Individual justifications for police stop and search: a range of inadequate options from England & Wales

• In Event: Justifying intrusive measures in policing, prison, and administrative detention - between theory and practice

Abstract

Police action that interferes with the freedom of movement and privacy rights of the individual is precisely the type of state action that ought to require specific contextual and individualised justification. Even where legal powers do not contain threshold requirements of individualised reasonable suspicion the rule of law demands that these powers are at minimum used for their stated purpose. Police stop practices in the England & Wales fall far short of this basic rule of law requirement and this paper discusses the problem across a range of different legal powers. First, the majority of police powers to stop and search individuals in the street do legally require individualised reasons but has repeatedly found the police frequently use vague formula justifications that are almost impossible to challenge. Second, police stops of vehicles under the road traffic act do not contain a legal threshold of reasonable suspicion the powers are routinely used for purposes other than road traffic enforcement and new nationwide requirements to record RTA stops will allow officers to do so using a drop down menu of predefined formula justifications. Third, an increasing number of ‘suspicionless’ search powers aimed at specific purposes do away with the pretence of individualised reasons entirely, instead offloading any justification to the authorisation of the power in a specific context.

Author

• Estelle Marks, University of Sussex