As opposition to the Police, Crime, Sentencing and Courts Bill grows, Lee Bridges examines provisions to expand stop and search through the introduction of Serious Violence Reduction Orders.
The Police, Crime, Sentencing and Courts Bill reintroduced to Parliament contains provisions for a significant extension in the use of police stop and search powers under new Serious Violence Reduction Orders (SVROs). Those who are made subject to such orders will be marked out to be stopped and searched at any time and in any public place, ie, without the normal requirement for the police officer to have ‘reasonable grounds’ for suspecting that the person stopped is in possession of a knife or other offensive weapon at the time. While such ‘suspicionless’ stops and searches can be authorised for use by the police under what is known as Section 60,[i] such authorisations are limited as to both the time period and specific location where they can be used. By contrast, SVROs will last for a minimum of six months and up to a maximum of two years, and they can be renewed and extended further on the application of the police. They can also be executed in any police area in the country. To give effect to this, those subject to SVROs will be legally required to notify the police in any areas they move to or choose to reside for more than a month, and failure to do so will itself constitute a criminal offence punishable by up to two years’ imprisonment.
Background to SVROs
Plans for such orders were originally put forward in the Conservative Party manifesto for the 2019 General Election, which promised that ‘police will be empowered by a new court order to target known knife carriers, making it easier for officers to stop and search those convicted of knife crime’. From this, it might be supposed that use of SVROs would be restricted to those ‘convicted of knife crime’. However once re-elected, home secretary Priti Patel issued a consultation document[ii] proposing that SVROs could be applied to any person aged 18 and over who is convicted of an offence involving a knife or other offensive weapon. This change, which is now contained within the proposed legislation, significantly expands both the number of people who could be subject to SVROs and, given the legal definition of an ‘offensive weapon’ as ‘any tool made, adapted or intended for the purpose of inflicting mental or physical injury upon another person’, the circumstance in which they could be imposed.
But the proposed legislation goes even further in seeking to widen the potential use of SVROs. As may be expected, the Bill provides that a court may impose an SVRO on any person aged 18 or over who it has convicted of an offence involving the use of a bladed article or other offensive weapon or who had such a weapon with them when the offence was committed. However, it also allows for an SVRO to be made in respect on any person aged 18 or over who is convicted of an offence, not necessarily one involving his or her own use or possession of a bladed article or other offensive weapon, but who is found on a balance of probabilities to have known or ought to have known that another person would use or be in possession of such a weapon in the commission of an offence.
Joint enterprise, ‘foresight’ and secondary parties
Those familiar with the history of the controversial legal doctrine of ‘joint enterprise’ – a form of guilt by association – will recognise the terminology in which this latter provision is cast. Joint enterprise is commonly used in situations where a group of people are involved or present when an offence is committed in order to hold all members of the group criminally liable for a crime committed by only one or some members of the group. For example, where one member of a group (the principal party) uses a knife to kill or injure someone, other members of the group (the secondary parties) can, under the doctrine of joint enterprise, also be convicted of having caused the death or injury to that person. Prior to 2016, such a conviction could be obtained if it was shown that the secondary party merely had ‘foresight’ (ie, had known or ought to have known) that a knife was being carried by the principal and might be used in the commission of the offence. However, following the judgment of the Supreme Court in the case of R v Jogee[iii] the test for such a conviction was strengthened so that it required proof beyond a reasonable doubt that the secondary party intended to encourage or assist the principal in carrying out the knife attack. This change somewhat limited the police and prosecuting authorities in their use of joint enterprise to widen the net of those who could be successfully prosecuted where groups are involved or present when a crime is committed.
Effectively, then, the government is proposing that the concept of ‘foresight’, discarded after R v Jogee, should be revived as a means of imposing SVROs on secondary parties caught up in situations where knives or other offensive weapons have been used or possessed by others in the commission of an offence. Even though these secondary parties may have been acquitted in joint enterprise proceedings of responsibility for the main offence (or not prosecuted at all for this), so long as they have been convicted of some other offence, not necessarily involving their own use or carriage of a knife or other offensive weapon, they could still be made subject to an SVRO. Moreover, the Bill provides not only that the courts can impose SVROs on the basis of proof on a balance of probabilities, but can also take account of evidence that would have been inadmissible in the criminal proceedings in which the offender was originally convicted. This latter provision opens the door for the police and prosecution to use various forms of hearsay and so-called ‘intelligence’,[iv] which might have been excluded from the original criminal proceedings, as a means of justifying the imposition of an SVRO.
In March of this year the government, in its official conclusions following the original consultation on SVROs, stated that it did ‘not believe that it would be appropriate to extend SVROs to individuals who have not committed an offence involving the carriage or use of a weapon.’[v] However, this is precisely what could happen under the provisions of the Bill as outlined above. It is also interesting to observe that in the original consultation on SVROs the justification used by the Home Office for widening their scope to include all offensive weapons, not just knives, was that limiting them just to knife offences might provide an incentive for offenders to use other, equally dangerous weapons instead. Viewed in the context of the above analysis, the way the Police, Crime, Sentencing and Courts Bill has been drafted in terms of the wide conditions and circumstances in which SVROs can be imposed could be said to provide a similar incentive for the police, prosecutors and courts to adopt a dragnet approach in terms of their implementation and enforcement of such orders. For example, where someone is found to have used or been in possession of a knife, the police might seek to find grounds for arresting others present for separate offences, especially if they are previously ‘known to the police’, in order to be able to seek SVROs and the wider powers of stop and search they will provide in relation to such persons.
Home Office indifferent to discriminatory impact
It will come as no surprise who is most likely to be the target of SVROs. Citing statistics from 2019 on the ethnicity of those convicted nationally of knife and other offensive weapon crimes, the original Home Office consultation on SVROs noted that 70 percent were white and the remainder from ethnic minorities, largely black people. Figures were also quoted showing that black adults were 7.16 times more likely to be sentenced for knife or other offensive weapon crimes than white adults. However, this is a lower rate of disproportionality than that found in the use of stop and search, where black people were 9.7 times more likely to be stop and searched than white people. From this the consultation paper drew the following conclusion as regards the probable use of SVROs:
It is likely that most people who are made subject to SVROs will be White, adult males, although it may be that a disproportionate number of Black people are impacted, Black adult males in particular. In addition, we know that … Black people [were] 9.7 times as likely to be stopped as those who were White. This may mean that people from an ethnic minority who are subject to an SVRO are more likely to be searched in practice.
The implication of this is that the government is going forward with SVROs fully expecting that they will be imposed more readily on black offenders who are convicted of relevant offences than white offenders in the same position and that, once in force, black people subject to such orders will also be stopped and searched under them more often than white people who have been given SVROs. Nor will this occur just by happenstance, but rather as a function of deliberate policing strategies and tactics in addressing issues of serious violence.[vi] As the government’s conclusions following the SVRO consultation noted:
The Government believes that the most effective use of SVROs will be achieved through incorporating SVROs within an area’s wider violence reduction and crime reduction strategies and tactical plans. This means the extent to which an SVRO is used in relation to a specific individual may vary significantly, dependent upon a range of factors, including consideration of community information, intelligence, and a range of protective and risk factors around that individual over the lifespan of an order.
If the Government appears indifferent to the racially discriminatory effects SVROs may have, it is equally unconcerned about the potential misuse of SVROs. Again, the original Home Office consultation document acknowledged that in enforcing SVROs:
[T]here may be cases of mistaken identity. There may also be cases when an officer genuinely believes that an SVRO has been made when it has not, or that an SVRO is current when it has expired. We want to strike the right balance between ensuring that the police are able to search people who have an SVRO, while minimising the risk that they stop and search the wrong person.
Yet, the Police, Crime, Sentencing and Courts Bill is silent on what legal remedies will be available to those who are wrongly stopped and searched (whether by mistake or deliberately) on the pretext of their being subject to an SVRO or the sanctions that might be applied to police officers who undertake such unlawful searches.
In summary, SVROs will have the effect of severely restricting the freedom of movement of those who are made subject to them over extended periods, which may be considerably longer than the sentences they receive for the offences which made them liable for SVROs in the first instance. It will also put them at risk of persistent harassment by the police (from which there is no protection in the Bill) and of having their rehabilitation and reintegration into the community undermined, not least because of indirect effects of being legally labelled as ‘persistent knife carriers’ on their access to employment, education and other social opportunities. This will be particularly detrimental to those who are made subject to SVROs under the joint enterprise-type provisions of the Bill as discussed above, who have not themselves been convicted of using or carrying a knife or other offensive weapon, contrary to the government’s professed intentions following its earlier consultation. And all of these consequences are likely to fall disproportionately on black people, something which the Government admits unapologetically as likely to be the case.