despite the statute's silence on the matter, ⁵⁵ a line of authority confirms that a stop and search is unlawful if the information requirements have not been complied with prior to the search beginning. ⁵⁶ For present purposes, however, the significance of Baroness Casey's recommendation lies in its influence on Lord Coaker's second attempt to ‘mitigate the impact of a clause that should not really be there in the first place’. ⁵⁷ Thus, his motion sought to add various subsections to what is now s.11 of the 2023 Act, thereby enshrining in statute key elements of this particular Casey recommendation.

Had they become law, they would have seen all police forces in England and Wales, rather than just the Metropolitan Police Force, subject to a statutory duty to draw up (within one year) a Stop and Search Charter relating to the use of the s.11 power, and to produce annual reports on the power's use. They would also have seen authorising officers being made subject to a statutory duty to publish, within one month, the reasons for their decision to authorise the use of the s.11 power. The motion was again supported by a majority of peers who voted on it, ⁵⁸ including: the Lord Bishop of Manchester, who felt that ‘we need to put something in the Bill that recognises that we have heard what was said by the noble Baroness, Lady Casey’; ⁵⁹ Baroness Butler-Sloss; ⁶⁰ and Baroness Meacher, who considered that the ‘incredibly modest’ amendment was based on the principle ‘that stop and search without suspicion is a completely exceptional step to be taken in a democracy’. ⁶¹ Regrettably, however, the Lords’ further attempts to improve the provisions relating to the new suspicionless stop and search power failed to move the Conservative Government.

The Anatomy of the New Power

Since it has been openly acknowledged on behalf of the Government that s.11 of the Public Order Act 2023 is modelled on s.60 of the Criminal Justice and Public Order Act 1994, ⁶² it is unsurprising that they share a number of common characteristics. The principal similarity is, of course, that the provisions empower a constable in uniform ⁶³ to stop any person or vehicle and carry out a search of that person or any occupants of the vehicle for relevant articles, ‘whether or not the constable has any grounds for suspecting that the person or vehicle is carrying a prohibited object’. ⁶⁴ A far wider class of objects may be searched for under the s.11 power than under s.60. Thus, whereas the latter only relates to searches for dangerous instruments or offensive weapons, ⁶⁵ under the new power, the police are able to search for a ‘prohibited object’, ⁶⁶ that is, one made or adapted for use in the course of or in connection with any of the offences listed in s.11(1)(a)(i)-(vii), which include wilful obstruction of the highway, ⁶⁷ and a number of the new protest-related offences provided for in the 2023 Act itself, such as locking on, ⁶⁸ causing serious disruption by tunnelling, ⁶⁹ or obstruction etc. of a major transport works. ⁷⁰ Since ‘reasonable suspicion’ is not, therefore, a legal requirement for the exercise of the s.11 power, in contrast to most other police powers of stop and search, ⁷¹ it may be used entirely randomly. Whilst a senior police officer giving evidence before the Home Affairs Select Committee has disputed the existence of random stop and search, ⁷² this view is not shared by others, including senior judges. Thus, in R (on the application of Roberts) v Metropolitan Police Commissioner, ⁷³ Lady Hale and Lord Reed jointly remarked in relation to s.60 of the 1994 Act that it is ‘the randomness and therefore the unpredictability of search which has the deterrent effect and also increases the chance that weapons will be detected’. ⁷⁴ That said, it is debatable whether the deterrent effect of the use of stop and search powers is capable of measurement. ⁷⁵

It is important to stress that the purpose of a s.11 search is confined to looking for a ‘prohibited object’ ⁷⁶ which may be in a person's possession, and that ‘the powers must not be used to stop and search persons and vehicles for reasons unconnected with the purpose of the authorisation’. ⁷⁷ It would be unlawful, therefore, for an officer to search a person under the purported authority of s.11 when they have an unconnected purpose in mind, for example, they intend to carry out a drugs search but are aware that they do not have the necessary ‘reasonable suspicion’ at the material time. Establishing that this was so in a particular instance may prove to be a difficult task. There is a danger, therefore, that a criticism which has been levelled at the s.60 power, that it has regularly been misused by the police as a response to a ‘far wider range of incidents than was originally intended’, ⁷⁸ might become equally applicable to the s.11 power.

Despite the fact that an officer is not legally required to have ‘reasonable suspicion’ as a pre-requisite for using the s.11 power, they do have a discretion ⁷⁹ in the matter. In other words, when a s.11 authorisation is in place, there is no corresponding duty on a police officer to use the power. Thus, whilst s.11 may be used to conduct random suspicionless stop and searches, it is highly unlikely to be an effective use of police time and resources to deploy the power entirely randomly. Rather than stop and search everyone within the specified locality whilst a s.11 authorisation is extant, a more discerning use of the power would make operational good sense even if, ‘there is nothing preventing an officer authorised to use these powers from doing so arbitrarily – or indeed on the basis of a suspicion that is unreasonable’. ⁸⁰

It should not be forgotten that under the 2023 Act, the s.11 power is not permanently available to police constables in any of the police forces in England and Wales. Rather, as has been noted, its exercise is dependent upon an authorisation having first been granted by an officer of the rank of inspector or above. ⁸¹ This mirrors the position in relation to the power in s.60 of the 1994 Act. ⁸² Given that an inspector is more likely to be based locally than a superintendent, it might be argued that they are therefore more able to make an informed decision when issuing a s.11 authorisation. In terms of the requirement acting as a safeguard, however, an officer who is more removed from the locality may be able to be more objective about whether there is a need for the s.11 power to be made available on a particular occasion. This is likely to have been the reasoning behind Lord Coaker's unsuccessful attempt (referred to above) to amend what became s.11 so as to increase the seniority of rank of an authorising officer from an inspector to a chief superintendent. ⁸³

A s.11 authorisation may only be granted where the officer ‘reasonably believes’ (rather than has ‘reasonable grounds to suspect’) that any of the protest-related offences referred to above may be committed in any locality within the relevant police area, or that persons are carrying ‘prohibited objects’ in the locality. Moreover, the authorising officer must ‘reasonably believe’ that: the authorisation is necessary to prevent either activity; ⁸⁴ and the specified locality and time period is no greater or longer than is necessary to prevent such activity. ⁸⁵ PACE Code of Practice A confirms that there must be an objective basis for an authorising officer's reasonable belief. ⁸⁶ This may take the form of information or intelligence relating to, for example, ‘a history of antagonism and commission of protest-related offences by specific protest groups’, or ‘previous incidents of serious disruption at, or connected with, particular events or location’, or ‘a significant increase in protest-related criminal activity in a limited area’. ⁸⁷ A recent investigation in relation to s.60 stop and searches found, amongst other things, that ‘most authorisations were spontaneous, made by forces either in response to incidents of serious violence or to prevent such an incident occurring’, and that it was ‘rare for a force to authorise section 60 for a pre-planned event’. ⁸⁸ In the case of s.11, however, it seems likely that the reverse will be the case. In other words, authorisations will be issued in response to pre-planned events such as marches, and will only rarely occur spontaneously.

Section 12 ⁸⁹ of the 2023 Act makes further provision about authorisations and directions made under s.11. It requires an inspector who has issued an authorisation to cause an officer of at least the rank of superintendent to be informed as soon as it is practicable to do so. ⁹⁰ It also requires that s.11 authorisations, and directions extending them by up to 24 h, ⁹¹ must be given in writing, ⁹² although in the case of a direction, if this is not practicable an oral direction may be given which must be recorded in writing as soon as it is practicable to do so. ⁹³ It would seem that a direction may only be given on one occasion. ⁹⁴ If it was felt, therefore, that the time period stipulated in the original s.11 authorisation, coupled with an additional period provided for in a direction, was still insufficient, rather than seek to make a further direction, it would be necessary instead for a new authorisation to be granted. This would be the case even where the duration of the two directions, taken together, would not have exceeded the 24 h limit.

In addition to the need to be in writing, a s.11 authorisation is subject to three further requirements. Thus, it must specify: the grounds on which it has been made; the locality to which it relates; and the period for which it lasts. ⁹⁵ Given that s.11 is modelled on s.60 of the Criminal Justice and Public Order Act 1994, it is a concern that it has been suggested that in practice, s.60 authorisations have been regularly renewed with the result that particular areas have been ‘subject to stop and searches without reasonable suspicion on a virtually continuous basis’. ⁹⁶ If police forces were to adopt a similar approach in relation to s.11 authorisations, there is a danger that the power will be used in circumstances beyond those which Parliament intended. It is to be hoped, therefore, that in identifying the locality to which a s.11 authorisation applies, a police superintendent will seek to confine its extent to that which is absolutely necessary, ⁹⁷ as well as giving proper consideration to specifying a duration which is below the 24-h maximum set down in s.11(3)(b) of the 2023 Act. ⁹⁸

Further Associated Provisions

The Public Order Act 2023 makes additional provision in relation to s.11 stop and searches which merits consideration. Thus, under s.13 ⁹⁹ of the Act a person, or the driver of a vehicle which has been stopped and searched under s.11, is entitled to a written statement that this occurred. It is notable that the onus is on the citizen to apply for such a statement, and that they have 12 months within which to do so beginning with the day on which the s.11 search took place. ¹⁰⁰ In other words, therefore, the police are not under an obligation to provide a written statement relating to a s.11 stop and search as a matter of course. Where an application for a written statement has been made within 12 months, the Act is silent as to two important matters: how long the police have to respond to it; and what information the ‘written statement’ should contain. At the very least, it can be assumed that the police will be expected to respond in a timely manner to an application for a written statement. That said, if an application were made close to the expiry of the 12-month period, and the police were to take several weeks to supply the written statement, it would relate to events which have occurred more than a year before. This is in contrast to s.3 of the Police and Criminal Evidence Act 1984, which provides that a person who has been stopped and searched is entitled to a copy of the record of the encounter provided that they request it within 3 months of the date on which the search was made. ¹⁰¹ It is unclear from the 2023 Act itself how s.13 and s.3 of the 1984 Act fit together, even though a s.11 search would seem to fall within the scope of the duty to make a record as laid down in the earlier provision. The recently revised PACE Code of Practice A sheds a little light on the matter when it notes that a s.13 statement ‘may form part of the search record or be supplied as a separate record’. ¹⁰²

Section 14 ¹⁰³ of the 2023 Act makes it a specific summary offence to intentionally obstruct a constable who was exercising the s.11 power at the time. A similar offence is committed where a person fails to stop when an officer intends to search them for dangerous instruments or offensive weapons. ¹⁰⁴ For more than a century, however, it has been a general summary offence to wilfully obstruct a police constable who was acting in the execution of their duty at the material time. ¹⁰⁵ A not inconsiderable body of case law has arisen in relation to this offence, relating to matters such as the meaning of the statutory words. Thus, in Hinchcliffe v Sheldon, ¹⁰⁶ it was held that obstructing meant ‘making it more difficult for the police to carry out their duties’. ¹⁰⁷ In the later case of Rice v Connolly, ¹⁰⁸ as well as confirming this meaning of ‘obstruction’, ¹⁰⁹ the Divisional Court also provided clarification as to the meaning of ‘wilful’ when Lord Parker CJ observed that it meant not only ‘“intentional” but something which is done without lawful excuse’. ¹¹⁰ Whilst s.14(1) is worded a little differently to s.89(2) of the Police Act 1996, there is no reason to think that ‘obstruction’ means something different in the two offences. If this is correct, it might be argued that the ‘new’ offence represents an example of the criminalisation of behaviour which already amounts to an offence and that accordingly, its inclusion in the 2023 Act was unnecessary.

In the fullness of time, an important difference between the s.14(1) and s.89(2) summary offences will be the maximum custodial penalty which may be imposed in the event of a conviction. ¹¹¹ Thus, whereas the maximum penalty for the s.89(2) offence is one month in prison, ¹¹² it will be 51 weeks for the s.14(1) offence when s.281(5) of the Criminal Justice Act 2003 finally enters into force. ¹¹³ Until then, however, the maximum term of imprisonment for the new offence is also one month. ¹¹⁴ The fact that the maximum fine for both offences is the same, that is, level 3 on the standard scale, ¹¹⁵ is a further reason to doubt the need for s.14(1). ¹¹⁶

In its written evidence to the Public Order Bill Committee, Liberty expressed concern about the impact which the s.14 offence may have upon legal observers at protests. ¹¹⁷ Thus, it explained:

… we can envision a situation whereby a legal observer on their way to a protest may be stopped and searched for carrying items such as bust cards ¹¹⁸ or wearing an identifiable yellow bib, on the basis that these are ‘prohibited objects’ because they are made for use ‘in the course of or in connection with’ the conduct of others of one of the listed offences. ¹¹⁹

Concerns about s.14 were also expressed during the Bill's Second Reading debate in the House of Lords. Thus, Lord Beith was of the view that the provision ‘appears to criminalise even the kind of questioning which was encouraged after the dreadful Sarah Everard case, when people were told in such situations to question whether the police officer had the authority to approach the person at all’. ¹²⁰ It may be the case, however, that this reads too much into s.14. If ‘obstruct’ means the same in this provision as it does in s.89(2) of the Police Act 1996, as suggested previously, then it might be argued that a protestor or legal observer who seeks clarification from a police officer as to the exercise of their powers is not necessarily making it more difficult for the officer to carry out their duty. It might only become so if their questioning persists despite a warning not to, ¹²¹ and/or is designed to interfere with the policing of a protest.

Conclusion

It has been suggested that the introduction of the power under s.60 of the Criminal Justice and Public Order Act 1994, along with the amendment of a similar power under anti-terrorism legislation, has been ‘perhaps one of the most significant developments in the law governing stop and search in the post-PACE period’. ¹²² The enactment of s.11 of the Public Order Act 2023 may be similarly described, not least because unlike these other suspicionless stop and search powers, it does not deal with ‘serious offences punishable with lengthy prison terms, but with the possibility of non-violent offences relating to protest’. ¹²³ As such, s.11 constitutes a significant and regrettable dilution ¹²⁴ of the principle of suspicionless stop and search at a time when the power on which it is based, s.60 of the 1994 Act, has been under attack from different angles. From the Parliamentary angle, the Police Stop and Search (Repeal) Bill received its First Reading in the House of Commons on 24 June 2020. ¹²⁵ Its purpose was narrower than its short title implied. Rather than seek to repeal police powers of stop and search per se, its real target was three provisions in the 1994 Act: sections 60, 60AA ¹²⁶ and 60A. ¹²⁷ Had it become law, it would not have repealed s.60. ¹²⁸ Instead, it would have disapplied the provision in England and Wales by inserting a new subsection into s.60 to this effect. ¹²⁹ Whilst the reform was unpalatable to the Conservative Government given its continuing view that stop and search is an effective tool in the fight against crime, the fact that it was introduced confirms that s.60 ‘is still one of the most contentious police powers’, ¹³⁰ and that opposition to it remains.

Outside of Parliament, both the existence and exercise of s.60 has been under attack before the courts ¹³¹ and by academics. ¹³² It was also recently the subject of a ‘super-complaint’ made by the Criminal Justice Alliance (CJA) pursuant to s.29A of the Police Reform Act 2002, and jointly investigated by the College of Policing, His Majesty's Inspectorate of Constabulary and Fire & Rescue Services and the Independent Office for Police Conduct. In their subsequent report, whilst the investigators noted how they ‘don't have enough information to assess whether forces’ current use of section 60 causes more harm than good’, ¹³³ the issue which was at the heart of the super-complaint, they did express a number of concerns relating to s. 60, including that: ‘forces take different approaches when deciding whether to use’ the power; that there is a ‘lack of clarity about what constitutes success after a section 60 authorisation’; and that none of the police forces to whom the investigators spoke could explain why the data shows that the power is used in a racially disproportionate way. ¹³⁴ Whilst this is not the place to consider the detail of the report's recommendations, ¹³⁵ it is more than a little surprising that the former Government chose to introduce a further suspicionless stop and search power in the Public Order Bill at a time when a cloud hung over s.60. The publication of the report cannot be said to have changed the outlook. Instead, it has highlighted matters which need to be addressed in relation to the use of s.60, ¹³⁶ and which ought to inform police behaviour and practice in the context of s.11 if history is not to repeat itself.

Whilst the safeguards to which s.11 is subject are ‘long-established’, ¹³⁷ the weight of evidence and opinion suggests that they are ineffective in preventing the misuse of stop and search powers, regardless of whether or not they are based on the requirement of reasonable suspicion. Thus, for example, whilst the former Government has amended Code of Practice A to take account of some of the matters which the House of Lords would have liked to have seen on the face of the 2023 Act, the European Court of Human Rights has previously stated that ‘the Code governs essentially the mode in which the stop and search is carried out, rather than providing any restriction on the officer's decision to stop and search’. ¹³⁸ In other words, it is more concerned with procedural formalities than curbing the excesses which are likely to arise where officers’ decisions as to whom to stop and search may be made on the basis of hunches or gut instincts. It may only be a matter of time, therefore, before suspicionless stop and search under s.11 is subject to the same or similar challenges to those previously brought against s.60 of the 1994 Act.