21.4.3 Proprieties: sections 2, 3

Although there is no need for a search to take place following a stop,

PACE regulates the manner in which a search must be carried out.

Except as regards an unattended vehicle, a plain clothes officer must

produce his warrant card prior to the search (but not the initial stop)

and every officer must state his name (or as regards terrorist offences,

number), police station, the reasons for the search and the entitlement

to a record of the search. A failure to provide the grounds for the

search will render the search unlawful (R. v. Fenneley (1989)).

The search must be conducted in accordance with the Act and

Code A. Every reasonable effort must be made to minimise potential

embarrassment of the suspect (A: 3.1). The person or vehicle may be

detained only for such time as is reasonable in all the circumstances

and not beyond the time taken for the search (A: 3.3). In addition, the

thoroughness and extent of the search depends upon what items the

police are looking for. Since the Criminal Justice and Public Order Act

1994, the police may search the suspect’s mouth.

The searched person cannot, however, be compelled to remove, in

public, more than outer clothing (coat, jacket or gloves: s. 2 (9)) and, for

these purposes, a deserted street is regarded as being ‘in public’ (A: 3A).

523

Police Powers of Arrest and Search in the Investigation of Crime

The removal of other clothing can only be required if there are reason-

able grounds to consider it necessary and when the search is beyond

public view (A: 3.5). There is nothing, however, to prevent an officer

from requesting that a suspect voluntarily remove any clothing (A: 3A).

A search involving the removal of more than outer clothing, headgear

and footwear may only be made by (and in the presence of) an officer

of the same sex (A: 3.5). No member of the opposite sex may be pres-

ent unless the person searched specifically requests it. This could prove

to be a useful safeguard where the suspect is accompanied by, for

example, a spouse or parent. Intimate searches can be undertaken only

on the authorisation of an inspector or officer of higher rank.

A further safeguard is the general obligation to make a con-

temporaneous, written record of any search undertaken, unless it is

impractical to do so (s. 3 (1)). The Code advises that a record need not

be made contemporaneously where the officer has immediate duties

elsewhere or the weather is inclement (A: 4.2), but it must then be

compiled as soon as it becomes practical (s. 3 (2)); and need not be

compiled at all if it is a mass search or involves public disorder (A: 4.1).

The record must name the person searched (or, if unknown, contain a

description), disclose the suspect’s ethnic origin and state the purpose

of the search and details of its conduct and outcome (A: 4.5). The

individual enjoys a right to a copy of this record, provided a request is

made within 12 months of the date of the search (s. 3 (7), (8)). The

documentation provisions apply only to compulsory searches (s. 3 (1))

and, accordingly, nothing in the Code affects the routine searching,

with consent, of persons entering sports grounds or other premises or

when search is a condition of entry (A: 1D). The annual reports of

police authorities must contain statistical information about searches

made within their areas, and these will provide a breakdown of the

total monthly number of searches for stolen goods, offensive weapons

and other prohibited articles, and details of the number of arrests

arising from such searches (s. 5). This may serve to highlight any

random use of the power within a particular force, but is limited in the

sense that it does not cover the number of stops made without a sub-

sequent search and may not accurately reflect the figures of voluntary

stops and searches.

21.4.4 Road checks

Section 4 of PACE permits the setting up of ‘road checks’ (or ‘road

blocks’) which, except as a matter of urgency, must be authorised in

writing and by an officer of at least the rank of superintendent. The

524 General Principles of Constitutional and Administrative Law

authorisation can last for up to seven days (28 days under the Terror-

ism Act 2000 provided it is confirmed by the Secretary of State) and

may direct that the check be continuous or be conducted at specified

times. Thereafter, and if the senior officer thinks that the road check

‘ought’ to continue, further seven-day extensions may be authorised.

Section 4 leaves unaffected any other statutory power (e.g. or the

Terrorism Act 2000, the Road Traffic Act 1988 the Criminal Justice

and Public Order Act 1994) and the common law power in relation to

a breach of the peace, and these powers are not regulated by s. 4.

The purpose of s. 4 is to enable the police to ascertain whether there

is, in the vehicle stopped, someone who has committed, or is intend-

ing to commit, an offence, someone who has witnessed an offence

or someone who is ‘unlawfully at large’ (e.g. an escaped convict or a

person absconding while on bail). All searches are, therefore, for people

and not for evidence. A road check cannot, however, be authorised in

relation to any offence. The superintendent must reasonably ‘believe’

(a more onerous standard than ‘suspicion’) that it is ‘a serious arrest-

able offence’ (see below) and reasonably ‘suspect’ that the person who

has committed it, or intends to commit it, is going to be in the locality

where vehicles will be stopped. If the purpose is to seek witnesses, the

requirement is merely that the superintendent believes, on reasonable

grounds, that a serious arrestable offence has been committed. There