The Illegality of Ear Cropping and Tail Docking in Dogs Written by: Shelley Gregory, PNLD Legal Adviser

Not reviewed after the date of publication - 25 September 2024

PNLD have received numerous queries recently regarding the stop and search powers in relation to juvenile subjects. Section 11 of the Children Act 2004 requires chief police officers and other specified persons and bodies to ensure that in the discharge of their functions they have regard to the need to safeguard and promote the welfare of all persons under the age of 18. PNLD Legal Adviser, Shelley Gregory, provides a brief overview of the stop and search powers available to the police with a particular focus on juveniles.

Search Powers

Search powers can be used on juveniles as they can on adults but the safeguards within the legislation and the PACE Codes of Practice must be adhered to. There are many legislative provisions that may provide an officer with the power to search a person, including a juvenile, so this is not intended to be an exhaustive list, but will detail what we understand to be the five most frequently used stop and search powers:

  • Section 1 of PACE provides that an officer must have reasonable  grounds for suspecting that the person has stolen or prohibited articles on them at the time of the stop and search. 
  • Section 23(2) of the Misuse of Drugs Act 1971 provides that if a constable has reasonable grounds to suspect that any person is in possession of a controlled drug in contravention of this Act or of any regulations or orders made thereunder, the constable may detain and search that person and seize anything found in the course of the search which appears to them to be evidence of an offence under that Act.
  • Section 60 of the Criminal Justice and Public Order Act 1994 allows senior police officers to authorise constables to stop and search persons in a specific area, either where a serious public order problem is likely to arise or has taken place, or for offensive weapons or dangerous instruments. Failing to submit to a search is an offence. When authorised, this power is in addition to normal powers of stop and search and does not replace them. 
  • Section 11 of the Public Order Act 2023 provides for powers to stop and search persons or vehicles for objects made, adapted or intended for use in connection with specified protest related offences.
  • Section 47 of the Firearms Act 1968 provides a constable with stop and search powers in respect of firearms.
A voluntary search of a person with their consent is not permitted – a legal power to search must exist. (One exception being the search of persons entering sports grounds or other premises carried out with their consent given as a condition of entry). A stop and search conducted under these provisions must comply with the legislation itself and also with PACE Code of Practice A. (See Annex A to this Code of Practice for a summary of main stop and search powers to which Code A applies).
 

Conduct and Extent of the Search


“All stops and searches must be carried out with courtesy, consideration and respect for the person concerned. This has a significant impact on public confidence in the police. Every reasonable effort must be made to minimise the embarrassment that a person being searched may experience. The co-operation of the person to be searched must be sought in every case, even if the person initially objects to the search. A forcible search may be made only if it has been established that the person is unwilling to co-operate or resists. Reasonable force may be used as a last resort if necessary to conduct a search or to detain a person or vehicle for the purposes of a search.” (Paragraphs 3.1 and 3.2 of Pace Code of Practice A). 

Prior to searching a person, an officer must take reasonable steps to provide the information detailed in paragraph 3.8 of PACE Code of Practice A. (GOWISELY is an ‘aide memoire’ for the information that officers should give to ensure that the stop and search is lawful.) The person must also be given information about police powers to stop and search and the individual’s rights in these circumstances (paragraph 3.10 of PACE Code of Practice A). Paragraph 4 of PACE Code of Practice A provides guidance in relation to recording requirements. 

Where more than one officer is present for the stop and search, they each have a responsibility to work together to determine the action that each of them is to take. It is understood that this would need one officer to be the ‘lead’ on the search.  This ‘lead’ officer would need to go through “GOWISELY” and should the assistance of a second officer be needed, the ‘lead’ officer would need to include the identity of this officer and explain to the subject what action the second officer is going to take to assist the search.  Each officer would have to ensure that they acted fairly, lawfully and professionally.  

The search must be carried out at or near to the place where the person was first detained (paragraph 3.4). Not all subjects will be compliant and may make off before a search can be started – or completed. However, should a chase ensue which results in an officer using reasonable force to detain the subject nearby to conduct the search, the information detailed in paragraph 3.8 must still be provided before the search is commenced. Although this can be in a time pressured situation, case law has confirmed the minimal requirement - which is not particularly onerous on the officer. In the case of R v Bristol [2007], it was common ground that the officer had a power to search Bristol under section 23 of the MDA but that he had failed to comply with section 2 of PACE when he did not provide Bristol with his name or station before commencing the search. It was stated that all that the officer had to say was his name, “Mansson”, his police station, which we understand to be “Charing Cross” and then continue with the words “drugs search, spit it out”. There was no need for him to say any more. But Parliament has specified that he had at least to say that. It was questioned whether he had he taken reasonable steps to do so. The court held that there was no evidence that he did, there was no evidence that he gave his name and that there was no evidence that he gave his police station. Therefore, the failure of this prosecution related to the failure to comply with section 2 of PACE.

Police can only request a person subject to a stop and search in public to remove their outer coat, jacket or gloves (except under section 60AA of the Criminal Justice and Public Order Act 1994). A search of a person’s clothing which has not been removed must be restricted to a superficial examination of outer garments, so an officer can place their hand inside the pockets of the outer clothing, or feel round the inside of collars, socks and shoes if this is reasonably necessary in the circumstances to look for the object of the search or to remove and examine any item reasonably suspected to be the object of the search (paragraph 3.5). Although there is no requirement for the officer to be of the same sex as the subject for this level of search, as noted above, officers must make every reasonable effort to minimise the embarrassment that the person being searched may experience – this may include a decision to utilise an officer of the same gender as the subject of the search and where operational demands allow.

Where, on reasonable grounds, it is considered that it is necessary to conduct a more thorough search involving the removal of more than a jacket, outer coat or gloves but not revealing intimate parts of the body, paragraph 3.6 of PACE Code of Practice A guides that this can only be conducted out of public view (for example in a police van or police station), by an officer of the same sex as the person being searched and may not be made in the presence of anyone of the opposite sex unless the person being searched specifically requests it.

Paragraph 3.7 of PACE Code of Practice A guides that searches involving exposure of intimate parts of the body must not be conducted as a routine extension of a less thorough search, simply because nothing is found in the course of the initial search. Searches involving exposure of intimate parts of the body may be carried out only at a nearby police station or other nearby location which is out of public view (but not a police vehicle).  

Paragraph 1.12 of PACE Code of Practice C guides that PACE Code C does not apply to people in custody detained for searches under stop and search powers except as required by Code A. Required by Code A relates to the requirement stipulated in paragraph 3.7 of PACE Code A, being that searches carried out under the power of stop and search involving the exposure of intimate parts of the body may be carried out only at a nearby police station or other nearby location which is out of public view (but not a police vehicle). These searches must be conducted in accordance with paragraph 11 of Annex A to PACE Code of Practice C.  

Although the College of Policing APP guides that the officer who identifies the need for the strip search is responsible for the decision to proceed with the strip search (authorisation of a supervisor is not required), the guidance also provides that the officer must consult a supervisor prior to carrying out the search, to explore the reasons why it is necessary and proportionate in the circumstances. 
 

Conduct of Strip Searches 


Paragraph 11 of Annex A of PACE Code of Practice C provides for the conduct of strip searches:
 
“When strip searches are conducted:

(a) a police officer carrying out a strip search must be the same sex as the detainee (see Annex L);

(b) the search shall take place in an area where the detainee cannot be seen by anyone who does not need to be present, nor by a member of the opposite sex (see Annex L) except an appropriate adult who has been specifically requested by detainee;

(c) except in cases of urgency, where there is a risk of serious harm to the detainee or to others, whenever a strip search involves exposure of intimate body parts, there must be at least two people present other than the detainee, and if the search is of a juvenile or vulnerable person, one of the people must be the appropriate adult. Except in urgent cases as above, a search of a juvenile may take place in the absence of the appropriate adult only if the juvenile signifies in the presence of the appropriate adult that they do not want the appropriate adult to be present during the search and the appropriate adult agrees. A record shall be made of the juvenile's decision and signed by the appropriate adult. The presence of more than two people, other than an appropriate adult, shall be permitted only in the most exceptional circumstances;

(d) the search shall be conducted with proper regard to the dignity, sensitivity and vulnerability of the detainee in these circumstances, including in particular, their health, hygiene and welfare needs to which paragraphs 9.3A and 9.3B apply. Every reasonable effort shall be made to secure the detainee's co-operation, maintain their dignity and minimise embarrassment. Detainees who are searched shall not normally be required to remove all their clothes at the same time, e.g. a person should be allowed to remove clothing above the waist and redress before removing further clothing;

(e) if necessary to assist the search, the detainee may be required to hold their arms in the air or to stand with their legs apart and bend forward so that a visual examination may be made of the genital and anal areas provided no physical contact is made with any body orifice;

(f) if articles are found, the detainee shall be asked to hand them over. If articles are found within any body orifice other than the mouth, and the detainee refuses to hand them over, their removal would constitute an intimate search, which must be carried out as in Part A;

(g) a strip search shall be conducted as quickly as possible, and the detainee allowed to dress as soon as the procedure is complete.”

 

Strip Searching Juveniles 

 
For the purposes of the police searching a person, a juvenile is considered to be any person who appears to be under the age of 18 years (paragraph 1.5 of Code A).

Where a more thorough strip search of the juvenile is conducted, but intimate body parts are not exposed, an appropriate adult will not be required unless specifically requested by the juvenile subject (paragraph 11(b) of Annex A to PACE Code of Practice C). Whenever the strip search of a juvenile involves the exposure of intimate body parts, it must take place in the presence of an appropriate adult, unless determined to be a case of urgency or if the juvenile signifies in the presence of the appropriate adult that they do not want the appropriate adult to be present and the adult agrees (paragraph 11(c) of Annex A to PACE Code of Practice C). (Paragraph 1.7 of PACE Code of Practice C provides the definition of an appropriate adult.) Accordingly, unless it is a case of urgency where there is a risk of serious harm to the detainee or others, if the search involves exposure of intimate body parts, then there must be at least two people present in addition to the detainee, and where the detainee is a juvenile, one of the two people present must be the appropriate adult. If the juvenile requests that they do not want the appropriate adult to be present a second person in addition to the juvenile would still need to be present.

In relation to stop and search powers, paragraph 2.2A of PACE Code of Practice A provides:

“The exercise of these stop and search powers depends on the likelihood that the person searched is in possession of an item for which they may be searched; it does not depend on the person concerned being suspected of committing an offence in relation to the object of the search. A police officer who has reasonable grounds to suspect that a person is in innocent possession of a stolen or prohibited article, controlled drug or other item for which the officer is empowered to search, may stop and search the person even though there would be no power of arrest. This would apply when a child under the age of criminal responsibility (10 years) is suspected of carrying any such item, even if they knew they had it. (See Notes 1B and 1BA).”

Notes 1B and 1BA guide:

“1B Innocent possession means that the person does not have the guilty knowledge that they are carrying an unlawful item which is required before an arrest on suspicion that the person has committed an offence in respect of the item sought (if arrest is necessary - see PACE Code G) and/or a criminal prosecution, can be considered. It is not uncommon for children under the age of criminal responsibility to be used by older children and adults to carry stolen property, drugs and weapons and, in some cases, firearms, for the criminal benefit of others, either:
  • in the hope that police may not suspect they are being used for carrying the items; or
  • knowing that if they are suspected of being couriers and are stopped and searched, they cannot be arrested or prosecuted for any criminal offence.
Stop and search powers therefore allow the police to intervene effectively to break up criminal gangs and groups that use young children to further their criminal activities.

1BA Whenever a child under 10 is suspected of carrying unlawful items for someone else, or is found in circumstances which suggest that their welfare and safety may be at risk, the facts should be reported and actioned in accordance with established force safeguarding procedures. This will be in addition to treating them as a potentially vulnerable or intimidated witness in respect of their status as a witness to the serious criminal offence(s) committed by those using them as couriers. Safeguarding considerations will also apply to other persons aged under 18 who are stopped and searched under any of the powers to which this Code applies. See paragraph 1.1 with regard to the requirement under the Children Act 2004, section 11, for chief police officers and other specified persons and bodies, to ensure that in the discharge of their functions, they have regard to the need to safeguard and promote the welfare of all persons under the age of 18.”

Additionally, the College of Policing APP guides:

“Children under 10 should only be stopped and searched in exceptional circumstances. Where it is necessary to do so, regardless of the extent of search, every effort should be made for the search to be conducted in a child-friendly location in the presence of an appropriate adult. This could mean taking the child to their home to be searched in the presence of their parent or guardian. Where this is not operationally possible, the search should as a minimum take place in a safe and controlled area, a police station being preferable to the street or in a police vehicle. All searches of children under 10 should be referred to the safeguarding team as a priority”.
 

Child Q Incident 

 
During this high-profile incident, school staff suspected that a 15-year-old, black-skinned girl (Child Q) had been using cannabis as they believed they could smell it on her. The police attended the school and Child Q was taken out of a mock examination by two female police officers and taken to the school's medical room and strip searched, exposing intimate body parts. Teachers remained outside the medical room. No other adult was present, and her parents were not contacted, nor was a supervisor consulted in advance. (Note that a police officer cannot be an appropriate adult in the case of a juvenile – paragraph 1.7(a)(iii) of PACE Code of Practice C.) It was known that the girl was menstruating. The object of the search was cannabis. Child Q had already denied using or having any drugs in her possession and a search of her bag, blazer, scarf and shoes had already revealed nothing of significance. No drugs were found during the strip search.

PACE Code of Practice A states that stops and searches must not just be carried out on a hunch or because the person is a known criminal, they must have an objective element to them. The objective element could be based on intelligence, information or relevant facts (paragraph 2.6B). An example of this could be the person's behaviour in a locality where burglaries are occurring regularly. Paragraph 2.2B states:

“2.2B Reasonable suspicion can never be supported on the basis of personal factors. This means that unless the police have information or intelligence which provides a description of a person suspected of carrying an article for which there is a power to stop and search, the following cannot be used, alone or in combination with each other, or in combination with any other factor, as the reason for stopping and searching any individual, including any vehicle which they are driving or are being carried in:

(a) A person's physical appearance with regard, for example, to their race, ethnicity, sexuality and any of the relevant 'protected characteristics' set out in the Equality Act 2010 (see paragraph 1.1 and Note 1A), or the fact that the person is known to have a previous conviction.

(b) Generalisations or stereotypical images that certain groups or categories of people are more likely to be involved in criminal activity.”

Upon the arrival of the police, school staff had deferred to their authority. It was acknowledged by the Force involved that this was a regrettable incident that should never have happened; it was unjustified, and racism was likely to have been a factor. The lack of any involvement of an appropriate adult, lack of justification for the search and the potential that racism was a likely factor were all clear breaches of the PACE Codes of Practice leading to a traumatic incident where Child Q had undoubtedly suffered harm.

A Child Safeguarding Practice Review was clear in the findings that the strip search of Child Q should never have happened and there was no reasonable justification for it. It was stated that across many professionals that day, there was an absence of a safeguarding first approach and other ways in which this incident could have been managed.
 

A Final Word 

 
Powers to stop and search must be used fairly, responsibly, with respect for people being searched and without unlawful discrimination. As can be seen, this is a strictly legislated area with an accompanying Code of Practice providing guidance which includes important procedural safeguards. Where these have not been observed, any evidence obtained from the search may be open to challenge. Any misuse of stop and search powers is likely to be harmful to policing and lead to a general mistrust in the police.

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