Protection of Freedoms Bill

Memorandum submitted by the Independent Police Complaints Commission (IPCC) (PF 85)


The IPCC welcomes the development of the Protection of Freedoms Bill, and makes a number of suggestions to inform the development of the Search Powers Code, to ensure stop and search powers are used appropriately.

About the Independent Police Complaints Commission (IPCC)

1. The IPCC was created by the Police Reform Act 2002 as a Non-Departmental Public Body (NDPB) to deal with complaints and allegations of misconduct against police in England and Wales. It became operational on the 01 April 2004, replacing the Police Complaints Authority (PCA).

2. In later years, the IPCC’s remit was extended to include the Serious and Organised Crime Agency (SOCA), and the investigation of serious allegations against officers of HM Revenue and Customs (HMRC) and the UK Border Agency (UKBA).

3. The IPCC is overseen by a Board of Commissioners appointed by the Home Secretary. By law, Commissioners must never have worked for the police service in any capacity. They safeguard the IPCC’s independence and are the public face of the organisation.

4. The IPCC’s remit includes:

· investigative powers: the IPCC may independently investigate cases, oversee police investigations of cases, or decide cases can be investigated locally by the police and without oversight;

· an appeal function: complainants who are unhappy with how the police dealt with their complaint may submit an appeal to the IPCC; and

· the power to direct misconduct proceedings: the IPCC has the power to direct a force to convene a disciplinary tribunal and, in exceptional cases, may direct that the tribunal be held in public.

5. The IPCC also has a statutory responsibility to increase public confidence in the police complaints system. To assist in meeting this responsibility the IPCC has a guardianship function, which consists of four main elements:

· a duty to increase public confidence in the system as a whole;

· promoting accessibility of the complaints system;

· setting, monitoring, inspecting and reviewing standards for the operation of the whole system; and

· promoting a learning culture so that lessons may be learnt from the system.

6. The IPCC endeavours to carry out its work with respect for human rights and aims to ensure effective remedies for individuals whose rights have been breached.

IPCC experience

7. The IPCC would like to comment on the section of the Bill concerned with Replacement powers to stop and search in specified locations and make suggestions to inform the development of the Search Powers Code.

8. This submission is based on our experience of handling complaints relating to police use of stop and search powers, and evidence gathered through our own engagement with communities as part of our guardianship work.

9. Over the past seven years our experience has led us to believe that complaints about stop and search are often not about the stop itself but about the officer’s failure to explain why it was necessary, or about the manner in which it was carried out.

10. The IPCC believes that the police must be able to demonstrate that they are using stop and search powers effectively. It is not enough for their use to simply be within the law.

11. Where stop and search powers are used they should be used in a way that demonstrably meets the objectives of fairness (incorporating the requirement for officers to explain the reason for the stop), effectiveness and carrying public confidence (including the need for police commanders to engage with local communities about their use).

12. Since April 2010 the IPCC has worked with the police service to champion these principles, sharing lessons learnt from our work, and working with forces individually to deal with any issues identified. Following this, we published our policy, see Annex A.

The Search Powers Code

13. The IPCC recommends that the Search Powers Code replicates the Code of Practice recently developed for the Authorisation and exercise of stop and search powers relating to Section 47A of Schedule 6B to the Terrorism Act 2000 and should include reference to the following:

Awareness of the code

14. As adherence to the search powers code will form a key part of any investigations into stop and search related matters which are undertaken by the IPCC it is vital that all police forces take steps to ensure officers are aware of the content of the Code and its implications for their work.

Using the right powers

15. Our experience suggests that officers are often unclear about the range of stop and search powers at their disposal, and the grounds for using them.

16. Stop and search powers should only be used by officers who have been trained to use them properly.

Quality of the encounter

17. Before any search of a detained person or vehicle takes place the officer must take reasonable steps to give their identification number and name of their police station to the person about to be searched or to the person in charge of the vehicle.

18. All stops and searches must be carried out with courtesy, consideration and respect for the person being stopped and searched.

Reasons for the stop

19. We believe that any attempt to explain the reasons for the stop and search at the outset can only help to improve the quality of the encounter.

20. At the start of the encounter the officer should:

· Inform the person that they are being detained for the purposes of a search;

· Explain which power is being used / or provide details of the operation and its purpose;

· Explain why the person or vehicle was selected to be searched and explain the purpose of the search;

· Explain what entitlements the person has.

21. Providing the public with as much information as possible will help to improve the quality of encounters and minimise any damage to public confidence.

22. Forces have a key role in educating the public and officers about their rights and responsibilities in stop and search encounters.

Searches in specified areas or places

23. Positive involvement from communities is essential to increase confidence in the police service and the use of stop and search powers. Forces should consider engagement with communities during the planning stage of any significant stop and search operations.

24. Where searches are being carried out in specified areas or places, then the officers involved should be fully briefed. Officers need to be briefed on the nature and justification for operations, so they know what they’re looking for, but also so they can provide an explanation to people being stopped.

25. Officers should be provided with a form of words that they can use to explain why people are being stopped and searched.

26. When using stop and search powers, officers should have a basis for selecting which individuals or vehicles should be stopped and searched. This decision should be based on intelligence and in accordance with any briefing received or carried out at random within the parameters set out in the authorisation (for example, the stopping of vehicles at random travelling down a particular road towards a potential target).

Providing a written record

27. Officers should be reminded of the need to record information and provide anyone who is stopped and searched, or whose vehicle is stopped and searched, with written confirmation that the stop and search took place and details of the power used as soon as is practicable.

28. Officers should make people aware of their right to request a written record or a receipt explaining how they can obtain a copy of the record even where this has not been formally requested.

Learning lessons

29. The IPCC’s experience suggests that the people who are most unhappy with stop and search encounters, in particular young people and those from black and minority ethnic backgrounds have the least confidence in the police and the police complaints system. This group is less likely to complain and therefore it is important that there are other ways of being able to monitor and judge how these groups, and indeed others, are affected by the use of stop and search powers.

30. Forces may find it useful to seek feedback from people being stopped and searched, and from the local communities most affected to help improve policy and practice in this area.

ANNEX A - IPCC policy regarding police powers to stop and search

1. Introduction

1.1. Police powers to stop and search individuals can have a significant impact – positive, where it is effective and negative where it is not – on public confidence in policing. Given the importance of this area, the Independent Police Complaints Commission (IPCC) has developed a policy on the police use of stop and search powers, based on its experience from cases and guardianship work to date.

1.2. Our experience has identified the following key findings:

· People who are unhappy with stop and search encounters, in particular young people and those from black and minority ethnic backgrounds, have the least confidence both in the police and the police complaints system. Their experience is therefore likely to feed back into negative perceptions of policing.

· Where complaints are made, they are usually handled at a local level and unsubstantiated due to conflicting evidence given by the complainant and the officer, which is likely to lead to greater individual dissatisfaction both with the police and the complaints system.

· There is little evidence to support the effectiveness of prevention, detection or deterrence of stop and search powers, which play into the community perceptions that stop and search is not effective.

· Both the public and the police are often unsure of the powers associated with the different specific stop and search legislation. The confusion can result in an uninformed or even worse, unlawful use of the powers. In some uses of stop and search the police are not obliged to provide individuals with an explanation for why they are being stopped (section 60 of the Criminal Justice and Public Order Act) nor do they need to have reasonable grounds to carry out a stop. However, not all legislative tools used to employ stop and search provide such a wide remit and require the police to have reasonable grounds to carry out a stop and search (section 23 Misuse of Drugs Act).

2. The IPCC view

2.1. The IPCC recognises that police powers to stop and search individuals exist and that the police will use them. The IPCC also believes that the use of stop and search powers are highly intrusive and where they are not seen to be fair, effective or carry public confidence may seriously risk undermining individual and community confidence in policing.

2.2. The IPCC therefore believes that it is not enough for the exercise of stop and search powers to simply be within the law. Where stop and search powers are used by the police, they should be used in a way that demonstrably meets the following objectives:

· fairness

· effectiveness

· carries public confidence

3. Principles

3.1. The IPCC believes that exercising stop and search powers in line with the principles outlined below will best promote the above objectives.

3.2. 1. Fairness: the encounter

3.2.1 Each officer who exercises the power of stop and search – whether or not the law requires the stop to be on reasonable grounds – must be able to answer the question: "Why did you stop me?" It is not enough to say "Because I can", or "I don’t have to give a reason". The officer should be able to respond by explaining the reasons – for example, the intelligence available or problem profile the officer was provided with. Providing an informed explanation is a basic but critical step in helping to improve the quality of the encounter and ensure that it does not lead to reduced confidence or a feeling of unfairness.

3.3. 2. Effectiveness: purposes of the use of stop and search powers

3.3.1 The IPCC believes that the primary purpose of the use of stop and search powers should be for the detection and prevention of crime. We recognise that some forces use the powers for the purposes of disruption and deterrence. Regardless of the purpose for which stop and search powers are used, the police should be able to demonstrate effectiveness of the powers through regular monitoring, taking into account the volume of complaints, the number of fixed penalties, cautions, arrests and charges arising from stops, the impact on crime profiles and the level and quality of local intelligence-gathering.

3.4. 3. Fairness and effectiveness

3.4.1 Local police commanders need to ensure that the most appropriate powers are used to achieve the policing objectives. They must also ensure that their officers can differentiate between, and have a good understanding of, the different powers available to them. The use of "blanket" powers – such as those in section 60 of the Criminal Justice and Public Order Act – need to be supported by a focused and specific intelligence package, rather than merely referring to ethnic origin or the reputation of an area.

3.5. 4. Public confidence: engaging with communities

3.5.1 The IPCC believes that communities are more likely to have greater confidence in stop and search powers if they are used properly and are demonstrably effective. Local police commanders therefore need to engage with communities to inform people about the use of the powers within their local policing area, and demonstrate the effectiveness as described in point two above. Communities should also be afforded the opportunity to feedback to police their experience of stop and search and to discuss their concerns about crime in their area.

3.5.2 Communities should be aware of the reasons behind any "blanket" powers, such as those in section 60 or section 44 of the Terrorism Act, as described in point three above. Police commanders need to clearly show the purpose of a specific stop and search operation to both the officers and the communities they serve. For example, in the Police and Criminal Evidence Act Codes of Practice the primary purpose of the stop and search power is: ‘to enable officers to allay or confirm suspicions about individuals without exercising their power to arrest’. But we know that the powers are also used to deter and disrupt – the police should therefore be open with the local community about their intentions.

3.5.3 Local police commanders should also use their community engagement opportunities to inform community members about the roles and responsibilities of both the police officer who carries out the stop and search and the individual who is stopped. Clarity about what is expected of both parties means that misunderstandings are less likely to occur.

3.6. 5. Public confidence: handling of complaints

3.6.1 The IPCC recognises that the current complaints system, which focuses on an officer’s conduct, does not generally deliver outcomes that satisfy either complainants or the police. Stop and search encounters that meet the principles set out above, and which help to avoid complaints, are more likely to deliver public confidence. Police Authorities should monitor their force’s use of the powers and play a proactive role to ensure public confidence is not damaged as a result of that use.

3.6.2 When a complaint is made a significant proportion of complaints about stop and search can be dealt with using Local Resolution. The quality of the resolution as well as the willingness of the police to provide an explanation or apology, as appropriate, and learn from complaints are therefore crucial to public confidence. Where the complaint results in an investigation, this should examine the relevant intelligence and authorisations, as well as the individual officer’s knowledge of the powers and process, rather than focusing narrowly on the alleged misconduct.

May 2011