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Legal lounge: criminal record checks

May 21 2009
The police must tell you why you are being stopped and searched, say our legal eagles The Pavement's legal eagles, Kellie and Jen, deal with criminal record checks... A young man came to see us last week complaining that he had been stopped and criminal record checked for the eighth time that week. "Surely this is harassment?" He asked, clearly distressed. Kellie looked up from her coffee. "Well not really, Giles. The police have the right to check your record if they suspect you of breaking the law." "Well that is the point," he retorted indignantly, jumping out of his seat. "I'm never doing anything when they stop me. It's discrimination. It's illegal! I want you to help me to file a complaint. I know my rights. I know I can do that if the police abuse their position." "Calm down, Giles," I soothed. "You are getting hysterical." (Giles gets hysterical about everything). "You have a case if the police abuse their position, but you would have to prove it." Giles looked intrigued. "How would I do that?" "Well the police have to follow a procedural code of conduct when they stop you. What is it again Kellie?" Kellie walked over to our old oak bookshelf, aching under the weight of thick, hard-backed law reports and legal books. She picked one up and flicked through it. "The PACE Code of Practice A..." she read, "says that the police must tell you the reason you are being stopped, the object of the search and their name and police station." "That's right. They also have to give you a written record of the search and if they don't you are entitled to claim one from their police station up to 12 months after." Giles leapt off the sofa again and began frantically pulling pieces of paper from his pockets and throwing them on to the table. I picked one up and studied it. "Hmmm... yes Giles. These." I turned to Kellie. "Well it seems as though they are definitely covering their backs as far as stop and search procedure goes." "They are. But I don't think that's the main problem. They must have reasonable grounds to conduct a search and I think that's where Giles has a case." Kellie walked over with the book. "Look. The police must establish they had reasonable grounds to suspect an individual of committing an offence before they can lawfully stop them." "Reasonable grounds? Yes, I remember something about that ..." I pondered for a moment. "There must be an objective basis for the suspicion relevant to the likelihood of finding an article of a certain kind based on facts, information or intelligence." "It says here that the police cannot use race, age, appearance or the fact that someone is known to have a previous conviction as reasons for a search!" Kellie added excitedly. "They have to have some supporting intelligence, information or specific behaviour by the person concerned." I took the book from Kellie. "The guidance says that the reasonable suspicion cannot be based on generalisations or stereotypical images of certain groups or categories of people as more likely to be involved in criminal activity. That's really on the money, eh?" Giles lit a cigarette. "So what are you saying, ladies? Do I have a case?" "I'd say he does, Jen. I mean there are a few exceptions to the rules where the police have extra powers to stop and search in anticipation of violence..." "I told you already!" Giles shouted angrily. "I wasn't doing anything when I was stopped!" "Chill out, Giles." I warned. "Kellie, what does it say where the police officer has based reasonable suspicion on a criminal record check?" "Well, they are deterred from using this as the sole basis of suspicion. It is only sufficient to found suspicion where there was no time to make any further inquiry." "So what are you saying, ladies?" Giles repeated, "Do I have a case?" "Yes, you do, Giles." I said. "But as in all cases where public law unreasonableness needs to be proved, the hurdle to cross is a high one. There are few successful cases. However, you do have the grounds to complain. I say we do it. Let's write down everything that happened and who was involved. Then you can go into any police station to record your complaint, we can do it for you or you can follow the complaints procedure on the Independent Police Complaints Commission. You think about what you want to do and get back to us." Giles stood up. "Thanks, ladies. Well I guess I'll be back soon with another legal dilemma for you to discuss." "You're welcome, Giles," I said, as I walked him to the door. "But not too soon, eh?"