No, we do not agree.
As with many Home Office consultations, the question is framed so that the person answering it is obliged to agree with its underlying premise. We wish to make it clear that we do not agree with the premise that there should be a change in the law to make is “easier to stop and search known knife carriers”. This premise is in our view somewhat disingenuous because in our view the law as it currently stands does not make it particularly difficult to stop and search any person, be they a “known knife carrier” or otherwise. In our experience it is in fact relatively easy for the police to stop and search someone.
We are, therefore, opposed completely in principle to the creation of this new order. We are of the view that the police’s current powers of stop and search are sufficient and do not require enhancing in this way, or at all.
The current requirement that an officer have “reasonable suspicion” that a person is carrying a weapon before they can stop and search them under s 1 PACE 1984 is in our experience of working in criminal defence a very low threshold indeed. It is given a very wide interpretation by front-line police officers and the reality is that if an officer takes the view that he wants to stop and search someone they will find a reason to do it, be it real or imagined. By way of example, one of the reasons most often cited for stopping and searching an individual is not a search for weapons at all, but a search for drugs under s 23 of the Misuse of Drugs Act 1973. The officer will say that they “smelt cannabis” in the vicinity and cite that (perhaps also adding that they are in an area “known for drugs”) as their reason for conducting the stop and search. Once an individual is being searched it does not matter whether it is a s 23 MDA 1973 search or a s 1 PACE 1984 search, the fact is that they are being searched and can be arrested if any prohibited item is found in their possession. If the reason for the search was a completely spurious one, this is highly unlikely to ever result in a complaint against the officer concerned and even less likely to result in any disciplinary sanction. This being the case, front-line officers can self-regulate their use of stop and search largely with impunity. We would be very surprised if any front-line officer told us that they had not stopped and searched someone they felt should be stopped and searched simply because that officer’s suspicion that the person was carrying weapons or drugs was not a “reasonable” one.
In our view, therefore, to remove the requirement of reasonable suspicion for stopping and searching a very small sub-set of offenders will not in fact make any practical difference. We are especially unconvinced that a person who is determined to carry a knife will be deterred from doing so simply because they have an SVRO.
Such an order on our view does nothing to address the underlying causes of knife crime. We feel as if the government’s energies would be better spent addressing these underlying causes rather than passing rather pointless legislation that, a more cynical person might argue, is simply designed to create the appearance of doing something to address the problem, rather than actually addressing the problem. We also fear that introducing a permanent power (as opposed to the strictly time-limited power under s 60 CJPOA 1994) such as this would create a dangerous precedent and would act as a harbinger of further, more expansive, proposals to erode the requirement of reasonable suspicion for a stop and search even further, perhaps altogether. Even though we feel that reasonable suspicion only creates a very low threshold and is consequently not a particularly robust safeguard against arbitrary state interference, it is nonetheless a safeguard and it is better to have it than not.
We also make the point that, whilst the consultation contains helpful and cogent evidence in relation to knife crime in general, it does not contain any evidence that the police have in fact asked for this extra power or made any case that there is in fact a pressing need for it. We find the omission highly significant, as we do the fact that the proposals are based upon recommendations in a report by the Centre for Social Justice, a conservative think-tank.
Never, we do not believe that any court should have the power to make such an order.
As stated above, we disagree with SVROs in principle but if the power to make such an order did exist it should be wholly at the discretion of the court and the test for imposition should be one of necessity.
See above. We disagree with such an order in principle but if the power to make such an order did exist it should be in respect of adults only.
See above. We disagree with such an order in principle but if the power to make such an order did exist there is should be a maximum length (no minimum) and it would be for the court to decide on the length of the order.
No, there should be no separate offence of a breach of an SVRO. As we understand it, the proposal would envisage the order being breached in two ways:
By refusing to cooperate with a search by a police officer; and/or
By being found to be in possession of an item prohibited by the order
In opposition to this we make the rather obvious point that both these things are criminal offences already – obstructing a constable in the execution of their duty and possession of a bladed article / possession of an offensive weapon. It seems pointless to make what is already a criminal offence another criminal offence.
This question seems to us to be over-complicating the issue. Given that an SVRO will of necessity be linked to a criminal conviction, it will be recorded on the PNC and an officer will be notified of its existence and whether or not it is still current simply by doing a PNC check.
The real answer to this question, however, in our view comes on to a wider policing issue. There is a clear and well-documented breakdown in trust between some communities and the police forces that are meant to serve them, a breakdown that has in many cases been precipitated by the misuse of police powers such as stop and search. Beginning the process of eroding a safeguard against arbitrary stop and search with the introduction of SVROs seems to us to be adding fuel to the fire and comes at the problem from the wrong angle. Rather than the solution being purely based on criminal justice we would urge the Home Office to adopt a public health approach, as has been done in Scotland. We are impressed and would refer the Home Office to the results the Scottish government achieved in substantially reducing knife crime with such an approach, a result that was achieved without bringing into force draconian legislation. Knife crime is a symptom of a wider social problem and we do not think this legislation tackles the deeper issues of serious knife offences and the carrying of weapons.
The LCCSA Sentencing and Consultations Sub-Committee
Hodge Jones & Allen Solicitors
Alexander Johnson Solicitors
GT Stewart Solicitors
Lewis Nedas Solicitors