Afternoon Constable?

In our last outing, we looked at some interesting legislation in the US pertaining to Law Enforcement Officers (LEOs) and the circumstances under which you should give in to their demands and cede away your freedoms. We learned that the correct circumstances are non-existent, and that we should fight for every bit of ground, make them work for every scrap of information they get from us, and ensure that they actually do their job, which is to uphold the law. 

Here, we're going to take a little jaunt across the pond, where the law is much less clear when it comes to how much authority LEOs have to stop, identify and search citizens. What we're going to learn is that the situation doesn't differ massively from the US, but there are some critical differences.

Also like the US, the police will use all manner of tactics to get what they want, up to and including intimidation, coercion, assault - whether directly or by threat of force - and illegal detention and arrest.

Let's start at the beginning, then, and look at what the law says about police power to stop and question you. Here's the relevant section from the government's website:

Stop and question: police powers

A police officer might stop you and ask:

  • what your name is
  • what you’re doing in the area
  • where you’re going

You don’t have to stop or answer any questions. If you don’t and there’s no other reason to suspect you, then this alone can’t be used as a reason to search or arrest you.

It's important to note that Police Community Support Officers (PCSOs) have exactly zero powers to compel you to give your details under any circumstances. They can detain you for up to 30 minutes, after which you can simply walk away. They cannot compel you to answer questions, even if they have reasonable, articulable suspicion that you've committed a crime.

As with the first post in this series I have, in preparing for this, watched hundreds of hours of UK police interactions and, in very many interactions, it's crystal clear that either the police don't understand this legislation or they ignore or misrepresent it in order to achieve their ends. Once again, it's hard to invoke Hanlon's Razor and, when taken in concert with other aspects of police behaviour, it's not only reasonable to conclude that they're simply lying, it's inescapable. Of course, this isn't a problem, because it's perfectly legal for the police to lie in the UK, and they take spectacular advantage of that as a matter of routine.

So what about their powers of search? Again, we find that the difference is minimal, but there is a critical difference, and it's important to be aware of it:

Stop and search: police powers

A police officer has powers to stop and search you if they have ‘reasonable grounds’ to suspect you’re carrying:

  • illegal drugs
  • a weapon
  • stolen property
  • something which could be used to commit a crime, such as a crowbar

You can only be stopped and searched without reasonable grounds if it has been approved by a senior police officer. This can happen if it is suspected that:

  • serious violence could take place
  • you’re carrying a weapon or have used one
  • you’re in a specific location or area

It's easy to spot the woolliness in the phrase 'reasonable grounds', but the mode of challenge is the same. Reasonable grounds must include an articulation of what those grounds are. Here's the government website again:

Before you’re searched the police officer must tell you:

  • their name and police station
  • what they expect to find, for example drugs
  • the reason they want to search you, for example if it looks like you’re hiding something
  • why they are legally allowed to search you
  • that you can have a record of the search and if this isn’t possible at the time, how you can get a copy

It's worth noting that the protections afforded by these points of legislation are currently under attack by the government who, in an attempt to look like they're doing something about an increase in violent crime brought on by their own austerity policies, are attempting to extend stop and search powers across the country.

Currently, blanket stop and search powers are available (although you still don't have to identify yourself unless they actually find something) only in pre-defined areas for specific amounts of time, and only if authorised by a senior officer. This is much like the DUI checkpoints in the US.

To my mind, such designations shouldn't be authorised by any member of the police force regardless of rank, for the same reason that no investigation of officer misconduct should be conducted by law enforcement. In fact, not to put too fine a point on it, these designations should simply not be available. They're an encroachment on our freedom, and should be viewed with deepest suspicion. The thin blue line isn't just an American thing (and, in fact, the term and its usage originate in the UK), it's a feature of all authoritarian organisations, and police are the worst offenders, protecting each other at all costs.

There are some areas, especially those where knife crime is highest, that have been granted a semi-permanent status as stop and search zones. It's these that the government proposes to extend. This is a very dangerous prcatice, and has historically been used as a cover for all sorts of disgusting behaviour by police, not least blatant racial profiling, giving them the force of law where previously they were operating only under colour of law*.

In any event, the critical difference between UK and US law pertaining to powers of search is that, unlike the US, you needn't have been arrested for a full search to be lawful. That said, they must still have what was referred to in the previous post as "reasonable, articulable suspicion" (RAS). In particular, as detailed above from the short form of the relevant legislation, the officer must tell you what grounds they have for searching you, what they expect to find, and the legislation that allows them to search you. The level of detail they must provide is up to you, but I'd always advise that they cite the relevant legislation word for word, not least because of Paine's warning above. In all of the above, PCSOs have zero powers beyond that of detaining you, and that still requires reasonable suspicion. You don't have to tell them anything or answer any questions, and they absolutely may not put hands on you in any circumstances other than attempting to leave the scene prior to the expiry of their 30 minutes detention. They did have powers of search under section 44 of the Terrorism Act 2000, but this section was ruled illegal by the ECHR in 2010, and was subsequently repealed as a result, along with some other provisions of that act.

It used to be the case, back in the days of the world's first proper written constitution, that the LEOs of the day were actually required to know the law they were enforcing. As an interesting aside, the man who put his John Hancock on this auspicious document is remembered in popular history as a bit of a despot, and not nearly as nice as his brother. It's interesting because his brother, Richard the Lionheart, was the most absentee ruler in history. He hated England, much preferring France, but spent most of his reign away fighting religious wars in Jerusalem. The monarch who signed this ground-breaking constitution, known as Magna Carta, was King John, popularly known as the regent and then King who imposed draconian taxation of the poor in Robin Hood (this was done to fund his itinerant brother's escapades in the Holy Land). The relevant clause is this one:

(45) We will appoint as justices, constables, sheriffs, or other officials, only men that know the law of the realm and are minded to keep it well.
Magna Carta 1215

In the majority of cases, the LEOs you encounter don't know the laws they're enforcing in even the vaguest sense, let alone the wording of the law. This might seem a small point, but the wording is important, because it defines the law unambiguously in most cases. A useful example of this, of which there are many, many examples on the Youtube channels I'll list at the end, is Section 5 of the Public Order Act 1986. This gets wheeled out by LEOs in the UK so often that it's depressing that so few of them know it. In this instance, the application of Hanlon's Razor is well warranted, as can be seen in some of those videos, wherein they're asked to recite the wording of the act to support their contention that somebody may be in breach.

There are three words that form the sum total of the understanding of the vast majority of police in these encounters, and it's really easy to tell, because of the way they cite it. It will always go along the lines of "mumble, mumble, mumble harassment alarm and distress". When challenged for the specific wording, they glaze over. This is a problem, because the exact wording of this law defines whether or not they can reasonably ask you to disengage in whatever behaviour they see as problematic. They'll level it at any behaviour seen as potentially insulting. However, the word 'insulting' doesn't appear anywhere in the act. It appeared in earlier revisions, until it was realised that nobody has the right not to be insulted, and that this impinged on the right to speak freely. Here's the wording, this time from the full legislation, rather than the lay presentation as in the previous cases here:

Harassment, alarm or distress.

(1) A person is guilty of an offence if he—

(a) uses threatening [F1or abusive] words or behaviour, or disorderly behaviour, or

(b) displays any writing, sign or other visible representation which is threatening [F1or abusive],

within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.

(2) An offence under this section may be committed in a public or a private place, except that no offence is committed where the words or behaviour are used, or the writing, sign or other visible representation is displayed, by a person inside a dwelling and the other person is also inside that or another dwelling.

(3) It is a defence for the accused to prove—

(a) that he had no reason to believe that there was any person within hearing or sight who was likely to be caused harassment, alarm or distress, or

(b) that he was inside a dwelling and had no reason to believe that the words or behaviour used, or the writing, sign or other visible representation displayed, would be heard or seen by a person outside that or any other dwelling, or

(c) that his conduct was reasonable.

Note the critical components of the language there, buried in the LEO's mumbles, namely 'threatening or abusive'. That's the bit they never manage to articulate, and it changes the entire tenor of the legislation.

Another go-to in the litany of intimidation tactics employed by LEOs is the ever-ubiquitous 'breach of the peace'. This is a funny piece of common law, and the police will often use threat of arrest to coerce you into desisting from behaviour they deem undesirable. It will often be cited in instances in which what somebody is doing is nothing more than speaking, which everybody has the freedom to do. What makes it funny is that breach of the peace has no real weight in law. No conviction, fine or custodial sentence can be imposed, and no lawful arrest can be made once the breach has passed. It's certainly the case that the police have the power to arrest you either during the breach, or if they have good reason to suspect that such a breach is imminent, but their powers of arrest are nullified once the breach has finished and peace is restored.

The only possible sanction in law is that a magistrate can bind you over to keep the peace for a fixed term. Any breach during that term can be legally sanctioned with either a financial or custodial penalty. Due to the extremely woolly nature of the definition of breach of the peace, there have been concerns raised that it contravenes sections 5, 10 and 11 of the European Convention on Human Rights.

In summary, while there is some difference in the details between US and UK law, the general advice given is identical. Check the specifics in your jurisdiction (it's worth noting that there are some differences in the law in Scotland, for example), and make sure you know your rights.

Ultimately, the core message of both of these posts is that you should never, ever talk to the police. Give them nothing, and they can have nothing to hang you with. This doesn't only apply when you're guilty, of course. This applies equally to the innocent, and the notion that, if you have nothing to hide, you have nothing to fear, is simply another coercive tactic employed by LEOs to get what they want. Never forget that they're not breaking any laws by applying tactics that would land anybody else in irons, including intimidation, coercion, lying and misrepresenting, and that's jusr the competent ones, and they appear to be increasibly fewer.

So why should we even care about giving our information to law enforcement officers?

The answer is that there are many good reasons. I talked about some of them in the previous post, but there are more that need to be made explicit.

The first and most obvious problem is that, if you don't exercise your rights, it's entirely probable that you'll lose them. We've already seen above that the UK government is encroaching in a big way on our freedoms, in the form of those stop and search laws. This is quite possibly going to be a massive problem in the very near future, with Brexit looming ever-larger, at which point the protection of the ECHR is going to be lost to us, meaning that, in all likelihood, the freedom violating sections of the Terrorism Act are likely to be re-introduced, as well as the removal of protections in all sorts of other areas. These impositions will continue to go unchallenged, especially when we're not asserting the rights we already have.

More importantly, the longer we, as a society, allow LEOs to impose their tactics on us and continue to intimidate, coerce and generally abuse their perceived authority, the more they will feel that their behaviour has the force of law. Only by normalising challenges to their behaviour can freedom be reimposed.

There's a famous quotation, often attributed to Thomas Jefferson, possibly apocryphally, that deals with this. It's thought by many to be an enjoinder to look outwards, and to ensure that enemies without are kept in check by keeping a watchful eye on them. This interpretation is, however, entirely mistaken. What the quotation refers to is keeping a close eye on the government's forays into your freedoms, by encroaching on them either in law or under colour of law. You've all heard it, I'm sure...

The price of liberty is eternal vigilance

Never forget that, where the people are afraid of the government, you have tyranny. Where the government are afraid of the people, you have liberty.

A couple of good channels on Youtube:

SocialExperimentalist (Danny Shine is one of the funniest, loveliest and most affable people I've ever encountered, challenging the basis for all sorts of silly assumptions that we carry around with us, and especially challenging authority).

PINACI news (a public photographer and freedom auditor in the vein of some of those US channels mentioned in the first post in this series).

Marti Blagborough

There's one channel that I'd love to recommend, because his exposure of police tactics is brilliant. However, he has some really incredibly toxic views on people and subjects close to my heart and skirting much too close to bigotry for my liking, so I cannot. I'm confident that subbing to any of the above channels will bring him into your recommendations, should you wish to look.

In the next post in this series, I'm going to be looking at some very specific instances of abuse of perceived authority on both sides of the pond, those pertaining to public photography and accountability of public officials in the course of their duties, wherein we'll be revisiting some anti-terrorism legislation and other police abuses.

* Colour of law is a term popularly used in the US to describe a situation in which a LEO uses the appearance of legal power to act outside the law. Any instance in which a LEO threatens arrest or detention when such detention falls outside the scope of their powers in law, for example, falls under this definition. There's no such usage in the UK, but such activities are commonplace.

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