Líquido de Gobierno

Reasonable suspicion is defined by PACE code A and applies to section 1, section 23 and section 47; a similar definition applies to section 43 which used to be governed by the code until a separate one was established for it and other counter-terrorism street powers (see: TSO, 2012). Code A states that reasonable suspicion “should normally be linked to accurate and current intelligence or information, relating to articles for which there is a power to stop and search, being carried by individuals or being in vehicles in any locality” (Home Office, 2014h:para2.4; TSO, 2012:9). This could be based upon officer's own assessment of how people are behaving rather than any actual evidence that suggests they may or have already committed a crime.

The extent to which reasonable suspicion limits unnecessary searches is open to debate. Whereas studies of exceptional powers argue that it does, in comparison, limit use by at least requiring some explanation to be recorded and given to persons searched (Parmar, 2011; Lennon, 2013), others consider it to be weak (Bowling & Phillips, 2007), a “slippery concept” (Sanders et al., 2010:74), or even rarely met in practice (Lustgarten, 2002). This could partly be due to the widely divergent interpretations officers have concerning when that legal threshold has been met (Quinton et al. 2000; Quinton, 2011; HMIC, 2013), but also the permissive nature of police powers in general (Reiner, 2010; Sanders et al., 2010).

Observational studies into how police officers form their suspicions, though rare, collectively show that such decision-making is based upon a combination of subjective

factors: interpreting people's behaviour; previous contact with individuals already known to them; perceptions of things being 'out-of-place'; and stereotypes concerning who are the 'usual suspects' involved in crime (Quinton et al., 2000; Quinton, 2011;Johnson & Morgan, 2013). International comparative studies show that this is not unique to the British police (Delsol, 2006; Johnson & Morgan, 2013), but is a consistent feature of police occupational culture worldwide (Reiner, 2010; Sanders et al., 2010).

Basing suspicion purely on the perceived 'race' of a person has long been prohibited by Code A which states: “reasonable suspicion can never be supported on the basis of personal factors” (Home Office, 2014h:para2.2B). In 2009, religion was expressly added to this list of prohibited factors following claims of discrimination against Muslims since the New York terrorist attacks in 2001 and the London bombings in 2005 (Sanders et al., 2010; Bridges, 2015). As Sanders et al. (2010:75) argue, this “twenty-first century addition” is “a rare example of the law attempting to take into account the social reality of policing on the streets.” Additionally, using a person's previous contact with the police or criminal record to justify a search is generally prohibited, except in relation to counter- terrorism searches given the nature of those crimes. Even so, the codes still provide officers with extremely wide latitude to justify even the most baseless of searches, particularly through claims of a person 'acting suspicious'. A recent inspection of a representative sample of stop and search records from every police force in England and Wales revealed that almost a third of them (27%) had in fact no reasonable grounds to justify the search, with the most common reason being “acting suspicious” (HMIC, 2013). The scale of such practice also supports Sanders et al.'s (2010) suggestion that formal rules have had an 'enabling' effect by legitimising dominant practice rather than restraining them. Ultimately, Code A provides officers with practical guidance on how to interpret and

exercise their powers but any breaches do not make officers liable for their actions even if it may be referred to in criminal or disciplinary proceedings. Indeed, observational studies have found that police officers act primarily in accordance to occupational cultures and rules developed on the job (Miller et al, 2000; Quinton, 2011), thus suggesting that adherence to PACE is largely tokenistic.

Code A was recently strengthening in relation to what constitutes reasonable suspicion to the following:

“This test must be applied to the particular circumstances in each case and is in two parts:

(i) Firstly, the officer must have formed a genuine suspicion in their own mind that they will find the object for which the search power being exercised allows them to search; and

(ii) Secondly, the suspicion that the object will be found must be reasonable. This means that there must be an objective basis for that suspicion based on facts and information which are relevant to the likelihood that the object in question will be found so that a reasonable person would be entitled to reach the same conclusion based on the same facts and information.”

(Home Office, 2014h:para2.2; original emphasis) Arguably, this is another example of the law accounting for the social realities of policing and is significant for many reasons. The revised code did not make any substantial changes to the prohibition on race/religion or use of stereotypes. Instead, traditional concerns relating to fairness have been broadened from the narrow focus upon racial/religious discrimination towards the broader question of: can the intrusion upon a person's liberty be justified by the reason for the search? The Code answers by suggesting this can only be objectively justified if some other person is likely to reach the same conclusion. Related to this, 'hunches' or other more subjective factors are explicitly excluded from forming grounds for the “genuine suspicion” described. More significantly, for the first time ever, the criteria ties reasonable suspicion to a justifiable outcome of the search. By linking this

to the likelihood of finding the object sought for, this much stricter test recognises the ease with which people can be searched and is intended to end the practice whereby officers could detain people and then fish around for a retrospective justification for the search. There is also hardly any doubt that a search resulting in evidence of a crime having been or likely to be committed would be justified in the eyes of this hypothetically “reasonable person”.

It is too soon to ascertain what impact this revision may have on officers' discretion but, in any case, it is likely to be minimal because formal rules feature less prominently in their decision-making compared to on-the job occupational rules (Quinton et al. 2000; Quinton, 2011). A recent HMIC (2013) inspection, which prompted these revisions to Code A, reinforced the findings of earlier Home Office studies (Quinton et al., 2000; also Miller et al., 2000) by finding huge variations still exist in officers' understanding of what constitutes reasonable suspicion, even among those within the same deployment teams. Further, this inspection revealed not only a woeful lack of front-line supervision necessary to ensure that officers are held accountable by their line managers for any misconduct, but, alongside follow-up inspections, have found that chief officers have not been willing to provide the necessary leadership to drive through longer term changes to practice (HMIC 2013, 2015a, 2016). Therefore, it is perhaps unsurprising and inevitable that the ambiguities surrounding what constitutes reasonable suspicion, together with the lack of proactive internal monitoring against abuse, has rendered this procedural safeguard almost entirely useless. Even if these weaknesses were to be addressed, police officers could still circumvent them by exercising their powers which do not require suspicion or use more informal means to stop people and make them account for themselves, particularly as this is no longer longer recorded by most police forces. As the individual decision to subject a

person to a search is an operational decision, it excludes members of the public from being consulted or involved in this process. One solution is to subject search records to public scrutiny, but few force have historically done this as discussed in the later section on external monitoring.