Allegations of the Discriminatory Use of Stop and Search Powers before the Courts: Some Recent English and American Experiences

Abstract

Statutory stop and search powers constitute an important weapon in the police's armoury in the battle to prevent or detect the commission of criminal offences. Many such powers are only capable of being exercised where a police officer reasonably suspects that a person is in possession of an item or article that they ought not to have, e.g. a stolen or prohibited article, a firearm, a controlled drug etc. The ‘reasonable suspicion’ requirement is therefore intended to be a safeguard to prevent the arbitrary use of a stop and search power, even though it is not defined in any of the relevant enactments. However, not all stop and search powers require reasonable suspicion as a condition precedent for their exercise. Section 60 of the Criminal Justice and Public Order Act 1994, as amended, is one such power. A recent Court of Appeal judgment merits consideration for the light which it shines on the s. 60 power and its compatibility with the ECHR. It is of further interest in that it may be contrasted with a recent American case, concerning the New York Police Department's ‘Stop and Frisk’ policy, where an American judge was required to consider the constitutionality of the exercise of this important police power.