Genevieve Lennon

Under-regulated and unaccountable? Explaining variation in stop and search rates in Scotland, England and Wales

ABSTRACT From a position of near parity in 2005/2006, by 2012/2013 recorded search rates in Scotland exceeded those in England/Wales seven times over. This divergence is intriguing given the demands placed on the police, and the legal capacity to deal with these are broadly similar across the two jurisdictions. The aim of this paper is to unpack this variation. Using a comparative case-study approach, the paper examines the role of structural ‘top-down’ determinants of policing: substantive powers of search, rules and regulations, and scrutiny. Two arguments are presented. First, we argue that the rise of stop and search in Scotland was facilitated by weak regulation and safeguards. Second, we argue that divergence between the two jurisdictions may also be attributed to varying levels of political and public scrutiny, caused, in part, by scrutinising stop and search almost exclusively through the prism of ‘race’. In Scotland, the significance of these factors has been made evident by dint of organisational developments within the last decade; by the introduction of a target driven high-volume approach to stop and search in Strathclyde police force circa 2007 onwards; and the national roll-out of this approach following the single service merger in April 2013. The salient point is that the Strathclyde model was not hindered by legal rules and regulations, nor subject to policy and political challenge; rather a high discretion environment enabled a high-volume approach to stop and search to flourish without challenge.

Precautionary tales: Suspicionless counter-terrorism stop and search

In recent years, there has been an increased focus on the use of the precautionary principle within counter-terrorism. To date much of the literature has focused on ‘high’ level executive measures. This article examines the use of the precautionary measures within counter-terrorism street policing, taking suspicionless counter-terrorism stop and search as an exemplar. The analysis highlights how the logic of precaution necessitates vague statutory drafting and extensive police discretion and how these factors detrimentally impact upon police legitimacy and compliance to human rights law. It also considers how such measures fit within the current literature on pre-crime.

Stop and search powers in UK terrorism investigations: a limited judicial oversight?

At the pre-trial stage of counter-terrorist investigations, an ‘Anglo-Saxon’ indulgence towards street-level policing powers has been brought to task by European human rights norms, especially privacy, which are exerting new forms of control over policing discretion and opening judicial oversight over traditional policing activity. This article examines these trends in relation to suspicionless counter-terrorist stop and search. While the European Court of Human Rights applied robust scrutiny in the case of Gillan v. United Kingdom, in stark contrast to the approach by the House of Lords, there exists a number of challenges which are threatening to weaken judicial scrutiny in this area. First, more recent European Court of Human Rights cases show a more indulgent stance being taken towards policing powers. Second, the precautionary nature of suspicionless counter-terrorist stop and search raises a number of difficulties in relation to effective oversight. In addition, it is a counter-terrorist measure of general application which, to date, has not been subjected to particularly rigorous scrutiny.