07 September 2020
Not reviewed after the date of publication
When a stop and search is conducted and a hand held device is unavailable, is it acceptable for the stop and search to be subsequently recorded at a police station?
Section 3 of the Police and Criminal Evidence Act 1984 provides the procedure for making records of searches carried out under the stop and search procedure. Subsection (1) states:
'3(1) Where a constable has carried out a search in the exercise of any such power as is mentioned in section 2(1) above, other than a search –
a record of the search shall be made in writing unless it is not practicable to do so.'
This is to be read in conjunction with the PACE Codes of Practice, specifically relevant here is Code of Practice A. In particular, for the recording requirements of a search that does not result in an arrest paragraphs 4.1 to 4.2A provide:
'4.1 When an officer carries out a search in the exercise of any power to which this Code applies and the search does not result in the person searched or person in charge of the vehicle searched being arrested and taken to a police station, a record must be made of it, electronically or on paper, unless there are exceptional circumstances which make this wholly impracticable (e.g. in situations involving public disorder or when the recording officer's presence is urgently required elsewhere). If a record is to be made, the officer carrying out the search must make the record on the spot unless this is not practicable, in which case, the officer must make the record as soon as practicable after the search is completed. (See Note 16.)
4.2 If the record is made at the time, the person who has been searched or who is in charge of the vehicle that has been searched must be asked if they want a copy and if they do, they must be given immediately, either:
copy of the record, or
a receipt which explains how they can obtain a copy of the full record or access to an electronic copy of the record.
4.2A An officer is not required to provide a copy of the full record or a receipt at the time if they are called to an incident of higher priority. (see Note 21.)'
We believe that the legislation and PACE guidelines are clear. Where there is a requirement for a record of the search to be made this must be done on the spot – we interpret this to mean immediately, and can be done either electronically or on paper. The guidelines provide exceptional circumstances where this may not be practicable and gives examples of situations involving public disorder or when the recording officer's presence is urgently required elsewhere. It is our opinion that a failure in the electronic HHD would not amount to exceptional circumstances or make it not practicable for the record to be made for the purposes of the legislation, and we would expect that a paper record would be made in those circumstances. This paper record can then be subsequently transferred to force systems for processing. We do not believe that delaying the recording of a search so that it can be completed on force systems would comply with the PACE Codes of Practice where there is a failure in the electronic HHD.
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