A man cannot suffer more punishment than the law assigns, but he may suffer less. The laws cannot be strained by partiality to inflict a penalty beyond what the letter will warrant.
So wrote Sir William Blackstone in his Commentaries on the Laws of England of 1765–1770, a work that helped catalyse the American Revolution. Yet, in 2020, the British Government drew up legislation which would allow for a person that had never carried a knife to be considered as a potential knife and offensive weapon offender.
In 2022, the same government gave extraordinary powers to police to search such a person, while removing the necessity for any suspicion prior to searching. And, in January 2023, guidance for police on such searches in England and Wales was updated and formalised in a revised version of Code A of the Police and Criminal Evidence Act 1984 (PACE Code A).
Since entering the formal lexicon of police powers in the apt year of 1984, ‘stop and search’ has never been more than a stumble from the fire of controversy, following its predecessor, the ‘sus law’ from the Vagrancy Act of 1824. Nearly forty years later, the Westminster Government is still kicking the embers, with the very likely outcome that new search powers for police will see flames circling the diminished liberties of the British people.
Courts will be able to make Serious Violence Reduction Orders (SVROs) in respect of offenders convicted of offences where a knife or offensive weapon was used or was present. The police will have stop and search powers to target those subject to the orders.
The Daily Mail reporting on stop-and-search in 2014
As with any decisive action taken by police, there must be a rationale underpinning it. In the case of searches, suspicion is required, which should be objective. This means that simply searching someone because they are a known offender, or because they look dodgy, is unlawful. The particular situation must arouse defined suspicion, which means that the premise for the search can be clearly articulated and that the object of the search must be specified; this premise of the common law has found expression in the USA as the Fourth Amendment and is summarised as the requirement for probable cause.
Ripe for abuse
For example, in England and Wales, a constable may have heard a recent report of an individual carrying drugs or a weapon, and, upon seeing a person matching the description, may decide that he has the requisite level of suspicion. At this point, the constable must be clear that police are searching for a particular article, or articles.
Searching without meeting these thresholds is an abuse of power. There are very few instances in which searches may be conducted without these grounds, section 60 of the Criminal Justice and Public Order Act 1994 being the most notable; namely, when an inspector or above (a mid- to high-ranking policeman) believes that there is a risk of serious and imminent violence in a particular area and that people will be carrying offensive weapons.
Section 44 of the Terrorism Act 2000 contained similar provisions, and this was abused to such a degree that the law itself was, eventually, changed. I went into this in greater detail in a recent article for UK Column on the conditions which make for police misconduct. Despite the enormous catalogue of controversy surrounding the search powers available to police and the misapplication of these powers, the Government has seen fit to give police yet more rope.
The Government makes the case for this new provision by citing knife crime statistics which, it says, show an increase of 84% in offences involving bladed or sharply pointed articles between the years 2014 and 2020. Regardless of the accuracy or quality of such a statistic, the outcomes in offences involving knives are often terrible, so it might seem reasonable to support the Government in taking a position to do something about it. The important thing is to find out what course of action the Government has chosen, and why.
The new tool
In explaining what a SVRO does, the Government makes two hints. Its use of the words, ‘where a knife or offensive weapon was used or was present’, suggests that the presence of a knife must have had some bearing on the referenced offence. Secondly, the language implies that the offender, or subject of the SVRO, was in possession of a knife or offensive weapon at the time of the offence.
In fact, neither of these conditions need be satisfied. As ludicrous as it sounds, a person may find himself the subject of a SVRO even if he took part in an offence which involved no knives or offensive weapons. In November 2021, during a debate in the House of Lords on the then Police, Crime, Sentencing and Courts Bill, Lord Paddick set out the lunacy of the proposal with a fictitious example. Brian Paddick is a former Deputy Assistant Commissioner of the Metropolitan Police, so he can be said to know enough of what he speaks.
Paddick asked his noble friends to consider two louts walking along a street, when one decides to smash the window of a parked car and the other joins in. Both louts are convicted of criminal damage. No weapons of any sort are used during the incident. Subsequently, it turns out that the first lout is an electrician and, as such, he usually carries a knife for work. At the time of committing criminal damage, he was not carrying his knife, but the second lout knew that he was an electrician. Section 342A of the Sentencing Act 2020 (shown below) contains this remarkable clause (emphasis added):
the court is satisfied on the balance of probabilities that another person who committed the offence had a bladed article or offensive weapon with them when the offence was committed and the offender knew or ought to have known that this would be the case.
The provision incriminating someone thought 51% likely to have guessed that his mate had a blade on his person
The English threshold for criminal conviction is ‘beyond all reasonable doubt’. It is a high bar, but the removal of a person’s liberty is a matter of the utmost seriousness, and convicting ‘on the balance of probabilities’ would lead to many miscarriages of justice.
Incidentally, this threshold does illustrate the difficulty police face in providing enough evidence of a suspect’s guilt in what may be called ‘he said, she said’ offences. Rape, unfortunately, is the most prominent example; and advances in forensic examination will never be able to determine such problematic points as consent or, in other offences, intent. Here, though, via the provisions of the Sentencing Act, a court may introduce as evidence things which may or may not have been the case ‘on the balance of probabilities’. In the scenario involving the smashed car window, it was clear that a knife or offensive weapon had nothing to do with the offence; even if the electrician had been carrying one at the time.
If there were no knife involved in the commission of the first offence—criminal damage—then there could have been no evidence introduced which pertained to a knife, even if the electrician had, in fact, been carrying one. Despite this, a court with the power to make a SVRO may introduce elements, real or hypothetical, that were not part of the original criminal proceedings. Thus, it is presumed that the friend of the electrician ‘knew or ought to have known’ that an electrician may carry a knife.
This scenario was created by Paddick to highlight both the absurdity and unjustness of this piece of statute. Even if it represents a fiction that may never express itself in the real world, why should law be liable to such potential abuse? The legislation which enables the SVRO is not just a step, but a great leap, from the evidential principles. In fact, regarding the Police, Crime, Sentencing and Courts Bill, Lord Paddick had this to say:
The nonsense of this monstrous Bill, where the Government have tried to force so much controversial legislation into one Bill, and then tried to force as many provisions of the Bill as possible into each group of amendments, has resulted in my longest ever speech on the Floor of this House in my eight years here. Do not blame me—I am looking at the Minister.
The subject of a SVRO will be bound by the order for between six months and two years, in the first instance, though, there is nothing in place to stop the order from being renewed, indeed renewed perpetually during the lifetime of the person in question. As subject of such an order, police may search you in a public place, without suspicion, whenever they like. Quite apart from the central consideration—which is that this seems a grievous and disproportionate assault on liberty—one has to wonder as to the point of such a measure. It reads like a public relations disaster and is more than likely to stir up greater ill will towards police and the courts, especially if there comes a time when the use of SVROs is commonplace.
Haunted by expired orders
The faults do not end here. Police record-keeping and communications being what they are, it is certain that people whose SVROs have expired will continue to be targeted, in the same way that countless grandmothers are woken in the middle of the night just because a wayward grandson once kipped on the sofa after committing a previous offence. Not just that, but there will be cases of mistaken identity, and probable wrongful arrests. Currently, if asked to ‘stop and account’ for your whereabouts by police, you are under no obligation to reply. Of course, if they think you are subject to a SVRO, failing to account could lead to detention—which is preposterous, but nevertheless likely.
Knowing what we know so far, SVROs seem like an absolutely terrible idea, potentially exposing non-violent one-time offenders to months or years of intrusive and degrading police attention. Time to look at the factors which appear to have led the Government to this stage. It says:
SVROs are intended to deter those offenders from carrying weapons as there is a greater likelihood of being caught and brought to justice.
Logic, then, dictates that SVROs may not deter offenders; and a plan based on ‘likelihood’ is a frail one. Indeed, the Government’s own statistics pour cold water over the notion of deterrence, as around three-quarters of knife offences are committed by first-timers:
The proportion of offenders for whom this is their first knife or offensive weapon possession offence has been decreasing over the last decade, from 76% in year ending March 2012 to 71% in year ending March 2022 but has been roughly stable since year ending March 2018.
This article relates to knife crime and stop and search, which means there will surely be a race dimension to it. And so there is, with the Home Office declaring that:
the implementation of SVROs must be delivered fairly and robust police training must be in place to avoid any disproportionate impact on individuals from ethnic minority backgrounds, in particular young black men.
This is a tough circle to square, because, according to the Government,
In 2018, ethnic minority groups were over-represented for prosecutions of possession of weapons offences, accounting for 30% of all prosecutions in this category.
Of all prosecutions for possession of weapons offences, “possession of an article with a blade or point” made up 59% of prosecutions. According to the same statistics-backed report, the tale of the victim is also one of disproportionality:
Between 2017/18 and 2019/20, almost half (49%) of homicide victims aged 15 to 17 and 37% of victims aged 18 to 20 were from the Black ethnic group. During this three-year period, 38% of Black homicide victims were of age 20 or younger; 13% of White, 24% of Asian and 33% of Other ethnicity homicide victims were in this age group.
Given these statistics, how can the SVRO do anything but emphasise disproportionality? Will courts be instructed not to serve the orders on non-white people? Will police be instructed to ignore non-white subjects of an SVRO? In twenty-first century Britain, these are not completely outlandish suggestions. They would enable a new line of figures for the Government to hang its hat on, and the Government likes to do that.
Inevitably, a consultation on the design of SVROs ran from 14 September to 8 November 2020. Across the four nations of the United Kingdom, a total of 548 responses were received. According to the SVRO Factsheet,
The vast majority of responses (89%) were from members of the public with 61 (11%) responses from agencies and stakeholders. Most responses were supportive of the legislation (77%). We have listened to the voice of the public. We are clear that communities do not feel safe and that we must do everything in our power to provide the police with additional powers to enable them to target those offenders who are considered to pose the highest risk.
One solitary member of the public opined on changes to PACE
Suggesting that 487 respondents to such a consultation is representative of the ‘voice of the public’ is patently ridiculous. But, if you think that is concerning, you will hardly be heartened to know that responses to the consultation on changes to PACE Code A were rather fewer in number.
In fact, just eleven responses were received, during a six-week period, and only one of these was from a member of the public. This sounds so laughable that I feel the need to provide evidence; see below.
A grand total of eleven responses to consultation on changes to PACE Code A
Even though the public are reportedly clamouring for this disastrous initiative, the Government was keeping its powder dry until April 2023. A pilot began at that point, involving four police forces, Thames Valley Police being one of them. I mention Thames Valley because it turns out that there is quite a bit of money to be had in the violence reduction business. Thames Valley Violence Reduction Unit (TVVRU) has been given £1.16 million, via the Police and Crime Commissioner, in 2019, and the same figure in 2020. In 2022, TVVRU was given a further £7 million (over three years).
If the result of such bids for funding is a demonstrable improvement within the policing area and a marked decrease in violence, the money could be said to have been well appropriated; putting aside grotesque infringements on liberty, for a moment. The introduction of SVRO does look set to change things. Doubtless, there will be extra money made available as the pilot scheme begins. For that money to be considered well spent, the impact of the SVRO must appear positive. This sort of financial incentive renders the scheme open to corruption.
Thames Valley Violence Reduction Unit, which has netted nearly £10m since 2019
Conveyor belt awaits?
The Government will want to see its proposed scheme flourish, especially since it is now enshrined in law. The two-year trial period now commencing is said to be one in which the merits of the new orders can be evaluated, in order to determine whether or not there be any further rollout. Having battled so energetically to get it this far, there is a greater likelihood that the Government will will simply expand the SVRO at the end of the pilot.
At the operational level, since police forces can bid for ringfenced violence-reduction cash, there will be a great push to make sure that it is seen to be working. This can only be done if the courts have offenders recommended to them for an SVRO and if those offenders are monitored—and, of course, searched regularly. This is already dangerous enough within the context set out, but also because of what is coming down the track.
The production of highly controversial legislation, proposed or passed, has become a defining characteristic of this rudderless, and often leaderless, government. The Public Order Bill, travelling a bumpy path through Parliament, contained yet more provisions for ‘Powers to stop and search without suspicion’. Fortunately, this was removed by the House of Lords on 7 February this year, but it is worth looking at what the Government was proposing. Section 7 as drafted read as follows:
Powers to stop and search without suspicion
(1) This section applies if a police officer of or above the rank of inspector reasonably believes—
(a) that any of the following offences may be committed in any locality within the officer’s police area—
(i) an offence under section 137 of the Highways Act 1980 (wilful obstruction) involving activity which causes or is capable of causing serious disruption to two or more individuals or to an organisation;
(ii) an offence under section 78 of the Police, Crime, Sentencing and Courts Act 2022 (intentionally or recklessly causing public nuisance);
(iii) an offence under section 1 (offence of locking on);
(iv) an offence under section 3 (obstruction etc of major transport works);
(v) an offence under section 4 (interference with use or operation of key national infrastructure), or
(b) that persons are carrying prohibited objects in any locality within the officer’s police area.
Although (for now) the bar for searching without suspicion has not dropped so low as that hoped-for notch of ‘I’m an Inspector and I don’t like the look of you’, it is alarming to see the Government so much as try to introduce such powers for police. How can be it argued as proportionate to search any person or vehicle, without suspicion, just because a mid-ranking policeman believes that someone might be about to try to block a road or cause ‘nuisance’?
Upper chamber oblivious
The House of Lords should act as a check on rampaging authoritarianism; and, for the most part, it tries. However, the membership of the Lords must be considered. During the 7 February debate, Hansard records Lord Deben (formerly known as John Gummer) giving his tuppence worth on searching without suspicion. Gummer said:
My Lords, I have a question. I am imagining the circumstances with which the police are faced. In what circumstances would they proceed to stop and search if they had no suspicion? This seems a rather curious concept: to stop and search without suspicion means that you do not like the look of somebody—but, even then, you might have a suspicion. I just cannot conceive of the circumstances in which it would be proper to stop and search without suspicion.
These remarks suggest that Gummer has been oblivious to about six decades’ worth of sometimes incendiary controversy surrounding the issue. PACE Code A already refers to seventeen separate pieces of legislation which contain multiple search powers for police, and the new provisions under SVRO will take that to eighteen. A confusing picture, to say the least.
The guidance for dealing with the subjects of SVROs does not inspire confidence in its clarity. First of all, police are told that the powers mentioned:
do not require the constable to have prior reasonable grounds to suspect that the person to be searched is in possession of an item for which there is an existing power to search. However, it is still necessary to ensure that the treatment of those searched under this power is based upon that individual being subject to an SVRO, and not upon personal prejudice.
As mentioned earlier, correct identification will be a key part of this, and:
unless officers are able to confirm the individual is subject to an SVRO, the power mentioned in paragraph 2.31 cannot be used and it would be unlawful if an individual without an SVRO is searched.
In the extremely likely event of either an innocent mistake or the exercise of personal prejudice, the wrong people will end up being detained for the wrong reasons, which is unlawful.
Whichever route the Government has taken to this point, it seems to be one unimpeded by any exploration of the root causes of knife crime, or of violence in general. While the Government is good at identifying the problems that it seeks to legislate for or against, it takes no care to understand them, which makes the solutions half-baked, at best.
To be convicted of one crime and, thereafter, to be treated as though you are parading with a sign telling the world that you have committed another is not a position that anyone should be placed in. Another disregard for liberty, from a British Government with plenty of practice in that department.
This liberty, rightly understood, consists in the power of doing whatever the laws permit; which is only to be effected by a general conformity of all orders and degrees to those equitable rules of action, by which the meanest individual is protected from the insults and oppression of the greatest.
No wonder this pilot scheme started in April; the first day of that month was the most fitting of dates for it.