As the Police, Crime, Sentencing and Courts (PCSC) Bill reaches its final stages in Parliament, GMLC volunteer contributor Jess Roper reflects on the significance of its controversial stop and search clauses.
Since its first reading in the House of Commons in March 2021, the government’s Police, Crime, Sentencing and Courts Bill has attracted criticism and scrutiny from across the political spectrum. After nearly a year of protests, earlier this week the government saw key parts of the Bill – mainly those relating to the rights of protesters – voted down by peers in the House of Lords at its final Report Stage. Criticism has been relatively non-partisan, largely because the breadth of the Bill’s subject matter hits political pressure points on both the left and right.
Serious Violence Reduction Orders (SVROs), which are introduced under Part 10 of the PCSC Bill, have come under less scrutiny than the Bill’s other parts. SVROs allow for the expansion of stop and search practices, threatening to compound the existing racial and ethnic disparities in the criminal justice system.
Undeterred by evidence of the ineffectiveness and racist application of stop and search practices (see David Lammy’s influential 2017 report – the so-called ‘Lammy Review’ – and research published by civil liberties groups StopWatch, Liberty and Justice), the clause represents a gross disregard for evidence-based policy in favour of a misguided and draconian approach to law and order.
What are Serious Violence Reduction Orders and why do they matter?
Currently, police powers to stop and search derive from three pieces of legislation: the Police and Criminal Evidence Act 1984 (the so-called PACE codes), the Criminal Justice and Public Order Act 1994 and the Terrorism Act 2000. The vast majority of stop and searches are conducted under authority afforded by the first of these, for which police officers must be able to demonstrate their decision to stop and search an individual was based on a ‘reasonable suspicion’ that they were in possession of the object for which they were searched. Crucially, knowledge or suspicion of a previous conviction does not qualify as a factor police may take into account when forming this judgment. Under the latter two pieces of legislation, the bar is significantly lower: reasonable suspicion is not required, allowing police greater breadth of decision-making where the risk to public safety is significantly greater.
Under the proposed legislation, Part 10, Chapter 1 suggests a change to this hierarchy via an amendment to the Sentencing Act 2020. It proposes that where an offender has been charged with a crime involving a knife or other weapon, or is a secondary party to such a crime via joint enterprise, the court may choose to hand down an SVRO, giving the police the authority to subject that individual to stop and search practices without the need for reasonable suspicion. This gives police the same power to disrupt freedom of movement and the right to privacy that would apply if they feared the individual were a terrorist or at risk of committing an act of grave danger to the public.
There are two problematic elements to this to consider. First, the bar the prosecution must meet for the court to hand out an SVRO is relatively low: evidence brought for the offence but dismissed in court can be brought forward for an SVRO, and the conditions can be met on the ‘balance of probabilities’ as opposed to the usual ‘beyond all reasonable doubt’ standard. In 2016, the European Court of Human Rights found the powers granted to police to stop and search individuals under the Terrorism Act 2000 were not “subject to adequate legal safeguards against abuse” and constituted a violation of the right to privacy, protected by Article 8 of the European Convention on Human Rights. It follows that a flagrant expansion of their use will raise further questions over whether the UK is upholding its human rights obligations.
Second, the joint enterprise element has the potential to capture large numbers of offenders. A controversial mechanism, joint enterprise provides the legal means through which secondary parties to a crime (such as the get-away driver in a burglary) can be prosecuted on the same terms as the principal defendant (the defendant who entered the house with the intention to commit theft in this example). Using joint enterprise, prosecutions can secure convictions by claiming ‘gang affiliation’, an accusation disproportionately levelled against black and minority ethnic defendants. For a sense of scale, one academic review found that half of all women prosecuted under joint enterprise between 2004 and 2020 were not present at the scene of the crime for which they were convicted. The PCSC Bill could mean individuals who have never carried knives or weapons will find themselves subject to SVROs – and therefore targeted stop and search practices – as a consequence of joint enterprise laws.
Stop and search does not reduce violent crime
Why is an expansion of stop and search practices problematic? First, the data suggests that the use of stop and search is only a minimally effective tool in reducing violent crime, the purported aim of the legislation. The largest study on stop and search practices to date, an analysis of 10 years of data in London (where stop and search rates per capita are the highest in the country) showed that an increase of 10% in the stops conducted over the period of a month correlated with only a 0.3% decrease in crime. Meanwhile, stop and search practices capture drug offences far more frequently than they do knife crime. In their analysis of the causes of disproportionality along racial and ethnic lines in policing, Shiner et al found that in 2016/7 stop and search accounted for “39% of all arrests for drugs compared with 3% of arrests for other offences”. So the expansion of stop and search practices is unlikely to bring about the desired change in reducing violent crime and “getting weapons off the streets”, as claimed in the Conservatives’ 2019 manifesto.
The effect instead will be to exacerbate the existing racial disparities among already overpoliced and under-supported communities. In 2020, black people were 9 times more likely to be stopped and searched than white people, a figure that has been increasing in recent years. The practical effects of an expansion in the practice of stop and search in identifying drug offenders will likely fall along racial lines too. In one analysis of racial disparities in the practice, data showed that “for drugs, 57% of arrests of black people result from stop and search compared with 31% for white people”. Not only are more black people stopped in the first place, but statistically they are more likely to be arrested once stopped. It is this kind of over-policing that David Lammy argued fosters a sense of distrust and suspicion among communities towards police forces, perpetuating a cycle where higher numbers of black and ethnic minority people in a particular community are brought into the criminal justice system to face harsher sentencing and treatment than their white peers.
So why are the government expanding stop and search practices?
A basic cost-benefit analysis of stop and search practices shows that expanding their use is impractical and misguided. There is a serious lack of evidence supporting stop and search practices as an effective tool in reducing violent crime, and there are severe costs to communities. So why are they in this bill? A plausible suggestion is that the 2019 Conservative manifesto promised to reduce violent crime, and SVROs are its legislative brainchild. Legally, the consequences of an expansion of the practice will undeniably be contentious in terms of the UK’s human rights obligations. But the government’s determination to appear to be clamping down on crime has resulted in the decision to plough ahead with a deeply problematic and unsubstantiated policy that will risk violating individuals’ human rights, especially in working-class and black and minority ethnic communities.
