TY - JOUR
AU - Murray, Kath
AB - Abstract This article investigates the development of modern stop and search powers in post-war Britain—namely, the legal rules that allow police officers to stop and search a person based on reasonable suspicion, and as an adjunct to a specific offence. The article traces the rise of a preventative outlook premised on police power, rather than police presence, and demonstrates how, against a backdrop of political consensus and stability, the preventative principle gradually acquired the status of taken-for-granted knowledge, albeit uneasily at first. The analysis shows how the balance between crime control and individual freedom quietly shifted in favour of the state, in a move that would carry significant implications for policing in the decades ahead. The article concludes that whilst noisy politics and policies rightly attract academic attention, it is arguably in the quieter periods that more deep-seated and enduring transformations are likely to take place. I am not concerned with police investigations after a crime has been reported, or with circumstances which suggest that the individual who has been stopped may be doing something illegal. My problem is this: no crime has been reported, no suspect has been described, there is no visible sign of an offense, there is nothing whatever to direct police attention to this particular individual. I am concerned with what is called preventive police work. (Reich 1966: 1162) Introduction Stop and search is one of the most commonly used, and controversial, powers available to police officers in the United Kingdom, associated variously with the 1981 Brixton riots (Scarman 1981), the August 2011 riots (LSE/Guardian 2012), and ongoing tensions between the police and black and minority ethnic (BAME) communities. Research has demonstrated the discriminatory use of stop and search against BAME populations in England and Wales (Bowling and Phillips 2007), the excessive use of non-statutory stop search on white teenagers in Scotland (Murray 2014) and the attendant threat to police legitimacy and police–community relationships on both sides of the border (Delsol and Shiner 2006; Blake Stevenson 2015). Relatedly, research has shown the inadequacy of regulatory codes, for instance, the slipperiness of ‘reasonable suspicion’ (Lustgarten 2002; Bowling and Phillips 2007; Sanders and Young 2008; Quinton 2011) and the ‘vague statutory drafting and extensive police discretion’ inherent in suspicionless stop and search powers (Lennon 2015). Meanwhile, the effectiveness of the tactic remains unclear. In particular, the relationship between search levels and crime reduction appears weak (Quinton et al. 2017). Putting these sizable practical difficulties aside, it remains that the power to stop and search is in principle, generally taken-for-granted,providing the tactic is used fairly (Miller et al. 2000: vii). There are for instance, relatively few calls for full abolition, which is perhaps curious, given the troubled history of the tactic, as well as the lack of clear-cut evidence on effectiveness. The fact that stop and search continues to receive ‘in principle’ support is most likely explained in terms of the underlying appeal to preventative or precautionary principles. Looking further back, it might also be argued that there is a sense of fit with the ingrained preventative thread that runs through British policing, from the inception of the Thames River Police in 1797 and early Peelian principles onwards (Styles 1987; Gilling 1997). Yet as this article shows, the idea that a police officer might routinely search a person based on reasonable grounds, is in fact a relatively modern construct that in many ways, sits awkwardly with older established conceptions of justice based on retrospective principles (Harcourt 2013: 256). To be sure, a hotchpotch of piecemeal and/or loosely defined search powers existed prior to the 1950s, including section four of the Vagrancy Act 1824 (the ‘sus’ law), the Prevention of Crimes Act 1871, and a range of local legislation. Moreover, as Reiner (2015: xi) describes, such powers ‘stretch back over centuries of vagrancy legislation aimed at disciplining the poor and powerless people’. For the most part however, the preventive model hinged on visibility: on uniformed patrol or the ‘scarecrow function’ (Reiner 2010: 76), rather than the use of pre-emptive police powers. This article examines the beliefs and ‘ways of thinking’ that underpinned the development of ‘modern’ stop and search powers in post-war Britain that is, powers conferred at a national level, in relation to specific offences and based on reasonable suspicion. Focusing on the relatively under-researched post-war decades,1 the article argues first, that legislative developments in this period signalled an important, if subtle, shift in preventative crime control: a constitutional shift from prevention based on police presence, to prevention based on police power. And second, that this shift was facilitated by a quiet or ‘cool’ political climate (Loader and Sparks 2010a; Murray and Harkin 2016), marked by consensus. More broadly, the article argues that developments in this period weakened individual rights and tipped the balance between crime control and individual freedom in favour of the state, with significant implications for British policing thereafter. Method and Data The article employs interpretative political analysis to unpack dominant political beliefs and ideologies on the proper role of the police in the early post-war period (Bevir and Rhodes 2003,; 2006; Annison 2013).2 Focusing principally on the legislature—on actors with the political capital to influence the policing direction—the methodology is intended to show how beliefs about preventative police power partly displaced older reactive and/or punitive crime control traditions. The analysis draws on a range of secondary sources relating to key legislative developments: from the Prevention of Crime Act 1953, through to the Misuse of Drugs Act 1971. Hansard records (verbatim transcripts of parliamentary proceedings) provide the main body of empirical data. Together with Cabinet records from the National Archives, these are used to document elite ways of thinking apropos the preventative capacity of the police, and to trace how these outlooks changed over time. The texts are approached critically, with a view to drawing out the prevailing values and assumptions that underpinned ‘authorized’ interpretations of the policing role. Care is also taken not to give undue weight to the ‘loudest’ voices (which are not necessarily the most representative). The article draws further on contemporaneous journal articles and press reports to contextualize the Hansard findings, and to capture public-facing representations of policing. Overall, the chosen data are intended to provide insights into both ‘frontstage’ and ‘backstage’ readings of key legislative developments: to capture the authoritative or official voices on policing, crime control and the limits of police powers, as well as those ideas that did not receive formal support. In other words, the ‘political combat’ (Loader and Sparks 2010b: 776), or sense of ‘competition between interpreters’ (Bourdieu 1987: 818). Finally, it should be added that different explanations or interpretation of the events are of course possible. To extrapolate from Riessmann (1991: 44) ‘[n]arratives are reductions and distillations … because they make the complicated upheaval of our world, at least in part, orderly, predictable and bounded’. The article is organized chronologically. Taking the Prevention of Crime Act 1953 as the start point, part I shows how parliamentarians viewed proposals to introduce a power of arrest for the suspected possession of offensive weapons, based on reasonable grounds, as an affront to individual liberty that ran counter to the deeply held principle of punishment after the crime. The analysis then demonstrates how such concerns were displaced by an appeal to the seemingly progressive logic of prevention. Part II traces the development of stop and search powers in the sixties and early seventies, and shows how, via a process of legislative creep, the principle of stopping and searching a person based on reasonable suspicion gradually acquired taken-for-granted status. Drawing the analysis together, part III argues that against a backdrop of post-war consensus and economic stability, a deep-seated shift took place in the way that the political classes viewed the preventative role of the police that carried significant implications for British policing thereafter. Part I. Police powers and politics in 1950s Britain The mid-twentieth century decades are widely viewed as the high point of ‘penal welfarism’, characterized by a belief in rehabilitation, treatment and individual prevention (Garland 2001), and underpinnned by positivist criminologies (Loader 2006). As Garland (2001: 270) observes, against a backdrop of political consensus—a joint commitment to welfarism, full employment, economic growth and a comparatively high level of state intervention—the dominant political outlook combined ‘the liberal legalism of due process and proportionate punishment with a correctionalist commitment to rehabilitation, welfare and criminological expertise’. Conversely, retributive or populist opinion was characterized as ‘as irrational or inappropriate—unworthy emotions that ought to be repressed’ (Loader 2006: 53), resulting in the near absence of punitive sentiments from official crime control discourse (Garland 2000: 352–3). The extent to which these values translated into practice is perhaps less clear. As Ryan (2003: 40) drily observes, ‘the opportunities offered by the moment of social calm underwritten by the historic compromise between capital and labour to secure a reduction in the general level of penal repression were not over-exploited, to put it mildly’. Whilst the 1948 Criminal Justice Act abolished whipping as a judicial penalty, as well as penal servitude and hard labour, the Act also lowered the age at which offenders could be sent to Borstal, increased the maximum period of preventative detention, and retained corporal punishment in schools and prisons (Ryan 2003: 14). A lack of financial commitment to rehabilitation was also evident. By 1952, only one detention centre had been built, whilst ‘attendance centres’ aimed at rehabilitating young non-serious offenders were used inconsistently. The Home Secretary explained, ‘it has unfortunately not been possible, largely because of difficulties of capital investment, to do much about the provision of the new institutions for young offenders contemplated by the Act’ (National Archives 1952 CAB/129/56). In Scotland, a lack of resources thwarted progressive intentions on remand homes and approved schools. As Bartie and Jackson (2011: 94–5) put it, ‘the post-war “welfarist” approach to youth justice did not “fail” in the period 1945–1971 in the sense that it was never fully delivered’. Looking to the production of expert knowledge, the Criminal Justice Act 1948 permitted government funding for criminological research. Yet it would take almost a decade to establish the Home Office Research Unit, whilst the causes and prevention of delinquency were viewed as ‘immense both in range and complexity’ (National Archives 1958: 277 para. 19) and, even if fully understood, largely beyond the reach of Government action’ (National Archives 1958: 277 para. 1). Commenting on the lack of expert knowledge, Labour MP and Chair of the Howard League for Legal Reform, George Benson stated: The present position is that practically the whole of our penal methods and our treatment of delinquency are based on either tradition or guesswork. There is scarcely any precise knowledge … it is only in the last five years that the Home Office has considered it necessary to spend any money on serious research into the problems raised by the existence of crime. (Hansard 1958 [Benson, Labour] vol. 587 c.1381) The persistence of classical deterrence principles also diluted the positivist penal-welfare project. As the Labour Lord Chancellor William Jowett acknowledged, the difficulty lay in balancing the ‘two horses’ of positivism and classicism: I think the difficulty arises from the fact that we want to carry out two objects at the same time. In the first place, obviously, we want to try to reform the prisoner. We want to restore his self-respect, and we want to ensure that when he goes out again he can stand on his own feet as a useful, responsible member of society. On the other hand, we want so to arrange our affairs as to deter prospective criminals from embarking upon crime. Those two horses, the deterrent and the reformatory, are especially difficult to drive in double harness. (Jowett [Lab.] Hansard 1948, vol. 155 c. 391) In the early fifties, increasing levels of recorded violence3 against the person exacerbated the tension between the two criminologies. With a lack of investment in rehabilitation and little purposeful engagement with causation, police visibility emerged as a feasible response to the burgeoning crime problem. In a clear nod to the classicist deterrence model, politicians of all shades concurred that violent crime could be tackled by increasing police strength: by increasing police pay and addressing the shortage in police housing. We can argue until we are blue in the face as to whether flogging will deter a man from committing a violent crime, but there can be no dispute as to the fact that if there is known to be a policeman in the vicinity it is very unlikely that the violent crime will take place. (Chorley, Lab. HL 23/3/1950 vol. 166 col. 467) Around this time, a separate, more contentious model of police strength took hold at Westminster, albeit uneasily at first. In a departure from the police visibility model, the 1953 Prevention of Crime Bill sought to restrict the carrying of offensive weapons in public places without lawful authority or reasonable excuse. Framed as ‘an attempt to grapple with the serious rise in crimes of personal violence’ (Edwards 1953: 482), the Bill aimed to prevent crime through two mechanisms. First, through pre-emptive arrest, based on reasonable suspicion: as Home Secretary Maxwell-Fyfe put it, ‘to cope with the “cosh boy” before he has used his cosh’ (Hansard 1953a vol. 511 c.2325). And second, through general, non-targeted deterrence, premised on the model of the rational actor: In present conditions, when there is so much anxiety about crimes of violence, it would not be right to overlook the deterrent effect on criminals which would be achieved if it were made an offence to he found in possession of an offensive weapon, without lawful reason …. ‘[The Act] may not, of itself be effective in stopping a criminal who, of set purpose, addresses himself to a criminal enterprise …. Again, there is the type of young ruffian who, often in a gang with others of the same kidney, sets out to terrorise other people in the neighbourhood. It is primarily against persons of this type that the Bill is directed. And it is the view of responsible and experienced police officers that the knowledge that the mere possession of an offensive weapon carries a liability to a substantial penalty will have a salutary effect. (Hansard 1953a [Maxwell-Fyfe] vol. 511 c.2325) Described as ‘a revolutionary document’ in the Lords (Hansard 1953b, Lord Saltoun vol. 181 c.701), the Bill signalled an important, if subtle, shift in preventative crime control on several counts. Firstly, the shift from reactive law enforcement, to preventive activity based on suspicion, departed from the traditional application of police power based on prima-facie evidence: The Bill is called a Prevention of Crime Bill: it is a novelty, a significant and interesting novelty. Generally speaking, we punish for the crime and alternatively we punish an attempt to commit a crime. The Bill is an effort to go a little further than that and to get a criminal before he has started the attempt to commit the crime. The further we get away from the crime to events anterior to it, the more we begin to jostle the innocent citizen, because we are beginning now to go for something which is of an ambiguous character. (Hansard 1953a [Bell, Conservative] vol. 511 c. 2366) Second, by placing public protection above the right to individual liberty, the Bill diluted the older common-law presumption that treated the latter as axiomatic (Smith 2002: 2).4 Third, the Bill modelled ‘reasonable cause to suspect’ as a procedural safeguard for the citizen and a legal basis for preventative police action, thereby departing from the pre-twentieth century model of reasonable suspicion as a safeguard for the constable (Smith 2002: 4).5 Significantly, the Bill also modelled the absence of a search power as a safeguard: There is no power of search by the police: the police cannot search a person in the streets, nor can they say ‘turn out your pockets’ and, when they find a large clasp knife in one of them, base a charge on that. The second safeguard, as has already been said, is that a police officer must have reasonable cause for believing that a person is carrying an offensive weapon. (Hansard 1953b [Derwent, Conservative] vol. 181 c.710) Lastly, the burden of proof was placed on the suspect to prove lawful intention. Writing in the Modern Law Review, de Smith observed that this clause ‘is far from being the drastic and exceptional measure which the public were led to believe it to be’ (1953: 483), detailing a range of existing statutes which placed the burden of proof on the suspect, although it should be added that aside from larceny, the examples pertained to customs and excise, forgery and stamp duty, rather than routine offences. Despite the pre-emptive and potentially net-widening nature of the Bill, the Government presented the proposal as a progressive and enlightened alternative to more punitive forms of retrospective criminal justice, or to borrow from Hughes (1998: 20), as ‘less damaging than traditional (retributive) justice approaches’. In this respect, a concurrent Private Member’s Bill (the ‘Birching Bill’) aimed at reinstating the birch as a judicial punishment6 provided an exceptionally helpful frame of reference, juxtaposing modern preventative police powers with retrograde corporal punishment: I believe whipping, the stocks, the birch … are relics of barbarism. In the mid-20th century they are out of date. The difference between the stocks and the birch is mainly only one of the degree … I believe that the Home Secretary is taking constructive steps to deal with this problem. The publication yesterday of the Prevention of Crime Bill is a step in the right direction. (Hansard 1953c [Smith, Labour] vol. 511 c.771) According to Mr. Chuter Ede, the speech today of Sir David Maxwell Fyfe, the Home Secretary, had already left as ‘dead as mutton’ the private member’s Bill which sought to restore birching as a court sentence for crimes involving personal violence. The House made sure of this later by refusing the Bill a second reading, by 159 votes to 63, after a debate which drew freely on emotion and exhausted many well-worn arguments …. (The Times 1953a) Those who wish to see the birch restored are seizing on one means—which the evidence shows to be ineffective and retrograde—of achieving an urgently and universally desired end .... Sir David Maxwell Fyfe will have the whole country behind him [if] he concentrates all his great energies and administrative capacity on the prevention of crime …. Nothing would do more to revive public morale and to put a stop to demands for birching and other panic measures than the knowledge that, at last, crime was being tackled with determination. (The Times 1953b) Yet despite its progressive tenor, the Prevention of Crime Bill elicited disquiet across the political spectrum. Whilst anticipated that the power would be used infrequently, Labour peers expressed concern at the proposal to arrest without a warrant, described here as a ‘drastic’ extension of police powers. We want to strengthen the hands of the police with regard to thugs in any way we possibly can. On the other hand, none of us much likes—I assume I speak for the whole House here—the drastic powers which are here being given to the police and which may affect the life of the ordinary citizen in all sorts of ways. (Hansard 1953b [Lord Jowitt, Labour] vol. 181 c. 706) At the other end of the political spectrum, the Libertarian right argued that the preventative principle went ‘against all our concepts of justice’: I should have liked the other day to have restored corporal punishment, and I voted for it, but the House took the other view …. This Bill today, which in some ways goes against all our concepts of justice—that is, by presuming guilt before it has been proved—offends us in many ways. But it is the criminal class that has forced it upon us, and I, for one, will vote for it. (Hansard 1953a [Baxter,Conservative] vol. 511 c.2354) If it is true that there is an increase in the violent element of crime, I would rather see the punishment made more severe and drastic, after what I consider to be a fair trial according to British methods, than I would go the other way about it and try to cure the situation by creating new crimes. (Hansard 1953a [Higgs, Conservative] vol. 511 c. 2342) And articulated a striking sense of mistrust towards the police: One of the most unpleasant offences with which one has to deal is that of being a suspected person, an offence in which the police have very much the same sort of power as they are to have under the Bill. Time and again the police arrive. There are always two of them. They never compare notes, they have never written out their notebooks together, but they always read the same, curiously enough, comma to comma. They swear it on oath. They describe how the defendant looked into a number of cars and tried the handles of one or two, and, of course, he comes to be convicted, without really having committed any tangible offence at all. (Hansard 1953a [Crowder, Conservative] vol. 511 c. 2391) Older traditions around individual liberty were however, trumped by the overriding threat posed by the ‘criminal classes’ and, despite some degree of libertarian bluster, the Bill passed. As the Modern Law Review noted, although the Act ‘added to the sprawling instances in which a constable may arrest without warrant’, there was ‘no use decrying this further encroachment on the liberty of the subject’ which was ‘dictated’ by the increase in crimes of personal violence (Edwards 1953: 483–4). In sum, the proposal to expand police powers of arrest based on reasonable suspicion was read as either progressive; or as a somewhat ‘un-British’ approach to justice, but nonetheless necessary evil. Part II. The modern making of stop and search Around a decade after the Prevention of Crime Act 1953, parliament extended the preventative principle further, from pre-emptive arrest, to pre-emptive powers of search. From a theoretical perspective, the expansion of police power lay in the elastic or ‘unbounded’ quality (Harcourt 2007: 31) of the preventative principle, and the fact that such measures are easily lent to legislative creep (whereby legal boundaries and frameworks are incrementally expanded, based on earlier precedents). As the analysis below shows, once the initial ideological hurdles are surmounted, it is a relatively short step from a power of arrest based on reasonable suspicion, to power of search based on reasonable suspicion, that carries a far higher likelihood of application. Between 1964 and 1971, principally under Harold Wilson’s Labour administration, parliament passed six statutes conferring powers of search in relation to the unlawful possession of drugs and firearms. Each Act incrementally extended the policing remit: either substantively (e.g. from hard to soft drugs); and/or in scope (from searching premises under warrant, to searching individuals). The Protection of Birds Act 1967 provided an additional power of search for bird’s eggs, which may seem inconsequential in terms of routine policing. It is however worth adding that parliamentarians repeatedly cited this power over the next two decades, drawing on the hypothetical line that if it was acceptable to search for bird’s eggs ergo it was acceptable to search for guns, drugs and offensive weapons (Murray 2015). The key developments are detailed next. Legislative Developments: 1964–1971 Enacted in the final months of the Conservative Administration, the Drugs (Prevention of Misuse) Act 1964 sought to deal with the unlawful possession of ‘pep pills’, a form of amphetamine available on prescription. Described by Home Secretary Henry Brooke as a necessary response to an ‘evil’ that was ‘manifestly growing’ (Hansard 1964 [Brooke, Conservative] vol. 694 c.600), the Act allowed a Justice of the Peace to issue a search warrant for the police to search premises suspected of holding unauthorized drugs. I ask the House to give us new and stronger weapons in the Bill—weapons to save youths and girls from a habit which can become a vice …. The police, if they are to check the misuse of these drugs, must be able to search clubs and cafés where they are known to be obtainable … so the Bill gives power for a Justice of the Peace to issue a search warrant to enable the police to search any premises on which it is suspected that an offence of unauthorised possession is being committed. (Hansard 1964 [Brooke, Conservative] vol. 694 c.603) With echoes of the Prevention of Crime Bill, some MPs made guarded remarks on the ‘repressive’ character of the Bill. One Labour MP asked for assurances that the legislation would not be used ‘as another of those sort of vagrancy charges when it is convenient for someone to be brought in for questioning in an effort to find out something else’ (Hansard 1964 [Parkin, Labour] vol. 694 c.639), whilst the libertarian Conservative MP Ronald Bell made a prescient objection to a clause that allowed the Home Secretary to add additional substances at a later date. Under Clause 5, the Home Secretary will have powers to add to the Schedule any drug he cares to add. I am using too restrictive a language. He can add any “substance” which he may think fit to add to it. When the Bill is having its Second Reading, people cast a glance at such a provision and say that it is very dangerous, but they make that remark only by way of reservation and they pass on and say that, of course, we must have the Bill. But the danger is only too clear. (Hansard 1964 [Bell, Conservative] vol. 694 c.645) Acknowledging that the Bill represented ‘a considerable extension of police powers by imposing penalties for possession and granting new powers of search’ and a ‘substantial decrease of civil liberties’ (Hansard 1964 [Robinson, Labour] vol. 694 c.660) Labour nonetheless supported the proposals. Eric Fletcher, Labour MP for Islington East explained: I find myself on this occasion in the unusual but happy position of substantially agreeing with practically everything that the Home Secretary said …. The principle, it seems to me, is that the State has, in certain circumstances, a duty to prevent members of the public from doing things which at present they are free to do, but which public opinion regards as producing harmful social consequences to them either mentally or morally. (Hansard 1964 [Fletcher, Labour] vol. 694 c.605, 607) The following year, the Dangerous Drugs Act 1965 consolidated the 1964 Act and other drugs legislation. Pertaining to opiates and cannabis, the 1965 Act sought to deter communal smoking and trafficking, making it an offence to allow premises to be used for smoking or dealing in cannabis, and conferred an additional power to search named persons. In the same year, in a departure from the parliamentarian sentiments expressed in the Prevention of Crime Act 1953, the Firearms Act 1965 set a national precedent for stopping and searching individuals without warrant. Aimed at tackling both ‘youthful hooligans’ and serious professional criminals (Hansard 1965c [Soskice, Labour] vol. 707 col.1143) the original Bill set out powers to stop and search vehicles for firearms (excluding shotguns and airguns), conditional on reasonable suspicion, and to arrest without warrant: however, an additional clause to search individuals was subsequently introduced. As Junior Home Office Minister, Lord Stonham explained: Because this is essentially a preventive Bill—we are providing the police with greatly extended powers to help them to catch the criminal and hooligan before they have used their firearms. If we cannot turn people from a life of crime we hope to convince criminals of all sorts that they dare not take firearms out with them. (Hansard 1965d [Stonham, Labour] vol. 266 c.801) In a similar tone, Liberal MP Peter Bessell urged members to put aside older beliefs and traditions apropos individual liberties and the power of search: Clause 3(2) gives a constable the right of search. I am aware that there have been protests against this clause by those who fear that it will in some way infringe the liberty of the subject. We must put behind us any unduly sensitive notions about this risk. We are dealing with the problem of the increase of crimes of violence in which firearms are involved …. We must allow the police this discretion, which I do not for one moment believe they will abuse. We must allow ourselves to be guided by their judgment. We must give them the right of search—they certainly need it at the moment. (Hansard 1965d [Bessell, Liberal Party] vol. 707 c.1194) Whereas the 1953 Prevention of Crime Act had modelled the absence of a search power as a procedural protection, at this juncture, protection was whittled down to the ambiguous principle of ‘reasonable suspicion’, coupled with the professional judgement of the police: Obviously, also, there is a personal liberty aspect of the power of police search. I can assure the House that I myself and the police authorities generally will be most careful in the way in which this power is exercised. (Hansard 1965a [Soskice, Labour] vol. 706 c.575) It is sad that we have to come to give further powers to the police, but it is necessary, and of course we can trust our excellent police to use these powers most judiciously. (Hansard 1965b [Lord Rea, Labour] vol. 263 c.299) Leaving it to the good sense of the police and the courts to decide when the words were applicable … has worked well in practice and I believe that this more flexible approach will be accepted by the public at large. (Hansard 1965c [Soskice, Labour] vol. 707 c.1150) Described as ‘an extremely tough measure’ (Hansard 1965d [Sharples, Conservative] vol.712 c.658), the Act gained Royal Assent in just five months. In part, the legislative pace related to the Murder (Abolition of the Death Penalty) Bill, also introduced in 1965, and the attendant fear of a public backlash. Asked about the link between the respective Firearms and Abolition Bills, Soskice ambiguously replied “I do not necessarily accept that there is a close connection” (Hansard 1965a vol. 706 c.576), although Bessell expressly allied the two, making clear the link to wider social anxiety: It is vitally important that every step should be taken that can be reasonably taken to prevent the increase in the use of firearms by criminals, to discourage them from taking them with them when they set out to commit any form of crime, and, particularly in view of the possible fears which the public will feel if the Murder (Abolition of Death Penalty) Bill becomes law, there is even greater need that this matter should receive the most careful attention of the Home Department. (Hansard 1965b vol. 707 c.1196) In 1967, the Dangerous Drugs Bill sought to prohibit doctors from prohibiting heroin, except under licence. Again, in the latter parliamentary stages of the Bill, the government extended the remit, to soft drugs, and introduced proposals to allow police officers to stop and search individuals and vehicles, subject to reasonable grounds. Defending the further expansion of police power, parliamentarians cited the Metropolitan Police Act 1839 (search powers for stolen goods), as well as recent search powers for bird’s eggs as precedents: In balancing the seriousness of the problem against the slight possible risk of misuse of police powers there can surely be no question about the decision we must take. Your Lordships may remember earlier in the Session agreeing that it was reasonable to provide similar police powers of search for the protection of eggs of rare wild birds from egg thieves. I am confident you will agree that we should provide the same police powers to protect the lives of human beings, mostly young ones, from the attacks of the drug traffickers. (Hansard 1967a [Collins, Labour] vol. 284 c.748) It is not a case where an officer can search without any reasonable grounds whatsoever. It is very similar to provisions which have been found satisfactory under the Firearms Act and also—I found this as a matter of surprise—in connection with the protection of rare birds. These provisions have not in the past given rise to complaint. Someone intending to use this power must be prepared to satisfy a court that he had reasonable grounds. (Hansard 1967b [Taverne, Labour] vol. 751 c.1382) A guarded consensus between the main parties as to the proper role of the police also secured the direction of travel, as suggested by the following exchange between Labour Home Officer Minister Dick Taverne, and Conservative MP Paul Channon: It is the job of the House above all to back up the police when we deal with criminal matters. If the police have asked for these additional powers, we cannot refuse them. But it is also our job to make sure that relations between the police and public do not worsen …. I am prepared to accept the new Clause, although I do so with some reluctance, because it is a major increase in police powers of this kind, an increase which the Government say that the police require and which the dangerous and difficult drug situation necessitates ….” (Hansard 1967b [Channon, Conservative] vol. 751 c.1385) One must scrutinise with the greatest care any new power of search, and I would not go necessarily as far as the hon. Member in saying one must grant whatever power the police ask. One must consider very carefully whether, in fact, it is needed. For the reasons we have given and because the power already exists in London, we feel that it can be granted. (Hansard 1967b [Taverne, Labour] vol. 751 c.1385) Thus, despite some lingering libertarian-styled protests that the ‘right of search without warrant excites deep feelings which go back a long way in our history’ (Hansard 1967b [Quintin-Hogg, Conservative] c.1383), the Bill passed. The following year, precipitated in part by the murder of three police officers, the Firearms Act 1968 entrenched the preventative principle further. Extending the legislative scope of gun control to shotguns, the Act conferred power to search premises with a warrant, to stop and search persons suspected of possessing a firearm, and to search vehicles, at a national level. By the mid to late-1960s, an acquiescent stance towards the principle of preventative police power seemed evident across the political spectrum. In 1967, a lengthy Commons debate on the ‘Liberties of the Subject’ (Hansard 1967c [St John-Stevas, Conservative] vol. 755 c.808) captured parliamentarians beliefs on individual rights and freedoms. During the 5-hour session, MPs articulated various objections to comprehensive education, the constitutional arrangements of the House of Lords, police use of breathalysers and the ‘tyrannical’ climate more broadly. Yet strikingly, the expansion of search powers across the decade was referenced only once, by Conservative MP and National Council for Civil Liberties member Joan Vickers, who highlighted the lack of robust parliamentary scrutiny to date. As a measure of the ideological distance between the early fifties and mid to late-sixties, recall that only fifteen years ago parliamentarians viewed proposals to arrest a person based on reasonable suspicion as drastic, ‘infringing on our valuable traditions’ and ‘against all our concepts of justice’. As Vickers stated: There was, regrettably, a late Amendment to the 1967 Act which gives police power to stop and search without warrant any person who is suspected of being in unlawful possession of drugs. I suggest that this is really a new threat to civil liberties. It has received very little attention in Parliament, or, I am surprised to find, in the Press. Its dangers are, in my opinion, immense, and it will not help relations between the police and the public. Young people, especially, are being subjected to indiscriminate searches. (Hansard 1967c vol. 755 c.877) By the end of the 1960s, political consensus on law and order, as well as public confidence in policing had begun to falter. Just as inclusive socio-economic arrangements had shored up public support for the police in the early post-war years (Reiner 2010: 70), by the same token, dwindling political consensus, economic stagnation, racial tension, increasing rates of recorded crime and the rise of counter-culture destabilised and politicized the policing field (ibid: 79). Within parliament, the Right and Left realigned along more partisan lines, with libertarian sensibilities on individual freedoms increasingly displaced by anxiety about the ‘permissive society’ and moral decline. Set against this fractured backdrop, a stronger sense of political contestation was evident in the debates that accompanied the 1971 Misuse of Drugs Act. Introduced by Labour Home Secretary James Callaghan in 1970, the Bill sought to consolidate existing drug laws and give future Home Secretaries more flexible powers to deal with evolving patterns (Davis 2006: 27). The initial Bill pertained to the medical profession and the unlawful provision of prescription drugs. However, an amendment in the second reading introduced additional stop and search powers to search individuals, vehicles and premises (with warrant) for controlled drugs, both medicinal and those with no current medicinal use. In an ideological shift from the preventative pragmatism evidenced thus far, parliamentary debate extended to what are now familiar tropes around stop and search: police-community relationships, due process and the balance of power between citizen and state. Critics deemed detection rates for existing powers unacceptably low and suggested that in practice, ‘reasonable suspicion’ meant either singling out young people with inappropriately long hair, or searching young people en-masse when leaving dance halls. Echoing Vickers, MPs also commented on the lack of robust scrutiny around the expansion of search powers in the preceding decade: Parliament had been led to assume that the purpose of the Dangerous Drugs Act 1967 was to deal with drugs such as heroin, but large-scale searches for cannabis are now made under Section 6 of this Act. This section was put in as a late amendment and accepted by an unwatchful House of Commons almost without discussion. It was improper that we should have allowed it to go through without real consideration … this is especially a question of a clash between the law and alleged young offenders. Such young offenders are particularly vulnerable. It is particularly difficult for them to defend themselves or to know what their rights are against improper police activity … I also want to guard against what is an even worse danger than drug taking—that is, a deepening antagonism between certain sections of young people and the police, or the erosion of confidence in the police …. It can lead to innocent young people being put in prison, although they have done something which, according to their social outlook and that of most of their friends and associates, is not a crime. ( Hansard 1970 [Foot, Labour] vol. 798 c.1496, 1497). In the due process camp, Labour peer Baroness Wootten put forward an amendment to remove the stop and search provision, arguing that ‘reasonable suspicion’ was unacceptably ambiguous, the right to ‘detain’ for the purposes of the search ill-defined, and the fundamental balance of power weighted too heavily in favour of the police: What happens in practice is … that the searches that are made are, in effect, random. At least they are random within a certain population. They are not totally random, and it is very unlikely that many of those present in this Committee this afternoon will be detained and searched for illegal possession of drugs. What happens is that random searches are made of people whose appearance is unusual. That means, of course, of a particular and a now very considerable section of people; those who have an unconventional, or perhaps I ought to say a pre-conventional, appearance in dress or hair style. This seems to me to be a very unfortunate situation …. In the great majority of cases the search reveals nothing—perhaps because it is done in a doorway; perhaps because the police are considerate and do not take the suspect down to the police station as they do not want to subject him to this humiliating procedure. In these circumstances, we are impaled on the horns of this dilemma: that a thorough search is humiliating for the innocent, and a casual search is not going to find more than a few unsophisticated people …. I think it really comes down to the fact that this was a piece of panic legislation. This power got into an Act where it did not belong: an Act which was primarily concerned with the matter of treatment of drug addicts. It was slipped into that Act in 1967 (we had done without it until then), in the rather panic-stricken, possibly hysterical, situation which prevailed at the time, and it has now been carried forward into this Bill. (Hansard 1971a [Wootten, Labour] vol. 315 cc.249–254) Similarly, Labour peer Baroness Birkness commented: There is in my mind, and I think in the mind of those who are supporting this Amendment, no intention at all of trying to facilitate the use of drugs or of trying to hinder the police in the exercise of their duty; but on the question of the difficult balance between civil liberty and the powers of the police, I find that I have to come down on the side of the police having the powers to arrest but not to stop and search. (Hansard 1971a [Birkness, Labour] vol. 315 c.258) Whilst Labour Peer Baroness Serota made the case for a Code of Practice7: A further point which I press on the Government at this stage is to ensure that, with the passing of this Bill, the concern many of us have expressed in connection with the continuation of police ‘stop and search powers’ should be met by the early publication of a code of practice which police forces throughout the country would follow. (Hansard 1971b [Serota, Labour] vol. 316 c. 1021) Nonetheless, political opinion remained broadly weighed towards the Bill. Proponents argued that the detection of drugs would disrupt and prevent crime, halting the spread of drug taking (Hansard 1971c [Oakes, Labour] vol. 798 c.1504). As Baroness Serota observed: ‘I find myself in support of the minority view’ (Hansard 1971a vol. 315 c.255). The Misuse of Drugs Act 1971 temporarily concluded the post-war enlargement at the national level. Against an increasingly volatile and politicized policing backdrop, it would be over a decade before parliament moved to expand search powers. Yet by the early seventies, the right to stop and search an individual no longer depended on arcane or piecemeal local legislation. Rather stop and search was an established modern legal construct, a recognised means of detecting and preventing crime, and invaluable tool in the proverbial policing toolbox. Part III. Discussion Drawing on parliamentary records, and contemporaneous secondary sources, this article has argued that legislative developments in post-war Britain signalled an important, if reasonably subtle, ideological shift that redefined what was ‘right and proper’ in relation to the policing remit (Manning, 2010: 18–9). Departing from the ‘well-trodden’ emphasis on rehabilitation and reform in the mid-twentieth century decades (Loader 2006: 561),8 the analysis showed how the Prevention of Crime Act 1953 extended the classicist Peelian tradition based on police presence and officers as ‘citizens in uniforms’ (RCCP 1929), to a model based on preventative power, underpinned by the ambiguous principle of reasonable suspicion. As well as setting a precedent for routine preventative police-work, the significance of the Act lay in the successful representation of preventative powers as a progressive form of light-touch crime control and general deterrent that fitted with the prevailing liberal-welfarist habitus (Garland 2000; Loader 2006)—rather than an intrusive or disciplinarian measure. By the same token, attempts by the libertarian Right to assert older, taken-for-granted beliefs and traditions about individual liberty, retrospective justice and ‘deservedness’ (Asp 2013: 27) failed. In this way, the habitus of crime control shifted, bringing previously marginal and piecemeal ideas about the role of preventive police power centre-stage. The second part of the article showed how parliament embedded the preventative model in the 1960s, via the steady expansion of police search powers across the decade. As Chalmers (2015: 1) explains, in terms of constitutional principles, the expansion of police search powers represented considerable statutory incursions into older arrangements that, except for urgent situations, had disallowed what might be described as ‘fishing’ exercises. ... a constable is entitled to arrest, without a warrant, any person seen by him committing a [crime], and he may arrest on the direct information of eye witnesses. Having arrested him, I have no doubt that the constable could search him. But it is a totally different matter to search a man in order to find evidence to determine whether you will apprehend him or not. If the search succeeds ... you will apprehend him; but if the search does not succeed, you will not apprehend him. Now, I have only to say that I know of no authority for ascribing to constables the right to make such tentative searches, and they seem contrary to constitutional principle. If the constable requires to make such a search, it can only be because he is not justified in apprehending; and, without a warrant, to search a person not liable to apprehension seems palpably illegal. A constable ... must make up his mind on what he sees (or hears on credible information) whether to arrest x` or not; and, if he does arrest in good faith, the law will protect him, whether his opinion at the time of the guilt of the person arrested prove accurate or not. (Lord Justice-General (Inglis) in Jackson v Stevenson (1897) 2 Adam 255 at 260) Nonetheless, by the mid to late-1960s, the modern model of stop and search had, in principle, acquired the status of an ‘accepted fact’ (Bourdieu 1987: 817): a mainstream way of thinking about crime control that remained embedded in British policing thereafter. In part, a receptive ideological climate facilitated the process of legislative creep. Post-war consensus, rising levels of recorded violence (Morris 1989), together with public anxiety in relation to the social threat posed by ‘youth’ (Cohen 1972) and the ‘delinquent generation’ (Wilkins 1960) all provided parliamentarians with a favourable setting in which to expand the policing remit. As Sandbrook (2006) observes, beneath the clichéd gloss of sixties liberalism and social reform, Britain remained a deeply conservative society. The apparent parliamentary acquiescence that facilitated the preventative ideal was however short-lived. Just as political consensus had smoothed the expansion of pre-emptive search powers, in 1971, a political Left increasingly attuned to the emergent civil liberties agenda moved to resist proposals to increase powers of search for drugs, whilst the Right moved to elevate law and order above the previously vaunted liberty of the subject. This now familiar dichotomy, between due process and rights, and crime control (Packer 1968) would broadly frame discourse around stop and search thereafter. It is however worth reiterating that earlier discourse on police powers of search was framed quite differently, in terms of an appeal to the seemingly progressive logic of prevention, and that objections over the threat to Liberty came from the Right. In the decades that followed, parliamentarians and police executives stretched the preventative principle further, to far-reaching suspicionless powers in relation to violence prevention and terrorism (Lennon 2015). Thus, by way of a ratchet effect, the 1960s model of stop and search as a reactive mechanism, premised on reasonable suspicion, investigation and general deterrence (Lustgarten 2002; Miller et al. 2000: 13) was converted into an altogether different model, premised on proactive policing and targeted deterrence. In part, the salience of the analysis lies in the persistence of preventive narratives and rhetoric in contemporary debate on stop and search, irrespective of robust supporting evidence (Delsol 2015; Quinton et al. 2017). To borrow from Billis (1981: 368), ‘the logic of “preventative work” seems so clear-cut, so uncontroversial, that any criticism runs the risk of appearing short-sighted and reactionary’. In the case of stop and search, preventative or precautionary narratives tend to go hand in hand with classical utilitarian principles, whereby the rights of a minority, for instance BAME people, or white working class teenagers, are forfeited for the greater good. Viewed through this lens, police initiatives may be rationalized by reference to worst-case scenarios, and the attendant possibility at least one life will be saved. To suggest otherwise, would appear short-sighted, or in the example below, idiotic. The one moan has been that people have been stopped and searched when the police did not have reasonable cause for suspicion that the person was carrying a knife … I would rather be stopped and searched 20 times a day than stabbed once. If it is thought to be an affront to the innocent, then I predict that if one of those who say so, was stabbed himself or his daughter was stabbed to death, he would soon see the idiocy of it. (Nicholas Fairburn, Glasgow Herald, 31/5/1993) The problem is that the utility principle runs counter to the principle of equality before the law (Neyroud and Beckley 2001: 44), individual rights and social justice (Rawls 1999: 23). As decades of recorded statistics show, routine stop and search is likely to impact disproportionality on certain sectors of the population (Lennon and Murray 2016). And yet still, it is exceptionally difficult to counter the intuitive appeal to precautionary principles that underlie police powers of search. Indeed, such is the weight of common-sense appeal that the thorny question of proof can be (and often is) put to one side. Thus, without definitive evidence to show that stop and search works or doesn’t work, either as a general or a targeted deterrent, debate invariably falls back onto slippery preventive principles and counterfactual ‘what if’ reasoning. It is arguably for this reason, at least in part, that despite racial discrimination, riots, Royal Commissions and a lack of robust supporting evidence, modern stop and search powers remain an essential policing tool. Conclusion This article has argued that the core ideas and beliefs that underpin modern stop and search powers broke with established ways of thinking about the proper role of the police. Whilst the principle of searching individuals based on reasonable suspicion is now generally taken for granted, the article demonstrates that this was not always the case, and that six decades ago, the prospect of ‘jostling’ a person based only on reasonable suspicion was viewed in some quarters as an affront to justice. Whilst the quiet encroachment of crime control objectives in the fifties and sixties diluted the liberal elitist project, widened the net of social control and weakened the previously vaunted ‘liberty of the subject’, the shifting balance between crime control and individual rights, and related social costs, only became fully apparent in the decades that followed. Looking to contemporary criminology, the fact that deep-seated and enduring transformations apropos the proper role of the police passed largely unnoticed, in a period marked by political consensus, is important on two related counts. First, the analysis shows that academic and political vigilance is required in periods of political calm, as well as in more heated climates (Murray and Harkin 2016). And second, that deliberation should be applied to subtle changes in criminal justice, and the possibility of unintended consequences, as well as the bold policies that rightly attract our attention. Cases Jackson v Stevenson (1897) 2 Adam 255, LJ Inglis. Dumbell v Roberts (1944) 1 All ER 326, LJ Scott. Footnotes 1 A notable exception is Terence Morris (1989) Crime and Criminal Justice since 1945. 2 The research for this article was undertaken as part of an ESRC/Scottish Government funded doctorate on the rise of mass stop and search in Scotland. 3 Official statistics showed a 32% increase in indicatable offences between 1945 and 1950, from 4,743 to 6,249 offences (Morris 1989: 35). 4 Note also that Robert Peel appropriated the language of individual liberty to shore up support for the new police (Dodsworth 2007). 5 The 1953 Act codified the interpretation of reasonable grounds in Dumbell v Roberts (1944, 1 All ER 326, LJ Scott). 6 The Criminal Justice Act 1948 abolished the birch as a judicial penalty. 7 In England and Wales, the Police and Criminal Evidence Act 1984 (PACE) established a Code of Practice. 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TI - The Modern Making of Stop and Search: The Rise of Preventative Sensibilities in Post-war Britain
JF - The British Journal of Criminology
DO - 10.1093/bjc/azx030
DA - 2018-05-01
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