(Un)Reasonable Suspicion

an Ethical Analysis of Stop and

Search Through the Police and

Criminal Evidence Act 1984 and

the Codes of Practice A

Jens K E Klots

S11704384

Supervisor John Lamb

Word Count 9051

April 2014

Submitted in partial fulfilment of the

requirements of the degree of

BSc (Hons) Criminal Investigation at

Birmingham City University

ii

Acknowledgements

First and foremost I must thank Mr John Lamb not only for the continuous advice assistance and

support provided throughout my research but also for sparking my interest for ethics through his

lectures

My gratitude is also extended to Dr Matthew Cremin for providing me with additional guidance and

support during my research and to Mr Liam Ward for providing me with support and feedback

throughout my studies

Finally I wish to thank my family for their support and encouragement throughout my studies

iii

Abstract

The following is a literature based research providing an ethical analysis of the legislation

governing the polices power to stop and search individuals for prohibited andor stolen articles

through the ethical frameworks developed by Immanuel Kant The analysis utilised the necessity

criteria of reasonable suspicion identified within the Police and Criminal Evidence Act 1984 and

the Codes of Practice A through which three different maxims could be created each representing a

different aspect and limitation of the police power Through the individual analysation of each of

these maxims the study provides an attempt to identify whether the issues related to the stop and

search police power are caused due to being governed by an inherently immoral piece of legislation

or if they are a simply a result of the police failing to apply the power in accordance to the law This

research concludes that there is probably a mixture of both as the sections of the Act governing stop

and search is morally ambiguous at best

iv

Table of Contents

Acknowledgements p ii

Abstract p iii

Chapter 1 ndash Introduction p 1

Chapter 2 ndash Methodology p 3

Chapter 3 ndash Kantian Ethics p 5

31 The Core Ideas p 5

32 Critiques p 6

Chapter 4 ndash PACE a Brief Introduction p 8

41 Background p 8

42 Critiques p 9

Chapter 5 ndash Reasonable Suspicion p 11

51 Reasonable Suspicion and Stop and Search p 11

52 Reasonable Suspicion Stop and Search and Morality p 13

521 Generalisation and Universalisation p 14

522 Issues p 17

Chapter 6 - Conclusion p 19

Bibliography p 22

Appendix 1 p 25

Appendix 2 p 27

1

Chapter 1

Introduction

Being brought into power ldquoat a time when public confidence in the police was at an all-time low

due to high-profile miscarriages of justicerdquo (Fahy P in Ozin P Norton H Spivey P 2013

pv) the Police and Criminal Evidence Act 1984 and its corresponding Codes of Practice has been

subjected to heavy criticism ever since Because while the Act was introduced to the legal system in

order to improve public confidence in the police by ldquoestablish[ing] the powers of the police to

combat crimes while protecting the rights of the publicrdquo (govuk 2013) providing a more balanced

relationship between the two It was feared that the Act would instead provide the police with a way

to legitimize the infringement upon the civil liberties of the public (Benz S 2010) Since then the

Act has undergone plenty of alterations to improve the balance between the rights of the public and

the powers bestowed upon the police but still there are issues

Outlining what powers are available to the police is only part of the process to achieve a good

balance between the two sides however which is where the Codes of Practice comes in These

function similarly to an ethical framework that provides the police with guidelines for the proper

implementation of their powers Because even though the Codes of Practice are not statutory a

failure to act in compliance to these will result in a disciplinary offence in addition to providing

admissible evidence against the police in court (Mawby R and Wright A 2005 p6) Meaning that

should an officer fail to follow these an entire case against a suspect could be jeopardized as a

result Nevertheless even though the Codes of Practice may function similarly to an ethical

framework for the police that govern the correct use of their powers it does not mean that the

guidelines provided nor the Act itself is ethical In fact taking into consideration the sheer amount

of criticism of them it might even suggest that they are entirely unethical

This questionable morality of the Police and Criminal Evidence Act 1984 and its corresponding

Codes of Practice will be explored within this piece of research Aiming to determine whether the

fault lies primarily within the Act and Codes themselves or if the problems might be caused by

other factors such as the Police failing to act in accordance to the guidelines provided However

due to the vastness of the Act and the Codes the focus of the research will be laid upon the necessity

of reasonable suspicion to be present for the police in order to enforce their powers Within this

limited area there will also be a particular focus on part one of the Police and Criminal Evidence

Act 1984 and the Codes of Practice A which addresses the polices power to stop and search

2

individuals for stolen or prohibited items This is a police power that has been subjected to a

substantial amount of criticism mainly due to the disproportionate number of searches of ethnic

minorities in comparison to Caucasians which raises some questions regarding the legitimacy and

morality of the power

Utilising the ethical frameworks of Immanuel Kant (1724-1804) the morality of the Police and

Criminal Evidence Act 1984 and the Codes of Practice will be analysed by converting sections of

the Act and Codes into maxims Which are descriptions of the acts that are used to determine their

ethical and moral value by subjecting them to various tests Primarily the research will employ

Kants original frameworks which question the universalisability of onersquos actions as moral actions

are ones that could be enforced as a universal law applying to everyone unconditionally

Additionally this research will be utilising the generalisation principle developed by Marcus Singer

which is an approach that places a utilitarian twist upon Kants idea of universalisation Because

while Kant argued that it is the motivation behind the act that determines whether it is moral or not

Singer is more interested in the consequences caused by the act Meaning the maxims created from

the Act and the Codes of Practice will be analysed using two different approaches to

universalisation with differing opinions as to which component of the act determines its moral

worth By conducting such an analysis this research hopes to provide some insight regarding the

morality of a very controversial part of the Police and Criminal Evidence Act 1984 as it will not

only take into consideration the consequences of the actions granted by the Act but also the

motivation behind them

3

Chapter 2

Methodology

While primary sources could arguably create more current and relevant results than secondary

sources might be able to (McQueen R and Knussen C 2002 pp83-85) due to them being

acquired personally through fieldwork interviews or observational studies the following study is

entirely literature based Utilising secondary research sources such as books legal documents and

academic journals in addition to various electronic and online resources drawing conclusions from

the information found within these It is acknowledged that research using secondary data struggles

to produce results that are current as ldquothe time factor involved in collecting and analysing primary

data means that some social survey data are out of date by as much as a year before the secondary

analyst gets hold of itrdquo (McQueen R and Knussen C 2002 pp84-85) Additionally there is an

overarching issue regarding bias when dealing with secondary sources as ldquophotos texts and

statistics have their own structure that is often strongly influenced by who produced them and for

what purposerdquo (Flick U 2011 p125) and ldquothe validity of information may vary markedly from

source to source ldquo (Kumar R 2011 p164) As such all sources must be viewed critically as to

ensure that any personal biases of the writer(s) will not interfere with the overall results of the

findings Something that becomes especially important if the information was found in a newspaper

or certain web-resources (such as blogs) as ldquothese writers are likely to exhibit less rigorousness and

objectivity than one would expect in research reportsrdquo (Kumar R 2011 p164)

However while there are many issues connected to undertaking research based on secondary

sources it should be noted that neither primary nor secondary data ldquoprovides 100 per cent accurate

and reliable informationrdquo (Kumar R 2011 p139) Additionally it must also be considered that

certain research topics are less compatible with certain research approaches than others as in this

case where an ethical analysis of specific sections of a legal statute is carried out Meaning

interviews and other primary research approaches would struggle to produce results that are

accurate and relevant Furthermore certain issues identified above with the utilisation of secondary

sources for research would be less of an issue in this case due to the nature of the sources studied

These being a legal statute the Police and Criminal Evidence Act 1984 and the Codes of Practice

and the philosophical and ethical theories developed by Immanuel Kant Because even though

Kants ideas originated over one hundred years ago these ideas are still applicable and relevant

when studying Kantianism Moreover the legal statute that this framework will be applied to uses

its most recent edition of the law which can easily be accessed through government websites

Meaning there should not be an issue with keeping the research current and relevant

4

It should also be noted that literature based research also benefits in ways that research based on

primary sources does not considering that the field of criminology often deals with sensitive topics

and people such as illegal activities and the abused (Westmarland L 2011 p141) Meaning there

are plenty of ethical pitfalls one must avoid when conducting research within this field especially

when using primary sources for the research However regardless of conducting research using

primary or secondary resources any research proposition must adhere to the six key principles of

ethical research (see Appendix 1) Most of the ethical issues identified within these principles are

related to peer-based research though meaning a literature based research is more likely to be

justified ethically than research using primary sources This due to the lack of participants involved

in the research whose emotions consent and wellbeing must be taken into consideration nor should

the researcher themselves be at risk because of the research (Economic and Social Research Council

2012 pp2-3)

However while the literature based method avoids most of the major ethical concerns this

particular piece of research might be subjected to some ethical scrutiny because of the manner in

which it is being carried out Because as the research only utilises the Kantian approach to morality

in addition to only analysing a specific part of the Police and Criminal Evidence Act 1984 and its

corresponding Codes of Practice it might produce some questionable results As such the research

is at risk of being perceived as being biased aiming to obtain certain results by only studying a

selected part of the legislation using a single ethical framework Nonetheless in the Frameworks for

Research Ethics provided by the Economic and Social Research Council (2012) it is stated that ldquothe

independence of research must be clear and any conflicts of interest or partiality must be explicitrdquo

(p3) So while the research might produce results that could be considered biased or partial for the

above reasons this is something that has been acknowledged and addressed before the start of the

research as can be seen in the Ethics Approval Form (see Appendix 2) As such the potential for the

research questioned due to only analysing a select part of the legislation and Codes of Practice

using only one perspective of morality has been addressed explicitly Additionally it is also

acknowledged that other results regarding the morality of the Police and Criminal Evidence Act

1984 and the Codes of Practice might be achieved by utilising a different ethical framework by

studying different sections of the Act or by analysing the Act and Codes of Practice as a whole

5

Chapter 3

Kantian Ethics

The ethical framework developed by Immanuel Kant is an ideology that places moral value on the

motivations between our actions and their potential for universalisation rather than the

consequences of the act itself In this chapter the core principles of the Kantian framework will be

explained identifying the process of determining the morality of our actions through the tests of

generalisation and universalisation Additionally the chapter will also be addressing various

criticisms issues and shortcomings of the Kantian approach to ethics and morality such as the

possibility of the framework allowing for any maxims to be moralised with the right phrasing

31 The Core Ideas

The idea of autonomy is at the core of Kantian ethics arguing that each individual can (and should)

make their own decisions without any external interferences to guide or coerce them (Bennet C

2010 p75) As such Kantianism argues for the presence of free will meaning human beings are

accountable for the choices they make and the actions they subsequently carry out and that

everyone capable of reasonable thinking has the potential to act in accordance to the moral law

However while humans are generally considered to be rational beings it does not mean that they

will behave in a rational manner at all times but rather that they have the capability of doing so

According to Kant this is what separates humans beings from animals as they are only capable of

operating under negative freedom through reacting to their impulses and instinct unable to

question or evaluate the situation in ways human beings are able to (Bennet C 2010 p76) As such

rational beings are the embodiment of morality as the moral law is that of reason (Rachels J 1986

p1) which is why Kant argued that humans must never be treated as the means to an end but

should instead be the end itself (BBC 2014)

Nevertheless being a rational agent capable of recognising reasonable actions from unreasonable

ones thus acting outside of the realms of negative freedom and moving into what is known as

positive freedom does not ensure that onersquos actions are good or moral These are simply

requirements to qualify as an agent that is capable of acting morally not an insurance that actions

carried out by such an agent will be moral or reasonable Instead Kant argued that moral acts are

identified through their motivations stating that ldquoif duty is the key element in our decision to act

then we have acted rightlyrdquo (BBC 2014) because ldquoan action done from duty has its moral worth

not from the results it attains or seeks to attain but from a formal principle or maxim ndash the principle

of doing ones duty whatever that may berdquo (Paton H J 1969 p20) In this case the meaning of

6

duty is equal to acting in reverence to the moral law as Kant argues that morality and its rational

requirements can be translated into rules or that dictates how we should act (Bennet C 2010

p83) These moral rules are divided into two separate groups being hypothetical and categorical

however only categorical can result in a moral law This is due to hypothetical making it possible

for an individual to claim they are an exception to the rule which is unreasonable as moral laws

must apply to everyone without exception (Bennet C 2010 p83) This means that a maxim such

as do not lie unless you want to be considered untrustworthy or even an innocent maxim such as

bring an umbrella unless you want to risk getting wet would be fallible and immoral according to

Kant as they do not apply to individuals that are willing to face the consequences related to these

acts

To be able to establish whether ones actions are moral or not one must therefore be able to apply it

without failure to everyone This is a process known as universalisation which questions the agent

to ldquonever act except in such a way that [they] can also will that [their] maxim should become a

universal lawrdquo (Paton H J 1969 p22) meaning that the morality of an act is determined through

establishing its possibility to be enforced at least hypothetically as a law applying to everyone

unconditionally Ascertaining whether an act can be universalised requires the use of two tests

known as the tests of generalisation and universalisation A maxim must therefore

be able to be generalised without becoming contradictory or illogical as a result to then be

applicable as a universal law governing everyone without exceptions without resulting in an

unappealing or chaotic outcome (Garret J 2006) As ldquoKant believes that someone who violates the

moral requirements is being irrationalrdquo (Bennet C 2010 p82) one should therefore not act on a

maxim that is unable to pass both the test of generalisation and universalisation as this would result

not only in acting immorally but also irrationally

32 Criticisms and Issues

Like any other philosophical or ethical theory the Kantian approach is not devoid of imperfections

and both the original theory and contemporary interpretations have faced criticisms for everything

from structure and implementation to the actual usefulness of the theory However in her book

Bounds of Justice Onora ONeill (2000) identifies that the criticisms of Kantian theories tend to fall

into three different groups of categories (p67) all of which will be explored within this section of

the chapter

The first of these categories identified by ONeill (2000) is that Kant fails to acknowledge the

importance that human relationships and emotions might have on our moral reasoning (p67) An

7

issue that is also identified by Bennet (2010) stating that ldquoit certainly seems a large gap in a moral

theory that it has nothing to say about how pain and suffering makes acts wrongrdquo (p88) Because

while many actions that might cause pain and suffering to others generally cannot be justified using

the categorical imperative they are not dismissed for the right reasons (Bennet C 2010 p88) as

ldquouniversal rules require us to overlook and [hellip] neglect the fragility mutual vulnerability social

embeddedness and constitutive loyalties of real peoplerdquo (ONeill O 2000 p67) As human beings

are not cold calculative and emotionless robots this is an obvious flaw within Kants frameworks

because in order to act morally one needs to be able to completely disregard the feelings of other

people

Furthermore due to the lack of consideration for human emotions and relationships Kant has

simplified the very complex issue of moral theory (ONeill O 2000 p 67) often resulting in very

bizarre contradicting or even worrying results Because utilising the categorical imperative for

moral guidance might result not only in allowing obviously immoral actions to be universalised but

also preventing other harmless acts of kindness such as opening the door for someone else from

being morally justified (Bennet C 2010 p86) It should be obvious to a normal reasonable human

being that there is nothing wrong or immoral about holding the door open for someone else yet

through the implementation of Kantianism such an action cannot be justified due to it being unable

to pass the test of universalisation Showing that the Kantian approach struggles to encompass all

actions regardless of their significance importance or size in a reasonable manner

It should also be noted that the Kantian framework can also produce situations where the agent will

be acting immorally no matter what they do Bennet (2010) utilises an example of noticing a child

in the process of drowning while on the way to class and even though we have a duty to help others

according to Kant the option of not helping can also be moralised in this scenario as the agent will

adhere to the maxim of getting to class on time (p86-87) This leads to the final category of

critiques against Kant and Kantian ideologies as identified by ONeill (2000) which states that it is

a theory ldquodesigned for abstract individuals [hellip] leading to abstract conclusions that are irrelevant to

real people who lead real livesrdquo (p 67) It is possible that this abstract nature of the theory could be

due to Kants failure to provide a proper guideline stating how our actions should be explained in

order to properly calculate their ethical value through the tests of generalisation and universalisation

Because with the manner in which the Kantian framework is designed there is a possibility that

ldquoany action could pass it simply by being re-describedrdquo (Bennet C 2010 p87) The Kantian

framework is therefore in need of some kind of notes for guidance that provides an explanation for

how one is to distinguish correct descriptions of ones actions from incorrect ones

8

Chapter 4

PACE A Brief Introduction

The following chapter will be providing a brief introduction to the Police and Criminal Evidence

Act 1984 and its associated Codes of Practice Providing a basic understanding of the legislations

history and purpose in addition to some criticisms of the act and issues that has developed as a

result of its development As such this chapter alongside with chapter 3 provides a foundation for

the following chapters where specific parts of the legislation will be explored more thoroughly in

addition to being analysed through the Kantian frameworks for ethics

41 Background

Policing in England and Wales is nowadays comprised of a tough balancing act where ldquothe interests

of the community and the rights of the individualrdquo (Royal Commission undated cited by Zander

2011 p3) must be taken into account while also maintaining public order In addition to being

required to evaluate to what extent they may infringe upon civil liberties to do their job the police

is also under constant public scrutiny This means that any infringement upon the rights of an

individual that cannot be justified by the Police and Criminal Evidence Act 1984 the Human Rights

Act 1998 or other pieces of legislation can have dire consequences for the police Such

infringements can result in lawsuits against the police or rendering evidence inadmissible in court

as was seen in the case of R v Miller (1993) where the confessions from the suspects were rendered

inadmissible due to hostile and oppressive questioning by police However while it is noted that

infringement of civil liberties should be avoided and the rights of the public should be respected it

is also identified in Article 5 of the European Convention of Human Rights that there are

circumstances when the police and the criminal justice system must be granted the power to

lawfully infringe upon these (Council of Europe 2010 p7) Because without these exceptions legal

and justice systems would no longer function as criminal justice cannot function if the rights of the

individual is to be respected at all times

While there is a need for the police and criminal justice system to infringe upon the rights of

individuals there must be sanctions that govern to what extent these rights can be infringed upon

and under what circumstances As mentioned above article five of the European Convention of

Human Rights provides a good starting point but as it must be applicable to the state legislature of

all member states of the European Union it is far too general and leaves plenty of gaps to fill in

This is where the Police and Criminal Evidence Act 1984 and its corresponding Codes of Practice

comes into play as these help with outlining the provisions for the polices ability to infringe upon

9

the civil liberties of the public It was introduced following some cases of gross police misconduct

that had come to light causing miscarriages of justice of several high-profile cases which put a

strain on the relationship between the police and the public One such case included the R v

McIlkenny and others (1991) more famously known as the Birmingham Six where six innocent

men were wrongfully convicted as a result of police officers having beaten witnesses to obtain

satisfactory statements in addition to distorting forensic evidence (The Economist 1990) The

Police and Criminal Evidence Act 1984 and the associated Codes of Practice was introduced in an

attempt to remedy this through providing guidelines for how evidence was to be obtained legally

how suspects and detained persons were to be treated how and when certain police powers could be

legally enforced as well as providing the criminal justice system with transparency and

accountability (Fahy P in Ozin P Norton H and Spivey P 2013 pv)

Through its introduction the Police and Criminal Evidence Act 1984 and its corresponding Codes of

Practice drastically changed the manner in which policing was carried out causing a bit of a

culture shock for some officers that were threatened by the new developments (Wilding B

undated in Cape E and Young R 2008 p127) As there were suddenly demands being put on

officers that did not exist previously in addition to clear frameworks dictating what kind of

behaviour was deemed acceptable All to ensure that investigations were carried out both

objectively and with integrity two elements which are important to maintain public confidence in

the police force (Wilding B undated in Cape E and Young R 2008 p127) However while the

drastic changes might have come as a shock to some officers it is now common practice and

heavily ingrained to the very core of policing Additionally while the Act generally focuses on the

protection of the suspects victims and witnesses it simultaneously provides the police with

safeguards to avoid suspicion of unlawfully acquired evidence as everything from physical

evidence to verbal or written confessions must be recorded and processed in detail (Police and

Criminal Evidence Act 1984 sNUMBER sNUMBER) ensuring that the police runs a lower risk of

being unjustly accused of foul play

32 Critiques and Issues

While the Act and the Codes of Practice has played a significant part in making the police ldquomore

accountable in terms of performance and standards than virtually any other public bodyrdquo (Wilding

B undated in Cape E and Young R 2008 p130) as well as supposedly having ldquoushered in new

ethical standards for the servicerdquo (Wilding B undated in Cape E and Young R 2008 p127) It

has been subjected to a significant amount of criticism from non-governmental organisations such

as Liberty members of the police itself and academics scrutinising everything from how the Act

10

takes the police off the streets and placing them behind desks to carry out extensive amounts of

paperwork (Wilding B undated in Cape E and Young R 2008 p127) to questioning whom the

Act is really favouring (Benz S 2010) Furthermore the actual contents of the Act and the Codes of

Practice has been criticised in particular the Acts first part concerning stop and search (see chapter

5) resulting in a large number of edits and moderations to remedy these and provide a better

balance between the police and the rights of the public

11

Chapter 5

Reasonable Suspicion

While the Police and Criminal Evidence Act 1984 provides the police with guidelines for how and

when they may use their powers to infringe upon civil liberties these are not enough to ensure that

policing is carried out correctly in accordance to the act The Act must therefore be read alongside

the Codes of Practice as these further explain the limitations of the powers in addition to the

requirements that must be fulfilled in order for an officer to implement them One such requirement

that is found repeatedly throughout the Act and the Codes of Practice is the need for an officer to

have reasonable grounds for suspecting that the person(s) of interest are doing have done is about

to do or is in possession of something illegal (Police and Criminal Evidence Act s1(7)-1(9)

s3(1)(a)-3(1)(d)) This requirement is one that has been subjected to some controversy and scrutiny

especially in connection to the power of stop and search (addressed below) as it is often described

in very vague or broad terms often making it unclear what exactly constitutes appropriate grounds

for reasonable suspicion Additionally it should also be noted that the appropriate grounds for

suspicion might differ slightly from one section of the Act to another making it important to

separate these definitions from each other when studying them as they may all have their own

interpretations definitions regulations and issues However as this research explores the ethical

implications of reasonable suspicion in relation to stop and search it must be acknowledged that the

results may not be applicable to sections of the Police and Criminal Evidence Act 1984 and Codes

of Practice concerning other police powers

51 Reasonable Suspicion and Stop and Search

In the first part of the Police and Criminal Evidence Act 1984 it is identified that an officer cannot

stop and search an individual unless they have reasonable grounds for suspecting that any stolen or

prohibited articles listed under s1(7)-1(9) of the Act will be found on their person (s1(3) Police and

Criminal Evidence Act 1984) That being said there are many limitations placed upon what may

constitute a reasonable ground for suspecting that prohibited or stolen articles will be found on the

person(s) (Codes of Practice A s22) and that these can differ depending on the circumstances of

each case [Ozin P et al 2013 p4] However while suspicion might be raised for different reasons

in each case the Code emphasises that suspicion may never be based on personal factors

stereotypes or generalisations (Codes of Practice A s22) Nor may it be ldquoprovided retrospectively

by [hellip] questioning during a persons detention or by refusal to answer any questionsrdquo (Codes of

Practice A s29) Instead it is stressed that suspicion should have an objective basis derived from

known facts and information (Codes of Practice A s22)

12

Whether these demands put on officers by the Codes of Practice A to establish objective grounds

for suspicion are followed is questionable though At least when taking into consideration that the

sections of the Police and Criminal Evidence Act 1984 and the Codes of Practice concerning stop

and search has been subjected to heavy criticism mainly due to the disproportionate amount of

members from minority ethnic groups being searched in comparison to Caucasians Because even

though the Codes of Practice A does identify that there are situations where reasonable grounds for

suspicion might exist without the need for known facts or information such as initiating searches

based on an individuals behaviour or body language (Codes of Practice A s23) it does not explain

why black people are up to ldquosix times more likely to be stop[ped and] searched than would be

expected based on their numbers in the general populationrdquo (Bowling B and Phillips C 2007

p958) Nor does it explain how the recorded stops and searches of Asians since the mid-nineties

have remained between 15 and 25 times higher than those of Caucasians (Equality and Human

Rights Commission 2010 p13) These are worrying statistics that raise questions as to whether the

guidelines provided by the Police and Criminal Evidence Act 1984 and the Codes of Practice are

sufficient in order to ensure that this power is used appropriately and fairly Because even though

non-Caucasians are stopped and searched more frequently arrests following searches are distributed

quite evenly across all ethnic groups (StopWatch 2014)

There is a possibility that this targeting of minority ethnic groups could be a direct result of the

socio-economic conditions that traps many families from poor neighbourhoods in a cycle of poverty

and disadvantage (Joseph I and Gunter A 2011 p3) Especially as it has been found that these

groups often respond ldquoto their powerlessness with frustration rage and the creation of alternative

social and cultural values that promotes and normalizes gang membership and violencerdquo (Joseph I

and Gunter A 2011 p3) Due to the normalisation of such behaviour this could provide an

explanation to why some disproportionality might exist as the Codes of Practice provides an

exception to searches based on physical appearance when it is related to gang culture stating that

ldquowhere there is reliable information or intelligence that members of a group or gang

habitually carry knives unlawfully or weapons or controlled drugs and wear a

distinctive item of clothing or other means of identification to indicate their

membership of the group or gang that distinctive item of clothing or other means

of identification may provide reasonable grounds to stop and search a personrdquo

(Codes of Practice A s26)

13

However while this provision could support the existence of some disproportionality it does not

disprove that minority ethnic groups are being targeted by the police nor does it provide a

reasonable explanation to why blacks are being six times more likely to be subjected to a stop and

search This means there is a risk that this section of the Codes of Practice is being used by police

to maliciously target ethnic minority groups by stereotyping them as more likely to be involved

with criminal gangs

52 Reasonable Suspicion Stop and Search and Morality

While statistics and studies show that stop and search is used disproportionally and suggests that

individuals belonging to minority ethnic groups are being targeted by the police it does not mean

that the power itself nor the legislation governing it is unethical Because even though they tend to

overlap ldquothere is no necessary connection between law and moralsrdquo (Hart H L A 1958 cited by

Green L 2012 in Hart H L A 2012 pxxxiii) as the law applies to everyone unconditionally

while moral only applies to those that sympathise with the ideologies in question Kantian ethics

however arguing that one should do the right thing because of it being right views morality as a

supplement to the law (Zupancic A 2000 p16) therefore ensuring that we are not only doing what

is right but that we are also doing it for the right reasons (Sandel M 2011) Which from Kants

viewpoint is synonymous to acting out of duty which as established in Chapter 3 means that

onersquos actions must be converted to those that are able to pass the tests of generalisation and

universalisation As such one must convert the sections of the Police and Criminal Evidence Act

1984 and its associated Codes of Practice concerning stop and search into an order to establish

whether it is ethical

However while the Police and Criminal Evidence Act 1984 identifies that reasonable suspicion is

necessary in order to conduct a stop and search one cannot simply create a maxim stating that

police officers can stop and search anyone they reasonably suspect is carrying illegal or stolen

items Because even though this maxim does provide an accurate description of the necessary

requirements to perform a stop and search it is far too broad Such a maxim does not place a limit

upon what the suspicion might be based on resulting in a possibility for officers to target certain

groups of people based on prejudice or stereotypes Therefore such a maxim can neither be

generalised nor universalised meaning it would be considered entirely unethical by Kantian

principles However by using the guidelines and limitations of reasonable suspicion presented in

the Codes of Practice A that were identified earlier in this chapter this maxim can be broken down

into three separate parts These being

14

police officers may stop and search individuals for illegal or stolen items if it is in

accordance with known facts and information and they believe that such items will be found upon

searching the person

police officers may stop and search individuals acting in an obviously suspicious manner for

illegal or stolen items but only if they suspect that such items will be found upon searching the

person and

police officers may stop and search individuals based on articles of clothing piercings

andor tattoos if these are known to be worn by members of a gang(s) that are known to carry

illegal or stolen items and only if the police suspects that such items will be found upon searching

the person

These provide a much more limited and concentrated approach to the attempted moralisation of the

polices power to stop and search individuals for prohibited or stolen articles Because unlike the

previous maxim these are not only limiting what the basis for suspicion might be but also limiting

when the power itself may be enforced As such the likelihood of these being able to pass the tests

of generalisation and universalisation are increased

521 Generalisation and Universalisation

In order to accurately establish whether acts are moral they must pass the tests of generalisation and

universalisation as Kant believed that moral acts were ones that could be applied to everyone as a

universal law without becoming contradictory or illogical (see chapter 3) However as these deal

with police powers and Kant argued that acts must be applicable to everyone without exception

these will also be examined using Singers generalisation principle because it would be illogical for

such powers to be implemented by everyone Singers generalisation principle makes it possible to

bypass this issue as it argues that ldquowhat is right (or wrong) for one person must be right (or wrong)

for any similar person in similar circumstancesrdquo (Singer G M undated cited by ONeill O 2013

p78) Additionally this approach puts a utilitarian twist on Kants frameworks as it determines

morality based on the consequences of onersquos actions (ONeill O 2013 p79) rather than the

motivation behind them As such this test functions as a middle ground between the tests of

generalisation and universalisation ensuring that the generalised maxim does not cause an illogical

or chaotic result in addition to limiting the generalised maxim from anyone that is not a member of

the police service Analysing the maxim using these tests therefore requires them to be studied

individually so that they can be dissected and examined more closely

Looking at the first of the three maxims created using the guidelines and limitations of reasonable

15

suspicion as identified by the Codes of Practice A it can be established that it is comprised from

three different elements Namely

the police may only search for illegal or stolen items

the police may only search an individual based on known facts and information and finally

the police may only search the individual if they believe illegal or stolen items will be found

Attempting to generalise any of these elements of the maxim individually would not be reasonable

as they do not provide enough limitations or guidelines for it to be functional Because the first part

allows the police to search anyone for illegal or stolen items without the necessity of a suspicion

that any such items will be found which would result in a police state where the police could search

anyone they please The necessity of believing that illegal or stolen items will be found upon

conducting a search is added by the third element of the maxim but there are still no requirements

for the police to have any kind of reasonable basis for their decision to stop and search someone as

this is added by the maxims second element However this element cannot be moralised on its own

either as it does not specify what the police may search for However when all three elements of

the maxim are combined all necessary limitations are present meaning the generalisation of it

should not produce a contradictory or illogical result

However passing the test of generalisation does not mean that the maxim is ethical as it must also

be universalisable Meaning it should be able to be enforced as a (hypothetical) law that applies to

everyone unconditionally As the maxim places a requirement on the police to only stop and search

individuals if they have a factual basis for their suspicion to find illegal or stolen items upon

searching the person this should be a universalisable action Because assuming all police officers

were required to follow this maxim it would result in a world where only specific items may be

searched for if they have a factual reason to conduct the search and only if they believe that such

items will be found upon searching the person(s) As this would not produce any undesirable

consequences this maxim would not only pass Kants test of universalisation but also fulfil the

necessary criteria for Singers generalisation principle

This is essentially what the Police and Criminal Evidence Act 1984 and the Codes of Practice A

seeks to do meaning that if the guidelines were followed by the police unlawful stops and searches

should not occur However since there are more aspects to the laws that govern the polices power

to stop and search individuals for illegal or stolen items such as searches based on suspicious

behaviour or searches of suspected gang members other aspects must be explored as well before

16

declaring whether it is ethical or not For this reason the two additional maxims (mentioned earlier)

are needed and must therefore be tested as well As these maxims can be implemented in such

situations by the removal of the need for a factual basis for suspicion and replacing it with either

the possibility to

search individuals acting in an obviously suspicious manner or

search individuals based on clothing piercings andor tattoos if these are known to be worn

by members of gangs that are known to carry illegal or stolen items

As with the various elements of the maxim analysed previously these are also unable to be

moralised individually Because the first of the two does not specify what may be searched for and

neither of the sections specify that the police should expect to find illegal or stolen items upon

stopping and searching an individual As such neither of these elements can function as a maxim on

their own as they are illogical and can neither be generalised nor universalised However when

these are combined with the other elements of the maxims these issues should be resolved thus

passing Kants test of generalisation

Universalising these maxims is a bit more problematic than the one analysed previously through

For example with the first of these two maxims police officers would be enforced to stop and

search anyone that is acting in an obviously suspicious manner for illegal or stolen items if they

believe any such items will be found upon searching them The phrase behaving in an obviously

suspicious manner is a bit of an issue here as there is no definition available as to what can be

classified as such However a reasonable person would probably equate behaving in an obviously

suspicious manner to trying to hide something which is used as an example in the Codes of

Practice A s23 It could therefore be worth substituting the phrase behaving in an obviously

suspicious manner with trying to hide something as this would be more specific However by

doing this the maxim would become much more limited as it would no longer allow individuals

behaving suspiciously in other ways to be searched Nevertheless should this interpretation be used

the likeliness of the maxim passing the test of universalisation might be increased as the likeliness

of it producing a chaotic result would decrease Additionally implementing such an interpretation

would also make it more likely for the maxim to pass Singers generalisation principle As the

conduction of stops and searches of people that are obviously trying to hide something is less likely

to produce an undesirable outcome in comparison to searching anyone acting suspiciously

Finally the universalisation of the third and final of the maxims would enforce the police to stop

17

and search anyone dressed or in any other ways being physically identifiable as a possible member

of a gang known to carry illegal or stolen items if they believe any such items will be found upon

searching them As with the maxim analysed above there are issues related to universalising this

maxim due to the possibility of it causing certain people to be targeted because of the clothes they

wear or any piercings or tattoos on their body being related to or similar to ones connected to a

criminal gang Universalising this maxim could therefore worsen an already prevalent issue where

innocent members of the public get their civil liberties infringed upon due to their personal style

especially as the maxim allows quite a broad range of items accessories and body art to be used as

an indicator for suspicion In a study by Jackson and Smith (2013) the experiences of young people

from London that had been subjected to stop and search was surveyed where the participants

identified what kind of clothing might fit the criteria of being a presumed gang member It was

suggested that ldquoemulating American hip hop artists by wearing low-slung jeans hoodies and

branded trainers and walking and talking in a certain wayrdquo (p6) was stereotyped by the police as

gagster behaviour and dress The same study also identified an experience that was shared by one

of the participants whom stated that ldquoThey just say youre in a drug infested area and youve got a

hood on so were stopping and searching yourdquo (Jackson L and Smith L 2013 p6)

Taking this into consideration it can therefore be seen that the universalisation of a maxim asking

the police to stop and search anyone perceived to be involved with a criminal gang for illegal or

stolen items could result in a form of criminalisation of the hoodie and other specific pieces of

clothing as these are stereotyped as being related to gang membership This would be problematic

as the hoodie in particular is a comfortable and often affordable piece of clothing that is a staple in

the wardrobes of many of societys subcultures such as emos and skaters that are generally not

stereotyped as criminals (Braddock K 2011) As such it can be established that neither Kant nor

Singer would be able to universalise this maxim as having officers search anyone wearing specific

clothes would neither be reasonable nor produce any desirable consequences

522 Issues

While two out of three of the different maxims appear to be moral in the eyes of Kant there are still

some issues relating to them which must be acknowledged Primarily there might be an issue with

these maxims being too specific as it has been noted that ldquoany maxim that is highly restricted is

likely to pass the universalisability testrdquo [Guyer P 2007 cited by Perold L M 2010 p19]

because the more descriptive a maxim is the less likely it is that it would become contradictory As

all of the maxims created from the Codes of Practice A are highly restrictive specifying who may

carry out the act under what circumstances they may carry it out and the limitations of the actions

18

itself Additionally as noted earlier in this chapter the maxims cannot be made more general either

as this would prevent them from being moralised this means that there is a risk of these maxims

passing the tests of universalisation and generalisation simply because of their overly descriptive

nature rather than actually being moral

There might also be an issue with the phrasing of the maxims specifically the use of the term

police officers as this might cause some uncertainties regarding exactly who the maxim applies to

Because by using the term police officer or even police it becomes questionable if an officer must

be in uniform in other words his or her position as a police officer is overt when carrying out the

search However since these maxims need to be exclusive to the police it could be hard to bypass

this issue without adding yet another specification to it that clarifies whether there is a need for the

officer to be in uniform or not

Finally there could also be an issue of the maxims conflicting with each other as the first of the

maxims states that the decision to stop and search someone needs to be in accordance with known

facts and information Something that might not be available when a stop and search is made

utilising the second or third maxim as these can be initiated without a need of known facts or

information This raises a question to whether one of the maxims would naturally take precedence

over the others as all three maxims regarding stop and search can never operate at the same time

Generally Kantianism argues that when one is faced with opposing maxims the perfect duty will

always take precedence over an imperfect one (Stohr K 2010 p3) However as all of the maxims

are addressing what is essentially the same action being the possibility to stop and search

individuals for illegal andor stolen items this could be problematic Furthermore while there are

three maxims identified within this study there also exists another fourth maxim which concerns

the possibility of not searching anyone for illegal or stolen items This fourth maxim is also

considered a perfect duty as it would generally be easier to universalise not searching people as

opposed to searching individuals fitting certain requirements This means that the maxim regarding

the omission to act would in this case take precedence over the other maxims identified within this

research essentially rendering them powerless

19

Chapter 6

Conclusion

From this study it can be seen that the legislation governing a heavily criticised police power such

as stop and search has the possibility to be morally justifiable by the ethical frameworks developed

by Kant Because while Kants ethical theory does not rectify or justify the issue of ethnic minorities

being subjected to a disproportionate amount of stops and searches in comparison to Caucasians it

is important to remember that the ldquolaw in theory and the law in practice differrdquo (Westmarland L in

Newburn T 2011 p255) Meaning that the moralisation of the legislation does not ensure that it

will be applied ethically by the police Additionally as Kantian ethics values the motivation behind

ones actions over the consequences produced from them the potential issues caused by ones actions

are irrelevant as long as the action itself can be universalised without producing a chaotic or

undesirable result

However as there are several layers to stop and search there are some implications to morally

justifying this power as it is multi-faceted Being designed to deal with a variety of different

situations and bases from which suspicion might arise to justify the stopping and searching of an

individual Because while Kantian ethics can ethically justify police officers to stop and search

individuals for illegal or stolen items if it is in accordance with known facts and information and

they believe that such items will be found upon searching the person this encompasses only one of

the many facets of the power As such the power cannot be justified as a whole as any maxim used

to describe it would not provide the necessary limitations needed for it to successfully pass the tests

of generalisation and universalisation

While the power cannot be moralised as a whole it is possible to create two additional maxims

using the limitations and exceptions to the necessity criteria of reasonable suspicion found in the

Codes of Practice A to create an additional two maxims These represent two additional facets of

stop and search being that

police officers may stop and search individuals acting in an obviously suspicious manner for

illegal or stolen items but only if they suspect that such items will be found upon searching the

person and

police officers may stop and search individuals based on articles of clothing piercings

andor tattoos if these are known to be worn by members of a gang(s) that are known to carry

20

illegal or stolen items and only if the police suspects that such items will be found upon searching

the person

However only the first of these two maxims can be justified utilising Kants ethical framework and

Singers generalisation principle because the latter cannot be universalised without becoming

unreasonable Furthermore the latter cannot be justified without providing further limitations

requiring the phrase acting in an obviously suspicious manner to be replaced by obviously hiding

something

From the issues presented from the creation of the two additional maxims above it can be

established that stop and search cannot be considered morally justifiable under all circumstances

Because different situations calls for different maxims meaning that should the search not be

initiated based on known facts or information it is unlikely to be ethical Nevertheless even though

all facets of this police power cannot be morally justified it does seem that the majority of them can

be considered ethical to some extent Meaning the legislation governing it is generally ethical but

as a whole it becomes a bit of a moral ambiguity This shows that the police power as identified by

the Police and Criminal Evidence Act 1984 and the Codes of Practice A has a potential to be

ethically justified with the exception of the section permitting searches where physical appearance

can be used as a basis for suspicion Additionally this research identified that the reasons for why

this particular section is not justifiable could also be part of the reason to the disproportionate

amount of searches of ethnic minorities As it might provide officers maliciously targeting

minorities with a possibility to justify their actions by claiming a particular article of clothing body

art or similar was the reason for the stop

As such it can be established that the legislation governing the polices power to stop and search

individuals for prohibited or stolen articles cannot be fully moralised as not all sections of the

Police and Criminal Evidence Act 1984 or the Codes of Practice A concerning this power can be

ethically justified However while the legislation as whole is morally ambiguous at best the

searches conducted with factual information as a basis for suspicion suggests that the sections of the

legislation addressing this type of search cannot be implemented in an unethical manner Because as

the universalised maxim requires the police to act in a manner promoted by the Act and Codes this

shows that any unethical searches carried out using this type of search are caused as a result of

police misconduct rather than an actual issue with the legislation

21

However it should be noted that this research can only provide a limited account of the morality of

this police power as it has only explored it through the limitations put upon it through the necessity

requirement of reasonable suspicion Additionally it can only account for the morality of the

sections of the Police and Criminal Evidence Act 1984 and the Codes of Practice A addressing this

particular police power and only through the limitations explored within this research Finally it is

also important to recognise that the police power has only been analysed using a Kantian approach

to ethics and morality This means that further studies of the police power and indeed the Act and

Codes in general are needed in order to provide a more accurate account of the morality and ethical

issues present It is therefore suggested that additional research should be carried out to study the

legislation governing the power of stop and search utilising other ethical theories or utilising

Kantian ethics with a different focus point of the legislation

However while further research is needed in order to gain a more accurate account of the overall

morality of the police power and the legislation governing it it does not mean the research

presented in this paper is of any less value Because even though the study can only provide a

limited account of the legislations morality it has succeeded in presenting the probabilities for the

moral justification of the Acts first part along with the associated Codes of Practice as well as

identifying that the issues connected to the Act may be caused primarily by the polices failure to

accurately conduct stops and searches according to the law Meaning the research has produced

some valuable results in addition to providing a stepping stone for further research on the topic

22

Bibliography

BBC [2014] Duty-Based Ethics Available at

httpwwwbbccoukethicsintroductionduty_1shtml [Accessed 20-03-2014]

Benz S [2010] ldquoThe Police and Criminal Evidence Act 1984 balancing civil liberties and public

securityrdquo Diffusion 5(2) Available at httpatpuclanacukbuddypressdiffusionp=1255

[Accessed 25-04-2014]

Bowling B and Phillips C [2007] Disproportionate and Discriminatory Reviewing the Evidence

on Police Stop and Search Oxford Blackwell Publishing p958 httpwwwstop-

watchorguploadsdocumentsmodern_law_reviewpdf

Braddock K [2011] ldquoThe Power of the Hoodierdquo The Guardian Available at

httpwwwtheguardiancomuk2011aug09power-of-the-hoodie [Accessed21-04-2014]

Codes of Practice A

Council of Europe [2010] European Convention on Human Rights Strasbourg European Court of

Human Rights p 7 Available at httpwwwechrcoeintDocumentsConvention_ENGpdf

[Accessed 09-03-2014]

The Economic and Social Research Council [2012] Frameworks for Research Ethics Swindon

Economic and Social Research Council pp2-3 3 Available at

httpwwwesrcacuk_imagesframework-for-research-ethics-09-12_tcm8-4586pdf [Accessed 01-

04-2014]

The Economist [1990] End Game Available

athttpgogalegroupcompsidoid=GALE7CA9390713ampv=21ampu=uceampit=rampp=SPJSP0

0ampsw=wampasid=f6f778fcf0a20b3f0f18df5e20a57f27 [Accessed 19-03-2014]

Fahy P [undated] ldquoForewordrdquo In Ozin P Norton H and Spivey P [2013] PACE ndash A Practical

Guide to the Police and Criminal Evidence Act 1984 3rd

Edition Oxford Oxford University Press

p v

Flick U [2011] Introducing Research Methodology London Sage p 125

Garret J [2006] Kants Duty Ethics Available at

httppeoplewkuedujangarrettethicskanthtm [Accessed 20-03-2014]

Govuk [2013] Guidance Police and Criminal Evidence Act 1984 (PACE) Codes of Practice

London Home Office Available at httpswwwgovukpolice-and-criminal-evidence-act-1984-

pace-codes-of-practice [Accessed 02-04-2014]

Guyer P (2007) cited by Perold L M [2010] Does Immanuel Kants Categorical Imperative

Commit Him to the View that Lying is Always Morally Wrong Master of Arts thesis University of

the Witwatersrand p 19 Available at

httpwiredspacewitsaczabitstreamhandle1053910096M20Perold20Research20Reportp

dfsequence=2 [Accessed 24-04-2014]

ii

Acknowledgements

First and foremost I must thank Mr John Lamb not only for the continuous advice assistance and

support provided throughout my research but also for sparking my interest for ethics through his

lectures

My gratitude is also extended to Dr Matthew Cremin for providing me with additional guidance and

support during my research and to Mr Liam Ward for providing me with support and feedback

throughout my studies

Finally I wish to thank my family for their support and encouragement throughout my studies

iii

Abstract

The following is a literature based research providing an ethical analysis of the legislation

governing the polices power to stop and search individuals for prohibited andor stolen articles

through the ethical frameworks developed by Immanuel Kant The analysis utilised the necessity

criteria of reasonable suspicion identified within the Police and Criminal Evidence Act 1984 and

the Codes of Practice A through which three different maxims could be created each representing a

different aspect and limitation of the police power Through the individual analysation of each of

these maxims the study provides an attempt to identify whether the issues related to the stop and

search police power are caused due to being governed by an inherently immoral piece of legislation

or if they are a simply a result of the police failing to apply the power in accordance to the law This

research concludes that there is probably a mixture of both as the sections of the Act governing stop

and search is morally ambiguous at best

iv

Table of Contents

Acknowledgements p ii

Abstract p iii

Chapter 1 ndash Introduction p 1

Chapter 2 ndash Methodology p 3

Chapter 3 ndash Kantian Ethics p 5

31 The Core Ideas p 5

32 Critiques p 6

Chapter 4 ndash PACE a Brief Introduction p 8

41 Background p 8

42 Critiques p 9

Chapter 5 ndash Reasonable Suspicion p 11

51 Reasonable Suspicion and Stop and Search p 11

52 Reasonable Suspicion Stop and Search and Morality p 13

521 Generalisation and Universalisation p 14

522 Issues p 17

Chapter 6 - Conclusion p 19

Bibliography p 22

Appendix 1 p 25

Appendix 2 p 27

1

Chapter 1

Introduction

Being brought into power ldquoat a time when public confidence in the police was at an all-time low

due to high-profile miscarriages of justicerdquo (Fahy P in Ozin P Norton H Spivey P 2013

pv) the Police and Criminal Evidence Act 1984 and its corresponding Codes of Practice has been

subjected to heavy criticism ever since Because while the Act was introduced to the legal system in

order to improve public confidence in the police by ldquoestablish[ing] the powers of the police to

combat crimes while protecting the rights of the publicrdquo (govuk 2013) providing a more balanced

relationship between the two It was feared that the Act would instead provide the police with a way

to legitimize the infringement upon the civil liberties of the public (Benz S 2010) Since then the

Act has undergone plenty of alterations to improve the balance between the rights of the public and

the powers bestowed upon the police but still there are issues

Outlining what powers are available to the police is only part of the process to achieve a good

balance between the two sides however which is where the Codes of Practice comes in These

function similarly to an ethical framework that provides the police with guidelines for the proper

implementation of their powers Because even though the Codes of Practice are not statutory a

failure to act in compliance to these will result in a disciplinary offence in addition to providing

admissible evidence against the police in court (Mawby R and Wright A 2005 p6) Meaning that

should an officer fail to follow these an entire case against a suspect could be jeopardized as a

result Nevertheless even though the Codes of Practice may function similarly to an ethical

framework for the police that govern the correct use of their powers it does not mean that the

guidelines provided nor the Act itself is ethical In fact taking into consideration the sheer amount

of criticism of them it might even suggest that they are entirely unethical

This questionable morality of the Police and Criminal Evidence Act 1984 and its corresponding

Codes of Practice will be explored within this piece of research Aiming to determine whether the

fault lies primarily within the Act and Codes themselves or if the problems might be caused by

other factors such as the Police failing to act in accordance to the guidelines provided However

due to the vastness of the Act and the Codes the focus of the research will be laid upon the necessity

of reasonable suspicion to be present for the police in order to enforce their powers Within this

limited area there will also be a particular focus on part one of the Police and Criminal Evidence

Act 1984 and the Codes of Practice A which addresses the polices power to stop and search

2

individuals for stolen or prohibited items This is a police power that has been subjected to a

substantial amount of criticism mainly due to the disproportionate number of searches of ethnic

minorities in comparison to Caucasians which raises some questions regarding the legitimacy and

morality of the power

Utilising the ethical frameworks of Immanuel Kant (1724-1804) the morality of the Police and

Criminal Evidence Act 1984 and the Codes of Practice will be analysed by converting sections of

the Act and Codes into maxims Which are descriptions of the acts that are used to determine their

ethical and moral value by subjecting them to various tests Primarily the research will employ

Kants original frameworks which question the universalisability of onersquos actions as moral actions

are ones that could be enforced as a universal law applying to everyone unconditionally

Additionally this research will be utilising the generalisation principle developed by Marcus Singer

which is an approach that places a utilitarian twist upon Kants idea of universalisation Because

while Kant argued that it is the motivation behind the act that determines whether it is moral or not

Singer is more interested in the consequences caused by the act Meaning the maxims created from

the Act and the Codes of Practice will be analysed using two different approaches to

universalisation with differing opinions as to which component of the act determines its moral

worth By conducting such an analysis this research hopes to provide some insight regarding the

morality of a very controversial part of the Police and Criminal Evidence Act 1984 as it will not

only take into consideration the consequences of the actions granted by the Act but also the

motivation behind them

3

Chapter 2

Methodology

While primary sources could arguably create more current and relevant results than secondary

sources might be able to (McQueen R and Knussen C 2002 pp83-85) due to them being

acquired personally through fieldwork interviews or observational studies the following study is

entirely literature based Utilising secondary research sources such as books legal documents and

academic journals in addition to various electronic and online resources drawing conclusions from

the information found within these It is acknowledged that research using secondary data struggles

to produce results that are current as ldquothe time factor involved in collecting and analysing primary

data means that some social survey data are out of date by as much as a year before the secondary

analyst gets hold of itrdquo (McQueen R and Knussen C 2002 pp84-85) Additionally there is an

overarching issue regarding bias when dealing with secondary sources as ldquophotos texts and

statistics have their own structure that is often strongly influenced by who produced them and for

what purposerdquo (Flick U 2011 p125) and ldquothe validity of information may vary markedly from

source to source ldquo (Kumar R 2011 p164) As such all sources must be viewed critically as to

ensure that any personal biases of the writer(s) will not interfere with the overall results of the

findings Something that becomes especially important if the information was found in a newspaper

or certain web-resources (such as blogs) as ldquothese writers are likely to exhibit less rigorousness and

objectivity than one would expect in research reportsrdquo (Kumar R 2011 p164)

However while there are many issues connected to undertaking research based on secondary

sources it should be noted that neither primary nor secondary data ldquoprovides 100 per cent accurate

and reliable informationrdquo (Kumar R 2011 p139) Additionally it must also be considered that

certain research topics are less compatible with certain research approaches than others as in this

case where an ethical analysis of specific sections of a legal statute is carried out Meaning

interviews and other primary research approaches would struggle to produce results that are

accurate and relevant Furthermore certain issues identified above with the utilisation of secondary

sources for research would be less of an issue in this case due to the nature of the sources studied

These being a legal statute the Police and Criminal Evidence Act 1984 and the Codes of Practice

and the philosophical and ethical theories developed by Immanuel Kant Because even though

Kants ideas originated over one hundred years ago these ideas are still applicable and relevant

when studying Kantianism Moreover the legal statute that this framework will be applied to uses

its most recent edition of the law which can easily be accessed through government websites

Meaning there should not be an issue with keeping the research current and relevant

4

It should also be noted that literature based research also benefits in ways that research based on

primary sources does not considering that the field of criminology often deals with sensitive topics

and people such as illegal activities and the abused (Westmarland L 2011 p141) Meaning there

are plenty of ethical pitfalls one must avoid when conducting research within this field especially

when using primary sources for the research However regardless of conducting research using

primary or secondary resources any research proposition must adhere to the six key principles of

ethical research (see Appendix 1) Most of the ethical issues identified within these principles are

related to peer-based research though meaning a literature based research is more likely to be

justified ethically than research using primary sources This due to the lack of participants involved

in the research whose emotions consent and wellbeing must be taken into consideration nor should

the researcher themselves be at risk because of the research (Economic and Social Research Council

2012 pp2-3)

However while the literature based method avoids most of the major ethical concerns this

particular piece of research might be subjected to some ethical scrutiny because of the manner in

which it is being carried out Because as the research only utilises the Kantian approach to morality

in addition to only analysing a specific part of the Police and Criminal Evidence Act 1984 and its

corresponding Codes of Practice it might produce some questionable results As such the research

is at risk of being perceived as being biased aiming to obtain certain results by only studying a

selected part of the legislation using a single ethical framework Nonetheless in the Frameworks for

Research Ethics provided by the Economic and Social Research Council (2012) it is stated that ldquothe

independence of research must be clear and any conflicts of interest or partiality must be explicitrdquo

(p3) So while the research might produce results that could be considered biased or partial for the

above reasons this is something that has been acknowledged and addressed before the start of the

research as can be seen in the Ethics Approval Form (see Appendix 2) As such the potential for the

research questioned due to only analysing a select part of the legislation and Codes of Practice

using only one perspective of morality has been addressed explicitly Additionally it is also

acknowledged that other results regarding the morality of the Police and Criminal Evidence Act

1984 and the Codes of Practice might be achieved by utilising a different ethical framework by

studying different sections of the Act or by analysing the Act and Codes of Practice as a whole

5

Chapter 3

Kantian Ethics

The ethical framework developed by Immanuel Kant is an ideology that places moral value on the

motivations between our actions and their potential for universalisation rather than the

consequences of the act itself In this chapter the core principles of the Kantian framework will be

explained identifying the process of determining the morality of our actions through the tests of

generalisation and universalisation Additionally the chapter will also be addressing various

criticisms issues and shortcomings of the Kantian approach to ethics and morality such as the

possibility of the framework allowing for any maxims to be moralised with the right phrasing

31 The Core Ideas

The idea of autonomy is at the core of Kantian ethics arguing that each individual can (and should)

make their own decisions without any external interferences to guide or coerce them (Bennet C

2010 p75) As such Kantianism argues for the presence of free will meaning human beings are

accountable for the choices they make and the actions they subsequently carry out and that

everyone capable of reasonable thinking has the potential to act in accordance to the moral law

However while humans are generally considered to be rational beings it does not mean that they

will behave in a rational manner at all times but rather that they have the capability of doing so

According to Kant this is what separates humans beings from animals as they are only capable of

operating under negative freedom through reacting to their impulses and instinct unable to

question or evaluate the situation in ways human beings are able to (Bennet C 2010 p76) As such

rational beings are the embodiment of morality as the moral law is that of reason (Rachels J 1986

p1) which is why Kant argued that humans must never be treated as the means to an end but

should instead be the end itself (BBC 2014)

Nevertheless being a rational agent capable of recognising reasonable actions from unreasonable

ones thus acting outside of the realms of negative freedom and moving into what is known as

positive freedom does not ensure that onersquos actions are good or moral These are simply

requirements to qualify as an agent that is capable of acting morally not an insurance that actions

carried out by such an agent will be moral or reasonable Instead Kant argued that moral acts are

identified through their motivations stating that ldquoif duty is the key element in our decision to act

then we have acted rightlyrdquo (BBC 2014) because ldquoan action done from duty has its moral worth

not from the results it attains or seeks to attain but from a formal principle or maxim ndash the principle

of doing ones duty whatever that may berdquo (Paton H J 1969 p20) In this case the meaning of

6

duty is equal to acting in reverence to the moral law as Kant argues that morality and its rational

requirements can be translated into rules or that dictates how we should act (Bennet C 2010

p83) These moral rules are divided into two separate groups being hypothetical and categorical

however only categorical can result in a moral law This is due to hypothetical making it possible

for an individual to claim they are an exception to the rule which is unreasonable as moral laws

must apply to everyone without exception (Bennet C 2010 p83) This means that a maxim such

as do not lie unless you want to be considered untrustworthy or even an innocent maxim such as

bring an umbrella unless you want to risk getting wet would be fallible and immoral according to

Kant as they do not apply to individuals that are willing to face the consequences related to these

acts

To be able to establish whether ones actions are moral or not one must therefore be able to apply it

without failure to everyone This is a process known as universalisation which questions the agent

to ldquonever act except in such a way that [they] can also will that [their] maxim should become a

universal lawrdquo (Paton H J 1969 p22) meaning that the morality of an act is determined through

establishing its possibility to be enforced at least hypothetically as a law applying to everyone

unconditionally Ascertaining whether an act can be universalised requires the use of two tests

known as the tests of generalisation and universalisation A maxim must therefore

be able to be generalised without becoming contradictory or illogical as a result to then be

applicable as a universal law governing everyone without exceptions without resulting in an

unappealing or chaotic outcome (Garret J 2006) As ldquoKant believes that someone who violates the

moral requirements is being irrationalrdquo (Bennet C 2010 p82) one should therefore not act on a

maxim that is unable to pass both the test of generalisation and universalisation as this would result

not only in acting immorally but also irrationally

32 Criticisms and Issues

Like any other philosophical or ethical theory the Kantian approach is not devoid of imperfections

and both the original theory and contemporary interpretations have faced criticisms for everything

from structure and implementation to the actual usefulness of the theory However in her book

Bounds of Justice Onora ONeill (2000) identifies that the criticisms of Kantian theories tend to fall

into three different groups of categories (p67) all of which will be explored within this section of

the chapter

The first of these categories identified by ONeill (2000) is that Kant fails to acknowledge the

importance that human relationships and emotions might have on our moral reasoning (p67) An

7

issue that is also identified by Bennet (2010) stating that ldquoit certainly seems a large gap in a moral

theory that it has nothing to say about how pain and suffering makes acts wrongrdquo (p88) Because

while many actions that might cause pain and suffering to others generally cannot be justified using

the categorical imperative they are not dismissed for the right reasons (Bennet C 2010 p88) as

ldquouniversal rules require us to overlook and [hellip] neglect the fragility mutual vulnerability social

embeddedness and constitutive loyalties of real peoplerdquo (ONeill O 2000 p67) As human beings

are not cold calculative and emotionless robots this is an obvious flaw within Kants frameworks

because in order to act morally one needs to be able to completely disregard the feelings of other

people

Furthermore due to the lack of consideration for human emotions and relationships Kant has

simplified the very complex issue of moral theory (ONeill O 2000 p 67) often resulting in very

bizarre contradicting or even worrying results Because utilising the categorical imperative for

moral guidance might result not only in allowing obviously immoral actions to be universalised but

also preventing other harmless acts of kindness such as opening the door for someone else from

being morally justified (Bennet C 2010 p86) It should be obvious to a normal reasonable human

being that there is nothing wrong or immoral about holding the door open for someone else yet

through the implementation of Kantianism such an action cannot be justified due to it being unable

to pass the test of universalisation Showing that the Kantian approach struggles to encompass all

actions regardless of their significance importance or size in a reasonable manner

It should also be noted that the Kantian framework can also produce situations where the agent will

be acting immorally no matter what they do Bennet (2010) utilises an example of noticing a child

in the process of drowning while on the way to class and even though we have a duty to help others

according to Kant the option of not helping can also be moralised in this scenario as the agent will

adhere to the maxim of getting to class on time (p86-87) This leads to the final category of

critiques against Kant and Kantian ideologies as identified by ONeill (2000) which states that it is

a theory ldquodesigned for abstract individuals [hellip] leading to abstract conclusions that are irrelevant to

real people who lead real livesrdquo (p 67) It is possible that this abstract nature of the theory could be

due to Kants failure to provide a proper guideline stating how our actions should be explained in

order to properly calculate their ethical value through the tests of generalisation and universalisation

Because with the manner in which the Kantian framework is designed there is a possibility that

ldquoany action could pass it simply by being re-describedrdquo (Bennet C 2010 p87) The Kantian

framework is therefore in need of some kind of notes for guidance that provides an explanation for

how one is to distinguish correct descriptions of ones actions from incorrect ones

8

Chapter 4

PACE A Brief Introduction

The following chapter will be providing a brief introduction to the Police and Criminal Evidence

Act 1984 and its associated Codes of Practice Providing a basic understanding of the legislations

history and purpose in addition to some criticisms of the act and issues that has developed as a

result of its development As such this chapter alongside with chapter 3 provides a foundation for

the following chapters where specific parts of the legislation will be explored more thoroughly in

addition to being analysed through the Kantian frameworks for ethics

41 Background

Policing in England and Wales is nowadays comprised of a tough balancing act where ldquothe interests

of the community and the rights of the individualrdquo (Royal Commission undated cited by Zander

2011 p3) must be taken into account while also maintaining public order In addition to being

required to evaluate to what extent they may infringe upon civil liberties to do their job the police

is also under constant public scrutiny This means that any infringement upon the rights of an

individual that cannot be justified by the Police and Criminal Evidence Act 1984 the Human Rights

Act 1998 or other pieces of legislation can have dire consequences for the police Such

infringements can result in lawsuits against the police or rendering evidence inadmissible in court

as was seen in the case of R v Miller (1993) where the confessions from the suspects were rendered

inadmissible due to hostile and oppressive questioning by police However while it is noted that

infringement of civil liberties should be avoided and the rights of the public should be respected it

is also identified in Article 5 of the European Convention of Human Rights that there are

circumstances when the police and the criminal justice system must be granted the power to

lawfully infringe upon these (Council of Europe 2010 p7) Because without these exceptions legal

and justice systems would no longer function as criminal justice cannot function if the rights of the

individual is to be respected at all times

While there is a need for the police and criminal justice system to infringe upon the rights of

individuals there must be sanctions that govern to what extent these rights can be infringed upon

and under what circumstances As mentioned above article five of the European Convention of

Human Rights provides a good starting point but as it must be applicable to the state legislature of

all member states of the European Union it is far too general and leaves plenty of gaps to fill in

This is where the Police and Criminal Evidence Act 1984 and its corresponding Codes of Practice

comes into play as these help with outlining the provisions for the polices ability to infringe upon

9

the civil liberties of the public It was introduced following some cases of gross police misconduct

that had come to light causing miscarriages of justice of several high-profile cases which put a

strain on the relationship between the police and the public One such case included the R v

McIlkenny and others (1991) more famously known as the Birmingham Six where six innocent

men were wrongfully convicted as a result of police officers having beaten witnesses to obtain

satisfactory statements in addition to distorting forensic evidence (The Economist 1990) The

Police and Criminal Evidence Act 1984 and the associated Codes of Practice was introduced in an

attempt to remedy this through providing guidelines for how evidence was to be obtained legally

how suspects and detained persons were to be treated how and when certain police powers could be

legally enforced as well as providing the criminal justice system with transparency and

accountability (Fahy P in Ozin P Norton H and Spivey P 2013 pv)

Through its introduction the Police and Criminal Evidence Act 1984 and its corresponding Codes of

Practice drastically changed the manner in which policing was carried out causing a bit of a

culture shock for some officers that were threatened by the new developments (Wilding B

undated in Cape E and Young R 2008 p127) As there were suddenly demands being put on

officers that did not exist previously in addition to clear frameworks dictating what kind of

behaviour was deemed acceptable All to ensure that investigations were carried out both

objectively and with integrity two elements which are important to maintain public confidence in

the police force (Wilding B undated in Cape E and Young R 2008 p127) However while the

drastic changes might have come as a shock to some officers it is now common practice and

heavily ingrained to the very core of policing Additionally while the Act generally focuses on the

protection of the suspects victims and witnesses it simultaneously provides the police with

safeguards to avoid suspicion of unlawfully acquired evidence as everything from physical

evidence to verbal or written confessions must be recorded and processed in detail (Police and

Criminal Evidence Act 1984 sNUMBER sNUMBER) ensuring that the police runs a lower risk of

being unjustly accused of foul play

32 Critiques and Issues

While the Act and the Codes of Practice has played a significant part in making the police ldquomore

accountable in terms of performance and standards than virtually any other public bodyrdquo (Wilding

B undated in Cape E and Young R 2008 p130) as well as supposedly having ldquoushered in new

ethical standards for the servicerdquo (Wilding B undated in Cape E and Young R 2008 p127) It

has been subjected to a significant amount of criticism from non-governmental organisations such

as Liberty members of the police itself and academics scrutinising everything from how the Act

10

takes the police off the streets and placing them behind desks to carry out extensive amounts of

paperwork (Wilding B undated in Cape E and Young R 2008 p127) to questioning whom the

Act is really favouring (Benz S 2010) Furthermore the actual contents of the Act and the Codes of

Practice has been criticised in particular the Acts first part concerning stop and search (see chapter

5) resulting in a large number of edits and moderations to remedy these and provide a better

balance between the police and the rights of the public

11

Chapter 5

Reasonable Suspicion

While the Police and Criminal Evidence Act 1984 provides the police with guidelines for how and

when they may use their powers to infringe upon civil liberties these are not enough to ensure that

policing is carried out correctly in accordance to the act The Act must therefore be read alongside

the Codes of Practice as these further explain the limitations of the powers in addition to the

requirements that must be fulfilled in order for an officer to implement them One such requirement

that is found repeatedly throughout the Act and the Codes of Practice is the need for an officer to

have reasonable grounds for suspecting that the person(s) of interest are doing have done is about

to do or is in possession of something illegal (Police and Criminal Evidence Act s1(7)-1(9)

s3(1)(a)-3(1)(d)) This requirement is one that has been subjected to some controversy and scrutiny

especially in connection to the power of stop and search (addressed below) as it is often described

in very vague or broad terms often making it unclear what exactly constitutes appropriate grounds

for reasonable suspicion Additionally it should also be noted that the appropriate grounds for

suspicion might differ slightly from one section of the Act to another making it important to

separate these definitions from each other when studying them as they may all have their own

interpretations definitions regulations and issues However as this research explores the ethical

implications of reasonable suspicion in relation to stop and search it must be acknowledged that the

results may not be applicable to sections of the Police and Criminal Evidence Act 1984 and Codes

of Practice concerning other police powers

51 Reasonable Suspicion and Stop and Search

In the first part of the Police and Criminal Evidence Act 1984 it is identified that an officer cannot

stop and search an individual unless they have reasonable grounds for suspecting that any stolen or

prohibited articles listed under s1(7)-1(9) of the Act will be found on their person (s1(3) Police and

Criminal Evidence Act 1984) That being said there are many limitations placed upon what may

constitute a reasonable ground for suspecting that prohibited or stolen articles will be found on the

person(s) (Codes of Practice A s22) and that these can differ depending on the circumstances of

each case [Ozin P et al 2013 p4] However while suspicion might be raised for different reasons

in each case the Code emphasises that suspicion may never be based on personal factors

stereotypes or generalisations (Codes of Practice A s22) Nor may it be ldquoprovided retrospectively

by [hellip] questioning during a persons detention or by refusal to answer any questionsrdquo (Codes of

Practice A s29) Instead it is stressed that suspicion should have an objective basis derived from

known facts and information (Codes of Practice A s22)

12

Whether these demands put on officers by the Codes of Practice A to establish objective grounds

for suspicion are followed is questionable though At least when taking into consideration that the

sections of the Police and Criminal Evidence Act 1984 and the Codes of Practice concerning stop

and search has been subjected to heavy criticism mainly due to the disproportionate amount of

members from minority ethnic groups being searched in comparison to Caucasians Because even

though the Codes of Practice A does identify that there are situations where reasonable grounds for

suspicion might exist without the need for known facts or information such as initiating searches

based on an individuals behaviour or body language (Codes of Practice A s23) it does not explain

why black people are up to ldquosix times more likely to be stop[ped and] searched than would be

expected based on their numbers in the general populationrdquo (Bowling B and Phillips C 2007

p958) Nor does it explain how the recorded stops and searches of Asians since the mid-nineties

have remained between 15 and 25 times higher than those of Caucasians (Equality and Human

Rights Commission 2010 p13) These are worrying statistics that raise questions as to whether the

guidelines provided by the Police and Criminal Evidence Act 1984 and the Codes of Practice are

sufficient in order to ensure that this power is used appropriately and fairly Because even though

non-Caucasians are stopped and searched more frequently arrests following searches are distributed

quite evenly across all ethnic groups (StopWatch 2014)

There is a possibility that this targeting of minority ethnic groups could be a direct result of the

socio-economic conditions that traps many families from poor neighbourhoods in a cycle of poverty

and disadvantage (Joseph I and Gunter A 2011 p3) Especially as it has been found that these

groups often respond ldquoto their powerlessness with frustration rage and the creation of alternative

social and cultural values that promotes and normalizes gang membership and violencerdquo (Joseph I

and Gunter A 2011 p3) Due to the normalisation of such behaviour this could provide an

explanation to why some disproportionality might exist as the Codes of Practice provides an

exception to searches based on physical appearance when it is related to gang culture stating that

ldquowhere there is reliable information or intelligence that members of a group or gang

habitually carry knives unlawfully or weapons or controlled drugs and wear a

distinctive item of clothing or other means of identification to indicate their

membership of the group or gang that distinctive item of clothing or other means

of identification may provide reasonable grounds to stop and search a personrdquo

(Codes of Practice A s26)

13

However while this provision could support the existence of some disproportionality it does not

disprove that minority ethnic groups are being targeted by the police nor does it provide a

reasonable explanation to why blacks are being six times more likely to be subjected to a stop and

search This means there is a risk that this section of the Codes of Practice is being used by police

to maliciously target ethnic minority groups by stereotyping them as more likely to be involved

with criminal gangs

52 Reasonable Suspicion Stop and Search and Morality

While statistics and studies show that stop and search is used disproportionally and suggests that

individuals belonging to minority ethnic groups are being targeted by the police it does not mean

that the power itself nor the legislation governing it is unethical Because even though they tend to

overlap ldquothere is no necessary connection between law and moralsrdquo (Hart H L A 1958 cited by

Green L 2012 in Hart H L A 2012 pxxxiii) as the law applies to everyone unconditionally

while moral only applies to those that sympathise with the ideologies in question Kantian ethics

however arguing that one should do the right thing because of it being right views morality as a

supplement to the law (Zupancic A 2000 p16) therefore ensuring that we are not only doing what

is right but that we are also doing it for the right reasons (Sandel M 2011) Which from Kants

viewpoint is synonymous to acting out of duty which as established in Chapter 3 means that

onersquos actions must be converted to those that are able to pass the tests of generalisation and

universalisation As such one must convert the sections of the Police and Criminal Evidence Act

1984 and its associated Codes of Practice concerning stop and search into an order to establish

whether it is ethical

However while the Police and Criminal Evidence Act 1984 identifies that reasonable suspicion is

necessary in order to conduct a stop and search one cannot simply create a maxim stating that

police officers can stop and search anyone they reasonably suspect is carrying illegal or stolen

items Because even though this maxim does provide an accurate description of the necessary

requirements to perform a stop and search it is far too broad Such a maxim does not place a limit

upon what the suspicion might be based on resulting in a possibility for officers to target certain

groups of people based on prejudice or stereotypes Therefore such a maxim can neither be

generalised nor universalised meaning it would be considered entirely unethical by Kantian

principles However by using the guidelines and limitations of reasonable suspicion presented in

the Codes of Practice A that were identified earlier in this chapter this maxim can be broken down

into three separate parts These being

14

police officers may stop and search individuals for illegal or stolen items if it is in

accordance with known facts and information and they believe that such items will be found upon

searching the person

police officers may stop and search individuals acting in an obviously suspicious manner for

illegal or stolen items but only if they suspect that such items will be found upon searching the

person and

police officers may stop and search individuals based on articles of clothing piercings

andor tattoos if these are known to be worn by members of a gang(s) that are known to carry

illegal or stolen items and only if the police suspects that such items will be found upon searching

the person

These provide a much more limited and concentrated approach to the attempted moralisation of the

polices power to stop and search individuals for prohibited or stolen articles Because unlike the

previous maxim these are not only limiting what the basis for suspicion might be but also limiting

when the power itself may be enforced As such the likelihood of these being able to pass the tests

of generalisation and universalisation are increased

521 Generalisation and Universalisation

In order to accurately establish whether acts are moral they must pass the tests of generalisation and

universalisation as Kant believed that moral acts were ones that could be applied to everyone as a

universal law without becoming contradictory or illogical (see chapter 3) However as these deal

with police powers and Kant argued that acts must be applicable to everyone without exception

these will also be examined using Singers generalisation principle because it would be illogical for

such powers to be implemented by everyone Singers generalisation principle makes it possible to

bypass this issue as it argues that ldquowhat is right (or wrong) for one person must be right (or wrong)

for any similar person in similar circumstancesrdquo (Singer G M undated cited by ONeill O 2013

p78) Additionally this approach puts a utilitarian twist on Kants frameworks as it determines

morality based on the consequences of onersquos actions (ONeill O 2013 p79) rather than the

motivation behind them As such this test functions as a middle ground between the tests of

generalisation and universalisation ensuring that the generalised maxim does not cause an illogical

or chaotic result in addition to limiting the generalised maxim from anyone that is not a member of

the police service Analysing the maxim using these tests therefore requires them to be studied

individually so that they can be dissected and examined more closely

Looking at the first of the three maxims created using the guidelines and limitations of reasonable

15

suspicion as identified by the Codes of Practice A it can be established that it is comprised from

three different elements Namely

the police may only search for illegal or stolen items

the police may only search an individual based on known facts and information and finally

the police may only search the individual if they believe illegal or stolen items will be found

Attempting to generalise any of these elements of the maxim individually would not be reasonable

as they do not provide enough limitations or guidelines for it to be functional Because the first part

allows the police to search anyone for illegal or stolen items without the necessity of a suspicion

that any such items will be found which would result in a police state where the police could search

anyone they please The necessity of believing that illegal or stolen items will be found upon

conducting a search is added by the third element of the maxim but there are still no requirements

for the police to have any kind of reasonable basis for their decision to stop and search someone as

this is added by the maxims second element However this element cannot be moralised on its own

either as it does not specify what the police may search for However when all three elements of

the maxim are combined all necessary limitations are present meaning the generalisation of it

should not produce a contradictory or illogical result

However passing the test of generalisation does not mean that the maxim is ethical as it must also

be universalisable Meaning it should be able to be enforced as a (hypothetical) law that applies to

everyone unconditionally As the maxim places a requirement on the police to only stop and search

individuals if they have a factual basis for their suspicion to find illegal or stolen items upon

searching the person this should be a universalisable action Because assuming all police officers

were required to follow this maxim it would result in a world where only specific items may be

searched for if they have a factual reason to conduct the search and only if they believe that such

items will be found upon searching the person(s) As this would not produce any undesirable

consequences this maxim would not only pass Kants test of universalisation but also fulfil the

necessary criteria for Singers generalisation principle

This is essentially what the Police and Criminal Evidence Act 1984 and the Codes of Practice A

seeks to do meaning that if the guidelines were followed by the police unlawful stops and searches

should not occur However since there are more aspects to the laws that govern the polices power

to stop and search individuals for illegal or stolen items such as searches based on suspicious

behaviour or searches of suspected gang members other aspects must be explored as well before

16

declaring whether it is ethical or not For this reason the two additional maxims (mentioned earlier)

are needed and must therefore be tested as well As these maxims can be implemented in such

situations by the removal of the need for a factual basis for suspicion and replacing it with either

the possibility to

search individuals acting in an obviously suspicious manner or

search individuals based on clothing piercings andor tattoos if these are known to be worn

by members of gangs that are known to carry illegal or stolen items

As with the various elements of the maxim analysed previously these are also unable to be

moralised individually Because the first of the two does not specify what may be searched for and

neither of the sections specify that the police should expect to find illegal or stolen items upon

stopping and searching an individual As such neither of these elements can function as a maxim on

their own as they are illogical and can neither be generalised nor universalised However when

these are combined with the other elements of the maxims these issues should be resolved thus

passing Kants test of generalisation

Universalising these maxims is a bit more problematic than the one analysed previously through

For example with the first of these two maxims police officers would be enforced to stop and

search anyone that is acting in an obviously suspicious manner for illegal or stolen items if they

believe any such items will be found upon searching them The phrase behaving in an obviously

suspicious manner is a bit of an issue here as there is no definition available as to what can be

classified as such However a reasonable person would probably equate behaving in an obviously

suspicious manner to trying to hide something which is used as an example in the Codes of

Practice A s23 It could therefore be worth substituting the phrase behaving in an obviously

suspicious manner with trying to hide something as this would be more specific However by

doing this the maxim would become much more limited as it would no longer allow individuals

behaving suspiciously in other ways to be searched Nevertheless should this interpretation be used

the likeliness of the maxim passing the test of universalisation might be increased as the likeliness

of it producing a chaotic result would decrease Additionally implementing such an interpretation

would also make it more likely for the maxim to pass Singers generalisation principle As the

conduction of stops and searches of people that are obviously trying to hide something is less likely

to produce an undesirable outcome in comparison to searching anyone acting suspiciously

Finally the universalisation of the third and final of the maxims would enforce the police to stop

17

and search anyone dressed or in any other ways being physically identifiable as a possible member

of a gang known to carry illegal or stolen items if they believe any such items will be found upon

searching them As with the maxim analysed above there are issues related to universalising this

maxim due to the possibility of it causing certain people to be targeted because of the clothes they

wear or any piercings or tattoos on their body being related to or similar to ones connected to a

criminal gang Universalising this maxim could therefore worsen an already prevalent issue where

innocent members of the public get their civil liberties infringed upon due to their personal style

especially as the maxim allows quite a broad range of items accessories and body art to be used as

an indicator for suspicion In a study by Jackson and Smith (2013) the experiences of young people

from London that had been subjected to stop and search was surveyed where the participants

identified what kind of clothing might fit the criteria of being a presumed gang member It was

suggested that ldquoemulating American hip hop artists by wearing low-slung jeans hoodies and

branded trainers and walking and talking in a certain wayrdquo (p6) was stereotyped by the police as

gagster behaviour and dress The same study also identified an experience that was shared by one

of the participants whom stated that ldquoThey just say youre in a drug infested area and youve got a

hood on so were stopping and searching yourdquo (Jackson L and Smith L 2013 p6)

Taking this into consideration it can therefore be seen that the universalisation of a maxim asking

the police to stop and search anyone perceived to be involved with a criminal gang for illegal or

stolen items could result in a form of criminalisation of the hoodie and other specific pieces of

clothing as these are stereotyped as being related to gang membership This would be problematic

as the hoodie in particular is a comfortable and often affordable piece of clothing that is a staple in

the wardrobes of many of societys subcultures such as emos and skaters that are generally not

stereotyped as criminals (Braddock K 2011) As such it can be established that neither Kant nor

Singer would be able to universalise this maxim as having officers search anyone wearing specific

clothes would neither be reasonable nor produce any desirable consequences

522 Issues

While two out of three of the different maxims appear to be moral in the eyes of Kant there are still

some issues relating to them which must be acknowledged Primarily there might be an issue with

these maxims being too specific as it has been noted that ldquoany maxim that is highly restricted is

likely to pass the universalisability testrdquo [Guyer P 2007 cited by Perold L M 2010 p19]

because the more descriptive a maxim is the less likely it is that it would become contradictory As

all of the maxims created from the Codes of Practice A are highly restrictive specifying who may

carry out the act under what circumstances they may carry it out and the limitations of the actions

18

itself Additionally as noted earlier in this chapter the maxims cannot be made more general either

as this would prevent them from being moralised this means that there is a risk of these maxims

passing the tests of universalisation and generalisation simply because of their overly descriptive

nature rather than actually being moral

There might also be an issue with the phrasing of the maxims specifically the use of the term

police officers as this might cause some uncertainties regarding exactly who the maxim applies to

Because by using the term police officer or even police it becomes questionable if an officer must

be in uniform in other words his or her position as a police officer is overt when carrying out the

search However since these maxims need to be exclusive to the police it could be hard to bypass

this issue without adding yet another specification to it that clarifies whether there is a need for the

officer to be in uniform or not

Finally there could also be an issue of the maxims conflicting with each other as the first of the

maxims states that the decision to stop and search someone needs to be in accordance with known

facts and information Something that might not be available when a stop and search is made

utilising the second or third maxim as these can be initiated without a need of known facts or

information This raises a question to whether one of the maxims would naturally take precedence

over the others as all three maxims regarding stop and search can never operate at the same time

Generally Kantianism argues that when one is faced with opposing maxims the perfect duty will

always take precedence over an imperfect one (Stohr K 2010 p3) However as all of the maxims

are addressing what is essentially the same action being the possibility to stop and search

individuals for illegal andor stolen items this could be problematic Furthermore while there are

three maxims identified within this study there also exists another fourth maxim which concerns

the possibility of not searching anyone for illegal or stolen items This fourth maxim is also

considered a perfect duty as it would generally be easier to universalise not searching people as

opposed to searching individuals fitting certain requirements This means that the maxim regarding

the omission to act would in this case take precedence over the other maxims identified within this

research essentially rendering them powerless

19

Chapter 6

Conclusion

From this study it can be seen that the legislation governing a heavily criticised police power such

as stop and search has the possibility to be morally justifiable by the ethical frameworks developed

by Kant Because while Kants ethical theory does not rectify or justify the issue of ethnic minorities

being subjected to a disproportionate amount of stops and searches in comparison to Caucasians it

is important to remember that the ldquolaw in theory and the law in practice differrdquo (Westmarland L in

Newburn T 2011 p255) Meaning that the moralisation of the legislation does not ensure that it

will be applied ethically by the police Additionally as Kantian ethics values the motivation behind

ones actions over the consequences produced from them the potential issues caused by ones actions

are irrelevant as long as the action itself can be universalised without producing a chaotic or

undesirable result

However as there are several layers to stop and search there are some implications to morally

justifying this power as it is multi-faceted Being designed to deal with a variety of different

situations and bases from which suspicion might arise to justify the stopping and searching of an

individual Because while Kantian ethics can ethically justify police officers to stop and search

individuals for illegal or stolen items if it is in accordance with known facts and information and

they believe that such items will be found upon searching the person this encompasses only one of

the many facets of the power As such the power cannot be justified as a whole as any maxim used

to describe it would not provide the necessary limitations needed for it to successfully pass the tests

of generalisation and universalisation

While the power cannot be moralised as a whole it is possible to create two additional maxims

using the limitations and exceptions to the necessity criteria of reasonable suspicion found in the

Codes of Practice A to create an additional two maxims These represent two additional facets of

stop and search being that

police officers may stop and search individuals acting in an obviously suspicious manner for

illegal or stolen items but only if they suspect that such items will be found upon searching the

person and

police officers may stop and search individuals based on articles of clothing piercings

andor tattoos if these are known to be worn by members of a gang(s) that are known to carry

20

illegal or stolen items and only if the police suspects that such items will be found upon searching

the person

However only the first of these two maxims can be justified utilising Kants ethical framework and

Singers generalisation principle because the latter cannot be universalised without becoming

unreasonable Furthermore the latter cannot be justified without providing further limitations

requiring the phrase acting in an obviously suspicious manner to be replaced by obviously hiding

something

From the issues presented from the creation of the two additional maxims above it can be

established that stop and search cannot be considered morally justifiable under all circumstances

Because different situations calls for different maxims meaning that should the search not be

initiated based on known facts or information it is unlikely to be ethical Nevertheless even though

all facets of this police power cannot be morally justified it does seem that the majority of them can

be considered ethical to some extent Meaning the legislation governing it is generally ethical but

as a whole it becomes a bit of a moral ambiguity This shows that the police power as identified by

the Police and Criminal Evidence Act 1984 and the Codes of Practice A has a potential to be

ethically justified with the exception of the section permitting searches where physical appearance

can be used as a basis for suspicion Additionally this research identified that the reasons for why

this particular section is not justifiable could also be part of the reason to the disproportionate

amount of searches of ethnic minorities As it might provide officers maliciously targeting

minorities with a possibility to justify their actions by claiming a particular article of clothing body

art or similar was the reason for the stop

As such it can be established that the legislation governing the polices power to stop and search

individuals for prohibited or stolen articles cannot be fully moralised as not all sections of the

Police and Criminal Evidence Act 1984 or the Codes of Practice A concerning this power can be

ethically justified However while the legislation as whole is morally ambiguous at best the

searches conducted with factual information as a basis for suspicion suggests that the sections of the

legislation addressing this type of search cannot be implemented in an unethical manner Because as

the universalised maxim requires the police to act in a manner promoted by the Act and Codes this

shows that any unethical searches carried out using this type of search are caused as a result of

police misconduct rather than an actual issue with the legislation

21

However it should be noted that this research can only provide a limited account of the morality of

this police power as it has only explored it through the limitations put upon it through the necessity

requirement of reasonable suspicion Additionally it can only account for the morality of the

sections of the Police and Criminal Evidence Act 1984 and the Codes of Practice A addressing this

particular police power and only through the limitations explored within this research Finally it is

also important to recognise that the police power has only been analysed using a Kantian approach

to ethics and morality This means that further studies of the police power and indeed the Act and

Codes in general are needed in order to provide a more accurate account of the morality and ethical

issues present It is therefore suggested that additional research should be carried out to study the

legislation governing the power of stop and search utilising other ethical theories or utilising

Kantian ethics with a different focus point of the legislation

However while further research is needed in order to gain a more accurate account of the overall

morality of the police power and the legislation governing it it does not mean the research

presented in this paper is of any less value Because even though the study can only provide a

limited account of the legislations morality it has succeeded in presenting the probabilities for the

moral justification of the Acts first part along with the associated Codes of Practice as well as

identifying that the issues connected to the Act may be caused primarily by the polices failure to

accurately conduct stops and searches according to the law Meaning the research has produced

some valuable results in addition to providing a stepping stone for further research on the topic

22

Bibliography

BBC [2014] Duty-Based Ethics Available at

httpwwwbbccoukethicsintroductionduty_1shtml [Accessed 20-03-2014]

Benz S [2010] ldquoThe Police and Criminal Evidence Act 1984 balancing civil liberties and public

securityrdquo Diffusion 5(2) Available at httpatpuclanacukbuddypressdiffusionp=1255

[Accessed 25-04-2014]

Bowling B and Phillips C [2007] Disproportionate and Discriminatory Reviewing the Evidence

on Police Stop and Search Oxford Blackwell Publishing p958 httpwwwstop-

watchorguploadsdocumentsmodern_law_reviewpdf

Braddock K [2011] ldquoThe Power of the Hoodierdquo The Guardian Available at

httpwwwtheguardiancomuk2011aug09power-of-the-hoodie [Accessed21-04-2014]

Codes of Practice A

Council of Europe [2010] European Convention on Human Rights Strasbourg European Court of

Human Rights p 7 Available at httpwwwechrcoeintDocumentsConvention_ENGpdf

[Accessed 09-03-2014]

The Economic and Social Research Council [2012] Frameworks for Research Ethics Swindon

Economic and Social Research Council pp2-3 3 Available at

httpwwwesrcacuk_imagesframework-for-research-ethics-09-12_tcm8-4586pdf [Accessed 01-

04-2014]

The Economist [1990] End Game Available

athttpgogalegroupcompsidoid=GALE7CA9390713ampv=21ampu=uceampit=rampp=SPJSP0

0ampsw=wampasid=f6f778fcf0a20b3f0f18df5e20a57f27 [Accessed 19-03-2014]

Fahy P [undated] ldquoForewordrdquo In Ozin P Norton H and Spivey P [2013] PACE ndash A Practical

Guide to the Police and Criminal Evidence Act 1984 3rd

Edition Oxford Oxford University Press

p v

Flick U [2011] Introducing Research Methodology London Sage p 125

Garret J [2006] Kants Duty Ethics Available at

httppeoplewkuedujangarrettethicskanthtm [Accessed 20-03-2014]

Govuk [2013] Guidance Police and Criminal Evidence Act 1984 (PACE) Codes of Practice

London Home Office Available at httpswwwgovukpolice-and-criminal-evidence-act-1984-

pace-codes-of-practice [Accessed 02-04-2014]

Guyer P (2007) cited by Perold L M [2010] Does Immanuel Kants Categorical Imperative

Commit Him to the View that Lying is Always Morally Wrong Master of Arts thesis University of

the Witwatersrand p 19 Available at

httpwiredspacewitsaczabitstreamhandle1053910096M20Perold20Research20Reportp

dfsequence=2 [Accessed 24-04-2014]

iii

Abstract

The following is a literature based research providing an ethical analysis of the legislation

governing the polices power to stop and search individuals for prohibited andor stolen articles

through the ethical frameworks developed by Immanuel Kant The analysis utilised the necessity

criteria of reasonable suspicion identified within the Police and Criminal Evidence Act 1984 and

the Codes of Practice A through which three different maxims could be created each representing a

different aspect and limitation of the police power Through the individual analysation of each of

these maxims the study provides an attempt to identify whether the issues related to the stop and

search police power are caused due to being governed by an inherently immoral piece of legislation

or if they are a simply a result of the police failing to apply the power in accordance to the law This

research concludes that there is probably a mixture of both as the sections of the Act governing stop

and search is morally ambiguous at best

iv

Table of Contents

Acknowledgements p ii

Abstract p iii

Chapter 1 ndash Introduction p 1

Chapter 2 ndash Methodology p 3

Chapter 3 ndash Kantian Ethics p 5

31 The Core Ideas p 5

32 Critiques p 6

Chapter 4 ndash PACE a Brief Introduction p 8

41 Background p 8

42 Critiques p 9

Chapter 5 ndash Reasonable Suspicion p 11

51 Reasonable Suspicion and Stop and Search p 11

52 Reasonable Suspicion Stop and Search and Morality p 13

521 Generalisation and Universalisation p 14

522 Issues p 17

Chapter 6 - Conclusion p 19

Bibliography p 22

Appendix 1 p 25

Appendix 2 p 27

1

Chapter 1

Introduction

Being brought into power ldquoat a time when public confidence in the police was at an all-time low

due to high-profile miscarriages of justicerdquo (Fahy P in Ozin P Norton H Spivey P 2013

pv) the Police and Criminal Evidence Act 1984 and its corresponding Codes of Practice has been

subjected to heavy criticism ever since Because while the Act was introduced to the legal system in

order to improve public confidence in the police by ldquoestablish[ing] the powers of the police to

combat crimes while protecting the rights of the publicrdquo (govuk 2013) providing a more balanced

relationship between the two It was feared that the Act would instead provide the police with a way

to legitimize the infringement upon the civil liberties of the public (Benz S 2010) Since then the

Act has undergone plenty of alterations to improve the balance between the rights of the public and

the powers bestowed upon the police but still there are issues

Outlining what powers are available to the police is only part of the process to achieve a good

balance between the two sides however which is where the Codes of Practice comes in These

function similarly to an ethical framework that provides the police with guidelines for the proper

implementation of their powers Because even though the Codes of Practice are not statutory a

failure to act in compliance to these will result in a disciplinary offence in addition to providing

admissible evidence against the police in court (Mawby R and Wright A 2005 p6) Meaning that

should an officer fail to follow these an entire case against a suspect could be jeopardized as a

result Nevertheless even though the Codes of Practice may function similarly to an ethical

framework for the police that govern the correct use of their powers it does not mean that the

guidelines provided nor the Act itself is ethical In fact taking into consideration the sheer amount

of criticism of them it might even suggest that they are entirely unethical

This questionable morality of the Police and Criminal Evidence Act 1984 and its corresponding

Codes of Practice will be explored within this piece of research Aiming to determine whether the

fault lies primarily within the Act and Codes themselves or if the problems might be caused by

other factors such as the Police failing to act in accordance to the guidelines provided However

due to the vastness of the Act and the Codes the focus of the research will be laid upon the necessity

of reasonable suspicion to be present for the police in order to enforce their powers Within this

limited area there will also be a particular focus on part one of the Police and Criminal Evidence

Act 1984 and the Codes of Practice A which addresses the polices power to stop and search

2

individuals for stolen or prohibited items This is a police power that has been subjected to a

substantial amount of criticism mainly due to the disproportionate number of searches of ethnic

minorities in comparison to Caucasians which raises some questions regarding the legitimacy and

morality of the power

Utilising the ethical frameworks of Immanuel Kant (1724-1804) the morality of the Police and

Criminal Evidence Act 1984 and the Codes of Practice will be analysed by converting sections of

the Act and Codes into maxims Which are descriptions of the acts that are used to determine their

ethical and moral value by subjecting them to various tests Primarily the research will employ

Kants original frameworks which question the universalisability of onersquos actions as moral actions

are ones that could be enforced as a universal law applying to everyone unconditionally

Additionally this research will be utilising the generalisation principle developed by Marcus Singer

which is an approach that places a utilitarian twist upon Kants idea of universalisation Because

while Kant argued that it is the motivation behind the act that determines whether it is moral or not

Singer is more interested in the consequences caused by the act Meaning the maxims created from

the Act and the Codes of Practice will be analysed using two different approaches to

universalisation with differing opinions as to which component of the act determines its moral

worth By conducting such an analysis this research hopes to provide some insight regarding the

morality of a very controversial part of the Police and Criminal Evidence Act 1984 as it will not

only take into consideration the consequences of the actions granted by the Act but also the

motivation behind them

3

Chapter 2

Methodology

While primary sources could arguably create more current and relevant results than secondary

sources might be able to (McQueen R and Knussen C 2002 pp83-85) due to them being

acquired personally through fieldwork interviews or observational studies the following study is

entirely literature based Utilising secondary research sources such as books legal documents and

academic journals in addition to various electronic and online resources drawing conclusions from

the information found within these It is acknowledged that research using secondary data struggles

to produce results that are current as ldquothe time factor involved in collecting and analysing primary

data means that some social survey data are out of date by as much as a year before the secondary

analyst gets hold of itrdquo (McQueen R and Knussen C 2002 pp84-85) Additionally there is an

overarching issue regarding bias when dealing with secondary sources as ldquophotos texts and

statistics have their own structure that is often strongly influenced by who produced them and for

what purposerdquo (Flick U 2011 p125) and ldquothe validity of information may vary markedly from

source to source ldquo (Kumar R 2011 p164) As such all sources must be viewed critically as to

ensure that any personal biases of the writer(s) will not interfere with the overall results of the

findings Something that becomes especially important if the information was found in a newspaper

or certain web-resources (such as blogs) as ldquothese writers are likely to exhibit less rigorousness and

objectivity than one would expect in research reportsrdquo (Kumar R 2011 p164)

However while there are many issues connected to undertaking research based on secondary

sources it should be noted that neither primary nor secondary data ldquoprovides 100 per cent accurate

and reliable informationrdquo (Kumar R 2011 p139) Additionally it must also be considered that

certain research topics are less compatible with certain research approaches than others as in this

case where an ethical analysis of specific sections of a legal statute is carried out Meaning

interviews and other primary research approaches would struggle to produce results that are

accurate and relevant Furthermore certain issues identified above with the utilisation of secondary

sources for research would be less of an issue in this case due to the nature of the sources studied

These being a legal statute the Police and Criminal Evidence Act 1984 and the Codes of Practice

and the philosophical and ethical theories developed by Immanuel Kant Because even though

Kants ideas originated over one hundred years ago these ideas are still applicable and relevant

when studying Kantianism Moreover the legal statute that this framework will be applied to uses

its most recent edition of the law which can easily be accessed through government websites

Meaning there should not be an issue with keeping the research current and relevant

4

It should also be noted that literature based research also benefits in ways that research based on

primary sources does not considering that the field of criminology often deals with sensitive topics

and people such as illegal activities and the abused (Westmarland L 2011 p141) Meaning there

are plenty of ethical pitfalls one must avoid when conducting research within this field especially

when using primary sources for the research However regardless of conducting research using

primary or secondary resources any research proposition must adhere to the six key principles of

ethical research (see Appendix 1) Most of the ethical issues identified within these principles are

related to peer-based research though meaning a literature based research is more likely to be

justified ethically than research using primary sources This due to the lack of participants involved

in the research whose emotions consent and wellbeing must be taken into consideration nor should

the researcher themselves be at risk because of the research (Economic and Social Research Council

2012 pp2-3)

However while the literature based method avoids most of the major ethical concerns this

particular piece of research might be subjected to some ethical scrutiny because of the manner in

which it is being carried out Because as the research only utilises the Kantian approach to morality

in addition to only analysing a specific part of the Police and Criminal Evidence Act 1984 and its

corresponding Codes of Practice it might produce some questionable results As such the research

is at risk of being perceived as being biased aiming to obtain certain results by only studying a

selected part of the legislation using a single ethical framework Nonetheless in the Frameworks for

Research Ethics provided by the Economic and Social Research Council (2012) it is stated that ldquothe

independence of research must be clear and any conflicts of interest or partiality must be explicitrdquo

(p3) So while the research might produce results that could be considered biased or partial for the

above reasons this is something that has been acknowledged and addressed before the start of the

research as can be seen in the Ethics Approval Form (see Appendix 2) As such the potential for the

research questioned due to only analysing a select part of the legislation and Codes of Practice

using only one perspective of morality has been addressed explicitly Additionally it is also

acknowledged that other results regarding the morality of the Police and Criminal Evidence Act

1984 and the Codes of Practice might be achieved by utilising a different ethical framework by

studying different sections of the Act or by analysing the Act and Codes of Practice as a whole

5

Chapter 3

Kantian Ethics

The ethical framework developed by Immanuel Kant is an ideology that places moral value on the

motivations between our actions and their potential for universalisation rather than the

consequences of the act itself In this chapter the core principles of the Kantian framework will be

explained identifying the process of determining the morality of our actions through the tests of

generalisation and universalisation Additionally the chapter will also be addressing various

criticisms issues and shortcomings of the Kantian approach to ethics and morality such as the

possibility of the framework allowing for any maxims to be moralised with the right phrasing

31 The Core Ideas

The idea of autonomy is at the core of Kantian ethics arguing that each individual can (and should)

make their own decisions without any external interferences to guide or coerce them (Bennet C

2010 p75) As such Kantianism argues for the presence of free will meaning human beings are

accountable for the choices they make and the actions they subsequently carry out and that

everyone capable of reasonable thinking has the potential to act in accordance to the moral law

However while humans are generally considered to be rational beings it does not mean that they

will behave in a rational manner at all times but rather that they have the capability of doing so

According to Kant this is what separates humans beings from animals as they are only capable of

operating under negative freedom through reacting to their impulses and instinct unable to

question or evaluate the situation in ways human beings are able to (Bennet C 2010 p76) As such

rational beings are the embodiment of morality as the moral law is that of reason (Rachels J 1986

p1) which is why Kant argued that humans must never be treated as the means to an end but

should instead be the end itself (BBC 2014)

Nevertheless being a rational agent capable of recognising reasonable actions from unreasonable

ones thus acting outside of the realms of negative freedom and moving into what is known as

positive freedom does not ensure that onersquos actions are good or moral These are simply

requirements to qualify as an agent that is capable of acting morally not an insurance that actions

carried out by such an agent will be moral or reasonable Instead Kant argued that moral acts are

identified through their motivations stating that ldquoif duty is the key element in our decision to act

then we have acted rightlyrdquo (BBC 2014) because ldquoan action done from duty has its moral worth

not from the results it attains or seeks to attain but from a formal principle or maxim ndash the principle

of doing ones duty whatever that may berdquo (Paton H J 1969 p20) In this case the meaning of

6

duty is equal to acting in reverence to the moral law as Kant argues that morality and its rational

requirements can be translated into rules or that dictates how we should act (Bennet C 2010

p83) These moral rules are divided into two separate groups being hypothetical and categorical

however only categorical can result in a moral law This is due to hypothetical making it possible

for an individual to claim they are an exception to the rule which is unreasonable as moral laws

must apply to everyone without exception (Bennet C 2010 p83) This means that a maxim such

as do not lie unless you want to be considered untrustworthy or even an innocent maxim such as

bring an umbrella unless you want to risk getting wet would be fallible and immoral according to

Kant as they do not apply to individuals that are willing to face the consequences related to these

acts

To be able to establish whether ones actions are moral or not one must therefore be able to apply it

without failure to everyone This is a process known as universalisation which questions the agent

to ldquonever act except in such a way that [they] can also will that [their] maxim should become a

universal lawrdquo (Paton H J 1969 p22) meaning that the morality of an act is determined through

establishing its possibility to be enforced at least hypothetically as a law applying to everyone

unconditionally Ascertaining whether an act can be universalised requires the use of two tests

known as the tests of generalisation and universalisation A maxim must therefore

be able to be generalised without becoming contradictory or illogical as a result to then be

applicable as a universal law governing everyone without exceptions without resulting in an

unappealing or chaotic outcome (Garret J 2006) As ldquoKant believes that someone who violates the

moral requirements is being irrationalrdquo (Bennet C 2010 p82) one should therefore not act on a

maxim that is unable to pass both the test of generalisation and universalisation as this would result

not only in acting immorally but also irrationally

32 Criticisms and Issues

Like any other philosophical or ethical theory the Kantian approach is not devoid of imperfections

and both the original theory and contemporary interpretations have faced criticisms for everything

from structure and implementation to the actual usefulness of the theory However in her book

Bounds of Justice Onora ONeill (2000) identifies that the criticisms of Kantian theories tend to fall

into three different groups of categories (p67) all of which will be explored within this section of

the chapter

The first of these categories identified by ONeill (2000) is that Kant fails to acknowledge the

importance that human relationships and emotions might have on our moral reasoning (p67) An

7

issue that is also identified by Bennet (2010) stating that ldquoit certainly seems a large gap in a moral

theory that it has nothing to say about how pain and suffering makes acts wrongrdquo (p88) Because

while many actions that might cause pain and suffering to others generally cannot be justified using

the categorical imperative they are not dismissed for the right reasons (Bennet C 2010 p88) as

ldquouniversal rules require us to overlook and [hellip] neglect the fragility mutual vulnerability social

embeddedness and constitutive loyalties of real peoplerdquo (ONeill O 2000 p67) As human beings

are not cold calculative and emotionless robots this is an obvious flaw within Kants frameworks

because in order to act morally one needs to be able to completely disregard the feelings of other

people

Furthermore due to the lack of consideration for human emotions and relationships Kant has

simplified the very complex issue of moral theory (ONeill O 2000 p 67) often resulting in very

bizarre contradicting or even worrying results Because utilising the categorical imperative for

moral guidance might result not only in allowing obviously immoral actions to be universalised but

also preventing other harmless acts of kindness such as opening the door for someone else from

being morally justified (Bennet C 2010 p86) It should be obvious to a normal reasonable human

being that there is nothing wrong or immoral about holding the door open for someone else yet

through the implementation of Kantianism such an action cannot be justified due to it being unable

to pass the test of universalisation Showing that the Kantian approach struggles to encompass all

actions regardless of their significance importance or size in a reasonable manner

It should also be noted that the Kantian framework can also produce situations where the agent will

be acting immorally no matter what they do Bennet (2010) utilises an example of noticing a child

in the process of drowning while on the way to class and even though we have a duty to help others

according to Kant the option of not helping can also be moralised in this scenario as the agent will

adhere to the maxim of getting to class on time (p86-87) This leads to the final category of

critiques against Kant and Kantian ideologies as identified by ONeill (2000) which states that it is

a theory ldquodesigned for abstract individuals [hellip] leading to abstract conclusions that are irrelevant to

real people who lead real livesrdquo (p 67) It is possible that this abstract nature of the theory could be

due to Kants failure to provide a proper guideline stating how our actions should be explained in

order to properly calculate their ethical value through the tests of generalisation and universalisation

Because with the manner in which the Kantian framework is designed there is a possibility that

ldquoany action could pass it simply by being re-describedrdquo (Bennet C 2010 p87) The Kantian

framework is therefore in need of some kind of notes for guidance that provides an explanation for

how one is to distinguish correct descriptions of ones actions from incorrect ones

8

Chapter 4

PACE A Brief Introduction

The following chapter will be providing a brief introduction to the Police and Criminal Evidence

Act 1984 and its associated Codes of Practice Providing a basic understanding of the legislations

history and purpose in addition to some criticisms of the act and issues that has developed as a

result of its development As such this chapter alongside with chapter 3 provides a foundation for

the following chapters where specific parts of the legislation will be explored more thoroughly in

addition to being analysed through the Kantian frameworks for ethics

41 Background

Policing in England and Wales is nowadays comprised of a tough balancing act where ldquothe interests

of the community and the rights of the individualrdquo (Royal Commission undated cited by Zander

2011 p3) must be taken into account while also maintaining public order In addition to being

required to evaluate to what extent they may infringe upon civil liberties to do their job the police

is also under constant public scrutiny This means that any infringement upon the rights of an

individual that cannot be justified by the Police and Criminal Evidence Act 1984 the Human Rights

Act 1998 or other pieces of legislation can have dire consequences for the police Such

infringements can result in lawsuits against the police or rendering evidence inadmissible in court

as was seen in the case of R v Miller (1993) where the confessions from the suspects were rendered

inadmissible due to hostile and oppressive questioning by police However while it is noted that

infringement of civil liberties should be avoided and the rights of the public should be respected it

is also identified in Article 5 of the European Convention of Human Rights that there are

circumstances when the police and the criminal justice system must be granted the power to

lawfully infringe upon these (Council of Europe 2010 p7) Because without these exceptions legal

and justice systems would no longer function as criminal justice cannot function if the rights of the

individual is to be respected at all times

While there is a need for the police and criminal justice system to infringe upon the rights of

individuals there must be sanctions that govern to what extent these rights can be infringed upon

and under what circumstances As mentioned above article five of the European Convention of

Human Rights provides a good starting point but as it must be applicable to the state legislature of

all member states of the European Union it is far too general and leaves plenty of gaps to fill in

This is where the Police and Criminal Evidence Act 1984 and its corresponding Codes of Practice

comes into play as these help with outlining the provisions for the polices ability to infringe upon

9

the civil liberties of the public It was introduced following some cases of gross police misconduct

that had come to light causing miscarriages of justice of several high-profile cases which put a

strain on the relationship between the police and the public One such case included the R v

McIlkenny and others (1991) more famously known as the Birmingham Six where six innocent

men were wrongfully convicted as a result of police officers having beaten witnesses to obtain

satisfactory statements in addition to distorting forensic evidence (The Economist 1990) The

Police and Criminal Evidence Act 1984 and the associated Codes of Practice was introduced in an

attempt to remedy this through providing guidelines for how evidence was to be obtained legally

how suspects and detained persons were to be treated how and when certain police powers could be

legally enforced as well as providing the criminal justice system with transparency and

accountability (Fahy P in Ozin P Norton H and Spivey P 2013 pv)

Through its introduction the Police and Criminal Evidence Act 1984 and its corresponding Codes of

Practice drastically changed the manner in which policing was carried out causing a bit of a

culture shock for some officers that were threatened by the new developments (Wilding B

undated in Cape E and Young R 2008 p127) As there were suddenly demands being put on

officers that did not exist previously in addition to clear frameworks dictating what kind of

behaviour was deemed acceptable All to ensure that investigations were carried out both

objectively and with integrity two elements which are important to maintain public confidence in

the police force (Wilding B undated in Cape E and Young R 2008 p127) However while the

drastic changes might have come as a shock to some officers it is now common practice and

heavily ingrained to the very core of policing Additionally while the Act generally focuses on the

protection of the suspects victims and witnesses it simultaneously provides the police with

safeguards to avoid suspicion of unlawfully acquired evidence as everything from physical

evidence to verbal or written confessions must be recorded and processed in detail (Police and

Criminal Evidence Act 1984 sNUMBER sNUMBER) ensuring that the police runs a lower risk of

being unjustly accused of foul play

32 Critiques and Issues

While the Act and the Codes of Practice has played a significant part in making the police ldquomore

accountable in terms of performance and standards than virtually any other public bodyrdquo (Wilding

B undated in Cape E and Young R 2008 p130) as well as supposedly having ldquoushered in new

ethical standards for the servicerdquo (Wilding B undated in Cape E and Young R 2008 p127) It

has been subjected to a significant amount of criticism from non-governmental organisations such

as Liberty members of the police itself and academics scrutinising everything from how the Act

10

takes the police off the streets and placing them behind desks to carry out extensive amounts of

paperwork (Wilding B undated in Cape E and Young R 2008 p127) to questioning whom the

Act is really favouring (Benz S 2010) Furthermore the actual contents of the Act and the Codes of

Practice has been criticised in particular the Acts first part concerning stop and search (see chapter

5) resulting in a large number of edits and moderations to remedy these and provide a better

balance between the police and the rights of the public

11

Chapter 5

Reasonable Suspicion

While the Police and Criminal Evidence Act 1984 provides the police with guidelines for how and

when they may use their powers to infringe upon civil liberties these are not enough to ensure that

policing is carried out correctly in accordance to the act The Act must therefore be read alongside

the Codes of Practice as these further explain the limitations of the powers in addition to the

requirements that must be fulfilled in order for an officer to implement them One such requirement

that is found repeatedly throughout the Act and the Codes of Practice is the need for an officer to

have reasonable grounds for suspecting that the person(s) of interest are doing have done is about

to do or is in possession of something illegal (Police and Criminal Evidence Act s1(7)-1(9)

s3(1)(a)-3(1)(d)) This requirement is one that has been subjected to some controversy and scrutiny

especially in connection to the power of stop and search (addressed below) as it is often described

in very vague or broad terms often making it unclear what exactly constitutes appropriate grounds

for reasonable suspicion Additionally it should also be noted that the appropriate grounds for

suspicion might differ slightly from one section of the Act to another making it important to

separate these definitions from each other when studying them as they may all have their own

interpretations definitions regulations and issues However as this research explores the ethical

implications of reasonable suspicion in relation to stop and search it must be acknowledged that the

results may not be applicable to sections of the Police and Criminal Evidence Act 1984 and Codes

of Practice concerning other police powers

51 Reasonable Suspicion and Stop and Search

In the first part of the Police and Criminal Evidence Act 1984 it is identified that an officer cannot

stop and search an individual unless they have reasonable grounds for suspecting that any stolen or

prohibited articles listed under s1(7)-1(9) of the Act will be found on their person (s1(3) Police and

Criminal Evidence Act 1984) That being said there are many limitations placed upon what may

constitute a reasonable ground for suspecting that prohibited or stolen articles will be found on the

person(s) (Codes of Practice A s22) and that these can differ depending on the circumstances of

each case [Ozin P et al 2013 p4] However while suspicion might be raised for different reasons

in each case the Code emphasises that suspicion may never be based on personal factors

stereotypes or generalisations (Codes of Practice A s22) Nor may it be ldquoprovided retrospectively

by [hellip] questioning during a persons detention or by refusal to answer any questionsrdquo (Codes of

Practice A s29) Instead it is stressed that suspicion should have an objective basis derived from

known facts and information (Codes of Practice A s22)

12

Whether these demands put on officers by the Codes of Practice A to establish objective grounds

for suspicion are followed is questionable though At least when taking into consideration that the

sections of the Police and Criminal Evidence Act 1984 and the Codes of Practice concerning stop

and search has been subjected to heavy criticism mainly due to the disproportionate amount of

members from minority ethnic groups being searched in comparison to Caucasians Because even

though the Codes of Practice A does identify that there are situations where reasonable grounds for

suspicion might exist without the need for known facts or information such as initiating searches

based on an individuals behaviour or body language (Codes of Practice A s23) it does not explain

why black people are up to ldquosix times more likely to be stop[ped and] searched than would be

expected based on their numbers in the general populationrdquo (Bowling B and Phillips C 2007

p958) Nor does it explain how the recorded stops and searches of Asians since the mid-nineties

have remained between 15 and 25 times higher than those of Caucasians (Equality and Human

Rights Commission 2010 p13) These are worrying statistics that raise questions as to whether the

guidelines provided by the Police and Criminal Evidence Act 1984 and the Codes of Practice are

sufficient in order to ensure that this power is used appropriately and fairly Because even though

non-Caucasians are stopped and searched more frequently arrests following searches are distributed

quite evenly across all ethnic groups (StopWatch 2014)

There is a possibility that this targeting of minority ethnic groups could be a direct result of the

socio-economic conditions that traps many families from poor neighbourhoods in a cycle of poverty

and disadvantage (Joseph I and Gunter A 2011 p3) Especially as it has been found that these

groups often respond ldquoto their powerlessness with frustration rage and the creation of alternative

social and cultural values that promotes and normalizes gang membership and violencerdquo (Joseph I

and Gunter A 2011 p3) Due to the normalisation of such behaviour this could provide an

explanation to why some disproportionality might exist as the Codes of Practice provides an

exception to searches based on physical appearance when it is related to gang culture stating that

ldquowhere there is reliable information or intelligence that members of a group or gang

habitually carry knives unlawfully or weapons or controlled drugs and wear a

distinctive item of clothing or other means of identification to indicate their

membership of the group or gang that distinctive item of clothing or other means

of identification may provide reasonable grounds to stop and search a personrdquo

(Codes of Practice A s26)

13

However while this provision could support the existence of some disproportionality it does not

disprove that minority ethnic groups are being targeted by the police nor does it provide a

reasonable explanation to why blacks are being six times more likely to be subjected to a stop and

search This means there is a risk that this section of the Codes of Practice is being used by police

to maliciously target ethnic minority groups by stereotyping them as more likely to be involved

with criminal gangs

52 Reasonable Suspicion Stop and Search and Morality

While statistics and studies show that stop and search is used disproportionally and suggests that

individuals belonging to minority ethnic groups are being targeted by the police it does not mean

that the power itself nor the legislation governing it is unethical Because even though they tend to

overlap ldquothere is no necessary connection between law and moralsrdquo (Hart H L A 1958 cited by

Green L 2012 in Hart H L A 2012 pxxxiii) as the law applies to everyone unconditionally

while moral only applies to those that sympathise with the ideologies in question Kantian ethics

however arguing that one should do the right thing because of it being right views morality as a

supplement to the law (Zupancic A 2000 p16) therefore ensuring that we are not only doing what

is right but that we are also doing it for the right reasons (Sandel M 2011) Which from Kants

viewpoint is synonymous to acting out of duty which as established in Chapter 3 means that

onersquos actions must be converted to those that are able to pass the tests of generalisation and

universalisation As such one must convert the sections of the Police and Criminal Evidence Act

1984 and its associated Codes of Practice concerning stop and search into an order to establish

whether it is ethical

However while the Police and Criminal Evidence Act 1984 identifies that reasonable suspicion is

necessary in order to conduct a stop and search one cannot simply create a maxim stating that

police officers can stop and search anyone they reasonably suspect is carrying illegal or stolen

items Because even though this maxim does provide an accurate description of the necessary

requirements to perform a stop and search it is far too broad Such a maxim does not place a limit

upon what the suspicion might be based on resulting in a possibility for officers to target certain

groups of people based on prejudice or stereotypes Therefore such a maxim can neither be

generalised nor universalised meaning it would be considered entirely unethical by Kantian

principles However by using the guidelines and limitations of reasonable suspicion presented in

the Codes of Practice A that were identified earlier in this chapter this maxim can be broken down

into three separate parts These being

14

police officers may stop and search individuals for illegal or stolen items if it is in

accordance with known facts and information and they believe that such items will be found upon

searching the person

police officers may stop and search individuals acting in an obviously suspicious manner for

illegal or stolen items but only if they suspect that such items will be found upon searching the

person and

police officers may stop and search individuals based on articles of clothing piercings

andor tattoos if these are known to be worn by members of a gang(s) that are known to carry

illegal or stolen items and only if the police suspects that such items will be found upon searching

the person

These provide a much more limited and concentrated approach to the attempted moralisation of the

polices power to stop and search individuals for prohibited or stolen articles Because unlike the

previous maxim these are not only limiting what the basis for suspicion might be but also limiting

when the power itself may be enforced As such the likelihood of these being able to pass the tests

of generalisation and universalisation are increased

521 Generalisation and Universalisation

In order to accurately establish whether acts are moral they must pass the tests of generalisation and

universalisation as Kant believed that moral acts were ones that could be applied to everyone as a

universal law without becoming contradictory or illogical (see chapter 3) However as these deal

with police powers and Kant argued that acts must be applicable to everyone without exception

these will also be examined using Singers generalisation principle because it would be illogical for

such powers to be implemented by everyone Singers generalisation principle makes it possible to

bypass this issue as it argues that ldquowhat is right (or wrong) for one person must be right (or wrong)

for any similar person in similar circumstancesrdquo (Singer G M undated cited by ONeill O 2013

p78) Additionally this approach puts a utilitarian twist on Kants frameworks as it determines

morality based on the consequences of onersquos actions (ONeill O 2013 p79) rather than the

motivation behind them As such this test functions as a middle ground between the tests of

generalisation and universalisation ensuring that the generalised maxim does not cause an illogical

or chaotic result in addition to limiting the generalised maxim from anyone that is not a member of

the police service Analysing the maxim using these tests therefore requires them to be studied

individually so that they can be dissected and examined more closely

Looking at the first of the three maxims created using the guidelines and limitations of reasonable

15

suspicion as identified by the Codes of Practice A it can be established that it is comprised from

three different elements Namely

the police may only search for illegal or stolen items

the police may only search an individual based on known facts and information and finally

the police may only search the individual if they believe illegal or stolen items will be found

Attempting to generalise any of these elements of the maxim individually would not be reasonable

as they do not provide enough limitations or guidelines for it to be functional Because the first part

allows the police to search anyone for illegal or stolen items without the necessity of a suspicion

that any such items will be found which would result in a police state where the police could search

anyone they please The necessity of believing that illegal or stolen items will be found upon

conducting a search is added by the third element of the maxim but there are still no requirements

for the police to have any kind of reasonable basis for their decision to stop and search someone as

this is added by the maxims second element However this element cannot be moralised on its own

either as it does not specify what the police may search for However when all three elements of

the maxim are combined all necessary limitations are present meaning the generalisation of it

should not produce a contradictory or illogical result

However passing the test of generalisation does not mean that the maxim is ethical as it must also

be universalisable Meaning it should be able to be enforced as a (hypothetical) law that applies to

everyone unconditionally As the maxim places a requirement on the police to only stop and search

individuals if they have a factual basis for their suspicion to find illegal or stolen items upon

searching the person this should be a universalisable action Because assuming all police officers

were required to follow this maxim it would result in a world where only specific items may be

searched for if they have a factual reason to conduct the search and only if they believe that such

items will be found upon searching the person(s) As this would not produce any undesirable

consequences this maxim would not only pass Kants test of universalisation but also fulfil the

necessary criteria for Singers generalisation principle

This is essentially what the Police and Criminal Evidence Act 1984 and the Codes of Practice A

seeks to do meaning that if the guidelines were followed by the police unlawful stops and searches

should not occur However since there are more aspects to the laws that govern the polices power

to stop and search individuals for illegal or stolen items such as searches based on suspicious

behaviour or searches of suspected gang members other aspects must be explored as well before

16

declaring whether it is ethical or not For this reason the two additional maxims (mentioned earlier)

are needed and must therefore be tested as well As these maxims can be implemented in such

situations by the removal of the need for a factual basis for suspicion and replacing it with either

the possibility to

search individuals acting in an obviously suspicious manner or

search individuals based on clothing piercings andor tattoos if these are known to be worn

by members of gangs that are known to carry illegal or stolen items

As with the various elements of the maxim analysed previously these are also unable to be

moralised individually Because the first of the two does not specify what may be searched for and

neither of the sections specify that the police should expect to find illegal or stolen items upon

stopping and searching an individual As such neither of these elements can function as a maxim on

their own as they are illogical and can neither be generalised nor universalised However when

these are combined with the other elements of the maxims these issues should be resolved thus

passing Kants test of generalisation

Universalising these maxims is a bit more problematic than the one analysed previously through

For example with the first of these two maxims police officers would be enforced to stop and

search anyone that is acting in an obviously suspicious manner for illegal or stolen items if they

believe any such items will be found upon searching them The phrase behaving in an obviously

suspicious manner is a bit of an issue here as there is no definition available as to what can be

classified as such However a reasonable person would probably equate behaving in an obviously

suspicious manner to trying to hide something which is used as an example in the Codes of

Practice A s23 It could therefore be worth substituting the phrase behaving in an obviously

suspicious manner with trying to hide something as this would be more specific However by

doing this the maxim would become much more limited as it would no longer allow individuals

behaving suspiciously in other ways to be searched Nevertheless should this interpretation be used

the likeliness of the maxim passing the test of universalisation might be increased as the likeliness

of it producing a chaotic result would decrease Additionally implementing such an interpretation

would also make it more likely for the maxim to pass Singers generalisation principle As the

conduction of stops and searches of people that are obviously trying to hide something is less likely

to produce an undesirable outcome in comparison to searching anyone acting suspiciously

Finally the universalisation of the third and final of the maxims would enforce the police to stop

17

and search anyone dressed or in any other ways being physically identifiable as a possible member

of a gang known to carry illegal or stolen items if they believe any such items will be found upon

searching them As with the maxim analysed above there are issues related to universalising this

maxim due to the possibility of it causing certain people to be targeted because of the clothes they

wear or any piercings or tattoos on their body being related to or similar to ones connected to a

criminal gang Universalising this maxim could therefore worsen an already prevalent issue where

innocent members of the public get their civil liberties infringed upon due to their personal style

especially as the maxim allows quite a broad range of items accessories and body art to be used as

an indicator for suspicion In a study by Jackson and Smith (2013) the experiences of young people

from London that had been subjected to stop and search was surveyed where the participants

identified what kind of clothing might fit the criteria of being a presumed gang member It was

suggested that ldquoemulating American hip hop artists by wearing low-slung jeans hoodies and

branded trainers and walking and talking in a certain wayrdquo (p6) was stereotyped by the police as

gagster behaviour and dress The same study also identified an experience that was shared by one

of the participants whom stated that ldquoThey just say youre in a drug infested area and youve got a

hood on so were stopping and searching yourdquo (Jackson L and Smith L 2013 p6)

Taking this into consideration it can therefore be seen that the universalisation of a maxim asking

the police to stop and search anyone perceived to be involved with a criminal gang for illegal or

stolen items could result in a form of criminalisation of the hoodie and other specific pieces of

clothing as these are stereotyped as being related to gang membership This would be problematic

as the hoodie in particular is a comfortable and often affordable piece of clothing that is a staple in

the wardrobes of many of societys subcultures such as emos and skaters that are generally not

stereotyped as criminals (Braddock K 2011) As such it can be established that neither Kant nor

Singer would be able to universalise this maxim as having officers search anyone wearing specific

clothes would neither be reasonable nor produce any desirable consequences

522 Issues

While two out of three of the different maxims appear to be moral in the eyes of Kant there are still

some issues relating to them which must be acknowledged Primarily there might be an issue with

these maxims being too specific as it has been noted that ldquoany maxim that is highly restricted is

likely to pass the universalisability testrdquo [Guyer P 2007 cited by Perold L M 2010 p19]

because the more descriptive a maxim is the less likely it is that it would become contradictory As

all of the maxims created from the Codes of Practice A are highly restrictive specifying who may

carry out the act under what circumstances they may carry it out and the limitations of the actions

18

itself Additionally as noted earlier in this chapter the maxims cannot be made more general either

as this would prevent them from being moralised this means that there is a risk of these maxims

passing the tests of universalisation and generalisation simply because of their overly descriptive

nature rather than actually being moral

There might also be an issue with the phrasing of the maxims specifically the use of the term

police officers as this might cause some uncertainties regarding exactly who the maxim applies to

Because by using the term police officer or even police it becomes questionable if an officer must

be in uniform in other words his or her position as a police officer is overt when carrying out the

search However since these maxims need to be exclusive to the police it could be hard to bypass

this issue without adding yet another specification to it that clarifies whether there is a need for the

officer to be in uniform or not

Finally there could also be an issue of the maxims conflicting with each other as the first of the

maxims states that the decision to stop and search someone needs to be in accordance with known

facts and information Something that might not be available when a stop and search is made

utilising the second or third maxim as these can be initiated without a need of known facts or

information This raises a question to whether one of the maxims would naturally take precedence

over the others as all three maxims regarding stop and search can never operate at the same time

Generally Kantianism argues that when one is faced with opposing maxims the perfect duty will

always take precedence over an imperfect one (Stohr K 2010 p3) However as all of the maxims

are addressing what is essentially the same action being the possibility to stop and search

individuals for illegal andor stolen items this could be problematic Furthermore while there are

three maxims identified within this study there also exists another fourth maxim which concerns

the possibility of not searching anyone for illegal or stolen items This fourth maxim is also

considered a perfect duty as it would generally be easier to universalise not searching people as

opposed to searching individuals fitting certain requirements This means that the maxim regarding

the omission to act would in this case take precedence over the other maxims identified within this

research essentially rendering them powerless

19

Chapter 6

Conclusion

From this study it can be seen that the legislation governing a heavily criticised police power such

as stop and search has the possibility to be morally justifiable by the ethical frameworks developed

by Kant Because while Kants ethical theory does not rectify or justify the issue of ethnic minorities

being subjected to a disproportionate amount of stops and searches in comparison to Caucasians it

is important to remember that the ldquolaw in theory and the law in practice differrdquo (Westmarland L in

Newburn T 2011 p255) Meaning that the moralisation of the legislation does not ensure that it

will be applied ethically by the police Additionally as Kantian ethics values the motivation behind

ones actions over the consequences produced from them the potential issues caused by ones actions

are irrelevant as long as the action itself can be universalised without producing a chaotic or

undesirable result

However as there are several layers to stop and search there are some implications to morally

justifying this power as it is multi-faceted Being designed to deal with a variety of different

situations and bases from which suspicion might arise to justify the stopping and searching of an

individual Because while Kantian ethics can ethically justify police officers to stop and search

individuals for illegal or stolen items if it is in accordance with known facts and information and

they believe that such items will be found upon searching the person this encompasses only one of

the many facets of the power As such the power cannot be justified as a whole as any maxim used

to describe it would not provide the necessary limitations needed for it to successfully pass the tests

of generalisation and universalisation

While the power cannot be moralised as a whole it is possible to create two additional maxims

using the limitations and exceptions to the necessity criteria of reasonable suspicion found in the

Codes of Practice A to create an additional two maxims These represent two additional facets of

stop and search being that

police officers may stop and search individuals acting in an obviously suspicious manner for

illegal or stolen items but only if they suspect that such items will be found upon searching the

person and

police officers may stop and search individuals based on articles of clothing piercings

andor tattoos if these are known to be worn by members of a gang(s) that are known to carry

20

illegal or stolen items and only if the police suspects that such items will be found upon searching

the person

However only the first of these two maxims can be justified utilising Kants ethical framework and

Singers generalisation principle because the latter cannot be universalised without becoming

unreasonable Furthermore the latter cannot be justified without providing further limitations

requiring the phrase acting in an obviously suspicious manner to be replaced by obviously hiding

something

From the issues presented from the creation of the two additional maxims above it can be

established that stop and search cannot be considered morally justifiable under all circumstances

Because different situations calls for different maxims meaning that should the search not be

initiated based on known facts or information it is unlikely to be ethical Nevertheless even though

all facets of this police power cannot be morally justified it does seem that the majority of them can

be considered ethical to some extent Meaning the legislation governing it is generally ethical but

as a whole it becomes a bit of a moral ambiguity This shows that the police power as identified by

the Police and Criminal Evidence Act 1984 and the Codes of Practice A has a potential to be

ethically justified with the exception of the section permitting searches where physical appearance

can be used as a basis for suspicion Additionally this research identified that the reasons for why

this particular section is not justifiable could also be part of the reason to the disproportionate

amount of searches of ethnic minorities As it might provide officers maliciously targeting

minorities with a possibility to justify their actions by claiming a particular article of clothing body

art or similar was the reason for the stop

As such it can be established that the legislation governing the polices power to stop and search

individuals for prohibited or stolen articles cannot be fully moralised as not all sections of the

Police and Criminal Evidence Act 1984 or the Codes of Practice A concerning this power can be

ethically justified However while the legislation as whole is morally ambiguous at best the

searches conducted with factual information as a basis for suspicion suggests that the sections of the

legislation addressing this type of search cannot be implemented in an unethical manner Because as

the universalised maxim requires the police to act in a manner promoted by the Act and Codes this

shows that any unethical searches carried out using this type of search are caused as a result of

police misconduct rather than an actual issue with the legislation

21

However it should be noted that this research can only provide a limited account of the morality of

this police power as it has only explored it through the limitations put upon it through the necessity

requirement of reasonable suspicion Additionally it can only account for the morality of the

sections of the Police and Criminal Evidence Act 1984 and the Codes of Practice A addressing this

particular police power and only through the limitations explored within this research Finally it is

also important to recognise that the police power has only been analysed using a Kantian approach

to ethics and morality This means that further studies of the police power and indeed the Act and

Codes in general are needed in order to provide a more accurate account of the morality and ethical

issues present It is therefore suggested that additional research should be carried out to study the

legislation governing the power of stop and search utilising other ethical theories or utilising

Kantian ethics with a different focus point of the legislation

However while further research is needed in order to gain a more accurate account of the overall

morality of the police power and the legislation governing it it does not mean the research

presented in this paper is of any less value Because even though the study can only provide a

limited account of the legislations morality it has succeeded in presenting the probabilities for the

moral justification of the Acts first part along with the associated Codes of Practice as well as

identifying that the issues connected to the Act may be caused primarily by the polices failure to

accurately conduct stops and searches according to the law Meaning the research has produced

some valuable results in addition to providing a stepping stone for further research on the topic

22

Bibliography

BBC [2014] Duty-Based Ethics Available at

httpwwwbbccoukethicsintroductionduty_1shtml [Accessed 20-03-2014]

Benz S [2010] ldquoThe Police and Criminal Evidence Act 1984 balancing civil liberties and public

securityrdquo Diffusion 5(2) Available at httpatpuclanacukbuddypressdiffusionp=1255

[Accessed 25-04-2014]

Bowling B and Phillips C [2007] Disproportionate and Discriminatory Reviewing the Evidence

on Police Stop and Search Oxford Blackwell Publishing p958 httpwwwstop-

watchorguploadsdocumentsmodern_law_reviewpdf

Braddock K [2011] ldquoThe Power of the Hoodierdquo The Guardian Available at

httpwwwtheguardiancomuk2011aug09power-of-the-hoodie [Accessed21-04-2014]

Codes of Practice A

Council of Europe [2010] European Convention on Human Rights Strasbourg European Court of

Human Rights p 7 Available at httpwwwechrcoeintDocumentsConvention_ENGpdf

[Accessed 09-03-2014]

The Economic and Social Research Council [2012] Frameworks for Research Ethics Swindon

Economic and Social Research Council pp2-3 3 Available at

httpwwwesrcacuk_imagesframework-for-research-ethics-09-12_tcm8-4586pdf [Accessed 01-

04-2014]

The Economist [1990] End Game Available

athttpgogalegroupcompsidoid=GALE7CA9390713ampv=21ampu=uceampit=rampp=SPJSP0

0ampsw=wampasid=f6f778fcf0a20b3f0f18df5e20a57f27 [Accessed 19-03-2014]

Fahy P [undated] ldquoForewordrdquo In Ozin P Norton H and Spivey P [2013] PACE ndash A Practical

Guide to the Police and Criminal Evidence Act 1984 3rd

Edition Oxford Oxford University Press

p v

Flick U [2011] Introducing Research Methodology London Sage p 125

Garret J [2006] Kants Duty Ethics Available at

httppeoplewkuedujangarrettethicskanthtm [Accessed 20-03-2014]

Govuk [2013] Guidance Police and Criminal Evidence Act 1984 (PACE) Codes of Practice

London Home Office Available at httpswwwgovukpolice-and-criminal-evidence-act-1984-

pace-codes-of-practice [Accessed 02-04-2014]

Guyer P (2007) cited by Perold L M [2010] Does Immanuel Kants Categorical Imperative

Commit Him to the View that Lying is Always Morally Wrong Master of Arts thesis University of

the Witwatersrand p 19 Available at

httpwiredspacewitsaczabitstreamhandle1053910096M20Perold20Research20Reportp

dfsequence=2 [Accessed 24-04-2014]

iv

Table of Contents

Acknowledgements p ii

Abstract p iii

Chapter 1 ndash Introduction p 1

Chapter 2 ndash Methodology p 3

Chapter 3 ndash Kantian Ethics p 5

31 The Core Ideas p 5

32 Critiques p 6

Chapter 4 ndash PACE a Brief Introduction p 8

41 Background p 8

42 Critiques p 9

Chapter 5 ndash Reasonable Suspicion p 11

51 Reasonable Suspicion and Stop and Search p 11

52 Reasonable Suspicion Stop and Search and Morality p 13

521 Generalisation and Universalisation p 14

522 Issues p 17

Chapter 6 - Conclusion p 19

Bibliography p 22

Appendix 1 p 25

Appendix 2 p 27

1

Chapter 1

Introduction

Being brought into power ldquoat a time when public confidence in the police was at an all-time low

due to high-profile miscarriages of justicerdquo (Fahy P in Ozin P Norton H Spivey P 2013

pv) the Police and Criminal Evidence Act 1984 and its corresponding Codes of Practice has been

subjected to heavy criticism ever since Because while the Act was introduced to the legal system in

order to improve public confidence in the police by ldquoestablish[ing] the powers of the police to

combat crimes while protecting the rights of the publicrdquo (govuk 2013) providing a more balanced

relationship between the two It was feared that the Act would instead provide the police with a way

to legitimize the infringement upon the civil liberties of the public (Benz S 2010) Since then the

Act has undergone plenty of alterations to improve the balance between the rights of the public and

the powers bestowed upon the police but still there are issues

Outlining what powers are available to the police is only part of the process to achieve a good

balance between the two sides however which is where the Codes of Practice comes in These

function similarly to an ethical framework that provides the police with guidelines for the proper

implementation of their powers Because even though the Codes of Practice are not statutory a

failure to act in compliance to these will result in a disciplinary offence in addition to providing

admissible evidence against the police in court (Mawby R and Wright A 2005 p6) Meaning that

should an officer fail to follow these an entire case against a suspect could be jeopardized as a

result Nevertheless even though the Codes of Practice may function similarly to an ethical

framework for the police that govern the correct use of their powers it does not mean that the

guidelines provided nor the Act itself is ethical In fact taking into consideration the sheer amount

of criticism of them it might even suggest that they are entirely unethical

This questionable morality of the Police and Criminal Evidence Act 1984 and its corresponding

Codes of Practice will be explored within this piece of research Aiming to determine whether the

fault lies primarily within the Act and Codes themselves or if the problems might be caused by

other factors such as the Police failing to act in accordance to the guidelines provided However

due to the vastness of the Act and the Codes the focus of the research will be laid upon the necessity

of reasonable suspicion to be present for the police in order to enforce their powers Within this

limited area there will also be a particular focus on part one of the Police and Criminal Evidence

Act 1984 and the Codes of Practice A which addresses the polices power to stop and search

2

individuals for stolen or prohibited items This is a police power that has been subjected to a

substantial amount of criticism mainly due to the disproportionate number of searches of ethnic

minorities in comparison to Caucasians which raises some questions regarding the legitimacy and

morality of the power

Utilising the ethical frameworks of Immanuel Kant (1724-1804) the morality of the Police and

Criminal Evidence Act 1984 and the Codes of Practice will be analysed by converting sections of

the Act and Codes into maxims Which are descriptions of the acts that are used to determine their

ethical and moral value by subjecting them to various tests Primarily the research will employ

Kants original frameworks which question the universalisability of onersquos actions as moral actions

are ones that could be enforced as a universal law applying to everyone unconditionally

Additionally this research will be utilising the generalisation principle developed by Marcus Singer

which is an approach that places a utilitarian twist upon Kants idea of universalisation Because

while Kant argued that it is the motivation behind the act that determines whether it is moral or not

Singer is more interested in the consequences caused by the act Meaning the maxims created from

the Act and the Codes of Practice will be analysed using two different approaches to

universalisation with differing opinions as to which component of the act determines its moral

worth By conducting such an analysis this research hopes to provide some insight regarding the

morality of a very controversial part of the Police and Criminal Evidence Act 1984 as it will not

only take into consideration the consequences of the actions granted by the Act but also the

motivation behind them

3

Chapter 2

Methodology

While primary sources could arguably create more current and relevant results than secondary

sources might be able to (McQueen R and Knussen C 2002 pp83-85) due to them being

acquired personally through fieldwork interviews or observational studies the following study is

entirely literature based Utilising secondary research sources such as books legal documents and

academic journals in addition to various electronic and online resources drawing conclusions from

the information found within these It is acknowledged that research using secondary data struggles

to produce results that are current as ldquothe time factor involved in collecting and analysing primary

data means that some social survey data are out of date by as much as a year before the secondary

analyst gets hold of itrdquo (McQueen R and Knussen C 2002 pp84-85) Additionally there is an

overarching issue regarding bias when dealing with secondary sources as ldquophotos texts and

statistics have their own structure that is often strongly influenced by who produced them and for

what purposerdquo (Flick U 2011 p125) and ldquothe validity of information may vary markedly from

source to source ldquo (Kumar R 2011 p164) As such all sources must be viewed critically as to

ensure that any personal biases of the writer(s) will not interfere with the overall results of the

findings Something that becomes especially important if the information was found in a newspaper

or certain web-resources (such as blogs) as ldquothese writers are likely to exhibit less rigorousness and

objectivity than one would expect in research reportsrdquo (Kumar R 2011 p164)

However while there are many issues connected to undertaking research based on secondary

sources it should be noted that neither primary nor secondary data ldquoprovides 100 per cent accurate

and reliable informationrdquo (Kumar R 2011 p139) Additionally it must also be considered that

certain research topics are less compatible with certain research approaches than others as in this

case where an ethical analysis of specific sections of a legal statute is carried out Meaning

interviews and other primary research approaches would struggle to produce results that are

accurate and relevant Furthermore certain issues identified above with the utilisation of secondary

sources for research would be less of an issue in this case due to the nature of the sources studied

These being a legal statute the Police and Criminal Evidence Act 1984 and the Codes of Practice

and the philosophical and ethical theories developed by Immanuel Kant Because even though

Kants ideas originated over one hundred years ago these ideas are still applicable and relevant

when studying Kantianism Moreover the legal statute that this framework will be applied to uses

its most recent edition of the law which can easily be accessed through government websites

Meaning there should not be an issue with keeping the research current and relevant

4

It should also be noted that literature based research also benefits in ways that research based on

primary sources does not considering that the field of criminology often deals with sensitive topics

and people such as illegal activities and the abused (Westmarland L 2011 p141) Meaning there

are plenty of ethical pitfalls one must avoid when conducting research within this field especially

when using primary sources for the research However regardless of conducting research using

primary or secondary resources any research proposition must adhere to the six key principles of

ethical research (see Appendix 1) Most of the ethical issues identified within these principles are

related to peer-based research though meaning a literature based research is more likely to be

justified ethically than research using primary sources This due to the lack of participants involved

in the research whose emotions consent and wellbeing must be taken into consideration nor should

the researcher themselves be at risk because of the research (Economic and Social Research Council

2012 pp2-3)

However while the literature based method avoids most of the major ethical concerns this

particular piece of research might be subjected to some ethical scrutiny because of the manner in

which it is being carried out Because as the research only utilises the Kantian approach to morality

in addition to only analysing a specific part of the Police and Criminal Evidence Act 1984 and its

corresponding Codes of Practice it might produce some questionable results As such the research

is at risk of being perceived as being biased aiming to obtain certain results by only studying a

selected part of the legislation using a single ethical framework Nonetheless in the Frameworks for

Research Ethics provided by the Economic and Social Research Council (2012) it is stated that ldquothe

independence of research must be clear and any conflicts of interest or partiality must be explicitrdquo

(p3) So while the research might produce results that could be considered biased or partial for the

above reasons this is something that has been acknowledged and addressed before the start of the

research as can be seen in the Ethics Approval Form (see Appendix 2) As such the potential for the

research questioned due to only analysing a select part of the legislation and Codes of Practice

using only one perspective of morality has been addressed explicitly Additionally it is also

acknowledged that other results regarding the morality of the Police and Criminal Evidence Act

1984 and the Codes of Practice might be achieved by utilising a different ethical framework by

studying different sections of the Act or by analysing the Act and Codes of Practice as a whole

5

Chapter 3

Kantian Ethics

The ethical framework developed by Immanuel Kant is an ideology that places moral value on the

motivations between our actions and their potential for universalisation rather than the

consequences of the act itself In this chapter the core principles of the Kantian framework will be

explained identifying the process of determining the morality of our actions through the tests of

generalisation and universalisation Additionally the chapter will also be addressing various

criticisms issues and shortcomings of the Kantian approach to ethics and morality such as the

possibility of the framework allowing for any maxims to be moralised with the right phrasing

31 The Core Ideas

The idea of autonomy is at the core of Kantian ethics arguing that each individual can (and should)

make their own decisions without any external interferences to guide or coerce them (Bennet C

2010 p75) As such Kantianism argues for the presence of free will meaning human beings are

accountable for the choices they make and the actions they subsequently carry out and that

everyone capable of reasonable thinking has the potential to act in accordance to the moral law

However while humans are generally considered to be rational beings it does not mean that they

will behave in a rational manner at all times but rather that they have the capability of doing so

According to Kant this is what separates humans beings from animals as they are only capable of

operating under negative freedom through reacting to their impulses and instinct unable to

question or evaluate the situation in ways human beings are able to (Bennet C 2010 p76) As such

rational beings are the embodiment of morality as the moral law is that of reason (Rachels J 1986

p1) which is why Kant argued that humans must never be treated as the means to an end but

should instead be the end itself (BBC 2014)

Nevertheless being a rational agent capable of recognising reasonable actions from unreasonable

ones thus acting outside of the realms of negative freedom and moving into what is known as

positive freedom does not ensure that onersquos actions are good or moral These are simply

requirements to qualify as an agent that is capable of acting morally not an insurance that actions

carried out by such an agent will be moral or reasonable Instead Kant argued that moral acts are

identified through their motivations stating that ldquoif duty is the key element in our decision to act

then we have acted rightlyrdquo (BBC 2014) because ldquoan action done from duty has its moral worth

not from the results it attains or seeks to attain but from a formal principle or maxim ndash the principle

of doing ones duty whatever that may berdquo (Paton H J 1969 p20) In this case the meaning of

6

duty is equal to acting in reverence to the moral law as Kant argues that morality and its rational

requirements can be translated into rules or that dictates how we should act (Bennet C 2010

p83) These moral rules are divided into two separate groups being hypothetical and categorical

however only categorical can result in a moral law This is due to hypothetical making it possible

for an individual to claim they are an exception to the rule which is unreasonable as moral laws

must apply to everyone without exception (Bennet C 2010 p83) This means that a maxim such

as do not lie unless you want to be considered untrustworthy or even an innocent maxim such as

bring an umbrella unless you want to risk getting wet would be fallible and immoral according to

Kant as they do not apply to individuals that are willing to face the consequences related to these

acts

To be able to establish whether ones actions are moral or not one must therefore be able to apply it

without failure to everyone This is a process known as universalisation which questions the agent

to ldquonever act except in such a way that [they] can also will that [their] maxim should become a

universal lawrdquo (Paton H J 1969 p22) meaning that the morality of an act is determined through

establishing its possibility to be enforced at least hypothetically as a law applying to everyone

unconditionally Ascertaining whether an act can be universalised requires the use of two tests

known as the tests of generalisation and universalisation A maxim must therefore

be able to be generalised without becoming contradictory or illogical as a result to then be

applicable as a universal law governing everyone without exceptions without resulting in an

unappealing or chaotic outcome (Garret J 2006) As ldquoKant believes that someone who violates the

moral requirements is being irrationalrdquo (Bennet C 2010 p82) one should therefore not act on a

maxim that is unable to pass both the test of generalisation and universalisation as this would result

not only in acting immorally but also irrationally

32 Criticisms and Issues

Like any other philosophical or ethical theory the Kantian approach is not devoid of imperfections

and both the original theory and contemporary interpretations have faced criticisms for everything

from structure and implementation to the actual usefulness of the theory However in her book

Bounds of Justice Onora ONeill (2000) identifies that the criticisms of Kantian theories tend to fall

into three different groups of categories (p67) all of which will be explored within this section of

the chapter

The first of these categories identified by ONeill (2000) is that Kant fails to acknowledge the

importance that human relationships and emotions might have on our moral reasoning (p67) An

7

issue that is also identified by Bennet (2010) stating that ldquoit certainly seems a large gap in a moral

theory that it has nothing to say about how pain and suffering makes acts wrongrdquo (p88) Because

while many actions that might cause pain and suffering to others generally cannot be justified using

the categorical imperative they are not dismissed for the right reasons (Bennet C 2010 p88) as

ldquouniversal rules require us to overlook and [hellip] neglect the fragility mutual vulnerability social

embeddedness and constitutive loyalties of real peoplerdquo (ONeill O 2000 p67) As human beings

are not cold calculative and emotionless robots this is an obvious flaw within Kants frameworks

because in order to act morally one needs to be able to completely disregard the feelings of other

people

Furthermore due to the lack of consideration for human emotions and relationships Kant has

simplified the very complex issue of moral theory (ONeill O 2000 p 67) often resulting in very

bizarre contradicting or even worrying results Because utilising the categorical imperative for

moral guidance might result not only in allowing obviously immoral actions to be universalised but

also preventing other harmless acts of kindness such as opening the door for someone else from

being morally justified (Bennet C 2010 p86) It should be obvious to a normal reasonable human

being that there is nothing wrong or immoral about holding the door open for someone else yet

through the implementation of Kantianism such an action cannot be justified due to it being unable

to pass the test of universalisation Showing that the Kantian approach struggles to encompass all

actions regardless of their significance importance or size in a reasonable manner

It should also be noted that the Kantian framework can also produce situations where the agent will

be acting immorally no matter what they do Bennet (2010) utilises an example of noticing a child

in the process of drowning while on the way to class and even though we have a duty to help others

according to Kant the option of not helping can also be moralised in this scenario as the agent will

adhere to the maxim of getting to class on time (p86-87) This leads to the final category of

critiques against Kant and Kantian ideologies as identified by ONeill (2000) which states that it is

a theory ldquodesigned for abstract individuals [hellip] leading to abstract conclusions that are irrelevant to

real people who lead real livesrdquo (p 67) It is possible that this abstract nature of the theory could be

due to Kants failure to provide a proper guideline stating how our actions should be explained in

order to properly calculate their ethical value through the tests of generalisation and universalisation

Because with the manner in which the Kantian framework is designed there is a possibility that

ldquoany action could pass it simply by being re-describedrdquo (Bennet C 2010 p87) The Kantian

framework is therefore in need of some kind of notes for guidance that provides an explanation for

how one is to distinguish correct descriptions of ones actions from incorrect ones

8

Chapter 4

PACE A Brief Introduction

The following chapter will be providing a brief introduction to the Police and Criminal Evidence

Act 1984 and its associated Codes of Practice Providing a basic understanding of the legislations

history and purpose in addition to some criticisms of the act and issues that has developed as a

result of its development As such this chapter alongside with chapter 3 provides a foundation for

the following chapters where specific parts of the legislation will be explored more thoroughly in

addition to being analysed through the Kantian frameworks for ethics

41 Background

Policing in England and Wales is nowadays comprised of a tough balancing act where ldquothe interests

of the community and the rights of the individualrdquo (Royal Commission undated cited by Zander

2011 p3) must be taken into account while also maintaining public order In addition to being

required to evaluate to what extent they may infringe upon civil liberties to do their job the police

is also under constant public scrutiny This means that any infringement upon the rights of an

individual that cannot be justified by the Police and Criminal Evidence Act 1984 the Human Rights

Act 1998 or other pieces of legislation can have dire consequences for the police Such

infringements can result in lawsuits against the police or rendering evidence inadmissible in court

as was seen in the case of R v Miller (1993) where the confessions from the suspects were rendered

inadmissible due to hostile and oppressive questioning by police However while it is noted that

infringement of civil liberties should be avoided and the rights of the public should be respected it

is also identified in Article 5 of the European Convention of Human Rights that there are

circumstances when the police and the criminal justice system must be granted the power to

lawfully infringe upon these (Council of Europe 2010 p7) Because without these exceptions legal

and justice systems would no longer function as criminal justice cannot function if the rights of the

individual is to be respected at all times

While there is a need for the police and criminal justice system to infringe upon the rights of

individuals there must be sanctions that govern to what extent these rights can be infringed upon

and under what circumstances As mentioned above article five of the European Convention of

Human Rights provides a good starting point but as it must be applicable to the state legislature of

all member states of the European Union it is far too general and leaves plenty of gaps to fill in

This is where the Police and Criminal Evidence Act 1984 and its corresponding Codes of Practice

comes into play as these help with outlining the provisions for the polices ability to infringe upon

9

the civil liberties of the public It was introduced following some cases of gross police misconduct

that had come to light causing miscarriages of justice of several high-profile cases which put a

strain on the relationship between the police and the public One such case included the R v

McIlkenny and others (1991) more famously known as the Birmingham Six where six innocent

men were wrongfully convicted as a result of police officers having beaten witnesses to obtain

satisfactory statements in addition to distorting forensic evidence (The Economist 1990) The

Police and Criminal Evidence Act 1984 and the associated Codes of Practice was introduced in an

attempt to remedy this through providing guidelines for how evidence was to be obtained legally

how suspects and detained persons were to be treated how and when certain police powers could be

legally enforced as well as providing the criminal justice system with transparency and

accountability (Fahy P in Ozin P Norton H and Spivey P 2013 pv)

Through its introduction the Police and Criminal Evidence Act 1984 and its corresponding Codes of

Practice drastically changed the manner in which policing was carried out causing a bit of a

culture shock for some officers that were threatened by the new developments (Wilding B

undated in Cape E and Young R 2008 p127) As there were suddenly demands being put on

officers that did not exist previously in addition to clear frameworks dictating what kind of

behaviour was deemed acceptable All to ensure that investigations were carried out both

objectively and with integrity two elements which are important to maintain public confidence in

the police force (Wilding B undated in Cape E and Young R 2008 p127) However while the

drastic changes might have come as a shock to some officers it is now common practice and

heavily ingrained to the very core of policing Additionally while the Act generally focuses on the

protection of the suspects victims and witnesses it simultaneously provides the police with

safeguards to avoid suspicion of unlawfully acquired evidence as everything from physical

evidence to verbal or written confessions must be recorded and processed in detail (Police and

Criminal Evidence Act 1984 sNUMBER sNUMBER) ensuring that the police runs a lower risk of

being unjustly accused of foul play

32 Critiques and Issues

While the Act and the Codes of Practice has played a significant part in making the police ldquomore

accountable in terms of performance and standards than virtually any other public bodyrdquo (Wilding

B undated in Cape E and Young R 2008 p130) as well as supposedly having ldquoushered in new

ethical standards for the servicerdquo (Wilding B undated in Cape E and Young R 2008 p127) It

has been subjected to a significant amount of criticism from non-governmental organisations such

as Liberty members of the police itself and academics scrutinising everything from how the Act

10

takes the police off the streets and placing them behind desks to carry out extensive amounts of

paperwork (Wilding B undated in Cape E and Young R 2008 p127) to questioning whom the

Act is really favouring (Benz S 2010) Furthermore the actual contents of the Act and the Codes of

Practice has been criticised in particular the Acts first part concerning stop and search (see chapter

5) resulting in a large number of edits and moderations to remedy these and provide a better

balance between the police and the rights of the public

11

Chapter 5

Reasonable Suspicion

While the Police and Criminal Evidence Act 1984 provides the police with guidelines for how and

when they may use their powers to infringe upon civil liberties these are not enough to ensure that

policing is carried out correctly in accordance to the act The Act must therefore be read alongside

the Codes of Practice as these further explain the limitations of the powers in addition to the

requirements that must be fulfilled in order for an officer to implement them One such requirement

that is found repeatedly throughout the Act and the Codes of Practice is the need for an officer to

have reasonable grounds for suspecting that the person(s) of interest are doing have done is about

to do or is in possession of something illegal (Police and Criminal Evidence Act s1(7)-1(9)

s3(1)(a)-3(1)(d)) This requirement is one that has been subjected to some controversy and scrutiny

especially in connection to the power of stop and search (addressed below) as it is often described

in very vague or broad terms often making it unclear what exactly constitutes appropriate grounds

for reasonable suspicion Additionally it should also be noted that the appropriate grounds for

suspicion might differ slightly from one section of the Act to another making it important to

separate these definitions from each other when studying them as they may all have their own

interpretations definitions regulations and issues However as this research explores the ethical

implications of reasonable suspicion in relation to stop and search it must be acknowledged that the

results may not be applicable to sections of the Police and Criminal Evidence Act 1984 and Codes

of Practice concerning other police powers

51 Reasonable Suspicion and Stop and Search

In the first part of the Police and Criminal Evidence Act 1984 it is identified that an officer cannot

stop and search an individual unless they have reasonable grounds for suspecting that any stolen or

prohibited articles listed under s1(7)-1(9) of the Act will be found on their person (s1(3) Police and

Criminal Evidence Act 1984) That being said there are many limitations placed upon what may

constitute a reasonable ground for suspecting that prohibited or stolen articles will be found on the

person(s) (Codes of Practice A s22) and that these can differ depending on the circumstances of

each case [Ozin P et al 2013 p4] However while suspicion might be raised for different reasons

in each case the Code emphasises that suspicion may never be based on personal factors

stereotypes or generalisations (Codes of Practice A s22) Nor may it be ldquoprovided retrospectively

by [hellip] questioning during a persons detention or by refusal to answer any questionsrdquo (Codes of

Practice A s29) Instead it is stressed that suspicion should have an objective basis derived from

known facts and information (Codes of Practice A s22)

12

Whether these demands put on officers by the Codes of Practice A to establish objective grounds

for suspicion are followed is questionable though At least when taking into consideration that the

sections of the Police and Criminal Evidence Act 1984 and the Codes of Practice concerning stop

and search has been subjected to heavy criticism mainly due to the disproportionate amount of

members from minority ethnic groups being searched in comparison to Caucasians Because even

though the Codes of Practice A does identify that there are situations where reasonable grounds for

suspicion might exist without the need for known facts or information such as initiating searches

based on an individuals behaviour or body language (Codes of Practice A s23) it does not explain

why black people are up to ldquosix times more likely to be stop[ped and] searched than would be

expected based on their numbers in the general populationrdquo (Bowling B and Phillips C 2007

p958) Nor does it explain how the recorded stops and searches of Asians since the mid-nineties

have remained between 15 and 25 times higher than those of Caucasians (Equality and Human

Rights Commission 2010 p13) These are worrying statistics that raise questions as to whether the

guidelines provided by the Police and Criminal Evidence Act 1984 and the Codes of Practice are

sufficient in order to ensure that this power is used appropriately and fairly Because even though

non-Caucasians are stopped and searched more frequently arrests following searches are distributed

quite evenly across all ethnic groups (StopWatch 2014)

There is a possibility that this targeting of minority ethnic groups could be a direct result of the

socio-economic conditions that traps many families from poor neighbourhoods in a cycle of poverty

and disadvantage (Joseph I and Gunter A 2011 p3) Especially as it has been found that these

groups often respond ldquoto their powerlessness with frustration rage and the creation of alternative

social and cultural values that promotes and normalizes gang membership and violencerdquo (Joseph I

and Gunter A 2011 p3) Due to the normalisation of such behaviour this could provide an

explanation to why some disproportionality might exist as the Codes of Practice provides an

exception to searches based on physical appearance when it is related to gang culture stating that

ldquowhere there is reliable information or intelligence that members of a group or gang

habitually carry knives unlawfully or weapons or controlled drugs and wear a

distinctive item of clothing or other means of identification to indicate their

membership of the group or gang that distinctive item of clothing or other means

of identification may provide reasonable grounds to stop and search a personrdquo

(Codes of Practice A s26)

13

However while this provision could support the existence of some disproportionality it does not

disprove that minority ethnic groups are being targeted by the police nor does it provide a

reasonable explanation to why blacks are being six times more likely to be subjected to a stop and

search This means there is a risk that this section of the Codes of Practice is being used by police

to maliciously target ethnic minority groups by stereotyping them as more likely to be involved

with criminal gangs

52 Reasonable Suspicion Stop and Search and Morality

While statistics and studies show that stop and search is used disproportionally and suggests that

individuals belonging to minority ethnic groups are being targeted by the police it does not mean

that the power itself nor the legislation governing it is unethical Because even though they tend to

overlap ldquothere is no necessary connection between law and moralsrdquo (Hart H L A 1958 cited by

Green L 2012 in Hart H L A 2012 pxxxiii) as the law applies to everyone unconditionally

while moral only applies to those that sympathise with the ideologies in question Kantian ethics

however arguing that one should do the right thing because of it being right views morality as a

supplement to the law (Zupancic A 2000 p16) therefore ensuring that we are not only doing what

is right but that we are also doing it for the right reasons (Sandel M 2011) Which from Kants

viewpoint is synonymous to acting out of duty which as established in Chapter 3 means that

onersquos actions must be converted to those that are able to pass the tests of generalisation and

universalisation As such one must convert the sections of the Police and Criminal Evidence Act

1984 and its associated Codes of Practice concerning stop and search into an order to establish

whether it is ethical

However while the Police and Criminal Evidence Act 1984 identifies that reasonable suspicion is

necessary in order to conduct a stop and search one cannot simply create a maxim stating that

police officers can stop and search anyone they reasonably suspect is carrying illegal or stolen

items Because even though this maxim does provide an accurate description of the necessary

requirements to perform a stop and search it is far too broad Such a maxim does not place a limit

upon what the suspicion might be based on resulting in a possibility for officers to target certain

groups of people based on prejudice or stereotypes Therefore such a maxim can neither be

generalised nor universalised meaning it would be considered entirely unethical by Kantian

principles However by using the guidelines and limitations of reasonable suspicion presented in

the Codes of Practice A that were identified earlier in this chapter this maxim can be broken down

into three separate parts These being

14

police officers may stop and search individuals for illegal or stolen items if it is in

accordance with known facts and information and they believe that such items will be found upon

searching the person

police officers may stop and search individuals acting in an obviously suspicious manner for

illegal or stolen items but only if they suspect that such items will be found upon searching the

person and

police officers may stop and search individuals based on articles of clothing piercings

andor tattoos if these are known to be worn by members of a gang(s) that are known to carry

illegal or stolen items and only if the police suspects that such items will be found upon searching

the person

These provide a much more limited and concentrated approach to the attempted moralisation of the

polices power to stop and search individuals for prohibited or stolen articles Because unlike the

previous maxim these are not only limiting what the basis for suspicion might be but also limiting

when the power itself may be enforced As such the likelihood of these being able to pass the tests

of generalisation and universalisation are increased

521 Generalisation and Universalisation

In order to accurately establish whether acts are moral they must pass the tests of generalisation and

universalisation as Kant believed that moral acts were ones that could be applied to everyone as a

universal law without becoming contradictory or illogical (see chapter 3) However as these deal

with police powers and Kant argued that acts must be applicable to everyone without exception

these will also be examined using Singers generalisation principle because it would be illogical for

such powers to be implemented by everyone Singers generalisation principle makes it possible to

bypass this issue as it argues that ldquowhat is right (or wrong) for one person must be right (or wrong)

for any similar person in similar circumstancesrdquo (Singer G M undated cited by ONeill O 2013

p78) Additionally this approach puts a utilitarian twist on Kants frameworks as it determines

morality based on the consequences of onersquos actions (ONeill O 2013 p79) rather than the

motivation behind them As such this test functions as a middle ground between the tests of

generalisation and universalisation ensuring that the generalised maxim does not cause an illogical

or chaotic result in addition to limiting the generalised maxim from anyone that is not a member of

the police service Analysing the maxim using these tests therefore requires them to be studied

individually so that they can be dissected and examined more closely

Looking at the first of the three maxims created using the guidelines and limitations of reasonable

15

suspicion as identified by the Codes of Practice A it can be established that it is comprised from

three different elements Namely

the police may only search for illegal or stolen items

the police may only search an individual based on known facts and information and finally

the police may only search the individual if they believe illegal or stolen items will be found

Attempting to generalise any of these elements of the maxim individually would not be reasonable

as they do not provide enough limitations or guidelines for it to be functional Because the first part

allows the police to search anyone for illegal or stolen items without the necessity of a suspicion

that any such items will be found which would result in a police state where the police could search

anyone they please The necessity of believing that illegal or stolen items will be found upon

conducting a search is added by the third element of the maxim but there are still no requirements

for the police to have any kind of reasonable basis for their decision to stop and search someone as

this is added by the maxims second element However this element cannot be moralised on its own

either as it does not specify what the police may search for However when all three elements of

the maxim are combined all necessary limitations are present meaning the generalisation of it

should not produce a contradictory or illogical result

However passing the test of generalisation does not mean that the maxim is ethical as it must also

be universalisable Meaning it should be able to be enforced as a (hypothetical) law that applies to

everyone unconditionally As the maxim places a requirement on the police to only stop and search

individuals if they have a factual basis for their suspicion to find illegal or stolen items upon

searching the person this should be a universalisable action Because assuming all police officers

were required to follow this maxim it would result in a world where only specific items may be

searched for if they have a factual reason to conduct the search and only if they believe that such

items will be found upon searching the person(s) As this would not produce any undesirable

consequences this maxim would not only pass Kants test of universalisation but also fulfil the

necessary criteria for Singers generalisation principle

This is essentially what the Police and Criminal Evidence Act 1984 and the Codes of Practice A

seeks to do meaning that if the guidelines were followed by the police unlawful stops and searches

should not occur However since there are more aspects to the laws that govern the polices power

to stop and search individuals for illegal or stolen items such as searches based on suspicious

behaviour or searches of suspected gang members other aspects must be explored as well before

16

declaring whether it is ethical or not For this reason the two additional maxims (mentioned earlier)

are needed and must therefore be tested as well As these maxims can be implemented in such

situations by the removal of the need for a factual basis for suspicion and replacing it with either

the possibility to

search individuals acting in an obviously suspicious manner or

search individuals based on clothing piercings andor tattoos if these are known to be worn

by members of gangs that are known to carry illegal or stolen items

As with the various elements of the maxim analysed previously these are also unable to be

moralised individually Because the first of the two does not specify what may be searched for and

neither of the sections specify that the police should expect to find illegal or stolen items upon

stopping and searching an individual As such neither of these elements can function as a maxim on

their own as they are illogical and can neither be generalised nor universalised However when

these are combined with the other elements of the maxims these issues should be resolved thus

passing Kants test of generalisation

Universalising these maxims is a bit more problematic than the one analysed previously through

For example with the first of these two maxims police officers would be enforced to stop and

search anyone that is acting in an obviously suspicious manner for illegal or stolen items if they

believe any such items will be found upon searching them The phrase behaving in an obviously

suspicious manner is a bit of an issue here as there is no definition available as to what can be

classified as such However a reasonable person would probably equate behaving in an obviously

suspicious manner to trying to hide something which is used as an example in the Codes of

Practice A s23 It could therefore be worth substituting the phrase behaving in an obviously

suspicious manner with trying to hide something as this would be more specific However by

doing this the maxim would become much more limited as it would no longer allow individuals

behaving suspiciously in other ways to be searched Nevertheless should this interpretation be used

the likeliness of the maxim passing the test of universalisation might be increased as the likeliness

of it producing a chaotic result would decrease Additionally implementing such an interpretation

would also make it more likely for the maxim to pass Singers generalisation principle As the

conduction of stops and searches of people that are obviously trying to hide something is less likely

to produce an undesirable outcome in comparison to searching anyone acting suspiciously

Finally the universalisation of the third and final of the maxims would enforce the police to stop

17

and search anyone dressed or in any other ways being physically identifiable as a possible member

of a gang known to carry illegal or stolen items if they believe any such items will be found upon

searching them As with the maxim analysed above there are issues related to universalising this

maxim due to the possibility of it causing certain people to be targeted because of the clothes they

wear or any piercings or tattoos on their body being related to or similar to ones connected to a

criminal gang Universalising this maxim could therefore worsen an already prevalent issue where

innocent members of the public get their civil liberties infringed upon due to their personal style

especially as the maxim allows quite a broad range of items accessories and body art to be used as

an indicator for suspicion In a study by Jackson and Smith (2013) the experiences of young people

from London that had been subjected to stop and search was surveyed where the participants

identified what kind of clothing might fit the criteria of being a presumed gang member It was

suggested that ldquoemulating American hip hop artists by wearing low-slung jeans hoodies and

branded trainers and walking and talking in a certain wayrdquo (p6) was stereotyped by the police as

gagster behaviour and dress The same study also identified an experience that was shared by one

of the participants whom stated that ldquoThey just say youre in a drug infested area and youve got a

hood on so were stopping and searching yourdquo (Jackson L and Smith L 2013 p6)

Taking this into consideration it can therefore be seen that the universalisation of a maxim asking

the police to stop and search anyone perceived to be involved with a criminal gang for illegal or

stolen items could result in a form of criminalisation of the hoodie and other specific pieces of

clothing as these are stereotyped as being related to gang membership This would be problematic

as the hoodie in particular is a comfortable and often affordable piece of clothing that is a staple in

the wardrobes of many of societys subcultures such as emos and skaters that are generally not

stereotyped as criminals (Braddock K 2011) As such it can be established that neither Kant nor

Singer would be able to universalise this maxim as having officers search anyone wearing specific

clothes would neither be reasonable nor produce any desirable consequences

522 Issues

While two out of three of the different maxims appear to be moral in the eyes of Kant there are still

some issues relating to them which must be acknowledged Primarily there might be an issue with

these maxims being too specific as it has been noted that ldquoany maxim that is highly restricted is

likely to pass the universalisability testrdquo [Guyer P 2007 cited by Perold L M 2010 p19]

because the more descriptive a maxim is the less likely it is that it would become contradictory As

all of the maxims created from the Codes of Practice A are highly restrictive specifying who may

carry out the act under what circumstances they may carry it out and the limitations of the actions

18

itself Additionally as noted earlier in this chapter the maxims cannot be made more general either

as this would prevent them from being moralised this means that there is a risk of these maxims

passing the tests of universalisation and generalisation simply because of their overly descriptive

nature rather than actually being moral

There might also be an issue with the phrasing of the maxims specifically the use of the term

police officers as this might cause some uncertainties regarding exactly who the maxim applies to

Because by using the term police officer or even police it becomes questionable if an officer must

be in uniform in other words his or her position as a police officer is overt when carrying out the

search However since these maxims need to be exclusive to the police it could be hard to bypass

this issue without adding yet another specification to it that clarifies whether there is a need for the

officer to be in uniform or not

Finally there could also be an issue of the maxims conflicting with each other as the first of the

maxims states that the decision to stop and search someone needs to be in accordance with known

facts and information Something that might not be available when a stop and search is made

utilising the second or third maxim as these can be initiated without a need of known facts or

information This raises a question to whether one of the maxims would naturally take precedence

over the others as all three maxims regarding stop and search can never operate at the same time

Generally Kantianism argues that when one is faced with opposing maxims the perfect duty will

always take precedence over an imperfect one (Stohr K 2010 p3) However as all of the maxims

are addressing what is essentially the same action being the possibility to stop and search

individuals for illegal andor stolen items this could be problematic Furthermore while there are

three maxims identified within this study there also exists another fourth maxim which concerns

the possibility of not searching anyone for illegal or stolen items This fourth maxim is also

considered a perfect duty as it would generally be easier to universalise not searching people as

opposed to searching individuals fitting certain requirements This means that the maxim regarding

the omission to act would in this case take precedence over the other maxims identified within this

research essentially rendering them powerless

19

Chapter 6

Conclusion

From this study it can be seen that the legislation governing a heavily criticised police power such

as stop and search has the possibility to be morally justifiable by the ethical frameworks developed

by Kant Because while Kants ethical theory does not rectify or justify the issue of ethnic minorities

being subjected to a disproportionate amount of stops and searches in comparison to Caucasians it

is important to remember that the ldquolaw in theory and the law in practice differrdquo (Westmarland L in

Newburn T 2011 p255) Meaning that the moralisation of the legislation does not ensure that it

will be applied ethically by the police Additionally as Kantian ethics values the motivation behind

ones actions over the consequences produced from them the potential issues caused by ones actions

are irrelevant as long as the action itself can be universalised without producing a chaotic or

undesirable result

However as there are several layers to stop and search there are some implications to morally

justifying this power as it is multi-faceted Being designed to deal with a variety of different

situations and bases from which suspicion might arise to justify the stopping and searching of an

individual Because while Kantian ethics can ethically justify police officers to stop and search

individuals for illegal or stolen items if it is in accordance with known facts and information and

they believe that such items will be found upon searching the person this encompasses only one of

the many facets of the power As such the power cannot be justified as a whole as any maxim used

to describe it would not provide the necessary limitations needed for it to successfully pass the tests

of generalisation and universalisation

While the power cannot be moralised as a whole it is possible to create two additional maxims

using the limitations and exceptions to the necessity criteria of reasonable suspicion found in the

Codes of Practice A to create an additional two maxims These represent two additional facets of

stop and search being that

police officers may stop and search individuals acting in an obviously suspicious manner for

illegal or stolen items but only if they suspect that such items will be found upon searching the

person and

police officers may stop and search individuals based on articles of clothing piercings

andor tattoos if these are known to be worn by members of a gang(s) that are known to carry

20

illegal or stolen items and only if the police suspects that such items will be found upon searching

the person

However only the first of these two maxims can be justified utilising Kants ethical framework and

Singers generalisation principle because the latter cannot be universalised without becoming

unreasonable Furthermore the latter cannot be justified without providing further limitations

requiring the phrase acting in an obviously suspicious manner to be replaced by obviously hiding

something

From the issues presented from the creation of the two additional maxims above it can be

established that stop and search cannot be considered morally justifiable under all circumstances

Because different situations calls for different maxims meaning that should the search not be

initiated based on known facts or information it is unlikely to be ethical Nevertheless even though

all facets of this police power cannot be morally justified it does seem that the majority of them can

be considered ethical to some extent Meaning the legislation governing it is generally ethical but

as a whole it becomes a bit of a moral ambiguity This shows that the police power as identified by

the Police and Criminal Evidence Act 1984 and the Codes of Practice A has a potential to be

ethically justified with the exception of the section permitting searches where physical appearance

can be used as a basis for suspicion Additionally this research identified that the reasons for why

this particular section is not justifiable could also be part of the reason to the disproportionate

amount of searches of ethnic minorities As it might provide officers maliciously targeting

minorities with a possibility to justify their actions by claiming a particular article of clothing body

art or similar was the reason for the stop

As such it can be established that the legislation governing the polices power to stop and search

individuals for prohibited or stolen articles cannot be fully moralised as not all sections of the

Police and Criminal Evidence Act 1984 or the Codes of Practice A concerning this power can be

ethically justified However while the legislation as whole is morally ambiguous at best the

searches conducted with factual information as a basis for suspicion suggests that the sections of the

legislation addressing this type of search cannot be implemented in an unethical manner Because as

the universalised maxim requires the police to act in a manner promoted by the Act and Codes this

shows that any unethical searches carried out using this type of search are caused as a result of

police misconduct rather than an actual issue with the legislation

21

However it should be noted that this research can only provide a limited account of the morality of

this police power as it has only explored it through the limitations put upon it through the necessity

requirement of reasonable suspicion Additionally it can only account for the morality of the

sections of the Police and Criminal Evidence Act 1984 and the Codes of Practice A addressing this

particular police power and only through the limitations explored within this research Finally it is

also important to recognise that the police power has only been analysed using a Kantian approach

to ethics and morality This means that further studies of the police power and indeed the Act and

Codes in general are needed in order to provide a more accurate account of the morality and ethical

issues present It is therefore suggested that additional research should be carried out to study the

legislation governing the power of stop and search utilising other ethical theories or utilising

Kantian ethics with a different focus point of the legislation

However while further research is needed in order to gain a more accurate account of the overall

morality of the police power and the legislation governing it it does not mean the research

presented in this paper is of any less value Because even though the study can only provide a

limited account of the legislations morality it has succeeded in presenting the probabilities for the

moral justification of the Acts first part along with the associated Codes of Practice as well as

identifying that the issues connected to the Act may be caused primarily by the polices failure to

accurately conduct stops and searches according to the law Meaning the research has produced

some valuable results in addition to providing a stepping stone for further research on the topic

22

Bibliography

BBC [2014] Duty-Based Ethics Available at

httpwwwbbccoukethicsintroductionduty_1shtml [Accessed 20-03-2014]

Benz S [2010] ldquoThe Police and Criminal Evidence Act 1984 balancing civil liberties and public

securityrdquo Diffusion 5(2) Available at httpatpuclanacukbuddypressdiffusionp=1255

[Accessed 25-04-2014]

Bowling B and Phillips C [2007] Disproportionate and Discriminatory Reviewing the Evidence

on Police Stop and Search Oxford Blackwell Publishing p958 httpwwwstop-

watchorguploadsdocumentsmodern_law_reviewpdf

Braddock K [2011] ldquoThe Power of the Hoodierdquo The Guardian Available at

httpwwwtheguardiancomuk2011aug09power-of-the-hoodie [Accessed21-04-2014]

Codes of Practice A

Council of Europe [2010] European Convention on Human Rights Strasbourg European Court of

Human Rights p 7 Available at httpwwwechrcoeintDocumentsConvention_ENGpdf

[Accessed 09-03-2014]

The Economic and Social Research Council [2012] Frameworks for Research Ethics Swindon

Economic and Social Research Council pp2-3 3 Available at

httpwwwesrcacuk_imagesframework-for-research-ethics-09-12_tcm8-4586pdf [Accessed 01-

04-2014]

The Economist [1990] End Game Available

athttpgogalegroupcompsidoid=GALE7CA9390713ampv=21ampu=uceampit=rampp=SPJSP0

0ampsw=wampasid=f6f778fcf0a20b3f0f18df5e20a57f27 [Accessed 19-03-2014]

Fahy P [undated] ldquoForewordrdquo In Ozin P Norton H and Spivey P [2013] PACE ndash A Practical

Guide to the Police and Criminal Evidence Act 1984 3rd

Edition Oxford Oxford University Press

p v

Flick U [2011] Introducing Research Methodology London Sage p 125

Garret J [2006] Kants Duty Ethics Available at

httppeoplewkuedujangarrettethicskanthtm [Accessed 20-03-2014]

Govuk [2013] Guidance Police and Criminal Evidence Act 1984 (PACE) Codes of Practice

London Home Office Available at httpswwwgovukpolice-and-criminal-evidence-act-1984-

pace-codes-of-practice [Accessed 02-04-2014]

Guyer P (2007) cited by Perold L M [2010] Does Immanuel Kants Categorical Imperative

Commit Him to the View that Lying is Always Morally Wrong Master of Arts thesis University of

the Witwatersrand p 19 Available at

httpwiredspacewitsaczabitstreamhandle1053910096M20Perold20Research20Reportp

dfsequence=2 [Accessed 24-04-2014]

1

Chapter 1

Introduction

Being brought into power ldquoat a time when public confidence in the police was at an all-time low

due to high-profile miscarriages of justicerdquo (Fahy P in Ozin P Norton H Spivey P 2013

pv) the Police and Criminal Evidence Act 1984 and its corresponding Codes of Practice has been

subjected to heavy criticism ever since Because while the Act was introduced to the legal system in

order to improve public confidence in the police by ldquoestablish[ing] the powers of the police to

combat crimes while protecting the rights of the publicrdquo (govuk 2013) providing a more balanced

relationship between the two It was feared that the Act would instead provide the police with a way

to legitimize the infringement upon the civil liberties of the public (Benz S 2010) Since then the

Act has undergone plenty of alterations to improve the balance between the rights of the public and

the powers bestowed upon the police but still there are issues

Outlining what powers are available to the police is only part of the process to achieve a good

balance between the two sides however which is where the Codes of Practice comes in These

function similarly to an ethical framework that provides the police with guidelines for the proper

implementation of their powers Because even though the Codes of Practice are not statutory a

failure to act in compliance to these will result in a disciplinary offence in addition to providing

admissible evidence against the police in court (Mawby R and Wright A 2005 p6) Meaning that

should an officer fail to follow these an entire case against a suspect could be jeopardized as a

result Nevertheless even though the Codes of Practice may function similarly to an ethical

framework for the police that govern the correct use of their powers it does not mean that the

guidelines provided nor the Act itself is ethical In fact taking into consideration the sheer amount

of criticism of them it might even suggest that they are entirely unethical

This questionable morality of the Police and Criminal Evidence Act 1984 and its corresponding

Codes of Practice will be explored within this piece of research Aiming to determine whether the

fault lies primarily within the Act and Codes themselves or if the problems might be caused by

other factors such as the Police failing to act in accordance to the guidelines provided However

due to the vastness of the Act and the Codes the focus of the research will be laid upon the necessity

of reasonable suspicion to be present for the police in order to enforce their powers Within this

limited area there will also be a particular focus on part one of the Police and Criminal Evidence

Act 1984 and the Codes of Practice A which addresses the polices power to stop and search

2

individuals for stolen or prohibited items This is a police power that has been subjected to a

substantial amount of criticism mainly due to the disproportionate number of searches of ethnic

minorities in comparison to Caucasians which raises some questions regarding the legitimacy and

morality of the power

Utilising the ethical frameworks of Immanuel Kant (1724-1804) the morality of the Police and

Criminal Evidence Act 1984 and the Codes of Practice will be analysed by converting sections of

the Act and Codes into maxims Which are descriptions of the acts that are used to determine their

ethical and moral value by subjecting them to various tests Primarily the research will employ

Kants original frameworks which question the universalisability of onersquos actions as moral actions

are ones that could be enforced as a universal law applying to everyone unconditionally

Additionally this research will be utilising the generalisation principle developed by Marcus Singer

which is an approach that places a utilitarian twist upon Kants idea of universalisation Because

while Kant argued that it is the motivation behind the act that determines whether it is moral or not

Singer is more interested in the consequences caused by the act Meaning the maxims created from

the Act and the Codes of Practice will be analysed using two different approaches to

universalisation with differing opinions as to which component of the act determines its moral

worth By conducting such an analysis this research hopes to provide some insight regarding the

morality of a very controversial part of the Police and Criminal Evidence Act 1984 as it will not

only take into consideration the consequences of the actions granted by the Act but also the

motivation behind them

3

Chapter 2

Methodology

While primary sources could arguably create more current and relevant results than secondary

sources might be able to (McQueen R and Knussen C 2002 pp83-85) due to them being

acquired personally through fieldwork interviews or observational studies the following study is

entirely literature based Utilising secondary research sources such as books legal documents and

academic journals in addition to various electronic and online resources drawing conclusions from

the information found within these It is acknowledged that research using secondary data struggles

to produce results that are current as ldquothe time factor involved in collecting and analysing primary

data means that some social survey data are out of date by as much as a year before the secondary

analyst gets hold of itrdquo (McQueen R and Knussen C 2002 pp84-85) Additionally there is an

overarching issue regarding bias when dealing with secondary sources as ldquophotos texts and

statistics have their own structure that is often strongly influenced by who produced them and for

what purposerdquo (Flick U 2011 p125) and ldquothe validity of information may vary markedly from

source to source ldquo (Kumar R 2011 p164) As such all sources must be viewed critically as to

ensure that any personal biases of the writer(s) will not interfere with the overall results of the

findings Something that becomes especially important if the information was found in a newspaper

or certain web-resources (such as blogs) as ldquothese writers are likely to exhibit less rigorousness and

objectivity than one would expect in research reportsrdquo (Kumar R 2011 p164)

However while there are many issues connected to undertaking research based on secondary

sources it should be noted that neither primary nor secondary data ldquoprovides 100 per cent accurate

and reliable informationrdquo (Kumar R 2011 p139) Additionally it must also be considered that

certain research topics are less compatible with certain research approaches than others as in this

case where an ethical analysis of specific sections of a legal statute is carried out Meaning

interviews and other primary research approaches would struggle to produce results that are

accurate and relevant Furthermore certain issues identified above with the utilisation of secondary

sources for research would be less of an issue in this case due to the nature of the sources studied

These being a legal statute the Police and Criminal Evidence Act 1984 and the Codes of Practice

and the philosophical and ethical theories developed by Immanuel Kant Because even though

Kants ideas originated over one hundred years ago these ideas are still applicable and relevant

when studying Kantianism Moreover the legal statute that this framework will be applied to uses

its most recent edition of the law which can easily be accessed through government websites

Meaning there should not be an issue with keeping the research current and relevant

4

It should also be noted that literature based research also benefits in ways that research based on

primary sources does not considering that the field of criminology often deals with sensitive topics

and people such as illegal activities and the abused (Westmarland L 2011 p141) Meaning there

are plenty of ethical pitfalls one must avoid when conducting research within this field especially

when using primary sources for the research However regardless of conducting research using

primary or secondary resources any research proposition must adhere to the six key principles of

ethical research (see Appendix 1) Most of the ethical issues identified within these principles are

related to peer-based research though meaning a literature based research is more likely to be

justified ethically than research using primary sources This due to the lack of participants involved

in the research whose emotions consent and wellbeing must be taken into consideration nor should

the researcher themselves be at risk because of the research (Economic and Social Research Council

2012 pp2-3)

However while the literature based method avoids most of the major ethical concerns this

particular piece of research might be subjected to some ethical scrutiny because of the manner in

which it is being carried out Because as the research only utilises the Kantian approach to morality

in addition to only analysing a specific part of the Police and Criminal Evidence Act 1984 and its

corresponding Codes of Practice it might produce some questionable results As such the research

is at risk of being perceived as being biased aiming to obtain certain results by only studying a

selected part of the legislation using a single ethical framework Nonetheless in the Frameworks for

Research Ethics provided by the Economic and Social Research Council (2012) it is stated that ldquothe

independence of research must be clear and any conflicts of interest or partiality must be explicitrdquo

(p3) So while the research might produce results that could be considered biased or partial for the

above reasons this is something that has been acknowledged and addressed before the start of the

research as can be seen in the Ethics Approval Form (see Appendix 2) As such the potential for the

research questioned due to only analysing a select part of the legislation and Codes of Practice

using only one perspective of morality has been addressed explicitly Additionally it is also

acknowledged that other results regarding the morality of the Police and Criminal Evidence Act

1984 and the Codes of Practice might be achieved by utilising a different ethical framework by

studying different sections of the Act or by analysing the Act and Codes of Practice as a whole

5

Chapter 3

Kantian Ethics

The ethical framework developed by Immanuel Kant is an ideology that places moral value on the

motivations between our actions and their potential for universalisation rather than the

consequences of the act itself In this chapter the core principles of the Kantian framework will be

explained identifying the process of determining the morality of our actions through the tests of

generalisation and universalisation Additionally the chapter will also be addressing various

criticisms issues and shortcomings of the Kantian approach to ethics and morality such as the

possibility of the framework allowing for any maxims to be moralised with the right phrasing

31 The Core Ideas

The idea of autonomy is at the core of Kantian ethics arguing that each individual can (and should)

make their own decisions without any external interferences to guide or coerce them (Bennet C

2010 p75) As such Kantianism argues for the presence of free will meaning human beings are

accountable for the choices they make and the actions they subsequently carry out and that

everyone capable of reasonable thinking has the potential to act in accordance to the moral law

However while humans are generally considered to be rational beings it does not mean that they

will behave in a rational manner at all times but rather that they have the capability of doing so

According to Kant this is what separates humans beings from animals as they are only capable of

operating under negative freedom through reacting to their impulses and instinct unable to

question or evaluate the situation in ways human beings are able to (Bennet C 2010 p76) As such

rational beings are the embodiment of morality as the moral law is that of reason (Rachels J 1986

p1) which is why Kant argued that humans must never be treated as the means to an end but

should instead be the end itself (BBC 2014)

Nevertheless being a rational agent capable of recognising reasonable actions from unreasonable

ones thus acting outside of the realms of negative freedom and moving into what is known as

positive freedom does not ensure that onersquos actions are good or moral These are simply

requirements to qualify as an agent that is capable of acting morally not an insurance that actions

carried out by such an agent will be moral or reasonable Instead Kant argued that moral acts are

identified through their motivations stating that ldquoif duty is the key element in our decision to act

then we have acted rightlyrdquo (BBC 2014) because ldquoan action done from duty has its moral worth

not from the results it attains or seeks to attain but from a formal principle or maxim ndash the principle

of doing ones duty whatever that may berdquo (Paton H J 1969 p20) In this case the meaning of

6

duty is equal to acting in reverence to the moral law as Kant argues that morality and its rational

requirements can be translated into rules or that dictates how we should act (Bennet C 2010

p83) These moral rules are divided into two separate groups being hypothetical and categorical

however only categorical can result in a moral law This is due to hypothetical making it possible

for an individual to claim they are an exception to the rule which is unreasonable as moral laws

must apply to everyone without exception (Bennet C 2010 p83) This means that a maxim such

as do not lie unless you want to be considered untrustworthy or even an innocent maxim such as

bring an umbrella unless you want to risk getting wet would be fallible and immoral according to

Kant as they do not apply to individuals that are willing to face the consequences related to these

acts

To be able to establish whether ones actions are moral or not one must therefore be able to apply it

without failure to everyone This is a process known as universalisation which questions the agent

to ldquonever act except in such a way that [they] can also will that [their] maxim should become a

universal lawrdquo (Paton H J 1969 p22) meaning that the morality of an act is determined through

establishing its possibility to be enforced at least hypothetically as a law applying to everyone

unconditionally Ascertaining whether an act can be universalised requires the use of two tests

known as the tests of generalisation and universalisation A maxim must therefore

be able to be generalised without becoming contradictory or illogical as a result to then be

applicable as a universal law governing everyone without exceptions without resulting in an

unappealing or chaotic outcome (Garret J 2006) As ldquoKant believes that someone who violates the

moral requirements is being irrationalrdquo (Bennet C 2010 p82) one should therefore not act on a

maxim that is unable to pass both the test of generalisation and universalisation as this would result

not only in acting immorally but also irrationally

32 Criticisms and Issues

Like any other philosophical or ethical theory the Kantian approach is not devoid of imperfections

and both the original theory and contemporary interpretations have faced criticisms for everything

from structure and implementation to the actual usefulness of the theory However in her book

Bounds of Justice Onora ONeill (2000) identifies that the criticisms of Kantian theories tend to fall

into three different groups of categories (p67) all of which will be explored within this section of

the chapter

The first of these categories identified by ONeill (2000) is that Kant fails to acknowledge the

importance that human relationships and emotions might have on our moral reasoning (p67) An

7

issue that is also identified by Bennet (2010) stating that ldquoit certainly seems a large gap in a moral

theory that it has nothing to say about how pain and suffering makes acts wrongrdquo (p88) Because

while many actions that might cause pain and suffering to others generally cannot be justified using

the categorical imperative they are not dismissed for the right reasons (Bennet C 2010 p88) as

ldquouniversal rules require us to overlook and [hellip] neglect the fragility mutual vulnerability social

embeddedness and constitutive loyalties of real peoplerdquo (ONeill O 2000 p67) As human beings

are not cold calculative and emotionless robots this is an obvious flaw within Kants frameworks

because in order to act morally one needs to be able to completely disregard the feelings of other

people

Furthermore due to the lack of consideration for human emotions and relationships Kant has

simplified the very complex issue of moral theory (ONeill O 2000 p 67) often resulting in very

bizarre contradicting or even worrying results Because utilising the categorical imperative for

moral guidance might result not only in allowing obviously immoral actions to be universalised but

also preventing other harmless acts of kindness such as opening the door for someone else from

being morally justified (Bennet C 2010 p86) It should be obvious to a normal reasonable human

being that there is nothing wrong or immoral about holding the door open for someone else yet

through the implementation of Kantianism such an action cannot be justified due to it being unable

to pass the test of universalisation Showing that the Kantian approach struggles to encompass all

actions regardless of their significance importance or size in a reasonable manner

It should also be noted that the Kantian framework can also produce situations where the agent will

be acting immorally no matter what they do Bennet (2010) utilises an example of noticing a child

in the process of drowning while on the way to class and even though we have a duty to help others

according to Kant the option of not helping can also be moralised in this scenario as the agent will

adhere to the maxim of getting to class on time (p86-87) This leads to the final category of

critiques against Kant and Kantian ideologies as identified by ONeill (2000) which states that it is

a theory ldquodesigned for abstract individuals [hellip] leading to abstract conclusions that are irrelevant to

real people who lead real livesrdquo (p 67) It is possible that this abstract nature of the theory could be

due to Kants failure to provide a proper guideline stating how our actions should be explained in

order to properly calculate their ethical value through the tests of generalisation and universalisation

Because with the manner in which the Kantian framework is designed there is a possibility that

ldquoany action could pass it simply by being re-describedrdquo (Bennet C 2010 p87) The Kantian

framework is therefore in need of some kind of notes for guidance that provides an explanation for

how one is to distinguish correct descriptions of ones actions from incorrect ones

8

Chapter 4

PACE A Brief Introduction

The following chapter will be providing a brief introduction to the Police and Criminal Evidence

Act 1984 and its associated Codes of Practice Providing a basic understanding of the legislations

history and purpose in addition to some criticisms of the act and issues that has developed as a

result of its development As such this chapter alongside with chapter 3 provides a foundation for

the following chapters where specific parts of the legislation will be explored more thoroughly in

addition to being analysed through the Kantian frameworks for ethics

41 Background

Policing in England and Wales is nowadays comprised of a tough balancing act where ldquothe interests

of the community and the rights of the individualrdquo (Royal Commission undated cited by Zander

2011 p3) must be taken into account while also maintaining public order In addition to being

required to evaluate to what extent they may infringe upon civil liberties to do their job the police

is also under constant public scrutiny This means that any infringement upon the rights of an

individual that cannot be justified by the Police and Criminal Evidence Act 1984 the Human Rights

Act 1998 or other pieces of legislation can have dire consequences for the police Such

infringements can result in lawsuits against the police or rendering evidence inadmissible in court

as was seen in the case of R v Miller (1993) where the confessions from the suspects were rendered

inadmissible due to hostile and oppressive questioning by police However while it is noted that

infringement of civil liberties should be avoided and the rights of the public should be respected it

is also identified in Article 5 of the European Convention of Human Rights that there are

circumstances when the police and the criminal justice system must be granted the power to

lawfully infringe upon these (Council of Europe 2010 p7) Because without these exceptions legal

and justice systems would no longer function as criminal justice cannot function if the rights of the

individual is to be respected at all times

While there is a need for the police and criminal justice system to infringe upon the rights of

individuals there must be sanctions that govern to what extent these rights can be infringed upon

and under what circumstances As mentioned above article five of the European Convention of

Human Rights provides a good starting point but as it must be applicable to the state legislature of

all member states of the European Union it is far too general and leaves plenty of gaps to fill in

This is where the Police and Criminal Evidence Act 1984 and its corresponding Codes of Practice

comes into play as these help with outlining the provisions for the polices ability to infringe upon

9

the civil liberties of the public It was introduced following some cases of gross police misconduct

that had come to light causing miscarriages of justice of several high-profile cases which put a

strain on the relationship between the police and the public One such case included the R v

McIlkenny and others (1991) more famously known as the Birmingham Six where six innocent

men were wrongfully convicted as a result of police officers having beaten witnesses to obtain

satisfactory statements in addition to distorting forensic evidence (The Economist 1990) The

Police and Criminal Evidence Act 1984 and the associated Codes of Practice was introduced in an

attempt to remedy this through providing guidelines for how evidence was to be obtained legally

how suspects and detained persons were to be treated how and when certain police powers could be

legally enforced as well as providing the criminal justice system with transparency and

accountability (Fahy P in Ozin P Norton H and Spivey P 2013 pv)

Through its introduction the Police and Criminal Evidence Act 1984 and its corresponding Codes of

Practice drastically changed the manner in which policing was carried out causing a bit of a

culture shock for some officers that were threatened by the new developments (Wilding B

undated in Cape E and Young R 2008 p127) As there were suddenly demands being put on

officers that did not exist previously in addition to clear frameworks dictating what kind of

behaviour was deemed acceptable All to ensure that investigations were carried out both

objectively and with integrity two elements which are important to maintain public confidence in

the police force (Wilding B undated in Cape E and Young R 2008 p127) However while the

drastic changes might have come as a shock to some officers it is now common practice and

heavily ingrained to the very core of policing Additionally while the Act generally focuses on the

protection of the suspects victims and witnesses it simultaneously provides the police with

safeguards to avoid suspicion of unlawfully acquired evidence as everything from physical

evidence to verbal or written confessions must be recorded and processed in detail (Police and

Criminal Evidence Act 1984 sNUMBER sNUMBER) ensuring that the police runs a lower risk of

being unjustly accused of foul play

32 Critiques and Issues

While the Act and the Codes of Practice has played a significant part in making the police ldquomore

accountable in terms of performance and standards than virtually any other public bodyrdquo (Wilding

B undated in Cape E and Young R 2008 p130) as well as supposedly having ldquoushered in new

ethical standards for the servicerdquo (Wilding B undated in Cape E and Young R 2008 p127) It

has been subjected to a significant amount of criticism from non-governmental organisations such

as Liberty members of the police itself and academics scrutinising everything from how the Act

10

takes the police off the streets and placing them behind desks to carry out extensive amounts of

paperwork (Wilding B undated in Cape E and Young R 2008 p127) to questioning whom the

Act is really favouring (Benz S 2010) Furthermore the actual contents of the Act and the Codes of

Practice has been criticised in particular the Acts first part concerning stop and search (see chapter

5) resulting in a large number of edits and moderations to remedy these and provide a better

balance between the police and the rights of the public

11

Chapter 5

Reasonable Suspicion

While the Police and Criminal Evidence Act 1984 provides the police with guidelines for how and

when they may use their powers to infringe upon civil liberties these are not enough to ensure that

policing is carried out correctly in accordance to the act The Act must therefore be read alongside

the Codes of Practice as these further explain the limitations of the powers in addition to the

requirements that must be fulfilled in order for an officer to implement them One such requirement

that is found repeatedly throughout the Act and the Codes of Practice is the need for an officer to

have reasonable grounds for suspecting that the person(s) of interest are doing have done is about

to do or is in possession of something illegal (Police and Criminal Evidence Act s1(7)-1(9)

s3(1)(a)-3(1)(d)) This requirement is one that has been subjected to some controversy and scrutiny

especially in connection to the power of stop and search (addressed below) as it is often described

in very vague or broad terms often making it unclear what exactly constitutes appropriate grounds

for reasonable suspicion Additionally it should also be noted that the appropriate grounds for

suspicion might differ slightly from one section of the Act to another making it important to

separate these definitions from each other when studying them as they may all have their own

interpretations definitions regulations and issues However as this research explores the ethical

implications of reasonable suspicion in relation to stop and search it must be acknowledged that the

results may not be applicable to sections of the Police and Criminal Evidence Act 1984 and Codes

of Practice concerning other police powers

51 Reasonable Suspicion and Stop and Search

In the first part of the Police and Criminal Evidence Act 1984 it is identified that an officer cannot

stop and search an individual unless they have reasonable grounds for suspecting that any stolen or

prohibited articles listed under s1(7)-1(9) of the Act will be found on their person (s1(3) Police and

Criminal Evidence Act 1984) That being said there are many limitations placed upon what may

constitute a reasonable ground for suspecting that prohibited or stolen articles will be found on the

person(s) (Codes of Practice A s22) and that these can differ depending on the circumstances of

each case [Ozin P et al 2013 p4] However while suspicion might be raised for different reasons

in each case the Code emphasises that suspicion may never be based on personal factors

stereotypes or generalisations (Codes of Practice A s22) Nor may it be ldquoprovided retrospectively

by [hellip] questioning during a persons detention or by refusal to answer any questionsrdquo (Codes of

Practice A s29) Instead it is stressed that suspicion should have an objective basis derived from

known facts and information (Codes of Practice A s22)

12

Whether these demands put on officers by the Codes of Practice A to establish objective grounds

for suspicion are followed is questionable though At least when taking into consideration that the

sections of the Police and Criminal Evidence Act 1984 and the Codes of Practice concerning stop

and search has been subjected to heavy criticism mainly due to the disproportionate amount of

members from minority ethnic groups being searched in comparison to Caucasians Because even

though the Codes of Practice A does identify that there are situations where reasonable grounds for

suspicion might exist without the need for known facts or information such as initiating searches

based on an individuals behaviour or body language (Codes of Practice A s23) it does not explain

why black people are up to ldquosix times more likely to be stop[ped and] searched than would be

expected based on their numbers in the general populationrdquo (Bowling B and Phillips C 2007

p958) Nor does it explain how the recorded stops and searches of Asians since the mid-nineties

have remained between 15 and 25 times higher than those of Caucasians (Equality and Human

Rights Commission 2010 p13) These are worrying statistics that raise questions as to whether the

guidelines provided by the Police and Criminal Evidence Act 1984 and the Codes of Practice are

sufficient in order to ensure that this power is used appropriately and fairly Because even though

non-Caucasians are stopped and searched more frequently arrests following searches are distributed

quite evenly across all ethnic groups (StopWatch 2014)

There is a possibility that this targeting of minority ethnic groups could be a direct result of the

socio-economic conditions that traps many families from poor neighbourhoods in a cycle of poverty

and disadvantage (Joseph I and Gunter A 2011 p3) Especially as it has been found that these

groups often respond ldquoto their powerlessness with frustration rage and the creation of alternative

social and cultural values that promotes and normalizes gang membership and violencerdquo (Joseph I

and Gunter A 2011 p3) Due to the normalisation of such behaviour this could provide an

explanation to why some disproportionality might exist as the Codes of Practice provides an

exception to searches based on physical appearance when it is related to gang culture stating that

ldquowhere there is reliable information or intelligence that members of a group or gang

habitually carry knives unlawfully or weapons or controlled drugs and wear a

distinctive item of clothing or other means of identification to indicate their

membership of the group or gang that distinctive item of clothing or other means

of identification may provide reasonable grounds to stop and search a personrdquo

(Codes of Practice A s26)

13

However while this provision could support the existence of some disproportionality it does not

disprove that minority ethnic groups are being targeted by the police nor does it provide a

reasonable explanation to why blacks are being six times more likely to be subjected to a stop and

search This means there is a risk that this section of the Codes of Practice is being used by police

to maliciously target ethnic minority groups by stereotyping them as more likely to be involved

with criminal gangs

52 Reasonable Suspicion Stop and Search and Morality

While statistics and studies show that stop and search is used disproportionally and suggests that

individuals belonging to minority ethnic groups are being targeted by the police it does not mean

that the power itself nor the legislation governing it is unethical Because even though they tend to

overlap ldquothere is no necessary connection between law and moralsrdquo (Hart H L A 1958 cited by

Green L 2012 in Hart H L A 2012 pxxxiii) as the law applies to everyone unconditionally

while moral only applies to those that sympathise with the ideologies in question Kantian ethics

however arguing that one should do the right thing because of it being right views morality as a

supplement to the law (Zupancic A 2000 p16) therefore ensuring that we are not only doing what

is right but that we are also doing it for the right reasons (Sandel M 2011) Which from Kants

viewpoint is synonymous to acting out of duty which as established in Chapter 3 means that

onersquos actions must be converted to those that are able to pass the tests of generalisation and

universalisation As such one must convert the sections of the Police and Criminal Evidence Act

1984 and its associated Codes of Practice concerning stop and search into an order to establish

whether it is ethical

However while the Police and Criminal Evidence Act 1984 identifies that reasonable suspicion is

necessary in order to conduct a stop and search one cannot simply create a maxim stating that

police officers can stop and search anyone they reasonably suspect is carrying illegal or stolen

items Because even though this maxim does provide an accurate description of the necessary

requirements to perform a stop and search it is far too broad Such a maxim does not place a limit

upon what the suspicion might be based on resulting in a possibility for officers to target certain

groups of people based on prejudice or stereotypes Therefore such a maxim can neither be

generalised nor universalised meaning it would be considered entirely unethical by Kantian

principles However by using the guidelines and limitations of reasonable suspicion presented in

the Codes of Practice A that were identified earlier in this chapter this maxim can be broken down

into three separate parts These being

14

police officers may stop and search individuals for illegal or stolen items if it is in

accordance with known facts and information and they believe that such items will be found upon

searching the person

police officers may stop and search individuals acting in an obviously suspicious manner for

illegal or stolen items but only if they suspect that such items will be found upon searching the

person and

police officers may stop and search individuals based on articles of clothing piercings

andor tattoos if these are known to be worn by members of a gang(s) that are known to carry

illegal or stolen items and only if the police suspects that such items will be found upon searching

the person

These provide a much more limited and concentrated approach to the attempted moralisation of the

polices power to stop and search individuals for prohibited or stolen articles Because unlike the

previous maxim these are not only limiting what the basis for suspicion might be but also limiting

when the power itself may be enforced As such the likelihood of these being able to pass the tests

of generalisation and universalisation are increased

521 Generalisation and Universalisation

In order to accurately establish whether acts are moral they must pass the tests of generalisation and

universalisation as Kant believed that moral acts were ones that could be applied to everyone as a

universal law without becoming contradictory or illogical (see chapter 3) However as these deal

with police powers and Kant argued that acts must be applicable to everyone without exception

these will also be examined using Singers generalisation principle because it would be illogical for

such powers to be implemented by everyone Singers generalisation principle makes it possible to

bypass this issue as it argues that ldquowhat is right (or wrong) for one person must be right (or wrong)

for any similar person in similar circumstancesrdquo (Singer G M undated cited by ONeill O 2013

p78) Additionally this approach puts a utilitarian twist on Kants frameworks as it determines

morality based on the consequences of onersquos actions (ONeill O 2013 p79) rather than the

motivation behind them As such this test functions as a middle ground between the tests of

generalisation and universalisation ensuring that the generalised maxim does not cause an illogical

or chaotic result in addition to limiting the generalised maxim from anyone that is not a member of

the police service Analysing the maxim using these tests therefore requires them to be studied

individually so that they can be dissected and examined more closely

Looking at the first of the three maxims created using the guidelines and limitations of reasonable

15

suspicion as identified by the Codes of Practice A it can be established that it is comprised from

three different elements Namely

the police may only search for illegal or stolen items

the police may only search an individual based on known facts and information and finally

the police may only search the individual if they believe illegal or stolen items will be found

Attempting to generalise any of these elements of the maxim individually would not be reasonable

as they do not provide enough limitations or guidelines for it to be functional Because the first part

allows the police to search anyone for illegal or stolen items without the necessity of a suspicion

that any such items will be found which would result in a police state where the police could search

anyone they please The necessity of believing that illegal or stolen items will be found upon

conducting a search is added by the third element of the maxim but there are still no requirements

for the police to have any kind of reasonable basis for their decision to stop and search someone as

this is added by the maxims second element However this element cannot be moralised on its own

either as it does not specify what the police may search for However when all three elements of

the maxim are combined all necessary limitations are present meaning the generalisation of it

should not produce a contradictory or illogical result

However passing the test of generalisation does not mean that the maxim is ethical as it must also

be universalisable Meaning it should be able to be enforced as a (hypothetical) law that applies to

everyone unconditionally As the maxim places a requirement on the police to only stop and search

individuals if they have a factual basis for their suspicion to find illegal or stolen items upon

searching the person this should be a universalisable action Because assuming all police officers

were required to follow this maxim it would result in a world where only specific items may be

searched for if they have a factual reason to conduct the search and only if they believe that such

items will be found upon searching the person(s) As this would not produce any undesirable

consequences this maxim would not only pass Kants test of universalisation but also fulfil the

necessary criteria for Singers generalisation principle

This is essentially what the Police and Criminal Evidence Act 1984 and the Codes of Practice A

seeks to do meaning that if the guidelines were followed by the police unlawful stops and searches

should not occur However since there are more aspects to the laws that govern the polices power

to stop and search individuals for illegal or stolen items such as searches based on suspicious

behaviour or searches of suspected gang members other aspects must be explored as well before

16

declaring whether it is ethical or not For this reason the two additional maxims (mentioned earlier)

are needed and must therefore be tested as well As these maxims can be implemented in such

situations by the removal of the need for a factual basis for suspicion and replacing it with either

the possibility to

search individuals acting in an obviously suspicious manner or

search individuals based on clothing piercings andor tattoos if these are known to be worn

by members of gangs that are known to carry illegal or stolen items

As with the various elements of the maxim analysed previously these are also unable to be

moralised individually Because the first of the two does not specify what may be searched for and

neither of the sections specify that the police should expect to find illegal or stolen items upon

stopping and searching an individual As such neither of these elements can function as a maxim on

their own as they are illogical and can neither be generalised nor universalised However when

these are combined with the other elements of the maxims these issues should be resolved thus

passing Kants test of generalisation

Universalising these maxims is a bit more problematic than the one analysed previously through

For example with the first of these two maxims police officers would be enforced to stop and

search anyone that is acting in an obviously suspicious manner for illegal or stolen items if they

believe any such items will be found upon searching them The phrase behaving in an obviously

suspicious manner is a bit of an issue here as there is no definition available as to what can be

classified as such However a reasonable person would probably equate behaving in an obviously

suspicious manner to trying to hide something which is used as an example in the Codes of

Practice A s23 It could therefore be worth substituting the phrase behaving in an obviously

suspicious manner with trying to hide something as this would be more specific However by

doing this the maxim would become much more limited as it would no longer allow individuals

behaving suspiciously in other ways to be searched Nevertheless should this interpretation be used

the likeliness of the maxim passing the test of universalisation might be increased as the likeliness

of it producing a chaotic result would decrease Additionally implementing such an interpretation

would also make it more likely for the maxim to pass Singers generalisation principle As the

conduction of stops and searches of people that are obviously trying to hide something is less likely

to produce an undesirable outcome in comparison to searching anyone acting suspiciously

Finally the universalisation of the third and final of the maxims would enforce the police to stop

17

and search anyone dressed or in any other ways being physically identifiable as a possible member

of a gang known to carry illegal or stolen items if they believe any such items will be found upon

searching them As with the maxim analysed above there are issues related to universalising this

maxim due to the possibility of it causing certain people to be targeted because of the clothes they

wear or any piercings or tattoos on their body being related to or similar to ones connected to a

criminal gang Universalising this maxim could therefore worsen an already prevalent issue where

innocent members of the public get their civil liberties infringed upon due to their personal style

especially as the maxim allows quite a broad range of items accessories and body art to be used as

an indicator for suspicion In a study by Jackson and Smith (2013) the experiences of young people

from London that had been subjected to stop and search was surveyed where the participants

identified what kind of clothing might fit the criteria of being a presumed gang member It was

suggested that ldquoemulating American hip hop artists by wearing low-slung jeans hoodies and

branded trainers and walking and talking in a certain wayrdquo (p6) was stereotyped by the police as

gagster behaviour and dress The same study also identified an experience that was shared by one

of the participants whom stated that ldquoThey just say youre in a drug infested area and youve got a

hood on so were stopping and searching yourdquo (Jackson L and Smith L 2013 p6)

Taking this into consideration it can therefore be seen that the universalisation of a maxim asking

the police to stop and search anyone perceived to be involved with a criminal gang for illegal or

stolen items could result in a form of criminalisation of the hoodie and other specific pieces of

clothing as these are stereotyped as being related to gang membership This would be problematic

as the hoodie in particular is a comfortable and often affordable piece of clothing that is a staple in

the wardrobes of many of societys subcultures such as emos and skaters that are generally not

stereotyped as criminals (Braddock K 2011) As such it can be established that neither Kant nor

Singer would be able to universalise this maxim as having officers search anyone wearing specific

clothes would neither be reasonable nor produce any desirable consequences

522 Issues

While two out of three of the different maxims appear to be moral in the eyes of Kant there are still

some issues relating to them which must be acknowledged Primarily there might be an issue with

these maxims being too specific as it has been noted that ldquoany maxim that is highly restricted is

likely to pass the universalisability testrdquo [Guyer P 2007 cited by Perold L M 2010 p19]

because the more descriptive a maxim is the less likely it is that it would become contradictory As

all of the maxims created from the Codes of Practice A are highly restrictive specifying who may

carry out the act under what circumstances they may carry it out and the limitations of the actions

18

itself Additionally as noted earlier in this chapter the maxims cannot be made more general either

as this would prevent them from being moralised this means that there is a risk of these maxims

passing the tests of universalisation and generalisation simply because of their overly descriptive

nature rather than actually being moral

There might also be an issue with the phrasing of the maxims specifically the use of the term

police officers as this might cause some uncertainties regarding exactly who the maxim applies to

Because by using the term police officer or even police it becomes questionable if an officer must

be in uniform in other words his or her position as a police officer is overt when carrying out the

search However since these maxims need to be exclusive to the police it could be hard to bypass

this issue without adding yet another specification to it that clarifies whether there is a need for the

officer to be in uniform or not

Finally there could also be an issue of the maxims conflicting with each other as the first of the

maxims states that the decision to stop and search someone needs to be in accordance with known

facts and information Something that might not be available when a stop and search is made

utilising the second or third maxim as these can be initiated without a need of known facts or

information This raises a question to whether one of the maxims would naturally take precedence

over the others as all three maxims regarding stop and search can never operate at the same time

Generally Kantianism argues that when one is faced with opposing maxims the perfect duty will

always take precedence over an imperfect one (Stohr K 2010 p3) However as all of the maxims

are addressing what is essentially the same action being the possibility to stop and search

individuals for illegal andor stolen items this could be problematic Furthermore while there are

three maxims identified within this study there also exists another fourth maxim which concerns

the possibility of not searching anyone for illegal or stolen items This fourth maxim is also

considered a perfect duty as it would generally be easier to universalise not searching people as

opposed to searching individuals fitting certain requirements This means that the maxim regarding

the omission to act would in this case take precedence over the other maxims identified within this

research essentially rendering them powerless

19

Chapter 6

Conclusion

From this study it can be seen that the legislation governing a heavily criticised police power such

as stop and search has the possibility to be morally justifiable by the ethical frameworks developed

by Kant Because while Kants ethical theory does not rectify or justify the issue of ethnic minorities

being subjected to a disproportionate amount of stops and searches in comparison to Caucasians it

is important to remember that the ldquolaw in theory and the law in practice differrdquo (Westmarland L in

Newburn T 2011 p255) Meaning that the moralisation of the legislation does not ensure that it

will be applied ethically by the police Additionally as Kantian ethics values the motivation behind

ones actions over the consequences produced from them the potential issues caused by ones actions

are irrelevant as long as the action itself can be universalised without producing a chaotic or

undesirable result

However as there are several layers to stop and search there are some implications to morally

justifying this power as it is multi-faceted Being designed to deal with a variety of different

situations and bases from which suspicion might arise to justify the stopping and searching of an

individual Because while Kantian ethics can ethically justify police officers to stop and search

individuals for illegal or stolen items if it is in accordance with known facts and information and

they believe that such items will be found upon searching the person this encompasses only one of

the many facets of the power As such the power cannot be justified as a whole as any maxim used

to describe it would not provide the necessary limitations needed for it to successfully pass the tests

of generalisation and universalisation

While the power cannot be moralised as a whole it is possible to create two additional maxims

using the limitations and exceptions to the necessity criteria of reasonable suspicion found in the

Codes of Practice A to create an additional two maxims These represent two additional facets of

stop and search being that

police officers may stop and search individuals acting in an obviously suspicious manner for

illegal or stolen items but only if they suspect that such items will be found upon searching the

person and

police officers may stop and search individuals based on articles of clothing piercings

andor tattoos if these are known to be worn by members of a gang(s) that are known to carry

20

illegal or stolen items and only if the police suspects that such items will be found upon searching

the person

However only the first of these two maxims can be justified utilising Kants ethical framework and

Singers generalisation principle because the latter cannot be universalised without becoming

unreasonable Furthermore the latter cannot be justified without providing further limitations

requiring the phrase acting in an obviously suspicious manner to be replaced by obviously hiding

something

From the issues presented from the creation of the two additional maxims above it can be

established that stop and search cannot be considered morally justifiable under all circumstances

Because different situations calls for different maxims meaning that should the search not be

initiated based on known facts or information it is unlikely to be ethical Nevertheless even though

all facets of this police power cannot be morally justified it does seem that the majority of them can

be considered ethical to some extent Meaning the legislation governing it is generally ethical but

as a whole it becomes a bit of a moral ambiguity This shows that the police power as identified by

the Police and Criminal Evidence Act 1984 and the Codes of Practice A has a potential to be

ethically justified with the exception of the section permitting searches where physical appearance

can be used as a basis for suspicion Additionally this research identified that the reasons for why

this particular section is not justifiable could also be part of the reason to the disproportionate

amount of searches of ethnic minorities As it might provide officers maliciously targeting

minorities with a possibility to justify their actions by claiming a particular article of clothing body

art or similar was the reason for the stop

As such it can be established that the legislation governing the polices power to stop and search

individuals for prohibited or stolen articles cannot be fully moralised as not all sections of the

Police and Criminal Evidence Act 1984 or the Codes of Practice A concerning this power can be

ethically justified However while the legislation as whole is morally ambiguous at best the

searches conducted with factual information as a basis for suspicion suggests that the sections of the

legislation addressing this type of search cannot be implemented in an unethical manner Because as

the universalised maxim requires the police to act in a manner promoted by the Act and Codes this

shows that any unethical searches carried out using this type of search are caused as a result of

police misconduct rather than an actual issue with the legislation

21

However it should be noted that this research can only provide a limited account of the morality of

this police power as it has only explored it through the limitations put upon it through the necessity

requirement of reasonable suspicion Additionally it can only account for the morality of the

sections of the Police and Criminal Evidence Act 1984 and the Codes of Practice A addressing this

particular police power and only through the limitations explored within this research Finally it is

also important to recognise that the police power has only been analysed using a Kantian approach

to ethics and morality This means that further studies of the police power and indeed the Act and

Codes in general are needed in order to provide a more accurate account of the morality and ethical

issues present It is therefore suggested that additional research should be carried out to study the

legislation governing the power of stop and search utilising other ethical theories or utilising

Kantian ethics with a different focus point of the legislation

However while further research is needed in order to gain a more accurate account of the overall

morality of the police power and the legislation governing it it does not mean the research

presented in this paper is of any less value Because even though the study can only provide a

limited account of the legislations morality it has succeeded in presenting the probabilities for the

moral justification of the Acts first part along with the associated Codes of Practice as well as

identifying that the issues connected to the Act may be caused primarily by the polices failure to

accurately conduct stops and searches according to the law Meaning the research has produced

some valuable results in addition to providing a stepping stone for further research on the topic

22

Bibliography

BBC [2014] Duty-Based Ethics Available at

httpwwwbbccoukethicsintroductionduty_1shtml [Accessed 20-03-2014]

Benz S [2010] ldquoThe Police and Criminal Evidence Act 1984 balancing civil liberties and public

securityrdquo Diffusion 5(2) Available at httpatpuclanacukbuddypressdiffusionp=1255

[Accessed 25-04-2014]

Bowling B and Phillips C [2007] Disproportionate and Discriminatory Reviewing the Evidence

on Police Stop and Search Oxford Blackwell Publishing p958 httpwwwstop-

watchorguploadsdocumentsmodern_law_reviewpdf

Braddock K [2011] ldquoThe Power of the Hoodierdquo The Guardian Available at

httpwwwtheguardiancomuk2011aug09power-of-the-hoodie [Accessed21-04-2014]

Codes of Practice A

Council of Europe [2010] European Convention on Human Rights Strasbourg European Court of

Human Rights p 7 Available at httpwwwechrcoeintDocumentsConvention_ENGpdf

[Accessed 09-03-2014]

The Economic and Social Research Council [2012] Frameworks for Research Ethics Swindon

Economic and Social Research Council pp2-3 3 Available at

httpwwwesrcacuk_imagesframework-for-research-ethics-09-12_tcm8-4586pdf [Accessed 01-

04-2014]

The Economist [1990] End Game Available

athttpgogalegroupcompsidoid=GALE7CA9390713ampv=21ampu=uceampit=rampp=SPJSP0

0ampsw=wampasid=f6f778fcf0a20b3f0f18df5e20a57f27 [Accessed 19-03-2014]

Fahy P [undated] ldquoForewordrdquo In Ozin P Norton H and Spivey P [2013] PACE ndash A Practical

Guide to the Police and Criminal Evidence Act 1984 3rd

Edition Oxford Oxford University Press

p v

Flick U [2011] Introducing Research Methodology London Sage p 125

Garret J [2006] Kants Duty Ethics Available at

httppeoplewkuedujangarrettethicskanthtm [Accessed 20-03-2014]

Govuk [2013] Guidance Police and Criminal Evidence Act 1984 (PACE) Codes of Practice

London Home Office Available at httpswwwgovukpolice-and-criminal-evidence-act-1984-

pace-codes-of-practice [Accessed 02-04-2014]

Guyer P (2007) cited by Perold L M [2010] Does Immanuel Kants Categorical Imperative

Commit Him to the View that Lying is Always Morally Wrong Master of Arts thesis University of

the Witwatersrand p 19 Available at

httpwiredspacewitsaczabitstreamhandle1053910096M20Perold20Research20Reportp

dfsequence=2 [Accessed 24-04-2014]

2

individuals for stolen or prohibited items This is a police power that has been subjected to a

substantial amount of criticism mainly due to the disproportionate number of searches of ethnic

minorities in comparison to Caucasians which raises some questions regarding the legitimacy and

morality of the power

Utilising the ethical frameworks of Immanuel Kant (1724-1804) the morality of the Police and

Criminal Evidence Act 1984 and the Codes of Practice will be analysed by converting sections of

the Act and Codes into maxims Which are descriptions of the acts that are used to determine their

ethical and moral value by subjecting them to various tests Primarily the research will employ

Kants original frameworks which question the universalisability of onersquos actions as moral actions

are ones that could be enforced as a universal law applying to everyone unconditionally

Additionally this research will be utilising the generalisation principle developed by Marcus Singer

which is an approach that places a utilitarian twist upon Kants idea of universalisation Because

while Kant argued that it is the motivation behind the act that determines whether it is moral or not

Singer is more interested in the consequences caused by the act Meaning the maxims created from

the Act and the Codes of Practice will be analysed using two different approaches to

universalisation with differing opinions as to which component of the act determines its moral

worth By conducting such an analysis this research hopes to provide some insight regarding the

morality of a very controversial part of the Police and Criminal Evidence Act 1984 as it will not

only take into consideration the consequences of the actions granted by the Act but also the

motivation behind them

3

Chapter 2

Methodology

While primary sources could arguably create more current and relevant results than secondary

sources might be able to (McQueen R and Knussen C 2002 pp83-85) due to them being

acquired personally through fieldwork interviews or observational studies the following study is

entirely literature based Utilising secondary research sources such as books legal documents and

academic journals in addition to various electronic and online resources drawing conclusions from

the information found within these It is acknowledged that research using secondary data struggles

to produce results that are current as ldquothe time factor involved in collecting and analysing primary

data means that some social survey data are out of date by as much as a year before the secondary

analyst gets hold of itrdquo (McQueen R and Knussen C 2002 pp84-85) Additionally there is an

overarching issue regarding bias when dealing with secondary sources as ldquophotos texts and

statistics have their own structure that is often strongly influenced by who produced them and for

what purposerdquo (Flick U 2011 p125) and ldquothe validity of information may vary markedly from

source to source ldquo (Kumar R 2011 p164) As such all sources must be viewed critically as to

ensure that any personal biases of the writer(s) will not interfere with the overall results of the

findings Something that becomes especially important if the information was found in a newspaper

or certain web-resources (such as blogs) as ldquothese writers are likely to exhibit less rigorousness and

objectivity than one would expect in research reportsrdquo (Kumar R 2011 p164)

However while there are many issues connected to undertaking research based on secondary

sources it should be noted that neither primary nor secondary data ldquoprovides 100 per cent accurate

and reliable informationrdquo (Kumar R 2011 p139) Additionally it must also be considered that

certain research topics are less compatible with certain research approaches than others as in this

case where an ethical analysis of specific sections of a legal statute is carried out Meaning

interviews and other primary research approaches would struggle to produce results that are

accurate and relevant Furthermore certain issues identified above with the utilisation of secondary

sources for research would be less of an issue in this case due to the nature of the sources studied

These being a legal statute the Police and Criminal Evidence Act 1984 and the Codes of Practice

and the philosophical and ethical theories developed by Immanuel Kant Because even though

Kants ideas originated over one hundred years ago these ideas are still applicable and relevant

when studying Kantianism Moreover the legal statute that this framework will be applied to uses

its most recent edition of the law which can easily be accessed through government websites

Meaning there should not be an issue with keeping the research current and relevant

4

It should also be noted that literature based research also benefits in ways that research based on

primary sources does not considering that the field of criminology often deals with sensitive topics

and people such as illegal activities and the abused (Westmarland L 2011 p141) Meaning there

are plenty of ethical pitfalls one must avoid when conducting research within this field especially

when using primary sources for the research However regardless of conducting research using

primary or secondary resources any research proposition must adhere to the six key principles of

ethical research (see Appendix 1) Most of the ethical issues identified within these principles are

related to peer-based research though meaning a literature based research is more likely to be

justified ethically than research using primary sources This due to the lack of participants involved

in the research whose emotions consent and wellbeing must be taken into consideration nor should

the researcher themselves be at risk because of the research (Economic and Social Research Council

2012 pp2-3)

However while the literature based method avoids most of the major ethical concerns this

particular piece of research might be subjected to some ethical scrutiny because of the manner in

which it is being carried out Because as the research only utilises the Kantian approach to morality

in addition to only analysing a specific part of the Police and Criminal Evidence Act 1984 and its

corresponding Codes of Practice it might produce some questionable results As such the research

is at risk of being perceived as being biased aiming to obtain certain results by only studying a

selected part of the legislation using a single ethical framework Nonetheless in the Frameworks for

Research Ethics provided by the Economic and Social Research Council (2012) it is stated that ldquothe

independence of research must be clear and any conflicts of interest or partiality must be explicitrdquo

(p3) So while the research might produce results that could be considered biased or partial for the

above reasons this is something that has been acknowledged and addressed before the start of the

research as can be seen in the Ethics Approval Form (see Appendix 2) As such the potential for the

research questioned due to only analysing a select part of the legislation and Codes of Practice

using only one perspective of morality has been addressed explicitly Additionally it is also

acknowledged that other results regarding the morality of the Police and Criminal Evidence Act

1984 and the Codes of Practice might be achieved by utilising a different ethical framework by

studying different sections of the Act or by analysing the Act and Codes of Practice as a whole

5

Chapter 3

Kantian Ethics

The ethical framework developed by Immanuel Kant is an ideology that places moral value on the

motivations between our actions and their potential for universalisation rather than the

consequences of the act itself In this chapter the core principles of the Kantian framework will be

explained identifying the process of determining the morality of our actions through the tests of

generalisation and universalisation Additionally the chapter will also be addressing various

criticisms issues and shortcomings of the Kantian approach to ethics and morality such as the

possibility of the framework allowing for any maxims to be moralised with the right phrasing

31 The Core Ideas

The idea of autonomy is at the core of Kantian ethics arguing that each individual can (and should)

make their own decisions without any external interferences to guide or coerce them (Bennet C

2010 p75) As such Kantianism argues for the presence of free will meaning human beings are

accountable for the choices they make and the actions they subsequently carry out and that

everyone capable of reasonable thinking has the potential to act in accordance to the moral law

However while humans are generally considered to be rational beings it does not mean that they

will behave in a rational manner at all times but rather that they have the capability of doing so

According to Kant this is what separates humans beings from animals as they are only capable of

operating under negative freedom through reacting to their impulses and instinct unable to

question or evaluate the situation in ways human beings are able to (Bennet C 2010 p76) As such

rational beings are the embodiment of morality as the moral law is that of reason (Rachels J 1986

p1) which is why Kant argued that humans must never be treated as the means to an end but

should instead be the end itself (BBC 2014)

Nevertheless being a rational agent capable of recognising reasonable actions from unreasonable

ones thus acting outside of the realms of negative freedom and moving into what is known as

positive freedom does not ensure that onersquos actions are good or moral These are simply

requirements to qualify as an agent that is capable of acting morally not an insurance that actions

carried out by such an agent will be moral or reasonable Instead Kant argued that moral acts are

identified through their motivations stating that ldquoif duty is the key element in our decision to act

then we have acted rightlyrdquo (BBC 2014) because ldquoan action done from duty has its moral worth

not from the results it attains or seeks to attain but from a formal principle or maxim ndash the principle

of doing ones duty whatever that may berdquo (Paton H J 1969 p20) In this case the meaning of

6

duty is equal to acting in reverence to the moral law as Kant argues that morality and its rational

requirements can be translated into rules or that dictates how we should act (Bennet C 2010

p83) These moral rules are divided into two separate groups being hypothetical and categorical

however only categorical can result in a moral law This is due to hypothetical making it possible

for an individual to claim they are an exception to the rule which is unreasonable as moral laws

must apply to everyone without exception (Bennet C 2010 p83) This means that a maxim such

as do not lie unless you want to be considered untrustworthy or even an innocent maxim such as

bring an umbrella unless you want to risk getting wet would be fallible and immoral according to

Kant as they do not apply to individuals that are willing to face the consequences related to these

acts

To be able to establish whether ones actions are moral or not one must therefore be able to apply it

without failure to everyone This is a process known as universalisation which questions the agent

to ldquonever act except in such a way that [they] can also will that [their] maxim should become a

universal lawrdquo (Paton H J 1969 p22) meaning that the morality of an act is determined through

establishing its possibility to be enforced at least hypothetically as a law applying to everyone

unconditionally Ascertaining whether an act can be universalised requires the use of two tests

known as the tests of generalisation and universalisation A maxim must therefore

be able to be generalised without becoming contradictory or illogical as a result to then be

applicable as a universal law governing everyone without exceptions without resulting in an

unappealing or chaotic outcome (Garret J 2006) As ldquoKant believes that someone who violates the

moral requirements is being irrationalrdquo (Bennet C 2010 p82) one should therefore not act on a

maxim that is unable to pass both the test of generalisation and universalisation as this would result

not only in acting immorally but also irrationally

32 Criticisms and Issues

Like any other philosophical or ethical theory the Kantian approach is not devoid of imperfections

and both the original theory and contemporary interpretations have faced criticisms for everything

from structure and implementation to the actual usefulness of the theory However in her book

Bounds of Justice Onora ONeill (2000) identifies that the criticisms of Kantian theories tend to fall

into three different groups of categories (p67) all of which will be explored within this section of

the chapter

The first of these categories identified by ONeill (2000) is that Kant fails to acknowledge the

importance that human relationships and emotions might have on our moral reasoning (p67) An

7

issue that is also identified by Bennet (2010) stating that ldquoit certainly seems a large gap in a moral

theory that it has nothing to say about how pain and suffering makes acts wrongrdquo (p88) Because

while many actions that might cause pain and suffering to others generally cannot be justified using

the categorical imperative they are not dismissed for the right reasons (Bennet C 2010 p88) as

ldquouniversal rules require us to overlook and [hellip] neglect the fragility mutual vulnerability social

embeddedness and constitutive loyalties of real peoplerdquo (ONeill O 2000 p67) As human beings

are not cold calculative and emotionless robots this is an obvious flaw within Kants frameworks

because in order to act morally one needs to be able to completely disregard the feelings of other

people

Furthermore due to the lack of consideration for human emotions and relationships Kant has

simplified the very complex issue of moral theory (ONeill O 2000 p 67) often resulting in very

bizarre contradicting or even worrying results Because utilising the categorical imperative for

moral guidance might result not only in allowing obviously immoral actions to be universalised but

also preventing other harmless acts of kindness such as opening the door for someone else from

being morally justified (Bennet C 2010 p86) It should be obvious to a normal reasonable human

being that there is nothing wrong or immoral about holding the door open for someone else yet

through the implementation of Kantianism such an action cannot be justified due to it being unable

to pass the test of universalisation Showing that the Kantian approach struggles to encompass all

actions regardless of their significance importance or size in a reasonable manner

It should also be noted that the Kantian framework can also produce situations where the agent will

be acting immorally no matter what they do Bennet (2010) utilises an example of noticing a child

in the process of drowning while on the way to class and even though we have a duty to help others

according to Kant the option of not helping can also be moralised in this scenario as the agent will

adhere to the maxim of getting to class on time (p86-87) This leads to the final category of

critiques against Kant and Kantian ideologies as identified by ONeill (2000) which states that it is

a theory ldquodesigned for abstract individuals [hellip] leading to abstract conclusions that are irrelevant to

real people who lead real livesrdquo (p 67) It is possible that this abstract nature of the theory could be

due to Kants failure to provide a proper guideline stating how our actions should be explained in

order to properly calculate their ethical value through the tests of generalisation and universalisation

Because with the manner in which the Kantian framework is designed there is a possibility that

ldquoany action could pass it simply by being re-describedrdquo (Bennet C 2010 p87) The Kantian

framework is therefore in need of some kind of notes for guidance that provides an explanation for

how one is to distinguish correct descriptions of ones actions from incorrect ones

8

Chapter 4

PACE A Brief Introduction

The following chapter will be providing a brief introduction to the Police and Criminal Evidence

Act 1984 and its associated Codes of Practice Providing a basic understanding of the legislations

history and purpose in addition to some criticisms of the act and issues that has developed as a

result of its development As such this chapter alongside with chapter 3 provides a foundation for

the following chapters where specific parts of the legislation will be explored more thoroughly in

addition to being analysed through the Kantian frameworks for ethics

41 Background

Policing in England and Wales is nowadays comprised of a tough balancing act where ldquothe interests

of the community and the rights of the individualrdquo (Royal Commission undated cited by Zander

2011 p3) must be taken into account while also maintaining public order In addition to being

required to evaluate to what extent they may infringe upon civil liberties to do their job the police

is also under constant public scrutiny This means that any infringement upon the rights of an

individual that cannot be justified by the Police and Criminal Evidence Act 1984 the Human Rights

Act 1998 or other pieces of legislation can have dire consequences for the police Such

infringements can result in lawsuits against the police or rendering evidence inadmissible in court

as was seen in the case of R v Miller (1993) where the confessions from the suspects were rendered

inadmissible due to hostile and oppressive questioning by police However while it is noted that

infringement of civil liberties should be avoided and the rights of the public should be respected it

is also identified in Article 5 of the European Convention of Human Rights that there are

circumstances when the police and the criminal justice system must be granted the power to

lawfully infringe upon these (Council of Europe 2010 p7) Because without these exceptions legal

and justice systems would no longer function as criminal justice cannot function if the rights of the

individual is to be respected at all times

While there is a need for the police and criminal justice system to infringe upon the rights of

individuals there must be sanctions that govern to what extent these rights can be infringed upon

and under what circumstances As mentioned above article five of the European Convention of

Human Rights provides a good starting point but as it must be applicable to the state legislature of

all member states of the European Union it is far too general and leaves plenty of gaps to fill in

This is where the Police and Criminal Evidence Act 1984 and its corresponding Codes of Practice

comes into play as these help with outlining the provisions for the polices ability to infringe upon

9

the civil liberties of the public It was introduced following some cases of gross police misconduct

that had come to light causing miscarriages of justice of several high-profile cases which put a

strain on the relationship between the police and the public One such case included the R v

McIlkenny and others (1991) more famously known as the Birmingham Six where six innocent

men were wrongfully convicted as a result of police officers having beaten witnesses to obtain

satisfactory statements in addition to distorting forensic evidence (The Economist 1990) The

Police and Criminal Evidence Act 1984 and the associated Codes of Practice was introduced in an

attempt to remedy this through providing guidelines for how evidence was to be obtained legally

how suspects and detained persons were to be treated how and when certain police powers could be

legally enforced as well as providing the criminal justice system with transparency and

accountability (Fahy P in Ozin P Norton H and Spivey P 2013 pv)

Through its introduction the Police and Criminal Evidence Act 1984 and its corresponding Codes of

Practice drastically changed the manner in which policing was carried out causing a bit of a

culture shock for some officers that were threatened by the new developments (Wilding B

undated in Cape E and Young R 2008 p127) As there were suddenly demands being put on

officers that did not exist previously in addition to clear frameworks dictating what kind of

behaviour was deemed acceptable All to ensure that investigations were carried out both

objectively and with integrity two elements which are important to maintain public confidence in

the police force (Wilding B undated in Cape E and Young R 2008 p127) However while the

drastic changes might have come as a shock to some officers it is now common practice and

heavily ingrained to the very core of policing Additionally while the Act generally focuses on the

protection of the suspects victims and witnesses it simultaneously provides the police with

safeguards to avoid suspicion of unlawfully acquired evidence as everything from physical

evidence to verbal or written confessions must be recorded and processed in detail (Police and

Criminal Evidence Act 1984 sNUMBER sNUMBER) ensuring that the police runs a lower risk of

being unjustly accused of foul play

32 Critiques and Issues

While the Act and the Codes of Practice has played a significant part in making the police ldquomore

accountable in terms of performance and standards than virtually any other public bodyrdquo (Wilding

B undated in Cape E and Young R 2008 p130) as well as supposedly having ldquoushered in new

ethical standards for the servicerdquo (Wilding B undated in Cape E and Young R 2008 p127) It

has been subjected to a significant amount of criticism from non-governmental organisations such

as Liberty members of the police itself and academics scrutinising everything from how the Act

10

takes the police off the streets and placing them behind desks to carry out extensive amounts of

paperwork (Wilding B undated in Cape E and Young R 2008 p127) to questioning whom the

Act is really favouring (Benz S 2010) Furthermore the actual contents of the Act and the Codes of

Practice has been criticised in particular the Acts first part concerning stop and search (see chapter

5) resulting in a large number of edits and moderations to remedy these and provide a better

balance between the police and the rights of the public

11

Chapter 5

Reasonable Suspicion

While the Police and Criminal Evidence Act 1984 provides the police with guidelines for how and

when they may use their powers to infringe upon civil liberties these are not enough to ensure that

policing is carried out correctly in accordance to the act The Act must therefore be read alongside

the Codes of Practice as these further explain the limitations of the powers in addition to the

requirements that must be fulfilled in order for an officer to implement them One such requirement

that is found repeatedly throughout the Act and the Codes of Practice is the need for an officer to

have reasonable grounds for suspecting that the person(s) of interest are doing have done is about

to do or is in possession of something illegal (Police and Criminal Evidence Act s1(7)-1(9)

s3(1)(a)-3(1)(d)) This requirement is one that has been subjected to some controversy and scrutiny

especially in connection to the power of stop and search (addressed below) as it is often described

in very vague or broad terms often making it unclear what exactly constitutes appropriate grounds

for reasonable suspicion Additionally it should also be noted that the appropriate grounds for

suspicion might differ slightly from one section of the Act to another making it important to

separate these definitions from each other when studying them as they may all have their own

interpretations definitions regulations and issues However as this research explores the ethical

implications of reasonable suspicion in relation to stop and search it must be acknowledged that the

results may not be applicable to sections of the Police and Criminal Evidence Act 1984 and Codes

of Practice concerning other police powers

51 Reasonable Suspicion and Stop and Search

In the first part of the Police and Criminal Evidence Act 1984 it is identified that an officer cannot

stop and search an individual unless they have reasonable grounds for suspecting that any stolen or

prohibited articles listed under s1(7)-1(9) of the Act will be found on their person (s1(3) Police and

Criminal Evidence Act 1984) That being said there are many limitations placed upon what may

constitute a reasonable ground for suspecting that prohibited or stolen articles will be found on the

person(s) (Codes of Practice A s22) and that these can differ depending on the circumstances of

each case [Ozin P et al 2013 p4] However while suspicion might be raised for different reasons

in each case the Code emphasises that suspicion may never be based on personal factors

stereotypes or generalisations (Codes of Practice A s22) Nor may it be ldquoprovided retrospectively

by [hellip] questioning during a persons detention or by refusal to answer any questionsrdquo (Codes of

Practice A s29) Instead it is stressed that suspicion should have an objective basis derived from

known facts and information (Codes of Practice A s22)

12

Whether these demands put on officers by the Codes of Practice A to establish objective grounds

for suspicion are followed is questionable though At least when taking into consideration that the

sections of the Police and Criminal Evidence Act 1984 and the Codes of Practice concerning stop

and search has been subjected to heavy criticism mainly due to the disproportionate amount of

members from minority ethnic groups being searched in comparison to Caucasians Because even

though the Codes of Practice A does identify that there are situations where reasonable grounds for

suspicion might exist without the need for known facts or information such as initiating searches

based on an individuals behaviour or body language (Codes of Practice A s23) it does not explain

why black people are up to ldquosix times more likely to be stop[ped and] searched than would be

expected based on their numbers in the general populationrdquo (Bowling B and Phillips C 2007

p958) Nor does it explain how the recorded stops and searches of Asians since the mid-nineties

have remained between 15 and 25 times higher than those of Caucasians (Equality and Human

Rights Commission 2010 p13) These are worrying statistics that raise questions as to whether the

guidelines provided by the Police and Criminal Evidence Act 1984 and the Codes of Practice are

sufficient in order to ensure that this power is used appropriately and fairly Because even though

non-Caucasians are stopped and searched more frequently arrests following searches are distributed

quite evenly across all ethnic groups (StopWatch 2014)

There is a possibility that this targeting of minority ethnic groups could be a direct result of the

socio-economic conditions that traps many families from poor neighbourhoods in a cycle of poverty

and disadvantage (Joseph I and Gunter A 2011 p3) Especially as it has been found that these

groups often respond ldquoto their powerlessness with frustration rage and the creation of alternative

social and cultural values that promotes and normalizes gang membership and violencerdquo (Joseph I

and Gunter A 2011 p3) Due to the normalisation of such behaviour this could provide an

explanation to why some disproportionality might exist as the Codes of Practice provides an

exception to searches based on physical appearance when it is related to gang culture stating that

ldquowhere there is reliable information or intelligence that members of a group or gang

habitually carry knives unlawfully or weapons or controlled drugs and wear a

distinctive item of clothing or other means of identification to indicate their

membership of the group or gang that distinctive item of clothing or other means

of identification may provide reasonable grounds to stop and search a personrdquo

(Codes of Practice A s26)

13

However while this provision could support the existence of some disproportionality it does not

disprove that minority ethnic groups are being targeted by the police nor does it provide a

reasonable explanation to why blacks are being six times more likely to be subjected to a stop and

search This means there is a risk that this section of the Codes of Practice is being used by police

to maliciously target ethnic minority groups by stereotyping them as more likely to be involved

with criminal gangs

52 Reasonable Suspicion Stop and Search and Morality

While statistics and studies show that stop and search is used disproportionally and suggests that

individuals belonging to minority ethnic groups are being targeted by the police it does not mean

that the power itself nor the legislation governing it is unethical Because even though they tend to

overlap ldquothere is no necessary connection between law and moralsrdquo (Hart H L A 1958 cited by

Green L 2012 in Hart H L A 2012 pxxxiii) as the law applies to everyone unconditionally

while moral only applies to those that sympathise with the ideologies in question Kantian ethics

however arguing that one should do the right thing because of it being right views morality as a

supplement to the law (Zupancic A 2000 p16) therefore ensuring that we are not only doing what

is right but that we are also doing it for the right reasons (Sandel M 2011) Which from Kants

viewpoint is synonymous to acting out of duty which as established in Chapter 3 means that

onersquos actions must be converted to those that are able to pass the tests of generalisation and

universalisation As such one must convert the sections of the Police and Criminal Evidence Act

1984 and its associated Codes of Practice concerning stop and search into an order to establish

whether it is ethical

However while the Police and Criminal Evidence Act 1984 identifies that reasonable suspicion is

necessary in order to conduct a stop and search one cannot simply create a maxim stating that

police officers can stop and search anyone they reasonably suspect is carrying illegal or stolen

items Because even though this maxim does provide an accurate description of the necessary

requirements to perform a stop and search it is far too broad Such a maxim does not place a limit

upon what the suspicion might be based on resulting in a possibility for officers to target certain

groups of people based on prejudice or stereotypes Therefore such a maxim can neither be

generalised nor universalised meaning it would be considered entirely unethical by Kantian

principles However by using the guidelines and limitations of reasonable suspicion presented in

the Codes of Practice A that were identified earlier in this chapter this maxim can be broken down

into three separate parts These being

14

police officers may stop and search individuals for illegal or stolen items if it is in

accordance with known facts and information and they believe that such items will be found upon

searching the person

police officers may stop and search individuals acting in an obviously suspicious manner for

illegal or stolen items but only if they suspect that such items will be found upon searching the

person and

police officers may stop and search individuals based on articles of clothing piercings

andor tattoos if these are known to be worn by members of a gang(s) that are known to carry

illegal or stolen items and only if the police suspects that such items will be found upon searching

the person

These provide a much more limited and concentrated approach to the attempted moralisation of the

polices power to stop and search individuals for prohibited or stolen articles Because unlike the

previous maxim these are not only limiting what the basis for suspicion might be but also limiting

when the power itself may be enforced As such the likelihood of these being able to pass the tests

of generalisation and universalisation are increased

521 Generalisation and Universalisation

In order to accurately establish whether acts are moral they must pass the tests of generalisation and

universalisation as Kant believed that moral acts were ones that could be applied to everyone as a

universal law without becoming contradictory or illogical (see chapter 3) However as these deal

with police powers and Kant argued that acts must be applicable to everyone without exception

these will also be examined using Singers generalisation principle because it would be illogical for

such powers to be implemented by everyone Singers generalisation principle makes it possible to

bypass this issue as it argues that ldquowhat is right (or wrong) for one person must be right (or wrong)

for any similar person in similar circumstancesrdquo (Singer G M undated cited by ONeill O 2013

p78) Additionally this approach puts a utilitarian twist on Kants frameworks as it determines

morality based on the consequences of onersquos actions (ONeill O 2013 p79) rather than the

motivation behind them As such this test functions as a middle ground between the tests of

generalisation and universalisation ensuring that the generalised maxim does not cause an illogical

or chaotic result in addition to limiting the generalised maxim from anyone that is not a member of

the police service Analysing the maxim using these tests therefore requires them to be studied

individually so that they can be dissected and examined more closely

Looking at the first of the three maxims created using the guidelines and limitations of reasonable

15

suspicion as identified by the Codes of Practice A it can be established that it is comprised from

three different elements Namely

the police may only search for illegal or stolen items

the police may only search an individual based on known facts and information and finally

the police may only search the individual if they believe illegal or stolen items will be found

Attempting to generalise any of these elements of the maxim individually would not be reasonable

as they do not provide enough limitations or guidelines for it to be functional Because the first part

allows the police to search anyone for illegal or stolen items without the necessity of a suspicion

that any such items will be found which would result in a police state where the police could search

anyone they please The necessity of believing that illegal or stolen items will be found upon

conducting a search is added by the third element of the maxim but there are still no requirements

for the police to have any kind of reasonable basis for their decision to stop and search someone as

this is added by the maxims second element However this element cannot be moralised on its own

either as it does not specify what the police may search for However when all three elements of

the maxim are combined all necessary limitations are present meaning the generalisation of it

should not produce a contradictory or illogical result

However passing the test of generalisation does not mean that the maxim is ethical as it must also

be universalisable Meaning it should be able to be enforced as a (hypothetical) law that applies to

everyone unconditionally As the maxim places a requirement on the police to only stop and search

individuals if they have a factual basis for their suspicion to find illegal or stolen items upon

searching the person this should be a universalisable action Because assuming all police officers

were required to follow this maxim it would result in a world where only specific items may be

searched for if they have a factual reason to conduct the search and only if they believe that such

items will be found upon searching the person(s) As this would not produce any undesirable

consequences this maxim would not only pass Kants test of universalisation but also fulfil the

necessary criteria for Singers generalisation principle

This is essentially what the Police and Criminal Evidence Act 1984 and the Codes of Practice A

seeks to do meaning that if the guidelines were followed by the police unlawful stops and searches

should not occur However since there are more aspects to the laws that govern the polices power

to stop and search individuals for illegal or stolen items such as searches based on suspicious

behaviour or searches of suspected gang members other aspects must be explored as well before

16

declaring whether it is ethical or not For this reason the two additional maxims (mentioned earlier)

are needed and must therefore be tested as well As these maxims can be implemented in such

situations by the removal of the need for a factual basis for suspicion and replacing it with either

the possibility to

search individuals acting in an obviously suspicious manner or

search individuals based on clothing piercings andor tattoos if these are known to be worn

by members of gangs that are known to carry illegal or stolen items

As with the various elements of the maxim analysed previously these are also unable to be

moralised individually Because the first of the two does not specify what may be searched for and

neither of the sections specify that the police should expect to find illegal or stolen items upon

stopping and searching an individual As such neither of these elements can function as a maxim on

their own as they are illogical and can neither be generalised nor universalised However when

these are combined with the other elements of the maxims these issues should be resolved thus

passing Kants test of generalisation

Universalising these maxims is a bit more problematic than the one analysed previously through

For example with the first of these two maxims police officers would be enforced to stop and

search anyone that is acting in an obviously suspicious manner for illegal or stolen items if they

believe any such items will be found upon searching them The phrase behaving in an obviously

suspicious manner is a bit of an issue here as there is no definition available as to what can be

classified as such However a reasonable person would probably equate behaving in an obviously

suspicious manner to trying to hide something which is used as an example in the Codes of

Practice A s23 It could therefore be worth substituting the phrase behaving in an obviously

suspicious manner with trying to hide something as this would be more specific However by

doing this the maxim would become much more limited as it would no longer allow individuals

behaving suspiciously in other ways to be searched Nevertheless should this interpretation be used

the likeliness of the maxim passing the test of universalisation might be increased as the likeliness

of it producing a chaotic result would decrease Additionally implementing such an interpretation

would also make it more likely for the maxim to pass Singers generalisation principle As the

conduction of stops and searches of people that are obviously trying to hide something is less likely

to produce an undesirable outcome in comparison to searching anyone acting suspiciously

Finally the universalisation of the third and final of the maxims would enforce the police to stop

17

and search anyone dressed or in any other ways being physically identifiable as a possible member

of a gang known to carry illegal or stolen items if they believe any such items will be found upon

searching them As with the maxim analysed above there are issues related to universalising this

maxim due to the possibility of it causing certain people to be targeted because of the clothes they

wear or any piercings or tattoos on their body being related to or similar to ones connected to a

criminal gang Universalising this maxim could therefore worsen an already prevalent issue where

innocent members of the public get their civil liberties infringed upon due to their personal style

especially as the maxim allows quite a broad range of items accessories and body art to be used as

an indicator for suspicion In a study by Jackson and Smith (2013) the experiences of young people

from London that had been subjected to stop and search was surveyed where the participants

identified what kind of clothing might fit the criteria of being a presumed gang member It was

suggested that ldquoemulating American hip hop artists by wearing low-slung jeans hoodies and

branded trainers and walking and talking in a certain wayrdquo (p6) was stereotyped by the police as

gagster behaviour and dress The same study also identified an experience that was shared by one

of the participants whom stated that ldquoThey just say youre in a drug infested area and youve got a

hood on so were stopping and searching yourdquo (Jackson L and Smith L 2013 p6)

Taking this into consideration it can therefore be seen that the universalisation of a maxim asking

the police to stop and search anyone perceived to be involved with a criminal gang for illegal or

stolen items could result in a form of criminalisation of the hoodie and other specific pieces of

clothing as these are stereotyped as being related to gang membership This would be problematic

as the hoodie in particular is a comfortable and often affordable piece of clothing that is a staple in

the wardrobes of many of societys subcultures such as emos and skaters that are generally not

stereotyped as criminals (Braddock K 2011) As such it can be established that neither Kant nor

Singer would be able to universalise this maxim as having officers search anyone wearing specific

clothes would neither be reasonable nor produce any desirable consequences

522 Issues

While two out of three of the different maxims appear to be moral in the eyes of Kant there are still

some issues relating to them which must be acknowledged Primarily there might be an issue with

these maxims being too specific as it has been noted that ldquoany maxim that is highly restricted is

likely to pass the universalisability testrdquo [Guyer P 2007 cited by Perold L M 2010 p19]

because the more descriptive a maxim is the less likely it is that it would become contradictory As

all of the maxims created from the Codes of Practice A are highly restrictive specifying who may

carry out the act under what circumstances they may carry it out and the limitations of the actions

18

itself Additionally as noted earlier in this chapter the maxims cannot be made more general either

as this would prevent them from being moralised this means that there is a risk of these maxims

passing the tests of universalisation and generalisation simply because of their overly descriptive

nature rather than actually being moral

There might also be an issue with the phrasing of the maxims specifically the use of the term

police officers as this might cause some uncertainties regarding exactly who the maxim applies to

Because by using the term police officer or even police it becomes questionable if an officer must

be in uniform in other words his or her position as a police officer is overt when carrying out the

search However since these maxims need to be exclusive to the police it could be hard to bypass

this issue without adding yet another specification to it that clarifies whether there is a need for the

officer to be in uniform or not

Finally there could also be an issue of the maxims conflicting with each other as the first of the

maxims states that the decision to stop and search someone needs to be in accordance with known

facts and information Something that might not be available when a stop and search is made

utilising the second or third maxim as these can be initiated without a need of known facts or

information This raises a question to whether one of the maxims would naturally take precedence

over the others as all three maxims regarding stop and search can never operate at the same time

Generally Kantianism argues that when one is faced with opposing maxims the perfect duty will

always take precedence over an imperfect one (Stohr K 2010 p3) However as all of the maxims

are addressing what is essentially the same action being the possibility to stop and search

individuals for illegal andor stolen items this could be problematic Furthermore while there are

three maxims identified within this study there also exists another fourth maxim which concerns

the possibility of not searching anyone for illegal or stolen items This fourth maxim is also

considered a perfect duty as it would generally be easier to universalise not searching people as

opposed to searching individuals fitting certain requirements This means that the maxim regarding

the omission to act would in this case take precedence over the other maxims identified within this

research essentially rendering them powerless

19

Chapter 6

Conclusion

From this study it can be seen that the legislation governing a heavily criticised police power such

as stop and search has the possibility to be morally justifiable by the ethical frameworks developed

by Kant Because while Kants ethical theory does not rectify or justify the issue of ethnic minorities

being subjected to a disproportionate amount of stops and searches in comparison to Caucasians it

is important to remember that the ldquolaw in theory and the law in practice differrdquo (Westmarland L in

Newburn T 2011 p255) Meaning that the moralisation of the legislation does not ensure that it

will be applied ethically by the police Additionally as Kantian ethics values the motivation behind

ones actions over the consequences produced from them the potential issues caused by ones actions

are irrelevant as long as the action itself can be universalised without producing a chaotic or

undesirable result

However as there are several layers to stop and search there are some implications to morally

justifying this power as it is multi-faceted Being designed to deal with a variety of different

situations and bases from which suspicion might arise to justify the stopping and searching of an

individual Because while Kantian ethics can ethically justify police officers to stop and search

individuals for illegal or stolen items if it is in accordance with known facts and information and

they believe that such items will be found upon searching the person this encompasses only one of

the many facets of the power As such the power cannot be justified as a whole as any maxim used

to describe it would not provide the necessary limitations needed for it to successfully pass the tests

of generalisation and universalisation

While the power cannot be moralised as a whole it is possible to create two additional maxims

using the limitations and exceptions to the necessity criteria of reasonable suspicion found in the

Codes of Practice A to create an additional two maxims These represent two additional facets of

stop and search being that

police officers may stop and search individuals acting in an obviously suspicious manner for

illegal or stolen items but only if they suspect that such items will be found upon searching the

person and

police officers may stop and search individuals based on articles of clothing piercings

andor tattoos if these are known to be worn by members of a gang(s) that are known to carry

20

illegal or stolen items and only if the police suspects that such items will be found upon searching

the person

However only the first of these two maxims can be justified utilising Kants ethical framework and

Singers generalisation principle because the latter cannot be universalised without becoming

unreasonable Furthermore the latter cannot be justified without providing further limitations

requiring the phrase acting in an obviously suspicious manner to be replaced by obviously hiding

something

From the issues presented from the creation of the two additional maxims above it can be

established that stop and search cannot be considered morally justifiable under all circumstances

Because different situations calls for different maxims meaning that should the search not be

initiated based on known facts or information it is unlikely to be ethical Nevertheless even though

all facets of this police power cannot be morally justified it does seem that the majority of them can

be considered ethical to some extent Meaning the legislation governing it is generally ethical but

as a whole it becomes a bit of a moral ambiguity This shows that the police power as identified by

the Police and Criminal Evidence Act 1984 and the Codes of Practice A has a potential to be

ethically justified with the exception of the section permitting searches where physical appearance

can be used as a basis for suspicion Additionally this research identified that the reasons for why

this particular section is not justifiable could also be part of the reason to the disproportionate

amount of searches of ethnic minorities As it might provide officers maliciously targeting

minorities with a possibility to justify their actions by claiming a particular article of clothing body

art or similar was the reason for the stop

As such it can be established that the legislation governing the polices power to stop and search

individuals for prohibited or stolen articles cannot be fully moralised as not all sections of the

Police and Criminal Evidence Act 1984 or the Codes of Practice A concerning this power can be

ethically justified However while the legislation as whole is morally ambiguous at best the

searches conducted with factual information as a basis for suspicion suggests that the sections of the

legislation addressing this type of search cannot be implemented in an unethical manner Because as

the universalised maxim requires the police to act in a manner promoted by the Act and Codes this

shows that any unethical searches carried out using this type of search are caused as a result of

police misconduct rather than an actual issue with the legislation

21

However it should be noted that this research can only provide a limited account of the morality of

this police power as it has only explored it through the limitations put upon it through the necessity

requirement of reasonable suspicion Additionally it can only account for the morality of the

sections of the Police and Criminal Evidence Act 1984 and the Codes of Practice A addressing this

particular police power and only through the limitations explored within this research Finally it is

also important to recognise that the police power has only been analysed using a Kantian approach

to ethics and morality This means that further studies of the police power and indeed the Act and

Codes in general are needed in order to provide a more accurate account of the morality and ethical

issues present It is therefore suggested that additional research should be carried out to study the

legislation governing the power of stop and search utilising other ethical theories or utilising

Kantian ethics with a different focus point of the legislation

However while further research is needed in order to gain a more accurate account of the overall

morality of the police power and the legislation governing it it does not mean the research

presented in this paper is of any less value Because even though the study can only provide a

limited account of the legislations morality it has succeeded in presenting the probabilities for the

moral justification of the Acts first part along with the associated Codes of Practice as well as

identifying that the issues connected to the Act may be caused primarily by the polices failure to

accurately conduct stops and searches according to the law Meaning the research has produced

some valuable results in addition to providing a stepping stone for further research on the topic

22

Bibliography

BBC [2014] Duty-Based Ethics Available at

httpwwwbbccoukethicsintroductionduty_1shtml [Accessed 20-03-2014]

Benz S [2010] ldquoThe Police and Criminal Evidence Act 1984 balancing civil liberties and public

securityrdquo Diffusion 5(2) Available at httpatpuclanacukbuddypressdiffusionp=1255

[Accessed 25-04-2014]

Bowling B and Phillips C [2007] Disproportionate and Discriminatory Reviewing the Evidence

on Police Stop and Search Oxford Blackwell Publishing p958 httpwwwstop-

watchorguploadsdocumentsmodern_law_reviewpdf

Braddock K [2011] ldquoThe Power of the Hoodierdquo The Guardian Available at

httpwwwtheguardiancomuk2011aug09power-of-the-hoodie [Accessed21-04-2014]

Codes of Practice A

Council of Europe [2010] European Convention on Human Rights Strasbourg European Court of

Human Rights p 7 Available at httpwwwechrcoeintDocumentsConvention_ENGpdf

[Accessed 09-03-2014]

The Economic and Social Research Council [2012] Frameworks for Research Ethics Swindon

Economic and Social Research Council pp2-3 3 Available at

httpwwwesrcacuk_imagesframework-for-research-ethics-09-12_tcm8-4586pdf [Accessed 01-

04-2014]

The Economist [1990] End Game Available

athttpgogalegroupcompsidoid=GALE7CA9390713ampv=21ampu=uceampit=rampp=SPJSP0

0ampsw=wampasid=f6f778fcf0a20b3f0f18df5e20a57f27 [Accessed 19-03-2014]

Fahy P [undated] ldquoForewordrdquo In Ozin P Norton H and Spivey P [2013] PACE ndash A Practical

Guide to the Police and Criminal Evidence Act 1984 3rd

Edition Oxford Oxford University Press

p v

Flick U [2011] Introducing Research Methodology London Sage p 125

Garret J [2006] Kants Duty Ethics Available at

httppeoplewkuedujangarrettethicskanthtm [Accessed 20-03-2014]

Govuk [2013] Guidance Police and Criminal Evidence Act 1984 (PACE) Codes of Practice

London Home Office Available at httpswwwgovukpolice-and-criminal-evidence-act-1984-

pace-codes-of-practice [Accessed 02-04-2014]

Guyer P (2007) cited by Perold L M [2010] Does Immanuel Kants Categorical Imperative

Commit Him to the View that Lying is Always Morally Wrong Master of Arts thesis University of

the Witwatersrand p 19 Available at

httpwiredspacewitsaczabitstreamhandle1053910096M20Perold20Research20Reportp

dfsequence=2 [Accessed 24-04-2014]

3

Chapter 2

Methodology

While primary sources could arguably create more current and relevant results than secondary

sources might be able to (McQueen R and Knussen C 2002 pp83-85) due to them being

acquired personally through fieldwork interviews or observational studies the following study is

entirely literature based Utilising secondary research sources such as books legal documents and

academic journals in addition to various electronic and online resources drawing conclusions from

the information found within these It is acknowledged that research using secondary data struggles

to produce results that are current as ldquothe time factor involved in collecting and analysing primary

data means that some social survey data are out of date by as much as a year before the secondary

analyst gets hold of itrdquo (McQueen R and Knussen C 2002 pp84-85) Additionally there is an

overarching issue regarding bias when dealing with secondary sources as ldquophotos texts and

statistics have their own structure that is often strongly influenced by who produced them and for

what purposerdquo (Flick U 2011 p125) and ldquothe validity of information may vary markedly from

source to source ldquo (Kumar R 2011 p164) As such all sources must be viewed critically as to

ensure that any personal biases of the writer(s) will not interfere with the overall results of the

findings Something that becomes especially important if the information was found in a newspaper

or certain web-resources (such as blogs) as ldquothese writers are likely to exhibit less rigorousness and

objectivity than one would expect in research reportsrdquo (Kumar R 2011 p164)

However while there are many issues connected to undertaking research based on secondary

sources it should be noted that neither primary nor secondary data ldquoprovides 100 per cent accurate

and reliable informationrdquo (Kumar R 2011 p139) Additionally it must also be considered that

certain research topics are less compatible with certain research approaches than others as in this

case where an ethical analysis of specific sections of a legal statute is carried out Meaning

interviews and other primary research approaches would struggle to produce results that are

accurate and relevant Furthermore certain issues identified above with the utilisation of secondary

sources for research would be less of an issue in this case due to the nature of the sources studied

These being a legal statute the Police and Criminal Evidence Act 1984 and the Codes of Practice

and the philosophical and ethical theories developed by Immanuel Kant Because even though

Kants ideas originated over one hundred years ago these ideas are still applicable and relevant

when studying Kantianism Moreover the legal statute that this framework will be applied to uses

its most recent edition of the law which can easily be accessed through government websites

Meaning there should not be an issue with keeping the research current and relevant

4

It should also be noted that literature based research also benefits in ways that research based on

primary sources does not considering that the field of criminology often deals with sensitive topics

and people such as illegal activities and the abused (Westmarland L 2011 p141) Meaning there

are plenty of ethical pitfalls one must avoid when conducting research within this field especially

when using primary sources for the research However regardless of conducting research using

primary or secondary resources any research proposition must adhere to the six key principles of

ethical research (see Appendix 1) Most of the ethical issues identified within these principles are

related to peer-based research though meaning a literature based research is more likely to be

justified ethically than research using primary sources This due to the lack of participants involved

in the research whose emotions consent and wellbeing must be taken into consideration nor should

the researcher themselves be at risk because of the research (Economic and Social Research Council

2012 pp2-3)

However while the literature based method avoids most of the major ethical concerns this

particular piece of research might be subjected to some ethical scrutiny because of the manner in

which it is being carried out Because as the research only utilises the Kantian approach to morality

in addition to only analysing a specific part of the Police and Criminal Evidence Act 1984 and its

corresponding Codes of Practice it might produce some questionable results As such the research

is at risk of being perceived as being biased aiming to obtain certain results by only studying a

selected part of the legislation using a single ethical framework Nonetheless in the Frameworks for

Research Ethics provided by the Economic and Social Research Council (2012) it is stated that ldquothe

independence of research must be clear and any conflicts of interest or partiality must be explicitrdquo

(p3) So while the research might produce results that could be considered biased or partial for the

above reasons this is something that has been acknowledged and addressed before the start of the

research as can be seen in the Ethics Approval Form (see Appendix 2) As such the potential for the

research questioned due to only analysing a select part of the legislation and Codes of Practice

using only one perspective of morality has been addressed explicitly Additionally it is also

acknowledged that other results regarding the morality of the Police and Criminal Evidence Act

1984 and the Codes of Practice might be achieved by utilising a different ethical framework by

studying different sections of the Act or by analysing the Act and Codes of Practice as a whole

5

Chapter 3

Kantian Ethics

The ethical framework developed by Immanuel Kant is an ideology that places moral value on the

motivations between our actions and their potential for universalisation rather than the

consequences of the act itself In this chapter the core principles of the Kantian framework will be

explained identifying the process of determining the morality of our actions through the tests of

generalisation and universalisation Additionally the chapter will also be addressing various

criticisms issues and shortcomings of the Kantian approach to ethics and morality such as the

possibility of the framework allowing for any maxims to be moralised with the right phrasing

31 The Core Ideas

The idea of autonomy is at the core of Kantian ethics arguing that each individual can (and should)

make their own decisions without any external interferences to guide or coerce them (Bennet C

2010 p75) As such Kantianism argues for the presence of free will meaning human beings are

accountable for the choices they make and the actions they subsequently carry out and that

everyone capable of reasonable thinking has the potential to act in accordance to the moral law

However while humans are generally considered to be rational beings it does not mean that they

will behave in a rational manner at all times but rather that they have the capability of doing so

According to Kant this is what separates humans beings from animals as they are only capable of

operating under negative freedom through reacting to their impulses and instinct unable to

question or evaluate the situation in ways human beings are able to (Bennet C 2010 p76) As such

rational beings are the embodiment of morality as the moral law is that of reason (Rachels J 1986

p1) which is why Kant argued that humans must never be treated as the means to an end but

should instead be the end itself (BBC 2014)

Nevertheless being a rational agent capable of recognising reasonable actions from unreasonable

ones thus acting outside of the realms of negative freedom and moving into what is known as

positive freedom does not ensure that onersquos actions are good or moral These are simply

requirements to qualify as an agent that is capable of acting morally not an insurance that actions

carried out by such an agent will be moral or reasonable Instead Kant argued that moral acts are

identified through their motivations stating that ldquoif duty is the key element in our decision to act

then we have acted rightlyrdquo (BBC 2014) because ldquoan action done from duty has its moral worth

not from the results it attains or seeks to attain but from a formal principle or maxim ndash the principle

of doing ones duty whatever that may berdquo (Paton H J 1969 p20) In this case the meaning of

6

duty is equal to acting in reverence to the moral law as Kant argues that morality and its rational

requirements can be translated into rules or that dictates how we should act (Bennet C 2010

p83) These moral rules are divided into two separate groups being hypothetical and categorical

however only categorical can result in a moral law This is due to hypothetical making it possible

for an individual to claim they are an exception to the rule which is unreasonable as moral laws

must apply to everyone without exception (Bennet C 2010 p83) This means that a maxim such

as do not lie unless you want to be considered untrustworthy or even an innocent maxim such as

bring an umbrella unless you want to risk getting wet would be fallible and immoral according to

Kant as they do not apply to individuals that are willing to face the consequences related to these

acts

To be able to establish whether ones actions are moral or not one must therefore be able to apply it

without failure to everyone This is a process known as universalisation which questions the agent

to ldquonever act except in such a way that [they] can also will that [their] maxim should become a

universal lawrdquo (Paton H J 1969 p22) meaning that the morality of an act is determined through

establishing its possibility to be enforced at least hypothetically as a law applying to everyone

unconditionally Ascertaining whether an act can be universalised requires the use of two tests

known as the tests of generalisation and universalisation A maxim must therefore

be able to be generalised without becoming contradictory or illogical as a result to then be

applicable as a universal law governing everyone without exceptions without resulting in an

unappealing or chaotic outcome (Garret J 2006) As ldquoKant believes that someone who violates the

moral requirements is being irrationalrdquo (Bennet C 2010 p82) one should therefore not act on a

maxim that is unable to pass both the test of generalisation and universalisation as this would result

not only in acting immorally but also irrationally

32 Criticisms and Issues

Like any other philosophical or ethical theory the Kantian approach is not devoid of imperfections

and both the original theory and contemporary interpretations have faced criticisms for everything

from structure and implementation to the actual usefulness of the theory However in her book

Bounds of Justice Onora ONeill (2000) identifies that the criticisms of Kantian theories tend to fall

into three different groups of categories (p67) all of which will be explored within this section of

the chapter

The first of these categories identified by ONeill (2000) is that Kant fails to acknowledge the

importance that human relationships and emotions might have on our moral reasoning (p67) An

7

issue that is also identified by Bennet (2010) stating that ldquoit certainly seems a large gap in a moral

theory that it has nothing to say about how pain and suffering makes acts wrongrdquo (p88) Because

while many actions that might cause pain and suffering to others generally cannot be justified using

the categorical imperative they are not dismissed for the right reasons (Bennet C 2010 p88) as

ldquouniversal rules require us to overlook and [hellip] neglect the fragility mutual vulnerability social

embeddedness and constitutive loyalties of real peoplerdquo (ONeill O 2000 p67) As human beings

are not cold calculative and emotionless robots this is an obvious flaw within Kants frameworks

because in order to act morally one needs to be able to completely disregard the feelings of other

people

Furthermore due to the lack of consideration for human emotions and relationships Kant has

simplified the very complex issue of moral theory (ONeill O 2000 p 67) often resulting in very

bizarre contradicting or even worrying results Because utilising the categorical imperative for

moral guidance might result not only in allowing obviously immoral actions to be universalised but

also preventing other harmless acts of kindness such as opening the door for someone else from

being morally justified (Bennet C 2010 p86) It should be obvious to a normal reasonable human

being that there is nothing wrong or immoral about holding the door open for someone else yet

through the implementation of Kantianism such an action cannot be justified due to it being unable

to pass the test of universalisation Showing that the Kantian approach struggles to encompass all

actions regardless of their significance importance or size in a reasonable manner

It should also be noted that the Kantian framework can also produce situations where the agent will

be acting immorally no matter what they do Bennet (2010) utilises an example of noticing a child

in the process of drowning while on the way to class and even though we have a duty to help others

according to Kant the option of not helping can also be moralised in this scenario as the agent will

adhere to the maxim of getting to class on time (p86-87) This leads to the final category of

critiques against Kant and Kantian ideologies as identified by ONeill (2000) which states that it is

a theory ldquodesigned for abstract individuals [hellip] leading to abstract conclusions that are irrelevant to

real people who lead real livesrdquo (p 67) It is possible that this abstract nature of the theory could be

due to Kants failure to provide a proper guideline stating how our actions should be explained in

order to properly calculate their ethical value through the tests of generalisation and universalisation

Because with the manner in which the Kantian framework is designed there is a possibility that

ldquoany action could pass it simply by being re-describedrdquo (Bennet C 2010 p87) The Kantian

framework is therefore in need of some kind of notes for guidance that provides an explanation for

how one is to distinguish correct descriptions of ones actions from incorrect ones

8

Chapter 4

PACE A Brief Introduction

The following chapter will be providing a brief introduction to the Police and Criminal Evidence

Act 1984 and its associated Codes of Practice Providing a basic understanding of the legislations

history and purpose in addition to some criticisms of the act and issues that has developed as a

result of its development As such this chapter alongside with chapter 3 provides a foundation for

the following chapters where specific parts of the legislation will be explored more thoroughly in

addition to being analysed through the Kantian frameworks for ethics

41 Background

Policing in England and Wales is nowadays comprised of a tough balancing act where ldquothe interests

of the community and the rights of the individualrdquo (Royal Commission undated cited by Zander

2011 p3) must be taken into account while also maintaining public order In addition to being

required to evaluate to what extent they may infringe upon civil liberties to do their job the police

is also under constant public scrutiny This means that any infringement upon the rights of an

individual that cannot be justified by the Police and Criminal Evidence Act 1984 the Human Rights

Act 1998 or other pieces of legislation can have dire consequences for the police Such

infringements can result in lawsuits against the police or rendering evidence inadmissible in court

as was seen in the case of R v Miller (1993) where the confessions from the suspects were rendered

inadmissible due to hostile and oppressive questioning by police However while it is noted that

infringement of civil liberties should be avoided and the rights of the public should be respected it

is also identified in Article 5 of the European Convention of Human Rights that there are

circumstances when the police and the criminal justice system must be granted the power to

lawfully infringe upon these (Council of Europe 2010 p7) Because without these exceptions legal

and justice systems would no longer function as criminal justice cannot function if the rights of the

individual is to be respected at all times

While there is a need for the police and criminal justice system to infringe upon the rights of

individuals there must be sanctions that govern to what extent these rights can be infringed upon

and under what circumstances As mentioned above article five of the European Convention of

Human Rights provides a good starting point but as it must be applicable to the state legislature of

all member states of the European Union it is far too general and leaves plenty of gaps to fill in

This is where the Police and Criminal Evidence Act 1984 and its corresponding Codes of Practice

comes into play as these help with outlining the provisions for the polices ability to infringe upon

9

the civil liberties of the public It was introduced following some cases of gross police misconduct

that had come to light causing miscarriages of justice of several high-profile cases which put a

strain on the relationship between the police and the public One such case included the R v

McIlkenny and others (1991) more famously known as the Birmingham Six where six innocent

men were wrongfully convicted as a result of police officers having beaten witnesses to obtain

satisfactory statements in addition to distorting forensic evidence (The Economist 1990) The

Police and Criminal Evidence Act 1984 and the associated Codes of Practice was introduced in an

attempt to remedy this through providing guidelines for how evidence was to be obtained legally

how suspects and detained persons were to be treated how and when certain police powers could be

legally enforced as well as providing the criminal justice system with transparency and

accountability (Fahy P in Ozin P Norton H and Spivey P 2013 pv)

Through its introduction the Police and Criminal Evidence Act 1984 and its corresponding Codes of

Practice drastically changed the manner in which policing was carried out causing a bit of a

culture shock for some officers that were threatened by the new developments (Wilding B

undated in Cape E and Young R 2008 p127) As there were suddenly demands being put on

officers that did not exist previously in addition to clear frameworks dictating what kind of

behaviour was deemed acceptable All to ensure that investigations were carried out both

objectively and with integrity two elements which are important to maintain public confidence in

the police force (Wilding B undated in Cape E and Young R 2008 p127) However while the

drastic changes might have come as a shock to some officers it is now common practice and

heavily ingrained to the very core of policing Additionally while the Act generally focuses on the

protection of the suspects victims and witnesses it simultaneously provides the police with

safeguards to avoid suspicion of unlawfully acquired evidence as everything from physical

evidence to verbal or written confessions must be recorded and processed in detail (Police and

Criminal Evidence Act 1984 sNUMBER sNUMBER) ensuring that the police runs a lower risk of

being unjustly accused of foul play

32 Critiques and Issues

While the Act and the Codes of Practice has played a significant part in making the police ldquomore

accountable in terms of performance and standards than virtually any other public bodyrdquo (Wilding

B undated in Cape E and Young R 2008 p130) as well as supposedly having ldquoushered in new

ethical standards for the servicerdquo (Wilding B undated in Cape E and Young R 2008 p127) It

has been subjected to a significant amount of criticism from non-governmental organisations such

as Liberty members of the police itself and academics scrutinising everything from how the Act

10

takes the police off the streets and placing them behind desks to carry out extensive amounts of

paperwork (Wilding B undated in Cape E and Young R 2008 p127) to questioning whom the

Act is really favouring (Benz S 2010) Furthermore the actual contents of the Act and the Codes of

Practice has been criticised in particular the Acts first part concerning stop and search (see chapter

5) resulting in a large number of edits and moderations to remedy these and provide a better

balance between the police and the rights of the public

11

Chapter 5

Reasonable Suspicion

While the Police and Criminal Evidence Act 1984 provides the police with guidelines for how and

when they may use their powers to infringe upon civil liberties these are not enough to ensure that

policing is carried out correctly in accordance to the act The Act must therefore be read alongside

the Codes of Practice as these further explain the limitations of the powers in addition to the

requirements that must be fulfilled in order for an officer to implement them One such requirement

that is found repeatedly throughout the Act and the Codes of Practice is the need for an officer to

have reasonable grounds for suspecting that the person(s) of interest are doing have done is about

to do or is in possession of something illegal (Police and Criminal Evidence Act s1(7)-1(9)

s3(1)(a)-3(1)(d)) This requirement is one that has been subjected to some controversy and scrutiny

especially in connection to the power of stop and search (addressed below) as it is often described

in very vague or broad terms often making it unclear what exactly constitutes appropriate grounds

for reasonable suspicion Additionally it should also be noted that the appropriate grounds for

suspicion might differ slightly from one section of the Act to another making it important to

separate these definitions from each other when studying them as they may all have their own

interpretations definitions regulations and issues However as this research explores the ethical

implications of reasonable suspicion in relation to stop and search it must be acknowledged that the

results may not be applicable to sections of the Police and Criminal Evidence Act 1984 and Codes

of Practice concerning other police powers

51 Reasonable Suspicion and Stop and Search

In the first part of the Police and Criminal Evidence Act 1984 it is identified that an officer cannot

stop and search an individual unless they have reasonable grounds for suspecting that any stolen or

prohibited articles listed under s1(7)-1(9) of the Act will be found on their person (s1(3) Police and

Criminal Evidence Act 1984) That being said there are many limitations placed upon what may

constitute a reasonable ground for suspecting that prohibited or stolen articles will be found on the

person(s) (Codes of Practice A s22) and that these can differ depending on the circumstances of

each case [Ozin P et al 2013 p4] However while suspicion might be raised for different reasons

in each case the Code emphasises that suspicion may never be based on personal factors

stereotypes or generalisations (Codes of Practice A s22) Nor may it be ldquoprovided retrospectively

by [hellip] questioning during a persons detention or by refusal to answer any questionsrdquo (Codes of

Practice A s29) Instead it is stressed that suspicion should have an objective basis derived from

known facts and information (Codes of Practice A s22)

12

Whether these demands put on officers by the Codes of Practice A to establish objective grounds

for suspicion are followed is questionable though At least when taking into consideration that the

sections of the Police and Criminal Evidence Act 1984 and the Codes of Practice concerning stop

and search has been subjected to heavy criticism mainly due to the disproportionate amount of

members from minority ethnic groups being searched in comparison to Caucasians Because even

though the Codes of Practice A does identify that there are situations where reasonable grounds for

suspicion might exist without the need for known facts or information such as initiating searches

based on an individuals behaviour or body language (Codes of Practice A s23) it does not explain

why black people are up to ldquosix times more likely to be stop[ped and] searched than would be

expected based on their numbers in the general populationrdquo (Bowling B and Phillips C 2007

p958) Nor does it explain how the recorded stops and searches of Asians since the mid-nineties

have remained between 15 and 25 times higher than those of Caucasians (Equality and Human

Rights Commission 2010 p13) These are worrying statistics that raise questions as to whether the

guidelines provided by the Police and Criminal Evidence Act 1984 and the Codes of Practice are

sufficient in order to ensure that this power is used appropriately and fairly Because even though

non-Caucasians are stopped and searched more frequently arrests following searches are distributed

quite evenly across all ethnic groups (StopWatch 2014)

There is a possibility that this targeting of minority ethnic groups could be a direct result of the

socio-economic conditions that traps many families from poor neighbourhoods in a cycle of poverty

and disadvantage (Joseph I and Gunter A 2011 p3) Especially as it has been found that these

groups often respond ldquoto their powerlessness with frustration rage and the creation of alternative

social and cultural values that promotes and normalizes gang membership and violencerdquo (Joseph I

and Gunter A 2011 p3) Due to the normalisation of such behaviour this could provide an

explanation to why some disproportionality might exist as the Codes of Practice provides an

exception to searches based on physical appearance when it is related to gang culture stating that

ldquowhere there is reliable information or intelligence that members of a group or gang

habitually carry knives unlawfully or weapons or controlled drugs and wear a

distinctive item of clothing or other means of identification to indicate their

membership of the group or gang that distinctive item of clothing or other means

of identification may provide reasonable grounds to stop and search a personrdquo

(Codes of Practice A s26)

13

However while this provision could support the existence of some disproportionality it does not

disprove that minority ethnic groups are being targeted by the police nor does it provide a

reasonable explanation to why blacks are being six times more likely to be subjected to a stop and

search This means there is a risk that this section of the Codes of Practice is being used by police

to maliciously target ethnic minority groups by stereotyping them as more likely to be involved

with criminal gangs

52 Reasonable Suspicion Stop and Search and Morality

While statistics and studies show that stop and search is used disproportionally and suggests that

individuals belonging to minority ethnic groups are being targeted by the police it does not mean

that the power itself nor the legislation governing it is unethical Because even though they tend to

overlap ldquothere is no necessary connection between law and moralsrdquo (Hart H L A 1958 cited by

Green L 2012 in Hart H L A 2012 pxxxiii) as the law applies to everyone unconditionally

while moral only applies to those that sympathise with the ideologies in question Kantian ethics

however arguing that one should do the right thing because of it being right views morality as a

supplement to the law (Zupancic A 2000 p16) therefore ensuring that we are not only doing what

is right but that we are also doing it for the right reasons (Sandel M 2011) Which from Kants

viewpoint is synonymous to acting out of duty which as established in Chapter 3 means that

onersquos actions must be converted to those that are able to pass the tests of generalisation and

universalisation As such one must convert the sections of the Police and Criminal Evidence Act

1984 and its associated Codes of Practice concerning stop and search into an order to establish

whether it is ethical

However while the Police and Criminal Evidence Act 1984 identifies that reasonable suspicion is

necessary in order to conduct a stop and search one cannot simply create a maxim stating that

police officers can stop and search anyone they reasonably suspect is carrying illegal or stolen

items Because even though this maxim does provide an accurate description of the necessary

requirements to perform a stop and search it is far too broad Such a maxim does not place a limit

upon what the suspicion might be based on resulting in a possibility for officers to target certain

groups of people based on prejudice or stereotypes Therefore such a maxim can neither be

generalised nor universalised meaning it would be considered entirely unethical by Kantian

principles However by using the guidelines and limitations of reasonable suspicion presented in

the Codes of Practice A that were identified earlier in this chapter this maxim can be broken down

into three separate parts These being

14

police officers may stop and search individuals for illegal or stolen items if it is in

accordance with known facts and information and they believe that such items will be found upon

searching the person

police officers may stop and search individuals acting in an obviously suspicious manner for

illegal or stolen items but only if they suspect that such items will be found upon searching the

person and

police officers may stop and search individuals based on articles of clothing piercings

andor tattoos if these are known to be worn by members of a gang(s) that are known to carry

illegal or stolen items and only if the police suspects that such items will be found upon searching

the person

These provide a much more limited and concentrated approach to the attempted moralisation of the

polices power to stop and search individuals for prohibited or stolen articles Because unlike the

previous maxim these are not only limiting what the basis for suspicion might be but also limiting

when the power itself may be enforced As such the likelihood of these being able to pass the tests

of generalisation and universalisation are increased

521 Generalisation and Universalisation

In order to accurately establish whether acts are moral they must pass the tests of generalisation and

universalisation as Kant believed that moral acts were ones that could be applied to everyone as a

universal law without becoming contradictory or illogical (see chapter 3) However as these deal

with police powers and Kant argued that acts must be applicable to everyone without exception

these will also be examined using Singers generalisation principle because it would be illogical for

such powers to be implemented by everyone Singers generalisation principle makes it possible to

bypass this issue as it argues that ldquowhat is right (or wrong) for one person must be right (or wrong)

for any similar person in similar circumstancesrdquo (Singer G M undated cited by ONeill O 2013

p78) Additionally this approach puts a utilitarian twist on Kants frameworks as it determines

morality based on the consequences of onersquos actions (ONeill O 2013 p79) rather than the

motivation behind them As such this test functions as a middle ground between the tests of

generalisation and universalisation ensuring that the generalised maxim does not cause an illogical

or chaotic result in addition to limiting the generalised maxim from anyone that is not a member of

the police service Analysing the maxim using these tests therefore requires them to be studied

individually so that they can be dissected and examined more closely

Looking at the first of the three maxims created using the guidelines and limitations of reasonable

15

suspicion as identified by the Codes of Practice A it can be established that it is comprised from

three different elements Namely

the police may only search for illegal or stolen items

the police may only search an individual based on known facts and information and finally

the police may only search the individual if they believe illegal or stolen items will be found

Attempting to generalise any of these elements of the maxim individually would not be reasonable

as they do not provide enough limitations or guidelines for it to be functional Because the first part

allows the police to search anyone for illegal or stolen items without the necessity of a suspicion

that any such items will be found which would result in a police state where the police could search

anyone they please The necessity of believing that illegal or stolen items will be found upon

conducting a search is added by the third element of the maxim but there are still no requirements

for the police to have any kind of reasonable basis for their decision to stop and search someone as

this is added by the maxims second element However this element cannot be moralised on its own

either as it does not specify what the police may search for However when all three elements of

the maxim are combined all necessary limitations are present meaning the generalisation of it

should not produce a contradictory or illogical result

However passing the test of generalisation does not mean that the maxim is ethical as it must also

be universalisable Meaning it should be able to be enforced as a (hypothetical) law that applies to

everyone unconditionally As the maxim places a requirement on the police to only stop and search

individuals if they have a factual basis for their suspicion to find illegal or stolen items upon

searching the person this should be a universalisable action Because assuming all police officers

were required to follow this maxim it would result in a world where only specific items may be

searched for if they have a factual reason to conduct the search and only if they believe that such

items will be found upon searching the person(s) As this would not produce any undesirable

consequences this maxim would not only pass Kants test of universalisation but also fulfil the

necessary criteria for Singers generalisation principle

This is essentially what the Police and Criminal Evidence Act 1984 and the Codes of Practice A

seeks to do meaning that if the guidelines were followed by the police unlawful stops and searches

should not occur However since there are more aspects to the laws that govern the polices power

to stop and search individuals for illegal or stolen items such as searches based on suspicious

behaviour or searches of suspected gang members other aspects must be explored as well before

16

declaring whether it is ethical or not For this reason the two additional maxims (mentioned earlier)

are needed and must therefore be tested as well As these maxims can be implemented in such

situations by the removal of the need for a factual basis for suspicion and replacing it with either

the possibility to

search individuals acting in an obviously suspicious manner or

search individuals based on clothing piercings andor tattoos if these are known to be worn

by members of gangs that are known to carry illegal or stolen items

As with the various elements of the maxim analysed previously these are also unable to be

moralised individually Because the first of the two does not specify what may be searched for and

neither of the sections specify that the police should expect to find illegal or stolen items upon

stopping and searching an individual As such neither of these elements can function as a maxim on

their own as they are illogical and can neither be generalised nor universalised However when

these are combined with the other elements of the maxims these issues should be resolved thus

passing Kants test of generalisation

Universalising these maxims is a bit more problematic than the one analysed previously through

For example with the first of these two maxims police officers would be enforced to stop and

search anyone that is acting in an obviously suspicious manner for illegal or stolen items if they

believe any such items will be found upon searching them The phrase behaving in an obviously

suspicious manner is a bit of an issue here as there is no definition available as to what can be

classified as such However a reasonable person would probably equate behaving in an obviously

suspicious manner to trying to hide something which is used as an example in the Codes of

Practice A s23 It could therefore be worth substituting the phrase behaving in an obviously

suspicious manner with trying to hide something as this would be more specific However by

doing this the maxim would become much more limited as it would no longer allow individuals

behaving suspiciously in other ways to be searched Nevertheless should this interpretation be used

the likeliness of the maxim passing the test of universalisation might be increased as the likeliness

of it producing a chaotic result would decrease Additionally implementing such an interpretation

would also make it more likely for the maxim to pass Singers generalisation principle As the

conduction of stops and searches of people that are obviously trying to hide something is less likely

to produce an undesirable outcome in comparison to searching anyone acting suspiciously

Finally the universalisation of the third and final of the maxims would enforce the police to stop

17

and search anyone dressed or in any other ways being physically identifiable as a possible member

of a gang known to carry illegal or stolen items if they believe any such items will be found upon

searching them As with the maxim analysed above there are issues related to universalising this

maxim due to the possibility of it causing certain people to be targeted because of the clothes they

wear or any piercings or tattoos on their body being related to or similar to ones connected to a

criminal gang Universalising this maxim could therefore worsen an already prevalent issue where

innocent members of the public get their civil liberties infringed upon due to their personal style

especially as the maxim allows quite a broad range of items accessories and body art to be used as

an indicator for suspicion In a study by Jackson and Smith (2013) the experiences of young people

from London that had been subjected to stop and search was surveyed where the participants

identified what kind of clothing might fit the criteria of being a presumed gang member It was

suggested that ldquoemulating American hip hop artists by wearing low-slung jeans hoodies and

branded trainers and walking and talking in a certain wayrdquo (p6) was stereotyped by the police as

gagster behaviour and dress The same study also identified an experience that was shared by one

of the participants whom stated that ldquoThey just say youre in a drug infested area and youve got a

hood on so were stopping and searching yourdquo (Jackson L and Smith L 2013 p6)

Taking this into consideration it can therefore be seen that the universalisation of a maxim asking

the police to stop and search anyone perceived to be involved with a criminal gang for illegal or

stolen items could result in a form of criminalisation of the hoodie and other specific pieces of

clothing as these are stereotyped as being related to gang membership This would be problematic

as the hoodie in particular is a comfortable and often affordable piece of clothing that is a staple in

the wardrobes of many of societys subcultures such as emos and skaters that are generally not

stereotyped as criminals (Braddock K 2011) As such it can be established that neither Kant nor

Singer would be able to universalise this maxim as having officers search anyone wearing specific

clothes would neither be reasonable nor produce any desirable consequences

522 Issues

While two out of three of the different maxims appear to be moral in the eyes of Kant there are still

some issues relating to them which must be acknowledged Primarily there might be an issue with

these maxims being too specific as it has been noted that ldquoany maxim that is highly restricted is

likely to pass the universalisability testrdquo [Guyer P 2007 cited by Perold L M 2010 p19]

because the more descriptive a maxim is the less likely it is that it would become contradictory As

all of the maxims created from the Codes of Practice A are highly restrictive specifying who may

carry out the act under what circumstances they may carry it out and the limitations of the actions

18

itself Additionally as noted earlier in this chapter the maxims cannot be made more general either

as this would prevent them from being moralised this means that there is a risk of these maxims

passing the tests of universalisation and generalisation simply because of their overly descriptive

nature rather than actually being moral

There might also be an issue with the phrasing of the maxims specifically the use of the term

police officers as this might cause some uncertainties regarding exactly who the maxim applies to

Because by using the term police officer or even police it becomes questionable if an officer must

be in uniform in other words his or her position as a police officer is overt when carrying out the

search However since these maxims need to be exclusive to the police it could be hard to bypass

this issue without adding yet another specification to it that clarifies whether there is a need for the

officer to be in uniform or not

Finally there could also be an issue of the maxims conflicting with each other as the first of the

maxims states that the decision to stop and search someone needs to be in accordance with known

facts and information Something that might not be available when a stop and search is made

utilising the second or third maxim as these can be initiated without a need of known facts or

information This raises a question to whether one of the maxims would naturally take precedence

over the others as all three maxims regarding stop and search can never operate at the same time

Generally Kantianism argues that when one is faced with opposing maxims the perfect duty will

always take precedence over an imperfect one (Stohr K 2010 p3) However as all of the maxims

are addressing what is essentially the same action being the possibility to stop and search

individuals for illegal andor stolen items this could be problematic Furthermore while there are

three maxims identified within this study there also exists another fourth maxim which concerns

the possibility of not searching anyone for illegal or stolen items This fourth maxim is also

considered a perfect duty as it would generally be easier to universalise not searching people as

opposed to searching individuals fitting certain requirements This means that the maxim regarding

the omission to act would in this case take precedence over the other maxims identified within this

research essentially rendering them powerless

19

Chapter 6

Conclusion

From this study it can be seen that the legislation governing a heavily criticised police power such

as stop and search has the possibility to be morally justifiable by the ethical frameworks developed

by Kant Because while Kants ethical theory does not rectify or justify the issue of ethnic minorities

being subjected to a disproportionate amount of stops and searches in comparison to Caucasians it

is important to remember that the ldquolaw in theory and the law in practice differrdquo (Westmarland L in

Newburn T 2011 p255) Meaning that the moralisation of the legislation does not ensure that it

will be applied ethically by the police Additionally as Kantian ethics values the motivation behind

ones actions over the consequences produced from them the potential issues caused by ones actions

are irrelevant as long as the action itself can be universalised without producing a chaotic or

undesirable result

However as there are several layers to stop and search there are some implications to morally

justifying this power as it is multi-faceted Being designed to deal with a variety of different

situations and bases from which suspicion might arise to justify the stopping and searching of an

individual Because while Kantian ethics can ethically justify police officers to stop and search

individuals for illegal or stolen items if it is in accordance with known facts and information and

they believe that such items will be found upon searching the person this encompasses only one of

the many facets of the power As such the power cannot be justified as a whole as any maxim used

to describe it would not provide the necessary limitations needed for it to successfully pass the tests

of generalisation and universalisation

While the power cannot be moralised as a whole it is possible to create two additional maxims

using the limitations and exceptions to the necessity criteria of reasonable suspicion found in the

Codes of Practice A to create an additional two maxims These represent two additional facets of

stop and search being that

police officers may stop and search individuals acting in an obviously suspicious manner for

illegal or stolen items but only if they suspect that such items will be found upon searching the

person and

police officers may stop and search individuals based on articles of clothing piercings

andor tattoos if these are known to be worn by members of a gang(s) that are known to carry

20

illegal or stolen items and only if the police suspects that such items will be found upon searching

the person

However only the first of these two maxims can be justified utilising Kants ethical framework and

Singers generalisation principle because the latter cannot be universalised without becoming

unreasonable Furthermore the latter cannot be justified without providing further limitations

requiring the phrase acting in an obviously suspicious manner to be replaced by obviously hiding

something

From the issues presented from the creation of the two additional maxims above it can be

established that stop and search cannot be considered morally justifiable under all circumstances

Because different situations calls for different maxims meaning that should the search not be

initiated based on known facts or information it is unlikely to be ethical Nevertheless even though

all facets of this police power cannot be morally justified it does seem that the majority of them can

be considered ethical to some extent Meaning the legislation governing it is generally ethical but

as a whole it becomes a bit of a moral ambiguity This shows that the police power as identified by

the Police and Criminal Evidence Act 1984 and the Codes of Practice A has a potential to be

ethically justified with the exception of the section permitting searches where physical appearance

can be used as a basis for suspicion Additionally this research identified that the reasons for why

this particular section is not justifiable could also be part of the reason to the disproportionate

amount of searches of ethnic minorities As it might provide officers maliciously targeting

minorities with a possibility to justify their actions by claiming a particular article of clothing body

art or similar was the reason for the stop

As such it can be established that the legislation governing the polices power to stop and search

individuals for prohibited or stolen articles cannot be fully moralised as not all sections of the

Police and Criminal Evidence Act 1984 or the Codes of Practice A concerning this power can be

ethically justified However while the legislation as whole is morally ambiguous at best the

searches conducted with factual information as a basis for suspicion suggests that the sections of the

legislation addressing this type of search cannot be implemented in an unethical manner Because as

the universalised maxim requires the police to act in a manner promoted by the Act and Codes this

shows that any unethical searches carried out using this type of search are caused as a result of

police misconduct rather than an actual issue with the legislation

21

However it should be noted that this research can only provide a limited account of the morality of

this police power as it has only explored it through the limitations put upon it through the necessity

requirement of reasonable suspicion Additionally it can only account for the morality of the

sections of the Police and Criminal Evidence Act 1984 and the Codes of Practice A addressing this

particular police power and only through the limitations explored within this research Finally it is

also important to recognise that the police power has only been analysed using a Kantian approach

to ethics and morality This means that further studies of the police power and indeed the Act and

Codes in general are needed in order to provide a more accurate account of the morality and ethical

issues present It is therefore suggested that additional research should be carried out to study the

legislation governing the power of stop and search utilising other ethical theories or utilising

Kantian ethics with a different focus point of the legislation

However while further research is needed in order to gain a more accurate account of the overall

morality of the police power and the legislation governing it it does not mean the research

presented in this paper is of any less value Because even though the study can only provide a

limited account of the legislations morality it has succeeded in presenting the probabilities for the

moral justification of the Acts first part along with the associated Codes of Practice as well as

identifying that the issues connected to the Act may be caused primarily by the polices failure to

accurately conduct stops and searches according to the law Meaning the research has produced

some valuable results in addition to providing a stepping stone for further research on the topic

22

Bibliography

BBC [2014] Duty-Based Ethics Available at

httpwwwbbccoukethicsintroductionduty_1shtml [Accessed 20-03-2014]

Benz S [2010] ldquoThe Police and Criminal Evidence Act 1984 balancing civil liberties and public

securityrdquo Diffusion 5(2) Available at httpatpuclanacukbuddypressdiffusionp=1255

[Accessed 25-04-2014]

Bowling B and Phillips C [2007] Disproportionate and Discriminatory Reviewing the Evidence

on Police Stop and Search Oxford Blackwell Publishing p958 httpwwwstop-

watchorguploadsdocumentsmodern_law_reviewpdf

Braddock K [2011] ldquoThe Power of the Hoodierdquo The Guardian Available at

httpwwwtheguardiancomuk2011aug09power-of-the-hoodie [Accessed21-04-2014]

Codes of Practice A

Council of Europe [2010] European Convention on Human Rights Strasbourg European Court of

Human Rights p 7 Available at httpwwwechrcoeintDocumentsConvention_ENGpdf

[Accessed 09-03-2014]

The Economic and Social Research Council [2012] Frameworks for Research Ethics Swindon

Economic and Social Research Council pp2-3 3 Available at

httpwwwesrcacuk_imagesframework-for-research-ethics-09-12_tcm8-4586pdf [Accessed 01-

04-2014]

The Economist [1990] End Game Available

athttpgogalegroupcompsidoid=GALE7CA9390713ampv=21ampu=uceampit=rampp=SPJSP0

0ampsw=wampasid=f6f778fcf0a20b3f0f18df5e20a57f27 [Accessed 19-03-2014]

Fahy P [undated] ldquoForewordrdquo In Ozin P Norton H and Spivey P [2013] PACE ndash A Practical

Guide to the Police and Criminal Evidence Act 1984 3rd

Edition Oxford Oxford University Press

p v

Flick U [2011] Introducing Research Methodology London Sage p 125

Garret J [2006] Kants Duty Ethics Available at

httppeoplewkuedujangarrettethicskanthtm [Accessed 20-03-2014]

Govuk [2013] Guidance Police and Criminal Evidence Act 1984 (PACE) Codes of Practice

London Home Office Available at httpswwwgovukpolice-and-criminal-evidence-act-1984-

pace-codes-of-practice [Accessed 02-04-2014]

Guyer P (2007) cited by Perold L M [2010] Does Immanuel Kants Categorical Imperative

Commit Him to the View that Lying is Always Morally Wrong Master of Arts thesis University of

the Witwatersrand p 19 Available at

httpwiredspacewitsaczabitstreamhandle1053910096M20Perold20Research20Reportp

dfsequence=2 [Accessed 24-04-2014]

4

It should also be noted that literature based research also benefits in ways that research based on

primary sources does not considering that the field of criminology often deals with sensitive topics

and people such as illegal activities and the abused (Westmarland L 2011 p141) Meaning there

are plenty of ethical pitfalls one must avoid when conducting research within this field especially

when using primary sources for the research However regardless of conducting research using

primary or secondary resources any research proposition must adhere to the six key principles of

ethical research (see Appendix 1) Most of the ethical issues identified within these principles are

related to peer-based research though meaning a literature based research is more likely to be

justified ethically than research using primary sources This due to the lack of participants involved

in the research whose emotions consent and wellbeing must be taken into consideration nor should

the researcher themselves be at risk because of the research (Economic and Social Research Council

2012 pp2-3)

However while the literature based method avoids most of the major ethical concerns this

particular piece of research might be subjected to some ethical scrutiny because of the manner in

which it is being carried out Because as the research only utilises the Kantian approach to morality

in addition to only analysing a specific part of the Police and Criminal Evidence Act 1984 and its

corresponding Codes of Practice it might produce some questionable results As such the research

is at risk of being perceived as being biased aiming to obtain certain results by only studying a

selected part of the legislation using a single ethical framework Nonetheless in the Frameworks for

Research Ethics provided by the Economic and Social Research Council (2012) it is stated that ldquothe

independence of research must be clear and any conflicts of interest or partiality must be explicitrdquo

(p3) So while the research might produce results that could be considered biased or partial for the

above reasons this is something that has been acknowledged and addressed before the start of the

research as can be seen in the Ethics Approval Form (see Appendix 2) As such the potential for the

research questioned due to only analysing a select part of the legislation and Codes of Practice

using only one perspective of morality has been addressed explicitly Additionally it is also

acknowledged that other results regarding the morality of the Police and Criminal Evidence Act

1984 and the Codes of Practice might be achieved by utilising a different ethical framework by

studying different sections of the Act or by analysing the Act and Codes of Practice as a whole

5

Chapter 3

Kantian Ethics

The ethical framework developed by Immanuel Kant is an ideology that places moral value on the

motivations between our actions and their potential for universalisation rather than the

consequences of the act itself In this chapter the core principles of the Kantian framework will be

explained identifying the process of determining the morality of our actions through the tests of

generalisation and universalisation Additionally the chapter will also be addressing various

criticisms issues and shortcomings of the Kantian approach to ethics and morality such as the

possibility of the framework allowing for any maxims to be moralised with the right phrasing

31 The Core Ideas

The idea of autonomy is at the core of Kantian ethics arguing that each individual can (and should)

make their own decisions without any external interferences to guide or coerce them (Bennet C

2010 p75) As such Kantianism argues for the presence of free will meaning human beings are

accountable for the choices they make and the actions they subsequently carry out and that

everyone capable of reasonable thinking has the potential to act in accordance to the moral law

However while humans are generally considered to be rational beings it does not mean that they

will behave in a rational manner at all times but rather that they have the capability of doing so

According to Kant this is what separates humans beings from animals as they are only capable of

operating under negative freedom through reacting to their impulses and instinct unable to

question or evaluate the situation in ways human beings are able to (Bennet C 2010 p76) As such

rational beings are the embodiment of morality as the moral law is that of reason (Rachels J 1986

p1) which is why Kant argued that humans must never be treated as the means to an end but

should instead be the end itself (BBC 2014)

Nevertheless being a rational agent capable of recognising reasonable actions from unreasonable

ones thus acting outside of the realms of negative freedom and moving into what is known as

positive freedom does not ensure that onersquos actions are good or moral These are simply

requirements to qualify as an agent that is capable of acting morally not an insurance that actions

carried out by such an agent will be moral or reasonable Instead Kant argued that moral acts are

identified through their motivations stating that ldquoif duty is the key element in our decision to act

then we have acted rightlyrdquo (BBC 2014) because ldquoan action done from duty has its moral worth

not from the results it attains or seeks to attain but from a formal principle or maxim ndash the principle

of doing ones duty whatever that may berdquo (Paton H J 1969 p20) In this case the meaning of

6

duty is equal to acting in reverence to the moral law as Kant argues that morality and its rational

requirements can be translated into rules or that dictates how we should act (Bennet C 2010

p83) These moral rules are divided into two separate groups being hypothetical and categorical

however only categorical can result in a moral law This is due to hypothetical making it possible

for an individual to claim they are an exception to the rule which is unreasonable as moral laws

must apply to everyone without exception (Bennet C 2010 p83) This means that a maxim such

as do not lie unless you want to be considered untrustworthy or even an innocent maxim such as

bring an umbrella unless you want to risk getting wet would be fallible and immoral according to

Kant as they do not apply to individuals that are willing to face the consequences related to these

acts

To be able to establish whether ones actions are moral or not one must therefore be able to apply it

without failure to everyone This is a process known as universalisation which questions the agent

to ldquonever act except in such a way that [they] can also will that [their] maxim should become a

universal lawrdquo (Paton H J 1969 p22) meaning that the morality of an act is determined through

establishing its possibility to be enforced at least hypothetically as a law applying to everyone

unconditionally Ascertaining whether an act can be universalised requires the use of two tests

known as the tests of generalisation and universalisation A maxim must therefore

be able to be generalised without becoming contradictory or illogical as a result to then be

applicable as a universal law governing everyone without exceptions without resulting in an

unappealing or chaotic outcome (Garret J 2006) As ldquoKant believes that someone who violates the

moral requirements is being irrationalrdquo (Bennet C 2010 p82) one should therefore not act on a

maxim that is unable to pass both the test of generalisation and universalisation as this would result

not only in acting immorally but also irrationally

32 Criticisms and Issues

Like any other philosophical or ethical theory the Kantian approach is not devoid of imperfections

and both the original theory and contemporary interpretations have faced criticisms for everything

from structure and implementation to the actual usefulness of the theory However in her book

Bounds of Justice Onora ONeill (2000) identifies that the criticisms of Kantian theories tend to fall

into three different groups of categories (p67) all of which will be explored within this section of

the chapter

The first of these categories identified by ONeill (2000) is that Kant fails to acknowledge the

importance that human relationships and emotions might have on our moral reasoning (p67) An

7

issue that is also identified by Bennet (2010) stating that ldquoit certainly seems a large gap in a moral

theory that it has nothing to say about how pain and suffering makes acts wrongrdquo (p88) Because

while many actions that might cause pain and suffering to others generally cannot be justified using

the categorical imperative they are not dismissed for the right reasons (Bennet C 2010 p88) as

ldquouniversal rules require us to overlook and [hellip] neglect the fragility mutual vulnerability social

embeddedness and constitutive loyalties of real peoplerdquo (ONeill O 2000 p67) As human beings

are not cold calculative and emotionless robots this is an obvious flaw within Kants frameworks

because in order to act morally one needs to be able to completely disregard the feelings of other

people

Furthermore due to the lack of consideration for human emotions and relationships Kant has

simplified the very complex issue of moral theory (ONeill O 2000 p 67) often resulting in very

bizarre contradicting or even worrying results Because utilising the categorical imperative for

moral guidance might result not only in allowing obviously immoral actions to be universalised but

also preventing other harmless acts of kindness such as opening the door for someone else from

being morally justified (Bennet C 2010 p86) It should be obvious to a normal reasonable human

being that there is nothing wrong or immoral about holding the door open for someone else yet

through the implementation of Kantianism such an action cannot be justified due to it being unable

to pass the test of universalisation Showing that the Kantian approach struggles to encompass all

actions regardless of their significance importance or size in a reasonable manner

It should also be noted that the Kantian framework can also produce situations where the agent will

be acting immorally no matter what they do Bennet (2010) utilises an example of noticing a child

in the process of drowning while on the way to class and even though we have a duty to help others

according to Kant the option of not helping can also be moralised in this scenario as the agent will

adhere to the maxim of getting to class on time (p86-87) This leads to the final category of

critiques against Kant and Kantian ideologies as identified by ONeill (2000) which states that it is

a theory ldquodesigned for abstract individuals [hellip] leading to abstract conclusions that are irrelevant to

real people who lead real livesrdquo (p 67) It is possible that this abstract nature of the theory could be

due to Kants failure to provide a proper guideline stating how our actions should be explained in

order to properly calculate their ethical value through the tests of generalisation and universalisation

Because with the manner in which the Kantian framework is designed there is a possibility that

ldquoany action could pass it simply by being re-describedrdquo (Bennet C 2010 p87) The Kantian

framework is therefore in need of some kind of notes for guidance that provides an explanation for

how one is to distinguish correct descriptions of ones actions from incorrect ones

8

Chapter 4

PACE A Brief Introduction

The following chapter will be providing a brief introduction to the Police and Criminal Evidence

Act 1984 and its associated Codes of Practice Providing a basic understanding of the legislations

history and purpose in addition to some criticisms of the act and issues that has developed as a

result of its development As such this chapter alongside with chapter 3 provides a foundation for

the following chapters where specific parts of the legislation will be explored more thoroughly in

addition to being analysed through the Kantian frameworks for ethics

41 Background

Policing in England and Wales is nowadays comprised of a tough balancing act where ldquothe interests

of the community and the rights of the individualrdquo (Royal Commission undated cited by Zander

2011 p3) must be taken into account while also maintaining public order In addition to being

required to evaluate to what extent they may infringe upon civil liberties to do their job the police

is also under constant public scrutiny This means that any infringement upon the rights of an

individual that cannot be justified by the Police and Criminal Evidence Act 1984 the Human Rights

Act 1998 or other pieces of legislation can have dire consequences for the police Such

infringements can result in lawsuits against the police or rendering evidence inadmissible in court

as was seen in the case of R v Miller (1993) where the confessions from the suspects were rendered

inadmissible due to hostile and oppressive questioning by police However while it is noted that

infringement of civil liberties should be avoided and the rights of the public should be respected it

is also identified in Article 5 of the European Convention of Human Rights that there are

circumstances when the police and the criminal justice system must be granted the power to

lawfully infringe upon these (Council of Europe 2010 p7) Because without these exceptions legal

and justice systems would no longer function as criminal justice cannot function if the rights of the

individual is to be respected at all times

While there is a need for the police and criminal justice system to infringe upon the rights of

individuals there must be sanctions that govern to what extent these rights can be infringed upon

and under what circumstances As mentioned above article five of the European Convention of

Human Rights provides a good starting point but as it must be applicable to the state legislature of

all member states of the European Union it is far too general and leaves plenty of gaps to fill in

This is where the Police and Criminal Evidence Act 1984 and its corresponding Codes of Practice

comes into play as these help with outlining the provisions for the polices ability to infringe upon

9

the civil liberties of the public It was introduced following some cases of gross police misconduct

that had come to light causing miscarriages of justice of several high-profile cases which put a

strain on the relationship between the police and the public One such case included the R v

McIlkenny and others (1991) more famously known as the Birmingham Six where six innocent

men were wrongfully convicted as a result of police officers having beaten witnesses to obtain

satisfactory statements in addition to distorting forensic evidence (The Economist 1990) The

Police and Criminal Evidence Act 1984 and the associated Codes of Practice was introduced in an

attempt to remedy this through providing guidelines for how evidence was to be obtained legally

how suspects and detained persons were to be treated how and when certain police powers could be

legally enforced as well as providing the criminal justice system with transparency and

accountability (Fahy P in Ozin P Norton H and Spivey P 2013 pv)

Through its introduction the Police and Criminal Evidence Act 1984 and its corresponding Codes of

Practice drastically changed the manner in which policing was carried out causing a bit of a

culture shock for some officers that were threatened by the new developments (Wilding B

undated in Cape E and Young R 2008 p127) As there were suddenly demands being put on

officers that did not exist previously in addition to clear frameworks dictating what kind of

behaviour was deemed acceptable All to ensure that investigations were carried out both

objectively and with integrity two elements which are important to maintain public confidence in

the police force (Wilding B undated in Cape E and Young R 2008 p127) However while the

drastic changes might have come as a shock to some officers it is now common practice and

heavily ingrained to the very core of policing Additionally while the Act generally focuses on the

protection of the suspects victims and witnesses it simultaneously provides the police with

safeguards to avoid suspicion of unlawfully acquired evidence as everything from physical

evidence to verbal or written confessions must be recorded and processed in detail (Police and

Criminal Evidence Act 1984 sNUMBER sNUMBER) ensuring that the police runs a lower risk of

being unjustly accused of foul play

32 Critiques and Issues

While the Act and the Codes of Practice has played a significant part in making the police ldquomore

accountable in terms of performance and standards than virtually any other public bodyrdquo (Wilding

B undated in Cape E and Young R 2008 p130) as well as supposedly having ldquoushered in new

ethical standards for the servicerdquo (Wilding B undated in Cape E and Young R 2008 p127) It

has been subjected to a significant amount of criticism from non-governmental organisations such

as Liberty members of the police itself and academics scrutinising everything from how the Act

10

takes the police off the streets and placing them behind desks to carry out extensive amounts of

paperwork (Wilding B undated in Cape E and Young R 2008 p127) to questioning whom the

Act is really favouring (Benz S 2010) Furthermore the actual contents of the Act and the Codes of

Practice has been criticised in particular the Acts first part concerning stop and search (see chapter

5) resulting in a large number of edits and moderations to remedy these and provide a better

balance between the police and the rights of the public

11

Chapter 5

Reasonable Suspicion

While the Police and Criminal Evidence Act 1984 provides the police with guidelines for how and

when they may use their powers to infringe upon civil liberties these are not enough to ensure that

policing is carried out correctly in accordance to the act The Act must therefore be read alongside

the Codes of Practice as these further explain the limitations of the powers in addition to the

requirements that must be fulfilled in order for an officer to implement them One such requirement

that is found repeatedly throughout the Act and the Codes of Practice is the need for an officer to

have reasonable grounds for suspecting that the person(s) of interest are doing have done is about

to do or is in possession of something illegal (Police and Criminal Evidence Act s1(7)-1(9)

s3(1)(a)-3(1)(d)) This requirement is one that has been subjected to some controversy and scrutiny

especially in connection to the power of stop and search (addressed below) as it is often described

in very vague or broad terms often making it unclear what exactly constitutes appropriate grounds

for reasonable suspicion Additionally it should also be noted that the appropriate grounds for

suspicion might differ slightly from one section of the Act to another making it important to

separate these definitions from each other when studying them as they may all have their own

interpretations definitions regulations and issues However as this research explores the ethical

implications of reasonable suspicion in relation to stop and search it must be acknowledged that the

results may not be applicable to sections of the Police and Criminal Evidence Act 1984 and Codes

of Practice concerning other police powers

51 Reasonable Suspicion and Stop and Search

In the first part of the Police and Criminal Evidence Act 1984 it is identified that an officer cannot

stop and search an individual unless they have reasonable grounds for suspecting that any stolen or

prohibited articles listed under s1(7)-1(9) of the Act will be found on their person (s1(3) Police and

Criminal Evidence Act 1984) That being said there are many limitations placed upon what may

constitute a reasonable ground for suspecting that prohibited or stolen articles will be found on the

person(s) (Codes of Practice A s22) and that these can differ depending on the circumstances of

each case [Ozin P et al 2013 p4] However while suspicion might be raised for different reasons

in each case the Code emphasises that suspicion may never be based on personal factors

stereotypes or generalisations (Codes of Practice A s22) Nor may it be ldquoprovided retrospectively

by [hellip] questioning during a persons detention or by refusal to answer any questionsrdquo (Codes of

Practice A s29) Instead it is stressed that suspicion should have an objective basis derived from

known facts and information (Codes of Practice A s22)

12

Whether these demands put on officers by the Codes of Practice A to establish objective grounds

for suspicion are followed is questionable though At least when taking into consideration that the

sections of the Police and Criminal Evidence Act 1984 and the Codes of Practice concerning stop

and search has been subjected to heavy criticism mainly due to the disproportionate amount of

members from minority ethnic groups being searched in comparison to Caucasians Because even

though the Codes of Practice A does identify that there are situations where reasonable grounds for

suspicion might exist without the need for known facts or information such as initiating searches

based on an individuals behaviour or body language (Codes of Practice A s23) it does not explain

why black people are up to ldquosix times more likely to be stop[ped and] searched than would be

expected based on their numbers in the general populationrdquo (Bowling B and Phillips C 2007

p958) Nor does it explain how the recorded stops and searches of Asians since the mid-nineties

have remained between 15 and 25 times higher than those of Caucasians (Equality and Human

Rights Commission 2010 p13) These are worrying statistics that raise questions as to whether the

guidelines provided by the Police and Criminal Evidence Act 1984 and the Codes of Practice are

sufficient in order to ensure that this power is used appropriately and fairly Because even though

non-Caucasians are stopped and searched more frequently arrests following searches are distributed

quite evenly across all ethnic groups (StopWatch 2014)

There is a possibility that this targeting of minority ethnic groups could be a direct result of the

socio-economic conditions that traps many families from poor neighbourhoods in a cycle of poverty

and disadvantage (Joseph I and Gunter A 2011 p3) Especially as it has been found that these

groups often respond ldquoto their powerlessness with frustration rage and the creation of alternative

social and cultural values that promotes and normalizes gang membership and violencerdquo (Joseph I

and Gunter A 2011 p3) Due to the normalisation of such behaviour this could provide an

explanation to why some disproportionality might exist as the Codes of Practice provides an

exception to searches based on physical appearance when it is related to gang culture stating that

ldquowhere there is reliable information or intelligence that members of a group or gang

habitually carry knives unlawfully or weapons or controlled drugs and wear a

distinctive item of clothing or other means of identification to indicate their

membership of the group or gang that distinctive item of clothing or other means

of identification may provide reasonable grounds to stop and search a personrdquo

(Codes of Practice A s26)

13

However while this provision could support the existence of some disproportionality it does not

disprove that minority ethnic groups are being targeted by the police nor does it provide a

reasonable explanation to why blacks are being six times more likely to be subjected to a stop and

search This means there is a risk that this section of the Codes of Practice is being used by police

to maliciously target ethnic minority groups by stereotyping them as more likely to be involved

with criminal gangs

52 Reasonable Suspicion Stop and Search and Morality

While statistics and studies show that stop and search is used disproportionally and suggests that

individuals belonging to minority ethnic groups are being targeted by the police it does not mean

that the power itself nor the legislation governing it is unethical Because even though they tend to

overlap ldquothere is no necessary connection between law and moralsrdquo (Hart H L A 1958 cited by

Green L 2012 in Hart H L A 2012 pxxxiii) as the law applies to everyone unconditionally

while moral only applies to those that sympathise with the ideologies in question Kantian ethics

however arguing that one should do the right thing because of it being right views morality as a

supplement to the law (Zupancic A 2000 p16) therefore ensuring that we are not only doing what

is right but that we are also doing it for the right reasons (Sandel M 2011) Which from Kants

viewpoint is synonymous to acting out of duty which as established in Chapter 3 means that

onersquos actions must be converted to those that are able to pass the tests of generalisation and

universalisation As such one must convert the sections of the Police and Criminal Evidence Act

1984 and its associated Codes of Practice concerning stop and search into an order to establish

whether it is ethical

However while the Police and Criminal Evidence Act 1984 identifies that reasonable suspicion is

necessary in order to conduct a stop and search one cannot simply create a maxim stating that

police officers can stop and search anyone they reasonably suspect is carrying illegal or stolen

items Because even though this maxim does provide an accurate description of the necessary

requirements to perform a stop and search it is far too broad Such a maxim does not place a limit

upon what the suspicion might be based on resulting in a possibility for officers to target certain

groups of people based on prejudice or stereotypes Therefore such a maxim can neither be

generalised nor universalised meaning it would be considered entirely unethical by Kantian

principles However by using the guidelines and limitations of reasonable suspicion presented in

the Codes of Practice A that were identified earlier in this chapter this maxim can be broken down

into three separate parts These being

14

police officers may stop and search individuals for illegal or stolen items if it is in

accordance with known facts and information and they believe that such items will be found upon

searching the person

police officers may stop and search individuals acting in an obviously suspicious manner for

illegal or stolen items but only if they suspect that such items will be found upon searching the

person and

police officers may stop and search individuals based on articles of clothing piercings

andor tattoos if these are known to be worn by members of a gang(s) that are known to carry

illegal or stolen items and only if the police suspects that such items will be found upon searching

the person

These provide a much more limited and concentrated approach to the attempted moralisation of the

polices power to stop and search individuals for prohibited or stolen articles Because unlike the

previous maxim these are not only limiting what the basis for suspicion might be but also limiting

when the power itself may be enforced As such the likelihood of these being able to pass the tests

of generalisation and universalisation are increased

521 Generalisation and Universalisation

In order to accurately establish whether acts are moral they must pass the tests of generalisation and

universalisation as Kant believed that moral acts were ones that could be applied to everyone as a

universal law without becoming contradictory or illogical (see chapter 3) However as these deal

with police powers and Kant argued that acts must be applicable to everyone without exception

these will also be examined using Singers generalisation principle because it would be illogical for

such powers to be implemented by everyone Singers generalisation principle makes it possible to

bypass this issue as it argues that ldquowhat is right (or wrong) for one person must be right (or wrong)

for any similar person in similar circumstancesrdquo (Singer G M undated cited by ONeill O 2013

p78) Additionally this approach puts a utilitarian twist on Kants frameworks as it determines

morality based on the consequences of onersquos actions (ONeill O 2013 p79) rather than the

motivation behind them As such this test functions as a middle ground between the tests of

generalisation and universalisation ensuring that the generalised maxim does not cause an illogical

or chaotic result in addition to limiting the generalised maxim from anyone that is not a member of

the police service Analysing the maxim using these tests therefore requires them to be studied

individually so that they can be dissected and examined more closely

Looking at the first of the three maxims created using the guidelines and limitations of reasonable

15

suspicion as identified by the Codes of Practice A it can be established that it is comprised from

three different elements Namely

the police may only search for illegal or stolen items

the police may only search an individual based on known facts and information and finally

the police may only search the individual if they believe illegal or stolen items will be found

Attempting to generalise any of these elements of the maxim individually would not be reasonable

as they do not provide enough limitations or guidelines for it to be functional Because the first part

allows the police to search anyone for illegal or stolen items without the necessity of a suspicion

that any such items will be found which would result in a police state where the police could search

anyone they please The necessity of believing that illegal or stolen items will be found upon

conducting a search is added by the third element of the maxim but there are still no requirements

for the police to have any kind of reasonable basis for their decision to stop and search someone as

this is added by the maxims second element However this element cannot be moralised on its own

either as it does not specify what the police may search for However when all three elements of

the maxim are combined all necessary limitations are present meaning the generalisation of it

should not produce a contradictory or illogical result

However passing the test of generalisation does not mean that the maxim is ethical as it must also

be universalisable Meaning it should be able to be enforced as a (hypothetical) law that applies to

everyone unconditionally As the maxim places a requirement on the police to only stop and search

individuals if they have a factual basis for their suspicion to find illegal or stolen items upon

searching the person this should be a universalisable action Because assuming all police officers

were required to follow this maxim it would result in a world where only specific items may be

searched for if they have a factual reason to conduct the search and only if they believe that such

items will be found upon searching the person(s) As this would not produce any undesirable

consequences this maxim would not only pass Kants test of universalisation but also fulfil the

necessary criteria for Singers generalisation principle

This is essentially what the Police and Criminal Evidence Act 1984 and the Codes of Practice A

seeks to do meaning that if the guidelines were followed by the police unlawful stops and searches

should not occur However since there are more aspects to the laws that govern the polices power

to stop and search individuals for illegal or stolen items such as searches based on suspicious

behaviour or searches of suspected gang members other aspects must be explored as well before

16

declaring whether it is ethical or not For this reason the two additional maxims (mentioned earlier)

are needed and must therefore be tested as well As these maxims can be implemented in such

situations by the removal of the need for a factual basis for suspicion and replacing it with either

the possibility to

search individuals acting in an obviously suspicious manner or

search individuals based on clothing piercings andor tattoos if these are known to be worn

by members of gangs that are known to carry illegal or stolen items

As with the various elements of the maxim analysed previously these are also unable to be

moralised individually Because the first of the two does not specify what may be searched for and

neither of the sections specify that the police should expect to find illegal or stolen items upon

stopping and searching an individual As such neither of these elements can function as a maxim on

their own as they are illogical and can neither be generalised nor universalised However when

these are combined with the other elements of the maxims these issues should be resolved thus

passing Kants test of generalisation

Universalising these maxims is a bit more problematic than the one analysed previously through

For example with the first of these two maxims police officers would be enforced to stop and

search anyone that is acting in an obviously suspicious manner for illegal or stolen items if they

believe any such items will be found upon searching them The phrase behaving in an obviously

suspicious manner is a bit of an issue here as there is no definition available as to what can be

classified as such However a reasonable person would probably equate behaving in an obviously

suspicious manner to trying to hide something which is used as an example in the Codes of

Practice A s23 It could therefore be worth substituting the phrase behaving in an obviously

suspicious manner with trying to hide something as this would be more specific However by

doing this the maxim would become much more limited as it would no longer allow individuals

behaving suspiciously in other ways to be searched Nevertheless should this interpretation be used

the likeliness of the maxim passing the test of universalisation might be increased as the likeliness

of it producing a chaotic result would decrease Additionally implementing such an interpretation

would also make it more likely for the maxim to pass Singers generalisation principle As the

conduction of stops and searches of people that are obviously trying to hide something is less likely

to produce an undesirable outcome in comparison to searching anyone acting suspiciously

Finally the universalisation of the third and final of the maxims would enforce the police to stop

17

and search anyone dressed or in any other ways being physically identifiable as a possible member

of a gang known to carry illegal or stolen items if they believe any such items will be found upon

searching them As with the maxim analysed above there are issues related to universalising this

maxim due to the possibility of it causing certain people to be targeted because of the clothes they

wear or any piercings or tattoos on their body being related to or similar to ones connected to a

criminal gang Universalising this maxim could therefore worsen an already prevalent issue where

innocent members of the public get their civil liberties infringed upon due to their personal style

especially as the maxim allows quite a broad range of items accessories and body art to be used as

an indicator for suspicion In a study by Jackson and Smith (2013) the experiences of young people

from London that had been subjected to stop and search was surveyed where the participants

identified what kind of clothing might fit the criteria of being a presumed gang member It was

suggested that ldquoemulating American hip hop artists by wearing low-slung jeans hoodies and

branded trainers and walking and talking in a certain wayrdquo (p6) was stereotyped by the police as

gagster behaviour and dress The same study also identified an experience that was shared by one

of the participants whom stated that ldquoThey just say youre in a drug infested area and youve got a

hood on so were stopping and searching yourdquo (Jackson L and Smith L 2013 p6)

Taking this into consideration it can therefore be seen that the universalisation of a maxim asking

the police to stop and search anyone perceived to be involved with a criminal gang for illegal or

stolen items could result in a form of criminalisation of the hoodie and other specific pieces of

clothing as these are stereotyped as being related to gang membership This would be problematic

as the hoodie in particular is a comfortable and often affordable piece of clothing that is a staple in

the wardrobes of many of societys subcultures such as emos and skaters that are generally not

stereotyped as criminals (Braddock K 2011) As such it can be established that neither Kant nor

Singer would be able to universalise this maxim as having officers search anyone wearing specific

clothes would neither be reasonable nor produce any desirable consequences

522 Issues

While two out of three of the different maxims appear to be moral in the eyes of Kant there are still

some issues relating to them which must be acknowledged Primarily there might be an issue with

these maxims being too specific as it has been noted that ldquoany maxim that is highly restricted is

likely to pass the universalisability testrdquo [Guyer P 2007 cited by Perold L M 2010 p19]

because the more descriptive a maxim is the less likely it is that it would become contradictory As

all of the maxims created from the Codes of Practice A are highly restrictive specifying who may

carry out the act under what circumstances they may carry it out and the limitations of the actions

18

itself Additionally as noted earlier in this chapter the maxims cannot be made more general either

as this would prevent them from being moralised this means that there is a risk of these maxims

passing the tests of universalisation and generalisation simply because of their overly descriptive

nature rather than actually being moral

There might also be an issue with the phrasing of the maxims specifically the use of the term

police officers as this might cause some uncertainties regarding exactly who the maxim applies to

Because by using the term police officer or even police it becomes questionable if an officer must

be in uniform in other words his or her position as a police officer is overt when carrying out the

search However since these maxims need to be exclusive to the police it could be hard to bypass

this issue without adding yet another specification to it that clarifies whether there is a need for the

officer to be in uniform or not

Finally there could also be an issue of the maxims conflicting with each other as the first of the

maxims states that the decision to stop and search someone needs to be in accordance with known

facts and information Something that might not be available when a stop and search is made

utilising the second or third maxim as these can be initiated without a need of known facts or

information This raises a question to whether one of the maxims would naturally take precedence

over the others as all three maxims regarding stop and search can never operate at the same time

Generally Kantianism argues that when one is faced with opposing maxims the perfect duty will

always take precedence over an imperfect one (Stohr K 2010 p3) However as all of the maxims

are addressing what is essentially the same action being the possibility to stop and search

individuals for illegal andor stolen items this could be problematic Furthermore while there are

three maxims identified within this study there also exists another fourth maxim which concerns

the possibility of not searching anyone for illegal or stolen items This fourth maxim is also

considered a perfect duty as it would generally be easier to universalise not searching people as

opposed to searching individuals fitting certain requirements This means that the maxim regarding

the omission to act would in this case take precedence over the other maxims identified within this

research essentially rendering them powerless

19

Chapter 6

Conclusion

From this study it can be seen that the legislation governing a heavily criticised police power such

as stop and search has the possibility to be morally justifiable by the ethical frameworks developed

by Kant Because while Kants ethical theory does not rectify or justify the issue of ethnic minorities

being subjected to a disproportionate amount of stops and searches in comparison to Caucasians it

is important to remember that the ldquolaw in theory and the law in practice differrdquo (Westmarland L in

Newburn T 2011 p255) Meaning that the moralisation of the legislation does not ensure that it

will be applied ethically by the police Additionally as Kantian ethics values the motivation behind

ones actions over the consequences produced from them the potential issues caused by ones actions

are irrelevant as long as the action itself can be universalised without producing a chaotic or

undesirable result

However as there are several layers to stop and search there are some implications to morally

justifying this power as it is multi-faceted Being designed to deal with a variety of different

situations and bases from which suspicion might arise to justify the stopping and searching of an

individual Because while Kantian ethics can ethically justify police officers to stop and search

individuals for illegal or stolen items if it is in accordance with known facts and information and

they believe that such items will be found upon searching the person this encompasses only one of

the many facets of the power As such the power cannot be justified as a whole as any maxim used

to describe it would not provide the necessary limitations needed for it to successfully pass the tests

of generalisation and universalisation

While the power cannot be moralised as a whole it is possible to create two additional maxims

using the limitations and exceptions to the necessity criteria of reasonable suspicion found in the

Codes of Practice A to create an additional two maxims These represent two additional facets of

stop and search being that

police officers may stop and search individuals acting in an obviously suspicious manner for

illegal or stolen items but only if they suspect that such items will be found upon searching the

person and

police officers may stop and search individuals based on articles of clothing piercings

andor tattoos if these are known to be worn by members of a gang(s) that are known to carry

20

illegal or stolen items and only if the police suspects that such items will be found upon searching

the person

However only the first of these two maxims can be justified utilising Kants ethical framework and

Singers generalisation principle because the latter cannot be universalised without becoming

unreasonable Furthermore the latter cannot be justified without providing further limitations

requiring the phrase acting in an obviously suspicious manner to be replaced by obviously hiding

something

From the issues presented from the creation of the two additional maxims above it can be

established that stop and search cannot be considered morally justifiable under all circumstances

Because different situations calls for different maxims meaning that should the search not be

initiated based on known facts or information it is unlikely to be ethical Nevertheless even though

all facets of this police power cannot be morally justified it does seem that the majority of them can

be considered ethical to some extent Meaning the legislation governing it is generally ethical but

as a whole it becomes a bit of a moral ambiguity This shows that the police power as identified by

the Police and Criminal Evidence Act 1984 and the Codes of Practice A has a potential to be

ethically justified with the exception of the section permitting searches where physical appearance

can be used as a basis for suspicion Additionally this research identified that the reasons for why

this particular section is not justifiable could also be part of the reason to the disproportionate

amount of searches of ethnic minorities As it might provide officers maliciously targeting

minorities with a possibility to justify their actions by claiming a particular article of clothing body

art or similar was the reason for the stop

As such it can be established that the legislation governing the polices power to stop and search

individuals for prohibited or stolen articles cannot be fully moralised as not all sections of the

Police and Criminal Evidence Act 1984 or the Codes of Practice A concerning this power can be

ethically justified However while the legislation as whole is morally ambiguous at best the

searches conducted with factual information as a basis for suspicion suggests that the sections of the

legislation addressing this type of search cannot be implemented in an unethical manner Because as

the universalised maxim requires the police to act in a manner promoted by the Act and Codes this

shows that any unethical searches carried out using this type of search are caused as a result of

police misconduct rather than an actual issue with the legislation

21

However it should be noted that this research can only provide a limited account of the morality of

this police power as it has only explored it through the limitations put upon it through the necessity

requirement of reasonable suspicion Additionally it can only account for the morality of the

sections of the Police and Criminal Evidence Act 1984 and the Codes of Practice A addressing this

particular police power and only through the limitations explored within this research Finally it is

also important to recognise that the police power has only been analysed using a Kantian approach

to ethics and morality This means that further studies of the police power and indeed the Act and

Codes in general are needed in order to provide a more accurate account of the morality and ethical

issues present It is therefore suggested that additional research should be carried out to study the

legislation governing the power of stop and search utilising other ethical theories or utilising

Kantian ethics with a different focus point of the legislation

However while further research is needed in order to gain a more accurate account of the overall

morality of the police power and the legislation governing it it does not mean the research

presented in this paper is of any less value Because even though the study can only provide a

limited account of the legislations morality it has succeeded in presenting the probabilities for the

moral justification of the Acts first part along with the associated Codes of Practice as well as

identifying that the issues connected to the Act may be caused primarily by the polices failure to

accurately conduct stops and searches according to the law Meaning the research has produced

some valuable results in addition to providing a stepping stone for further research on the topic

22

Bibliography

BBC [2014] Duty-Based Ethics Available at

httpwwwbbccoukethicsintroductionduty_1shtml [Accessed 20-03-2014]

Benz S [2010] ldquoThe Police and Criminal Evidence Act 1984 balancing civil liberties and public

securityrdquo Diffusion 5(2) Available at httpatpuclanacukbuddypressdiffusionp=1255

[Accessed 25-04-2014]

Bowling B and Phillips C [2007] Disproportionate and Discriminatory Reviewing the Evidence

on Police Stop and Search Oxford Blackwell Publishing p958 httpwwwstop-

watchorguploadsdocumentsmodern_law_reviewpdf

Braddock K [2011] ldquoThe Power of the Hoodierdquo The Guardian Available at

httpwwwtheguardiancomuk2011aug09power-of-the-hoodie [Accessed21-04-2014]

Codes of Practice A

Council of Europe [2010] European Convention on Human Rights Strasbourg European Court of

Human Rights p 7 Available at httpwwwechrcoeintDocumentsConvention_ENGpdf

[Accessed 09-03-2014]

The Economic and Social Research Council [2012] Frameworks for Research Ethics Swindon

Economic and Social Research Council pp2-3 3 Available at

httpwwwesrcacuk_imagesframework-for-research-ethics-09-12_tcm8-4586pdf [Accessed 01-

04-2014]

The Economist [1990] End Game Available

athttpgogalegroupcompsidoid=GALE7CA9390713ampv=21ampu=uceampit=rampp=SPJSP0

0ampsw=wampasid=f6f778fcf0a20b3f0f18df5e20a57f27 [Accessed 19-03-2014]

Fahy P [undated] ldquoForewordrdquo In Ozin P Norton H and Spivey P [2013] PACE ndash A Practical

Guide to the Police and Criminal Evidence Act 1984 3rd

Edition Oxford Oxford University Press

p v

Flick U [2011] Introducing Research Methodology London Sage p 125

Garret J [2006] Kants Duty Ethics Available at

httppeoplewkuedujangarrettethicskanthtm [Accessed 20-03-2014]

Govuk [2013] Guidance Police and Criminal Evidence Act 1984 (PACE) Codes of Practice

London Home Office Available at httpswwwgovukpolice-and-criminal-evidence-act-1984-

pace-codes-of-practice [Accessed 02-04-2014]

Guyer P (2007) cited by Perold L M [2010] Does Immanuel Kants Categorical Imperative

Commit Him to the View that Lying is Always Morally Wrong Master of Arts thesis University of

the Witwatersrand p 19 Available at

httpwiredspacewitsaczabitstreamhandle1053910096M20Perold20Research20Reportp

dfsequence=2 [Accessed 24-04-2014]

5

Chapter 3

Kantian Ethics

The ethical framework developed by Immanuel Kant is an ideology that places moral value on the

motivations between our actions and their potential for universalisation rather than the

consequences of the act itself In this chapter the core principles of the Kantian framework will be

explained identifying the process of determining the morality of our actions through the tests of

generalisation and universalisation Additionally the chapter will also be addressing various

criticisms issues and shortcomings of the Kantian approach to ethics and morality such as the

possibility of the framework allowing for any maxims to be moralised with the right phrasing

31 The Core Ideas

The idea of autonomy is at the core of Kantian ethics arguing that each individual can (and should)

make their own decisions without any external interferences to guide or coerce them (Bennet C

2010 p75) As such Kantianism argues for the presence of free will meaning human beings are

accountable for the choices they make and the actions they subsequently carry out and that

everyone capable of reasonable thinking has the potential to act in accordance to the moral law

However while humans are generally considered to be rational beings it does not mean that they

will behave in a rational manner at all times but rather that they have the capability of doing so

According to Kant this is what separates humans beings from animals as they are only capable of

operating under negative freedom through reacting to their impulses and instinct unable to

question or evaluate the situation in ways human beings are able to (Bennet C 2010 p76) As such

rational beings are the embodiment of morality as the moral law is that of reason (Rachels J 1986

p1) which is why Kant argued that humans must never be treated as the means to an end but

should instead be the end itself (BBC 2014)

Nevertheless being a rational agent capable of recognising reasonable actions from unreasonable

ones thus acting outside of the realms of negative freedom and moving into what is known as

positive freedom does not ensure that onersquos actions are good or moral These are simply

requirements to qualify as an agent that is capable of acting morally not an insurance that actions

carried out by such an agent will be moral or reasonable Instead Kant argued that moral acts are

identified through their motivations stating that ldquoif duty is the key element in our decision to act

then we have acted rightlyrdquo (BBC 2014) because ldquoan action done from duty has its moral worth

not from the results it attains or seeks to attain but from a formal principle or maxim ndash the principle

of doing ones duty whatever that may berdquo (Paton H J 1969 p20) In this case the meaning of

6

duty is equal to acting in reverence to the moral law as Kant argues that morality and its rational

requirements can be translated into rules or that dictates how we should act (Bennet C 2010

p83) These moral rules are divided into two separate groups being hypothetical and categorical

however only categorical can result in a moral law This is due to hypothetical making it possible

for an individual to claim they are an exception to the rule which is unreasonable as moral laws

must apply to everyone without exception (Bennet C 2010 p83) This means that a maxim such

as do not lie unless you want to be considered untrustworthy or even an innocent maxim such as

bring an umbrella unless you want to risk getting wet would be fallible and immoral according to

Kant as they do not apply to individuals that are willing to face the consequences related to these

acts

To be able to establish whether ones actions are moral or not one must therefore be able to apply it

without failure to everyone This is a process known as universalisation which questions the agent

to ldquonever act except in such a way that [they] can also will that [their] maxim should become a

universal lawrdquo (Paton H J 1969 p22) meaning that the morality of an act is determined through

establishing its possibility to be enforced at least hypothetically as a law applying to everyone

unconditionally Ascertaining whether an act can be universalised requires the use of two tests

known as the tests of generalisation and universalisation A maxim must therefore

be able to be generalised without becoming contradictory or illogical as a result to then be

applicable as a universal law governing everyone without exceptions without resulting in an

unappealing or chaotic outcome (Garret J 2006) As ldquoKant believes that someone who violates the

moral requirements is being irrationalrdquo (Bennet C 2010 p82) one should therefore not act on a

maxim that is unable to pass both the test of generalisation and universalisation as this would result

not only in acting immorally but also irrationally

32 Criticisms and Issues

Like any other philosophical or ethical theory the Kantian approach is not devoid of imperfections

and both the original theory and contemporary interpretations have faced criticisms for everything

from structure and implementation to the actual usefulness of the theory However in her book

Bounds of Justice Onora ONeill (2000) identifies that the criticisms of Kantian theories tend to fall

into three different groups of categories (p67) all of which will be explored within this section of

the chapter

The first of these categories identified by ONeill (2000) is that Kant fails to acknowledge the

importance that human relationships and emotions might have on our moral reasoning (p67) An

7

issue that is also identified by Bennet (2010) stating that ldquoit certainly seems a large gap in a moral

theory that it has nothing to say about how pain and suffering makes acts wrongrdquo (p88) Because

while many actions that might cause pain and suffering to others generally cannot be justified using

the categorical imperative they are not dismissed for the right reasons (Bennet C 2010 p88) as

ldquouniversal rules require us to overlook and [hellip] neglect the fragility mutual vulnerability social

embeddedness and constitutive loyalties of real peoplerdquo (ONeill O 2000 p67) As human beings

are not cold calculative and emotionless robots this is an obvious flaw within Kants frameworks

because in order to act morally one needs to be able to completely disregard the feelings of other

people

Furthermore due to the lack of consideration for human emotions and relationships Kant has

simplified the very complex issue of moral theory (ONeill O 2000 p 67) often resulting in very

bizarre contradicting or even worrying results Because utilising the categorical imperative for

moral guidance might result not only in allowing obviously immoral actions to be universalised but

also preventing other harmless acts of kindness such as opening the door for someone else from

being morally justified (Bennet C 2010 p86) It should be obvious to a normal reasonable human

being that there is nothing wrong or immoral about holding the door open for someone else yet

through the implementation of Kantianism such an action cannot be justified due to it being unable

to pass the test of universalisation Showing that the Kantian approach struggles to encompass all

actions regardless of their significance importance or size in a reasonable manner

It should also be noted that the Kantian framework can also produce situations where the agent will

be acting immorally no matter what they do Bennet (2010) utilises an example of noticing a child

in the process of drowning while on the way to class and even though we have a duty to help others

according to Kant the option of not helping can also be moralised in this scenario as the agent will

adhere to the maxim of getting to class on time (p86-87) This leads to the final category of

critiques against Kant and Kantian ideologies as identified by ONeill (2000) which states that it is

a theory ldquodesigned for abstract individuals [hellip] leading to abstract conclusions that are irrelevant to

real people who lead real livesrdquo (p 67) It is possible that this abstract nature of the theory could be

due to Kants failure to provide a proper guideline stating how our actions should be explained in

order to properly calculate their ethical value through the tests of generalisation and universalisation

Because with the manner in which the Kantian framework is designed there is a possibility that

ldquoany action could pass it simply by being re-describedrdquo (Bennet C 2010 p87) The Kantian

framework is therefore in need of some kind of notes for guidance that provides an explanation for

how one is to distinguish correct descriptions of ones actions from incorrect ones

8

Chapter 4

PACE A Brief Introduction

The following chapter will be providing a brief introduction to the Police and Criminal Evidence

Act 1984 and its associated Codes of Practice Providing a basic understanding of the legislations

history and purpose in addition to some criticisms of the act and issues that has developed as a

result of its development As such this chapter alongside with chapter 3 provides a foundation for

the following chapters where specific parts of the legislation will be explored more thoroughly in

addition to being analysed through the Kantian frameworks for ethics

41 Background

Policing in England and Wales is nowadays comprised of a tough balancing act where ldquothe interests

of the community and the rights of the individualrdquo (Royal Commission undated cited by Zander

2011 p3) must be taken into account while also maintaining public order In addition to being

required to evaluate to what extent they may infringe upon civil liberties to do their job the police

is also under constant public scrutiny This means that any infringement upon the rights of an

individual that cannot be justified by the Police and Criminal Evidence Act 1984 the Human Rights

Act 1998 or other pieces of legislation can have dire consequences for the police Such

infringements can result in lawsuits against the police or rendering evidence inadmissible in court

as was seen in the case of R v Miller (1993) where the confessions from the suspects were rendered

inadmissible due to hostile and oppressive questioning by police However while it is noted that

infringement of civil liberties should be avoided and the rights of the public should be respected it

is also identified in Article 5 of the European Convention of Human Rights that there are

circumstances when the police and the criminal justice system must be granted the power to

lawfully infringe upon these (Council of Europe 2010 p7) Because without these exceptions legal

and justice systems would no longer function as criminal justice cannot function if the rights of the

individual is to be respected at all times

While there is a need for the police and criminal justice system to infringe upon the rights of

individuals there must be sanctions that govern to what extent these rights can be infringed upon

and under what circumstances As mentioned above article five of the European Convention of

Human Rights provides a good starting point but as it must be applicable to the state legislature of

all member states of the European Union it is far too general and leaves plenty of gaps to fill in

This is where the Police and Criminal Evidence Act 1984 and its corresponding Codes of Practice

comes into play as these help with outlining the provisions for the polices ability to infringe upon

9

the civil liberties of the public It was introduced following some cases of gross police misconduct

that had come to light causing miscarriages of justice of several high-profile cases which put a

strain on the relationship between the police and the public One such case included the R v

McIlkenny and others (1991) more famously known as the Birmingham Six where six innocent

men were wrongfully convicted as a result of police officers having beaten witnesses to obtain

satisfactory statements in addition to distorting forensic evidence (The Economist 1990) The

Police and Criminal Evidence Act 1984 and the associated Codes of Practice was introduced in an

attempt to remedy this through providing guidelines for how evidence was to be obtained legally

how suspects and detained persons were to be treated how and when certain police powers could be

legally enforced as well as providing the criminal justice system with transparency and

accountability (Fahy P in Ozin P Norton H and Spivey P 2013 pv)

Through its introduction the Police and Criminal Evidence Act 1984 and its corresponding Codes of

Practice drastically changed the manner in which policing was carried out causing a bit of a

culture shock for some officers that were threatened by the new developments (Wilding B

undated in Cape E and Young R 2008 p127) As there were suddenly demands being put on

officers that did not exist previously in addition to clear frameworks dictating what kind of

behaviour was deemed acceptable All to ensure that investigations were carried out both

objectively and with integrity two elements which are important to maintain public confidence in

the police force (Wilding B undated in Cape E and Young R 2008 p127) However while the

drastic changes might have come as a shock to some officers it is now common practice and

heavily ingrained to the very core of policing Additionally while the Act generally focuses on the

protection of the suspects victims and witnesses it simultaneously provides the police with

safeguards to avoid suspicion of unlawfully acquired evidence as everything from physical

evidence to verbal or written confessions must be recorded and processed in detail (Police and

Criminal Evidence Act 1984 sNUMBER sNUMBER) ensuring that the police runs a lower risk of

being unjustly accused of foul play

32 Critiques and Issues

While the Act and the Codes of Practice has played a significant part in making the police ldquomore

accountable in terms of performance and standards than virtually any other public bodyrdquo (Wilding

B undated in Cape E and Young R 2008 p130) as well as supposedly having ldquoushered in new

ethical standards for the servicerdquo (Wilding B undated in Cape E and Young R 2008 p127) It

has been subjected to a significant amount of criticism from non-governmental organisations such

as Liberty members of the police itself and academics scrutinising everything from how the Act

10

takes the police off the streets and placing them behind desks to carry out extensive amounts of

paperwork (Wilding B undated in Cape E and Young R 2008 p127) to questioning whom the

Act is really favouring (Benz S 2010) Furthermore the actual contents of the Act and the Codes of

Practice has been criticised in particular the Acts first part concerning stop and search (see chapter

5) resulting in a large number of edits and moderations to remedy these and provide a better

balance between the police and the rights of the public

11

Chapter 5

Reasonable Suspicion

While the Police and Criminal Evidence Act 1984 provides the police with guidelines for how and

when they may use their powers to infringe upon civil liberties these are not enough to ensure that

policing is carried out correctly in accordance to the act The Act must therefore be read alongside

the Codes of Practice as these further explain the limitations of the powers in addition to the

requirements that must be fulfilled in order for an officer to implement them One such requirement

that is found repeatedly throughout the Act and the Codes of Practice is the need for an officer to

have reasonable grounds for suspecting that the person(s) of interest are doing have done is about

to do or is in possession of something illegal (Police and Criminal Evidence Act s1(7)-1(9)

s3(1)(a)-3(1)(d)) This requirement is one that has been subjected to some controversy and scrutiny

especially in connection to the power of stop and search (addressed below) as it is often described

in very vague or broad terms often making it unclear what exactly constitutes appropriate grounds

for reasonable suspicion Additionally it should also be noted that the appropriate grounds for

suspicion might differ slightly from one section of the Act to another making it important to

separate these definitions from each other when studying them as they may all have their own

interpretations definitions regulations and issues However as this research explores the ethical

implications of reasonable suspicion in relation to stop and search it must be acknowledged that the

results may not be applicable to sections of the Police and Criminal Evidence Act 1984 and Codes

of Practice concerning other police powers

51 Reasonable Suspicion and Stop and Search

In the first part of the Police and Criminal Evidence Act 1984 it is identified that an officer cannot

stop and search an individual unless they have reasonable grounds for suspecting that any stolen or

prohibited articles listed under s1(7)-1(9) of the Act will be found on their person (s1(3) Police and

Criminal Evidence Act 1984) That being said there are many limitations placed upon what may

constitute a reasonable ground for suspecting that prohibited or stolen articles will be found on the

person(s) (Codes of Practice A s22) and that these can differ depending on the circumstances of

each case [Ozin P et al 2013 p4] However while suspicion might be raised for different reasons

in each case the Code emphasises that suspicion may never be based on personal factors

stereotypes or generalisations (Codes of Practice A s22) Nor may it be ldquoprovided retrospectively

by [hellip] questioning during a persons detention or by refusal to answer any questionsrdquo (Codes of

Practice A s29) Instead it is stressed that suspicion should have an objective basis derived from

known facts and information (Codes of Practice A s22)

12

Whether these demands put on officers by the Codes of Practice A to establish objective grounds

for suspicion are followed is questionable though At least when taking into consideration that the

sections of the Police and Criminal Evidence Act 1984 and the Codes of Practice concerning stop

and search has been subjected to heavy criticism mainly due to the disproportionate amount of

members from minority ethnic groups being searched in comparison to Caucasians Because even

though the Codes of Practice A does identify that there are situations where reasonable grounds for

suspicion might exist without the need for known facts or information such as initiating searches

based on an individuals behaviour or body language (Codes of Practice A s23) it does not explain

why black people are up to ldquosix times more likely to be stop[ped and] searched than would be

expected based on their numbers in the general populationrdquo (Bowling B and Phillips C 2007

p958) Nor does it explain how the recorded stops and searches of Asians since the mid-nineties

have remained between 15 and 25 times higher than those of Caucasians (Equality and Human

Rights Commission 2010 p13) These are worrying statistics that raise questions as to whether the

guidelines provided by the Police and Criminal Evidence Act 1984 and the Codes of Practice are

sufficient in order to ensure that this power is used appropriately and fairly Because even though

non-Caucasians are stopped and searched more frequently arrests following searches are distributed

quite evenly across all ethnic groups (StopWatch 2014)

There is a possibility that this targeting of minority ethnic groups could be a direct result of the

socio-economic conditions that traps many families from poor neighbourhoods in a cycle of poverty

and disadvantage (Joseph I and Gunter A 2011 p3) Especially as it has been found that these

groups often respond ldquoto their powerlessness with frustration rage and the creation of alternative

social and cultural values that promotes and normalizes gang membership and violencerdquo (Joseph I

and Gunter A 2011 p3) Due to the normalisation of such behaviour this could provide an

explanation to why some disproportionality might exist as the Codes of Practice provides an

exception to searches based on physical appearance when it is related to gang culture stating that

ldquowhere there is reliable information or intelligence that members of a group or gang

habitually carry knives unlawfully or weapons or controlled drugs and wear a

distinctive item of clothing or other means of identification to indicate their

membership of the group or gang that distinctive item of clothing or other means

of identification may provide reasonable grounds to stop and search a personrdquo

(Codes of Practice A s26)

13

However while this provision could support the existence of some disproportionality it does not

disprove that minority ethnic groups are being targeted by the police nor does it provide a

reasonable explanation to why blacks are being six times more likely to be subjected to a stop and

search This means there is a risk that this section of the Codes of Practice is being used by police

to maliciously target ethnic minority groups by stereotyping them as more likely to be involved

with criminal gangs

52 Reasonable Suspicion Stop and Search and Morality

While statistics and studies show that stop and search is used disproportionally and suggests that

individuals belonging to minority ethnic groups are being targeted by the police it does not mean

that the power itself nor the legislation governing it is unethical Because even though they tend to

overlap ldquothere is no necessary connection between law and moralsrdquo (Hart H L A 1958 cited by

Green L 2012 in Hart H L A 2012 pxxxiii) as the law applies to everyone unconditionally

while moral only applies to those that sympathise with the ideologies in question Kantian ethics

however arguing that one should do the right thing because of it being right views morality as a

supplement to the law (Zupancic A 2000 p16) therefore ensuring that we are not only doing what

is right but that we are also doing it for the right reasons (Sandel M 2011) Which from Kants

viewpoint is synonymous to acting out of duty which as established in Chapter 3 means that

onersquos actions must be converted to those that are able to pass the tests of generalisation and

universalisation As such one must convert the sections of the Police and Criminal Evidence Act

1984 and its associated Codes of Practice concerning stop and search into an order to establish

whether it is ethical

However while the Police and Criminal Evidence Act 1984 identifies that reasonable suspicion is

necessary in order to conduct a stop and search one cannot simply create a maxim stating that

police officers can stop and search anyone they reasonably suspect is carrying illegal or stolen

items Because even though this maxim does provide an accurate description of the necessary

requirements to perform a stop and search it is far too broad Such a maxim does not place a limit

upon what the suspicion might be based on resulting in a possibility for officers to target certain

groups of people based on prejudice or stereotypes Therefore such a maxim can neither be

generalised nor universalised meaning it would be considered entirely unethical by Kantian

principles However by using the guidelines and limitations of reasonable suspicion presented in

the Codes of Practice A that were identified earlier in this chapter this maxim can be broken down

into three separate parts These being

14

police officers may stop and search individuals for illegal or stolen items if it is in

accordance with known facts and information and they believe that such items will be found upon

searching the person

police officers may stop and search individuals acting in an obviously suspicious manner for

illegal or stolen items but only if they suspect that such items will be found upon searching the

person and

police officers may stop and search individuals based on articles of clothing piercings

andor tattoos if these are known to be worn by members of a gang(s) that are known to carry

illegal or stolen items and only if the police suspects that such items will be found upon searching

the person

These provide a much more limited and concentrated approach to the attempted moralisation of the

polices power to stop and search individuals for prohibited or stolen articles Because unlike the

previous maxim these are not only limiting what the basis for suspicion might be but also limiting

when the power itself may be enforced As such the likelihood of these being able to pass the tests

of generalisation and universalisation are increased

521 Generalisation and Universalisation

In order to accurately establish whether acts are moral they must pass the tests of generalisation and

universalisation as Kant believed that moral acts were ones that could be applied to everyone as a

universal law without becoming contradictory or illogical (see chapter 3) However as these deal

with police powers and Kant argued that acts must be applicable to everyone without exception

these will also be examined using Singers generalisation principle because it would be illogical for

such powers to be implemented by everyone Singers generalisation principle makes it possible to

bypass this issue as it argues that ldquowhat is right (or wrong) for one person must be right (or wrong)

for any similar person in similar circumstancesrdquo (Singer G M undated cited by ONeill O 2013

p78) Additionally this approach puts a utilitarian twist on Kants frameworks as it determines

morality based on the consequences of onersquos actions (ONeill O 2013 p79) rather than the

motivation behind them As such this test functions as a middle ground between the tests of

generalisation and universalisation ensuring that the generalised maxim does not cause an illogical

or chaotic result in addition to limiting the generalised maxim from anyone that is not a member of

the police service Analysing the maxim using these tests therefore requires them to be studied

individually so that they can be dissected and examined more closely

Looking at the first of the three maxims created using the guidelines and limitations of reasonable

15

suspicion as identified by the Codes of Practice A it can be established that it is comprised from

three different elements Namely

the police may only search for illegal or stolen items

the police may only search an individual based on known facts and information and finally

the police may only search the individual if they believe illegal or stolen items will be found

Attempting to generalise any of these elements of the maxim individually would not be reasonable

as they do not provide enough limitations or guidelines for it to be functional Because the first part

allows the police to search anyone for illegal or stolen items without the necessity of a suspicion

that any such items will be found which would result in a police state where the police could search

anyone they please The necessity of believing that illegal or stolen items will be found upon

conducting a search is added by the third element of the maxim but there are still no requirements

for the police to have any kind of reasonable basis for their decision to stop and search someone as

this is added by the maxims second element However this element cannot be moralised on its own

either as it does not specify what the police may search for However when all three elements of

the maxim are combined all necessary limitations are present meaning the generalisation of it

should not produce a contradictory or illogical result

However passing the test of generalisation does not mean that the maxim is ethical as it must also

be universalisable Meaning it should be able to be enforced as a (hypothetical) law that applies to

everyone unconditionally As the maxim places a requirement on the police to only stop and search

individuals if they have a factual basis for their suspicion to find illegal or stolen items upon

searching the person this should be a universalisable action Because assuming all police officers

were required to follow this maxim it would result in a world where only specific items may be

searched for if they have a factual reason to conduct the search and only if they believe that such

items will be found upon searching the person(s) As this would not produce any undesirable

consequences this maxim would not only pass Kants test of universalisation but also fulfil the

necessary criteria for Singers generalisation principle

This is essentially what the Police and Criminal Evidence Act 1984 and the Codes of Practice A

seeks to do meaning that if the guidelines were followed by the police unlawful stops and searches

should not occur However since there are more aspects to the laws that govern the polices power

to stop and search individuals for illegal or stolen items such as searches based on suspicious

behaviour or searches of suspected gang members other aspects must be explored as well before

16

declaring whether it is ethical or not For this reason the two additional maxims (mentioned earlier)

are needed and must therefore be tested as well As these maxims can be implemented in such

situations by the removal of the need for a factual basis for suspicion and replacing it with either

the possibility to

search individuals acting in an obviously suspicious manner or

search individuals based on clothing piercings andor tattoos if these are known to be worn

by members of gangs that are known to carry illegal or stolen items

As with the various elements of the maxim analysed previously these are also unable to be

moralised individually Because the first of the two does not specify what may be searched for and

neither of the sections specify that the police should expect to find illegal or stolen items upon

stopping and searching an individual As such neither of these elements can function as a maxim on

their own as they are illogical and can neither be generalised nor universalised However when

these are combined with the other elements of the maxims these issues should be resolved thus

passing Kants test of generalisation

Universalising these maxims is a bit more problematic than the one analysed previously through

For example with the first of these two maxims police officers would be enforced to stop and

search anyone that is acting in an obviously suspicious manner for illegal or stolen items if they

believe any such items will be found upon searching them The phrase behaving in an obviously

suspicious manner is a bit of an issue here as there is no definition available as to what can be

classified as such However a reasonable person would probably equate behaving in an obviously

suspicious manner to trying to hide something which is used as an example in the Codes of

Practice A s23 It could therefore be worth substituting the phrase behaving in an obviously

suspicious manner with trying to hide something as this would be more specific However by

doing this the maxim would become much more limited as it would no longer allow individuals

behaving suspiciously in other ways to be searched Nevertheless should this interpretation be used

the likeliness of the maxim passing the test of universalisation might be increased as the likeliness

of it producing a chaotic result would decrease Additionally implementing such an interpretation

would also make it more likely for the maxim to pass Singers generalisation principle As the

conduction of stops and searches of people that are obviously trying to hide something is less likely

to produce an undesirable outcome in comparison to searching anyone acting suspiciously

Finally the universalisation of the third and final of the maxims would enforce the police to stop

17

and search anyone dressed or in any other ways being physically identifiable as a possible member

of a gang known to carry illegal or stolen items if they believe any such items will be found upon

searching them As with the maxim analysed above there are issues related to universalising this

maxim due to the possibility of it causing certain people to be targeted because of the clothes they

wear or any piercings or tattoos on their body being related to or similar to ones connected to a

criminal gang Universalising this maxim could therefore worsen an already prevalent issue where

innocent members of the public get their civil liberties infringed upon due to their personal style

especially as the maxim allows quite a broad range of items accessories and body art to be used as

an indicator for suspicion In a study by Jackson and Smith (2013) the experiences of young people

from London that had been subjected to stop and search was surveyed where the participants

identified what kind of clothing might fit the criteria of being a presumed gang member It was

suggested that ldquoemulating American hip hop artists by wearing low-slung jeans hoodies and

branded trainers and walking and talking in a certain wayrdquo (p6) was stereotyped by the police as

gagster behaviour and dress The same study also identified an experience that was shared by one

of the participants whom stated that ldquoThey just say youre in a drug infested area and youve got a

hood on so were stopping and searching yourdquo (Jackson L and Smith L 2013 p6)

Taking this into consideration it can therefore be seen that the universalisation of a maxim asking

the police to stop and search anyone perceived to be involved with a criminal gang for illegal or

stolen items could result in a form of criminalisation of the hoodie and other specific pieces of

clothing as these are stereotyped as being related to gang membership This would be problematic

as the hoodie in particular is a comfortable and often affordable piece of clothing that is a staple in

the wardrobes of many of societys subcultures such as emos and skaters that are generally not

stereotyped as criminals (Braddock K 2011) As such it can be established that neither Kant nor

Singer would be able to universalise this maxim as having officers search anyone wearing specific

clothes would neither be reasonable nor produce any desirable consequences

522 Issues

While two out of three of the different maxims appear to be moral in the eyes of Kant there are still

some issues relating to them which must be acknowledged Primarily there might be an issue with

these maxims being too specific as it has been noted that ldquoany maxim that is highly restricted is

likely to pass the universalisability testrdquo [Guyer P 2007 cited by Perold L M 2010 p19]

because the more descriptive a maxim is the less likely it is that it would become contradictory As

all of the maxims created from the Codes of Practice A are highly restrictive specifying who may

carry out the act under what circumstances they may carry it out and the limitations of the actions

18

itself Additionally as noted earlier in this chapter the maxims cannot be made more general either

as this would prevent them from being moralised this means that there is a risk of these maxims

passing the tests of universalisation and generalisation simply because of their overly descriptive

nature rather than actually being moral

There might also be an issue with the phrasing of the maxims specifically the use of the term

police officers as this might cause some uncertainties regarding exactly who the maxim applies to

Because by using the term police officer or even police it becomes questionable if an officer must

be in uniform in other words his or her position as a police officer is overt when carrying out the

search However since these maxims need to be exclusive to the police it could be hard to bypass

this issue without adding yet another specification to it that clarifies whether there is a need for the

officer to be in uniform or not

Finally there could also be an issue of the maxims conflicting with each other as the first of the

maxims states that the decision to stop and search someone needs to be in accordance with known

facts and information Something that might not be available when a stop and search is made

utilising the second or third maxim as these can be initiated without a need of known facts or

information This raises a question to whether one of the maxims would naturally take precedence

over the others as all three maxims regarding stop and search can never operate at the same time

Generally Kantianism argues that when one is faced with opposing maxims the perfect duty will

always take precedence over an imperfect one (Stohr K 2010 p3) However as all of the maxims

are addressing what is essentially the same action being the possibility to stop and search

individuals for illegal andor stolen items this could be problematic Furthermore while there are

three maxims identified within this study there also exists another fourth maxim which concerns

the possibility of not searching anyone for illegal or stolen items This fourth maxim is also

considered a perfect duty as it would generally be easier to universalise not searching people as

opposed to searching individuals fitting certain requirements This means that the maxim regarding

the omission to act would in this case take precedence over the other maxims identified within this

research essentially rendering them powerless

19

Chapter 6

Conclusion

From this study it can be seen that the legislation governing a heavily criticised police power such

as stop and search has the possibility to be morally justifiable by the ethical frameworks developed

by Kant Because while Kants ethical theory does not rectify or justify the issue of ethnic minorities

being subjected to a disproportionate amount of stops and searches in comparison to Caucasians it

is important to remember that the ldquolaw in theory and the law in practice differrdquo (Westmarland L in

Newburn T 2011 p255) Meaning that the moralisation of the legislation does not ensure that it

will be applied ethically by the police Additionally as Kantian ethics values the motivation behind

ones actions over the consequences produced from them the potential issues caused by ones actions

are irrelevant as long as the action itself can be universalised without producing a chaotic or

undesirable result

However as there are several layers to stop and search there are some implications to morally

justifying this power as it is multi-faceted Being designed to deal with a variety of different

situations and bases from which suspicion might arise to justify the stopping and searching of an

individual Because while Kantian ethics can ethically justify police officers to stop and search

individuals for illegal or stolen items if it is in accordance with known facts and information and

they believe that such items will be found upon searching the person this encompasses only one of

the many facets of the power As such the power cannot be justified as a whole as any maxim used

to describe it would not provide the necessary limitations needed for it to successfully pass the tests

of generalisation and universalisation

While the power cannot be moralised as a whole it is possible to create two additional maxims

using the limitations and exceptions to the necessity criteria of reasonable suspicion found in the

Codes of Practice A to create an additional two maxims These represent two additional facets of

stop and search being that

police officers may stop and search individuals acting in an obviously suspicious manner for

illegal or stolen items but only if they suspect that such items will be found upon searching the

person and

police officers may stop and search individuals based on articles of clothing piercings

andor tattoos if these are known to be worn by members of a gang(s) that are known to carry

20

illegal or stolen items and only if the police suspects that such items will be found upon searching

the person

However only the first of these two maxims can be justified utilising Kants ethical framework and

Singers generalisation principle because the latter cannot be universalised without becoming

unreasonable Furthermore the latter cannot be justified without providing further limitations

requiring the phrase acting in an obviously suspicious manner to be replaced by obviously hiding

something

From the issues presented from the creation of the two additional maxims above it can be

established that stop and search cannot be considered morally justifiable under all circumstances

Because different situations calls for different maxims meaning that should the search not be

initiated based on known facts or information it is unlikely to be ethical Nevertheless even though

all facets of this police power cannot be morally justified it does seem that the majority of them can

be considered ethical to some extent Meaning the legislation governing it is generally ethical but

as a whole it becomes a bit of a moral ambiguity This shows that the police power as identified by

the Police and Criminal Evidence Act 1984 and the Codes of Practice A has a potential to be

ethically justified with the exception of the section permitting searches where physical appearance

can be used as a basis for suspicion Additionally this research identified that the reasons for why

this particular section is not justifiable could also be part of the reason to the disproportionate

amount of searches of ethnic minorities As it might provide officers maliciously targeting

minorities with a possibility to justify their actions by claiming a particular article of clothing body

art or similar was the reason for the stop

As such it can be established that the legislation governing the polices power to stop and search

individuals for prohibited or stolen articles cannot be fully moralised as not all sections of the

Police and Criminal Evidence Act 1984 or the Codes of Practice A concerning this power can be

ethically justified However while the legislation as whole is morally ambiguous at best the

searches conducted with factual information as a basis for suspicion suggests that the sections of the

legislation addressing this type of search cannot be implemented in an unethical manner Because as

the universalised maxim requires the police to act in a manner promoted by the Act and Codes this

shows that any unethical searches carried out using this type of search are caused as a result of

police misconduct rather than an actual issue with the legislation

21

However it should be noted that this research can only provide a limited account of the morality of

this police power as it has only explored it through the limitations put upon it through the necessity

requirement of reasonable suspicion Additionally it can only account for the morality of the

sections of the Police and Criminal Evidence Act 1984 and the Codes of Practice A addressing this

particular police power and only through the limitations explored within this research Finally it is

also important to recognise that the police power has only been analysed using a Kantian approach

to ethics and morality This means that further studies of the police power and indeed the Act and

Codes in general are needed in order to provide a more accurate account of the morality and ethical

issues present It is therefore suggested that additional research should be carried out to study the

legislation governing the power of stop and search utilising other ethical theories or utilising

Kantian ethics with a different focus point of the legislation

However while further research is needed in order to gain a more accurate account of the overall

morality of the police power and the legislation governing it it does not mean the research

presented in this paper is of any less value Because even though the study can only provide a

limited account of the legislations morality it has succeeded in presenting the probabilities for the

moral justification of the Acts first part along with the associated Codes of Practice as well as

identifying that the issues connected to the Act may be caused primarily by the polices failure to

accurately conduct stops and searches according to the law Meaning the research has produced

some valuable results in addition to providing a stepping stone for further research on the topic

22

Bibliography

BBC [2014] Duty-Based Ethics Available at

httpwwwbbccoukethicsintroductionduty_1shtml [Accessed 20-03-2014]

Benz S [2010] ldquoThe Police and Criminal Evidence Act 1984 balancing civil liberties and public

securityrdquo Diffusion 5(2) Available at httpatpuclanacukbuddypressdiffusionp=1255

[Accessed 25-04-2014]

Bowling B and Phillips C [2007] Disproportionate and Discriminatory Reviewing the Evidence

on Police Stop and Search Oxford Blackwell Publishing p958 httpwwwstop-

watchorguploadsdocumentsmodern_law_reviewpdf

Braddock K [2011] ldquoThe Power of the Hoodierdquo The Guardian Available at

httpwwwtheguardiancomuk2011aug09power-of-the-hoodie [Accessed21-04-2014]

Codes of Practice A

Council of Europe [2010] European Convention on Human Rights Strasbourg European Court of

Human Rights p 7 Available at httpwwwechrcoeintDocumentsConvention_ENGpdf

[Accessed 09-03-2014]

The Economic and Social Research Council [2012] Frameworks for Research Ethics Swindon

Economic and Social Research Council pp2-3 3 Available at

httpwwwesrcacuk_imagesframework-for-research-ethics-09-12_tcm8-4586pdf [Accessed 01-

04-2014]

The Economist [1990] End Game Available

athttpgogalegroupcompsidoid=GALE7CA9390713ampv=21ampu=uceampit=rampp=SPJSP0

0ampsw=wampasid=f6f778fcf0a20b3f0f18df5e20a57f27 [Accessed 19-03-2014]

Fahy P [undated] ldquoForewordrdquo In Ozin P Norton H and Spivey P [2013] PACE ndash A Practical

Guide to the Police and Criminal Evidence Act 1984 3rd

Edition Oxford Oxford University Press

p v

Flick U [2011] Introducing Research Methodology London Sage p 125

Garret J [2006] Kants Duty Ethics Available at

httppeoplewkuedujangarrettethicskanthtm [Accessed 20-03-2014]

Govuk [2013] Guidance Police and Criminal Evidence Act 1984 (PACE) Codes of Practice

London Home Office Available at httpswwwgovukpolice-and-criminal-evidence-act-1984-

pace-codes-of-practice [Accessed 02-04-2014]

Guyer P (2007) cited by Perold L M [2010] Does Immanuel Kants Categorical Imperative

Commit Him to the View that Lying is Always Morally Wrong Master of Arts thesis University of

the Witwatersrand p 19 Available at

httpwiredspacewitsaczabitstreamhandle1053910096M20Perold20Research20Reportp

dfsequence=2 [Accessed 24-04-2014]

6

duty is equal to acting in reverence to the moral law as Kant argues that morality and its rational

requirements can be translated into rules or that dictates how we should act (Bennet C 2010

p83) These moral rules are divided into two separate groups being hypothetical and categorical

however only categorical can result in a moral law This is due to hypothetical making it possible

for an individual to claim they are an exception to the rule which is unreasonable as moral laws

must apply to everyone without exception (Bennet C 2010 p83) This means that a maxim such

as do not lie unless you want to be considered untrustworthy or even an innocent maxim such as

bring an umbrella unless you want to risk getting wet would be fallible and immoral according to

Kant as they do not apply to individuals that are willing to face the consequences related to these

acts

To be able to establish whether ones actions are moral or not one must therefore be able to apply it

without failure to everyone This is a process known as universalisation which questions the agent

to ldquonever act except in such a way that [they] can also will that [their] maxim should become a

universal lawrdquo (Paton H J 1969 p22) meaning that the morality of an act is determined through

establishing its possibility to be enforced at least hypothetically as a law applying to everyone

unconditionally Ascertaining whether an act can be universalised requires the use of two tests

known as the tests of generalisation and universalisation A maxim must therefore

be able to be generalised without becoming contradictory or illogical as a result to then be

applicable as a universal law governing everyone without exceptions without resulting in an

unappealing or chaotic outcome (Garret J 2006) As ldquoKant believes that someone who violates the

moral requirements is being irrationalrdquo (Bennet C 2010 p82) one should therefore not act on a

maxim that is unable to pass both the test of generalisation and universalisation as this would result

not only in acting immorally but also irrationally

32 Criticisms and Issues

Like any other philosophical or ethical theory the Kantian approach is not devoid of imperfections

and both the original theory and contemporary interpretations have faced criticisms for everything

from structure and implementation to the actual usefulness of the theory However in her book

Bounds of Justice Onora ONeill (2000) identifies that the criticisms of Kantian theories tend to fall

into three different groups of categories (p67) all of which will be explored within this section of

the chapter

The first of these categories identified by ONeill (2000) is that Kant fails to acknowledge the

importance that human relationships and emotions might have on our moral reasoning (p67) An

7

issue that is also identified by Bennet (2010) stating that ldquoit certainly seems a large gap in a moral

theory that it has nothing to say about how pain and suffering makes acts wrongrdquo (p88) Because

while many actions that might cause pain and suffering to others generally cannot be justified using

the categorical imperative they are not dismissed for the right reasons (Bennet C 2010 p88) as

ldquouniversal rules require us to overlook and [hellip] neglect the fragility mutual vulnerability social

embeddedness and constitutive loyalties of real peoplerdquo (ONeill O 2000 p67) As human beings

are not cold calculative and emotionless robots this is an obvious flaw within Kants frameworks

because in order to act morally one needs to be able to completely disregard the feelings of other

people

Furthermore due to the lack of consideration for human emotions and relationships Kant has

simplified the very complex issue of moral theory (ONeill O 2000 p 67) often resulting in very

bizarre contradicting or even worrying results Because utilising the categorical imperative for

moral guidance might result not only in allowing obviously immoral actions to be universalised but

also preventing other harmless acts of kindness such as opening the door for someone else from

being morally justified (Bennet C 2010 p86) It should be obvious to a normal reasonable human

being that there is nothing wrong or immoral about holding the door open for someone else yet

through the implementation of Kantianism such an action cannot be justified due to it being unable

to pass the test of universalisation Showing that the Kantian approach struggles to encompass all

actions regardless of their significance importance or size in a reasonable manner

It should also be noted that the Kantian framework can also produce situations where the agent will

be acting immorally no matter what they do Bennet (2010) utilises an example of noticing a child

in the process of drowning while on the way to class and even though we have a duty to help others

according to Kant the option of not helping can also be moralised in this scenario as the agent will

adhere to the maxim of getting to class on time (p86-87) This leads to the final category of

critiques against Kant and Kantian ideologies as identified by ONeill (2000) which states that it is

a theory ldquodesigned for abstract individuals [hellip] leading to abstract conclusions that are irrelevant to

real people who lead real livesrdquo (p 67) It is possible that this abstract nature of the theory could be

due to Kants failure to provide a proper guideline stating how our actions should be explained in

order to properly calculate their ethical value through the tests of generalisation and universalisation

Because with the manner in which the Kantian framework is designed there is a possibility that

ldquoany action could pass it simply by being re-describedrdquo (Bennet C 2010 p87) The Kantian

framework is therefore in need of some kind of notes for guidance that provides an explanation for

how one is to distinguish correct descriptions of ones actions from incorrect ones

8

Chapter 4

PACE A Brief Introduction

The following chapter will be providing a brief introduction to the Police and Criminal Evidence

Act 1984 and its associated Codes of Practice Providing a basic understanding of the legislations

history and purpose in addition to some criticisms of the act and issues that has developed as a

result of its development As such this chapter alongside with chapter 3 provides a foundation for

the following chapters where specific parts of the legislation will be explored more thoroughly in

addition to being analysed through the Kantian frameworks for ethics

41 Background

Policing in England and Wales is nowadays comprised of a tough balancing act where ldquothe interests

of the community and the rights of the individualrdquo (Royal Commission undated cited by Zander

2011 p3) must be taken into account while also maintaining public order In addition to being

required to evaluate to what extent they may infringe upon civil liberties to do their job the police

is also under constant public scrutiny This means that any infringement upon the rights of an

individual that cannot be justified by the Police and Criminal Evidence Act 1984 the Human Rights

Act 1998 or other pieces of legislation can have dire consequences for the police Such

infringements can result in lawsuits against the police or rendering evidence inadmissible in court

as was seen in the case of R v Miller (1993) where the confessions from the suspects were rendered

inadmissible due to hostile and oppressive questioning by police However while it is noted that

infringement of civil liberties should be avoided and the rights of the public should be respected it

is also identified in Article 5 of the European Convention of Human Rights that there are

circumstances when the police and the criminal justice system must be granted the power to

lawfully infringe upon these (Council of Europe 2010 p7) Because without these exceptions legal

and justice systems would no longer function as criminal justice cannot function if the rights of the

individual is to be respected at all times

While there is a need for the police and criminal justice system to infringe upon the rights of

individuals there must be sanctions that govern to what extent these rights can be infringed upon

and under what circumstances As mentioned above article five of the European Convention of

Human Rights provides a good starting point but as it must be applicable to the state legislature of

all member states of the European Union it is far too general and leaves plenty of gaps to fill in

This is where the Police and Criminal Evidence Act 1984 and its corresponding Codes of Practice

comes into play as these help with outlining the provisions for the polices ability to infringe upon

9

the civil liberties of the public It was introduced following some cases of gross police misconduct

that had come to light causing miscarriages of justice of several high-profile cases which put a

strain on the relationship between the police and the public One such case included the R v

McIlkenny and others (1991) more famously known as the Birmingham Six where six innocent

men were wrongfully convicted as a result of police officers having beaten witnesses to obtain

satisfactory statements in addition to distorting forensic evidence (The Economist 1990) The

Police and Criminal Evidence Act 1984 and the associated Codes of Practice was introduced in an

attempt to remedy this through providing guidelines for how evidence was to be obtained legally

how suspects and detained persons were to be treated how and when certain police powers could be

legally enforced as well as providing the criminal justice system with transparency and

accountability (Fahy P in Ozin P Norton H and Spivey P 2013 pv)

Through its introduction the Police and Criminal Evidence Act 1984 and its corresponding Codes of

Practice drastically changed the manner in which policing was carried out causing a bit of a

culture shock for some officers that were threatened by the new developments (Wilding B

undated in Cape E and Young R 2008 p127) As there were suddenly demands being put on

officers that did not exist previously in addition to clear frameworks dictating what kind of

behaviour was deemed acceptable All to ensure that investigations were carried out both

objectively and with integrity two elements which are important to maintain public confidence in

the police force (Wilding B undated in Cape E and Young R 2008 p127) However while the

drastic changes might have come as a shock to some officers it is now common practice and

heavily ingrained to the very core of policing Additionally while the Act generally focuses on the

protection of the suspects victims and witnesses it simultaneously provides the police with

safeguards to avoid suspicion of unlawfully acquired evidence as everything from physical

evidence to verbal or written confessions must be recorded and processed in detail (Police and

Criminal Evidence Act 1984 sNUMBER sNUMBER) ensuring that the police runs a lower risk of

being unjustly accused of foul play

32 Critiques and Issues

While the Act and the Codes of Practice has played a significant part in making the police ldquomore

accountable in terms of performance and standards than virtually any other public bodyrdquo (Wilding

B undated in Cape E and Young R 2008 p130) as well as supposedly having ldquoushered in new

ethical standards for the servicerdquo (Wilding B undated in Cape E and Young R 2008 p127) It

has been subjected to a significant amount of criticism from non-governmental organisations such

as Liberty members of the police itself and academics scrutinising everything from how the Act

10

takes the police off the streets and placing them behind desks to carry out extensive amounts of

paperwork (Wilding B undated in Cape E and Young R 2008 p127) to questioning whom the

Act is really favouring (Benz S 2010) Furthermore the actual contents of the Act and the Codes of

Practice has been criticised in particular the Acts first part concerning stop and search (see chapter

5) resulting in a large number of edits and moderations to remedy these and provide a better

balance between the police and the rights of the public

11

Chapter 5

Reasonable Suspicion

While the Police and Criminal Evidence Act 1984 provides the police with guidelines for how and

when they may use their powers to infringe upon civil liberties these are not enough to ensure that

policing is carried out correctly in accordance to the act The Act must therefore be read alongside

the Codes of Practice as these further explain the limitations of the powers in addition to the

requirements that must be fulfilled in order for an officer to implement them One such requirement

that is found repeatedly throughout the Act and the Codes of Practice is the need for an officer to

have reasonable grounds for suspecting that the person(s) of interest are doing have done is about

to do or is in possession of something illegal (Police and Criminal Evidence Act s1(7)-1(9)

s3(1)(a)-3(1)(d)) This requirement is one that has been subjected to some controversy and scrutiny

especially in connection to the power of stop and search (addressed below) as it is often described

in very vague or broad terms often making it unclear what exactly constitutes appropriate grounds

for reasonable suspicion Additionally it should also be noted that the appropriate grounds for

suspicion might differ slightly from one section of the Act to another making it important to

separate these definitions from each other when studying them as they may all have their own

interpretations definitions regulations and issues However as this research explores the ethical

implications of reasonable suspicion in relation to stop and search it must be acknowledged that the

results may not be applicable to sections of the Police and Criminal Evidence Act 1984 and Codes

of Practice concerning other police powers

51 Reasonable Suspicion and Stop and Search

In the first part of the Police and Criminal Evidence Act 1984 it is identified that an officer cannot

stop and search an individual unless they have reasonable grounds for suspecting that any stolen or

prohibited articles listed under s1(7)-1(9) of the Act will be found on their person (s1(3) Police and

Criminal Evidence Act 1984) That being said there are many limitations placed upon what may

constitute a reasonable ground for suspecting that prohibited or stolen articles will be found on the

person(s) (Codes of Practice A s22) and that these can differ depending on the circumstances of

each case [Ozin P et al 2013 p4] However while suspicion might be raised for different reasons

in each case the Code emphasises that suspicion may never be based on personal factors

stereotypes or generalisations (Codes of Practice A s22) Nor may it be ldquoprovided retrospectively

by [hellip] questioning during a persons detention or by refusal to answer any questionsrdquo (Codes of

Practice A s29) Instead it is stressed that suspicion should have an objective basis derived from

known facts and information (Codes of Practice A s22)

12

Whether these demands put on officers by the Codes of Practice A to establish objective grounds

for suspicion are followed is questionable though At least when taking into consideration that the

sections of the Police and Criminal Evidence Act 1984 and the Codes of Practice concerning stop

and search has been subjected to heavy criticism mainly due to the disproportionate amount of

members from minority ethnic groups being searched in comparison to Caucasians Because even

though the Codes of Practice A does identify that there are situations where reasonable grounds for

suspicion might exist without the need for known facts or information such as initiating searches

based on an individuals behaviour or body language (Codes of Practice A s23) it does not explain

why black people are up to ldquosix times more likely to be stop[ped and] searched than would be

expected based on their numbers in the general populationrdquo (Bowling B and Phillips C 2007

p958) Nor does it explain how the recorded stops and searches of Asians since the mid-nineties

have remained between 15 and 25 times higher than those of Caucasians (Equality and Human

Rights Commission 2010 p13) These are worrying statistics that raise questions as to whether the

guidelines provided by the Police and Criminal Evidence Act 1984 and the Codes of Practice are

sufficient in order to ensure that this power is used appropriately and fairly Because even though

non-Caucasians are stopped and searched more frequently arrests following searches are distributed

quite evenly across all ethnic groups (StopWatch 2014)

There is a possibility that this targeting of minority ethnic groups could be a direct result of the

socio-economic conditions that traps many families from poor neighbourhoods in a cycle of poverty

and disadvantage (Joseph I and Gunter A 2011 p3) Especially as it has been found that these

groups often respond ldquoto their powerlessness with frustration rage and the creation of alternative

social and cultural values that promotes and normalizes gang membership and violencerdquo (Joseph I

and Gunter A 2011 p3) Due to the normalisation of such behaviour this could provide an

explanation to why some disproportionality might exist as the Codes of Practice provides an

exception to searches based on physical appearance when it is related to gang culture stating that

ldquowhere there is reliable information or intelligence that members of a group or gang

habitually carry knives unlawfully or weapons or controlled drugs and wear a

distinctive item of clothing or other means of identification to indicate their

membership of the group or gang that distinctive item of clothing or other means

of identification may provide reasonable grounds to stop and search a personrdquo

(Codes of Practice A s26)

13

However while this provision could support the existence of some disproportionality it does not

disprove that minority ethnic groups are being targeted by the police nor does it provide a

reasonable explanation to why blacks are being six times more likely to be subjected to a stop and

search This means there is a risk that this section of the Codes of Practice is being used by police

to maliciously target ethnic minority groups by stereotyping them as more likely to be involved

with criminal gangs

52 Reasonable Suspicion Stop and Search and Morality

While statistics and studies show that stop and search is used disproportionally and suggests that

individuals belonging to minority ethnic groups are being targeted by the police it does not mean

that the power itself nor the legislation governing it is unethical Because even though they tend to

overlap ldquothere is no necessary connection between law and moralsrdquo (Hart H L A 1958 cited by

Green L 2012 in Hart H L A 2012 pxxxiii) as the law applies to everyone unconditionally

while moral only applies to those that sympathise with the ideologies in question Kantian ethics

however arguing that one should do the right thing because of it being right views morality as a

supplement to the law (Zupancic A 2000 p16) therefore ensuring that we are not only doing what

is right but that we are also doing it for the right reasons (Sandel M 2011) Which from Kants

viewpoint is synonymous to acting out of duty which as established in Chapter 3 means that

onersquos actions must be converted to those that are able to pass the tests of generalisation and

universalisation As such one must convert the sections of the Police and Criminal Evidence Act

1984 and its associated Codes of Practice concerning stop and search into an order to establish

whether it is ethical

However while the Police and Criminal Evidence Act 1984 identifies that reasonable suspicion is

necessary in order to conduct a stop and search one cannot simply create a maxim stating that

police officers can stop and search anyone they reasonably suspect is carrying illegal or stolen

items Because even though this maxim does provide an accurate description of the necessary

requirements to perform a stop and search it is far too broad Such a maxim does not place a limit

upon what the suspicion might be based on resulting in a possibility for officers to target certain

groups of people based on prejudice or stereotypes Therefore such a maxim can neither be

generalised nor universalised meaning it would be considered entirely unethical by Kantian

principles However by using the guidelines and limitations of reasonable suspicion presented in

the Codes of Practice A that were identified earlier in this chapter this maxim can be broken down

into three separate parts These being

14

police officers may stop and search individuals for illegal or stolen items if it is in

accordance with known facts and information and they believe that such items will be found upon

searching the person

police officers may stop and search individuals acting in an obviously suspicious manner for

illegal or stolen items but only if they suspect that such items will be found upon searching the

person and

police officers may stop and search individuals based on articles of clothing piercings

andor tattoos if these are known to be worn by members of a gang(s) that are known to carry

illegal or stolen items and only if the police suspects that such items will be found upon searching

the person

These provide a much more limited and concentrated approach to the attempted moralisation of the

polices power to stop and search individuals for prohibited or stolen articles Because unlike the

previous maxim these are not only limiting what the basis for suspicion might be but also limiting

when the power itself may be enforced As such the likelihood of these being able to pass the tests

of generalisation and universalisation are increased

521 Generalisation and Universalisation

In order to accurately establish whether acts are moral they must pass the tests of generalisation and

universalisation as Kant believed that moral acts were ones that could be applied to everyone as a

universal law without becoming contradictory or illogical (see chapter 3) However as these deal

with police powers and Kant argued that acts must be applicable to everyone without exception

these will also be examined using Singers generalisation principle because it would be illogical for

such powers to be implemented by everyone Singers generalisation principle makes it possible to

bypass this issue as it argues that ldquowhat is right (or wrong) for one person must be right (or wrong)

for any similar person in similar circumstancesrdquo (Singer G M undated cited by ONeill O 2013

p78) Additionally this approach puts a utilitarian twist on Kants frameworks as it determines

morality based on the consequences of onersquos actions (ONeill O 2013 p79) rather than the

motivation behind them As such this test functions as a middle ground between the tests of

generalisation and universalisation ensuring that the generalised maxim does not cause an illogical

or chaotic result in addition to limiting the generalised maxim from anyone that is not a member of

the police service Analysing the maxim using these tests therefore requires them to be studied

individually so that they can be dissected and examined more closely

Looking at the first of the three maxims created using the guidelines and limitations of reasonable

15

suspicion as identified by the Codes of Practice A it can be established that it is comprised from

three different elements Namely

the police may only search for illegal or stolen items

the police may only search an individual based on known facts and information and finally

the police may only search the individual if they believe illegal or stolen items will be found

Attempting to generalise any of these elements of the maxim individually would not be reasonable

as they do not provide enough limitations or guidelines for it to be functional Because the first part

allows the police to search anyone for illegal or stolen items without the necessity of a suspicion

that any such items will be found which would result in a police state where the police could search

anyone they please The necessity of believing that illegal or stolen items will be found upon

conducting a search is added by the third element of the maxim but there are still no requirements

for the police to have any kind of reasonable basis for their decision to stop and search someone as

this is added by the maxims second element However this element cannot be moralised on its own

either as it does not specify what the police may search for However when all three elements of

the maxim are combined all necessary limitations are present meaning the generalisation of it

should not produce a contradictory or illogical result

However passing the test of generalisation does not mean that the maxim is ethical as it must also

be universalisable Meaning it should be able to be enforced as a (hypothetical) law that applies to

everyone unconditionally As the maxim places a requirement on the police to only stop and search

individuals if they have a factual basis for their suspicion to find illegal or stolen items upon

searching the person this should be a universalisable action Because assuming all police officers

were required to follow this maxim it would result in a world where only specific items may be

searched for if they have a factual reason to conduct the search and only if they believe that such

items will be found upon searching the person(s) As this would not produce any undesirable

consequences this maxim would not only pass Kants test of universalisation but also fulfil the

necessary criteria for Singers generalisation principle

This is essentially what the Police and Criminal Evidence Act 1984 and the Codes of Practice A

seeks to do meaning that if the guidelines were followed by the police unlawful stops and searches

should not occur However since there are more aspects to the laws that govern the polices power

to stop and search individuals for illegal or stolen items such as searches based on suspicious

behaviour or searches of suspected gang members other aspects must be explored as well before

16

declaring whether it is ethical or not For this reason the two additional maxims (mentioned earlier)

are needed and must therefore be tested as well As these maxims can be implemented in such

situations by the removal of the need for a factual basis for suspicion and replacing it with either

the possibility to

search individuals acting in an obviously suspicious manner or

search individuals based on clothing piercings andor tattoos if these are known to be worn

by members of gangs that are known to carry illegal or stolen items

As with the various elements of the maxim analysed previously these are also unable to be

moralised individually Because the first of the two does not specify what may be searched for and

neither of the sections specify that the police should expect to find illegal or stolen items upon

stopping and searching an individual As such neither of these elements can function as a maxim on

their own as they are illogical and can neither be generalised nor universalised However when

these are combined with the other elements of the maxims these issues should be resolved thus

passing Kants test of generalisation

Universalising these maxims is a bit more problematic than the one analysed previously through

For example with the first of these two maxims police officers would be enforced to stop and

search anyone that is acting in an obviously suspicious manner for illegal or stolen items if they

believe any such items will be found upon searching them The phrase behaving in an obviously

suspicious manner is a bit of an issue here as there is no definition available as to what can be

classified as such However a reasonable person would probably equate behaving in an obviously

suspicious manner to trying to hide something which is used as an example in the Codes of

Practice A s23 It could therefore be worth substituting the phrase behaving in an obviously

suspicious manner with trying to hide something as this would be more specific However by

doing this the maxim would become much more limited as it would no longer allow individuals

behaving suspiciously in other ways to be searched Nevertheless should this interpretation be used

the likeliness of the maxim passing the test of universalisation might be increased as the likeliness

of it producing a chaotic result would decrease Additionally implementing such an interpretation

would also make it more likely for the maxim to pass Singers generalisation principle As the

conduction of stops and searches of people that are obviously trying to hide something is less likely

to produce an undesirable outcome in comparison to searching anyone acting suspiciously

Finally the universalisation of the third and final of the maxims would enforce the police to stop

17

and search anyone dressed or in any other ways being physically identifiable as a possible member

of a gang known to carry illegal or stolen items if they believe any such items will be found upon

searching them As with the maxim analysed above there are issues related to universalising this

maxim due to the possibility of it causing certain people to be targeted because of the clothes they

wear or any piercings or tattoos on their body being related to or similar to ones connected to a

criminal gang Universalising this maxim could therefore worsen an already prevalent issue where

innocent members of the public get their civil liberties infringed upon due to their personal style

especially as the maxim allows quite a broad range of items accessories and body art to be used as

an indicator for suspicion In a study by Jackson and Smith (2013) the experiences of young people

from London that had been subjected to stop and search was surveyed where the participants

identified what kind of clothing might fit the criteria of being a presumed gang member It was

suggested that ldquoemulating American hip hop artists by wearing low-slung jeans hoodies and

branded trainers and walking and talking in a certain wayrdquo (p6) was stereotyped by the police as

gagster behaviour and dress The same study also identified an experience that was shared by one

of the participants whom stated that ldquoThey just say youre in a drug infested area and youve got a

hood on so were stopping and searching yourdquo (Jackson L and Smith L 2013 p6)

Taking this into consideration it can therefore be seen that the universalisation of a maxim asking

the police to stop and search anyone perceived to be involved with a criminal gang for illegal or

stolen items could result in a form of criminalisation of the hoodie and other specific pieces of

clothing as these are stereotyped as being related to gang membership This would be problematic

as the hoodie in particular is a comfortable and often affordable piece of clothing that is a staple in

the wardrobes of many of societys subcultures such as emos and skaters that are generally not

stereotyped as criminals (Braddock K 2011) As such it can be established that neither Kant nor

Singer would be able to universalise this maxim as having officers search anyone wearing specific

clothes would neither be reasonable nor produce any desirable consequences

522 Issues

While two out of three of the different maxims appear to be moral in the eyes of Kant there are still

some issues relating to them which must be acknowledged Primarily there might be an issue with

these maxims being too specific as it has been noted that ldquoany maxim that is highly restricted is

likely to pass the universalisability testrdquo [Guyer P 2007 cited by Perold L M 2010 p19]

because the more descriptive a maxim is the less likely it is that it would become contradictory As

all of the maxims created from the Codes of Practice A are highly restrictive specifying who may

carry out the act under what circumstances they may carry it out and the limitations of the actions

18

itself Additionally as noted earlier in this chapter the maxims cannot be made more general either

as this would prevent them from being moralised this means that there is a risk of these maxims

passing the tests of universalisation and generalisation simply because of their overly descriptive

nature rather than actually being moral

There might also be an issue with the phrasing of the maxims specifically the use of the term

police officers as this might cause some uncertainties regarding exactly who the maxim applies to

Because by using the term police officer or even police it becomes questionable if an officer must

be in uniform in other words his or her position as a police officer is overt when carrying out the

search However since these maxims need to be exclusive to the police it could be hard to bypass

this issue without adding yet another specification to it that clarifies whether there is a need for the

officer to be in uniform or not

Finally there could also be an issue of the maxims conflicting with each other as the first of the

maxims states that the decision to stop and search someone needs to be in accordance with known

facts and information Something that might not be available when a stop and search is made

utilising the second or third maxim as these can be initiated without a need of known facts or

information This raises a question to whether one of the maxims would naturally take precedence

over the others as all three maxims regarding stop and search can never operate at the same time

Generally Kantianism argues that when one is faced with opposing maxims the perfect duty will

always take precedence over an imperfect one (Stohr K 2010 p3) However as all of the maxims

are addressing what is essentially the same action being the possibility to stop and search

individuals for illegal andor stolen items this could be problematic Furthermore while there are

three maxims identified within this study there also exists another fourth maxim which concerns

the possibility of not searching anyone for illegal or stolen items This fourth maxim is also

considered a perfect duty as it would generally be easier to universalise not searching people as

opposed to searching individuals fitting certain requirements This means that the maxim regarding

the omission to act would in this case take precedence over the other maxims identified within this

research essentially rendering them powerless

19

Chapter 6

Conclusion

From this study it can be seen that the legislation governing a heavily criticised police power such

as stop and search has the possibility to be morally justifiable by the ethical frameworks developed

by Kant Because while Kants ethical theory does not rectify or justify the issue of ethnic minorities

being subjected to a disproportionate amount of stops and searches in comparison to Caucasians it

is important to remember that the ldquolaw in theory and the law in practice differrdquo (Westmarland L in

Newburn T 2011 p255) Meaning that the moralisation of the legislation does not ensure that it

will be applied ethically by the police Additionally as Kantian ethics values the motivation behind

ones actions over the consequences produced from them the potential issues caused by ones actions

are irrelevant as long as the action itself can be universalised without producing a chaotic or

undesirable result

However as there are several layers to stop and search there are some implications to morally

justifying this power as it is multi-faceted Being designed to deal with a variety of different

situations and bases from which suspicion might arise to justify the stopping and searching of an

individual Because while Kantian ethics can ethically justify police officers to stop and search

individuals for illegal or stolen items if it is in accordance with known facts and information and

they believe that such items will be found upon searching the person this encompasses only one of

the many facets of the power As such the power cannot be justified as a whole as any maxim used

to describe it would not provide the necessary limitations needed for it to successfully pass the tests

of generalisation and universalisation

While the power cannot be moralised as a whole it is possible to create two additional maxims

using the limitations and exceptions to the necessity criteria of reasonable suspicion found in the

Codes of Practice A to create an additional two maxims These represent two additional facets of

stop and search being that

police officers may stop and search individuals acting in an obviously suspicious manner for

illegal or stolen items but only if they suspect that such items will be found upon searching the

person and

police officers may stop and search individuals based on articles of clothing piercings

andor tattoos if these are known to be worn by members of a gang(s) that are known to carry

20

illegal or stolen items and only if the police suspects that such items will be found upon searching

the person

However only the first of these two maxims can be justified utilising Kants ethical framework and

Singers generalisation principle because the latter cannot be universalised without becoming

unreasonable Furthermore the latter cannot be justified without providing further limitations

requiring the phrase acting in an obviously suspicious manner to be replaced by obviously hiding

something

From the issues presented from the creation of the two additional maxims above it can be

established that stop and search cannot be considered morally justifiable under all circumstances

Because different situations calls for different maxims meaning that should the search not be

initiated based on known facts or information it is unlikely to be ethical Nevertheless even though

all facets of this police power cannot be morally justified it does seem that the majority of them can

be considered ethical to some extent Meaning the legislation governing it is generally ethical but

as a whole it becomes a bit of a moral ambiguity This shows that the police power as identified by

the Police and Criminal Evidence Act 1984 and the Codes of Practice A has a potential to be

ethically justified with the exception of the section permitting searches where physical appearance

can be used as a basis for suspicion Additionally this research identified that the reasons for why

this particular section is not justifiable could also be part of the reason to the disproportionate

amount of searches of ethnic minorities As it might provide officers maliciously targeting

minorities with a possibility to justify their actions by claiming a particular article of clothing body

art or similar was the reason for the stop

As such it can be established that the legislation governing the polices power to stop and search

individuals for prohibited or stolen articles cannot be fully moralised as not all sections of the

Police and Criminal Evidence Act 1984 or the Codes of Practice A concerning this power can be

ethically justified However while the legislation as whole is morally ambiguous at best the

searches conducted with factual information as a basis for suspicion suggests that the sections of the

legislation addressing this type of search cannot be implemented in an unethical manner Because as

the universalised maxim requires the police to act in a manner promoted by the Act and Codes this

shows that any unethical searches carried out using this type of search are caused as a result of

police misconduct rather than an actual issue with the legislation

21

However it should be noted that this research can only provide a limited account of the morality of

this police power as it has only explored it through the limitations put upon it through the necessity

requirement of reasonable suspicion Additionally it can only account for the morality of the

sections of the Police and Criminal Evidence Act 1984 and the Codes of Practice A addressing this

particular police power and only through the limitations explored within this research Finally it is

also important to recognise that the police power has only been analysed using a Kantian approach

to ethics and morality This means that further studies of the police power and indeed the Act and

Codes in general are needed in order to provide a more accurate account of the morality and ethical

issues present It is therefore suggested that additional research should be carried out to study the

legislation governing the power of stop and search utilising other ethical theories or utilising

Kantian ethics with a different focus point of the legislation

However while further research is needed in order to gain a more accurate account of the overall

morality of the police power and the legislation governing it it does not mean the research

presented in this paper is of any less value Because even though the study can only provide a

limited account of the legislations morality it has succeeded in presenting the probabilities for the

moral justification of the Acts first part along with the associated Codes of Practice as well as

identifying that the issues connected to the Act may be caused primarily by the polices failure to

accurately conduct stops and searches according to the law Meaning the research has produced

some valuable results in addition to providing a stepping stone for further research on the topic

22

Bibliography

BBC [2014] Duty-Based Ethics Available at

httpwwwbbccoukethicsintroductionduty_1shtml [Accessed 20-03-2014]

Benz S [2010] ldquoThe Police and Criminal Evidence Act 1984 balancing civil liberties and public

securityrdquo Diffusion 5(2) Available at httpatpuclanacukbuddypressdiffusionp=1255

[Accessed 25-04-2014]

Bowling B and Phillips C [2007] Disproportionate and Discriminatory Reviewing the Evidence

on Police Stop and Search Oxford Blackwell Publishing p958 httpwwwstop-

watchorguploadsdocumentsmodern_law_reviewpdf

Braddock K [2011] ldquoThe Power of the Hoodierdquo The Guardian Available at

httpwwwtheguardiancomuk2011aug09power-of-the-hoodie [Accessed21-04-2014]

Codes of Practice A

Council of Europe [2010] European Convention on Human Rights Strasbourg European Court of

Human Rights p 7 Available at httpwwwechrcoeintDocumentsConvention_ENGpdf

[Accessed 09-03-2014]

The Economic and Social Research Council [2012] Frameworks for Research Ethics Swindon

Economic and Social Research Council pp2-3 3 Available at

httpwwwesrcacuk_imagesframework-for-research-ethics-09-12_tcm8-4586pdf [Accessed 01-

04-2014]

The Economist [1990] End Game Available

athttpgogalegroupcompsidoid=GALE7CA9390713ampv=21ampu=uceampit=rampp=SPJSP0

0ampsw=wampasid=f6f778fcf0a20b3f0f18df5e20a57f27 [Accessed 19-03-2014]

Fahy P [undated] ldquoForewordrdquo In Ozin P Norton H and Spivey P [2013] PACE ndash A Practical

Guide to the Police and Criminal Evidence Act 1984 3rd

Edition Oxford Oxford University Press

p v

Flick U [2011] Introducing Research Methodology London Sage p 125

Garret J [2006] Kants Duty Ethics Available at

httppeoplewkuedujangarrettethicskanthtm [Accessed 20-03-2014]

Govuk [2013] Guidance Police and Criminal Evidence Act 1984 (PACE) Codes of Practice

London Home Office Available at httpswwwgovukpolice-and-criminal-evidence-act-1984-

pace-codes-of-practice [Accessed 02-04-2014]

Guyer P (2007) cited by Perold L M [2010] Does Immanuel Kants Categorical Imperative

Commit Him to the View that Lying is Always Morally Wrong Master of Arts thesis University of

the Witwatersrand p 19 Available at

httpwiredspacewitsaczabitstreamhandle1053910096M20Perold20Research20Reportp

dfsequence=2 [Accessed 24-04-2014]

7

issue that is also identified by Bennet (2010) stating that ldquoit certainly seems a large gap in a moral

theory that it has nothing to say about how pain and suffering makes acts wrongrdquo (p88) Because

while many actions that might cause pain and suffering to others generally cannot be justified using

the categorical imperative they are not dismissed for the right reasons (Bennet C 2010 p88) as

ldquouniversal rules require us to overlook and [hellip] neglect the fragility mutual vulnerability social

embeddedness and constitutive loyalties of real peoplerdquo (ONeill O 2000 p67) As human beings

are not cold calculative and emotionless robots this is an obvious flaw within Kants frameworks

because in order to act morally one needs to be able to completely disregard the feelings of other

people

Furthermore due to the lack of consideration for human emotions and relationships Kant has

simplified the very complex issue of moral theory (ONeill O 2000 p 67) often resulting in very

bizarre contradicting or even worrying results Because utilising the categorical imperative for

moral guidance might result not only in allowing obviously immoral actions to be universalised but

also preventing other harmless acts of kindness such as opening the door for someone else from

being morally justified (Bennet C 2010 p86) It should be obvious to a normal reasonable human

being that there is nothing wrong or immoral about holding the door open for someone else yet

through the implementation of Kantianism such an action cannot be justified due to it being unable

to pass the test of universalisation Showing that the Kantian approach struggles to encompass all

actions regardless of their significance importance or size in a reasonable manner

It should also be noted that the Kantian framework can also produce situations where the agent will

be acting immorally no matter what they do Bennet (2010) utilises an example of noticing a child

in the process of drowning while on the way to class and even though we have a duty to help others

according to Kant the option of not helping can also be moralised in this scenario as the agent will

adhere to the maxim of getting to class on time (p86-87) This leads to the final category of

critiques against Kant and Kantian ideologies as identified by ONeill (2000) which states that it is

a theory ldquodesigned for abstract individuals [hellip] leading to abstract conclusions that are irrelevant to

real people who lead real livesrdquo (p 67) It is possible that this abstract nature of the theory could be

due to Kants failure to provide a proper guideline stating how our actions should be explained in

order to properly calculate their ethical value through the tests of generalisation and universalisation

Because with the manner in which the Kantian framework is designed there is a possibility that

ldquoany action could pass it simply by being re-describedrdquo (Bennet C 2010 p87) The Kantian

framework is therefore in need of some kind of notes for guidance that provides an explanation for

how one is to distinguish correct descriptions of ones actions from incorrect ones

8

Chapter 4

PACE A Brief Introduction

The following chapter will be providing a brief introduction to the Police and Criminal Evidence

Act 1984 and its associated Codes of Practice Providing a basic understanding of the legislations

history and purpose in addition to some criticisms of the act and issues that has developed as a

result of its development As such this chapter alongside with chapter 3 provides a foundation for

the following chapters where specific parts of the legislation will be explored more thoroughly in

addition to being analysed through the Kantian frameworks for ethics

41 Background

Policing in England and Wales is nowadays comprised of a tough balancing act where ldquothe interests

of the community and the rights of the individualrdquo (Royal Commission undated cited by Zander

2011 p3) must be taken into account while also maintaining public order In addition to being

required to evaluate to what extent they may infringe upon civil liberties to do their job the police

is also under constant public scrutiny This means that any infringement upon the rights of an

individual that cannot be justified by the Police and Criminal Evidence Act 1984 the Human Rights

Act 1998 or other pieces of legislation can have dire consequences for the police Such

infringements can result in lawsuits against the police or rendering evidence inadmissible in court

as was seen in the case of R v Miller (1993) where the confessions from the suspects were rendered

inadmissible due to hostile and oppressive questioning by police However while it is noted that

infringement of civil liberties should be avoided and the rights of the public should be respected it

is also identified in Article 5 of the European Convention of Human Rights that there are

circumstances when the police and the criminal justice system must be granted the power to

lawfully infringe upon these (Council of Europe 2010 p7) Because without these exceptions legal

and justice systems would no longer function as criminal justice cannot function if the rights of the

individual is to be respected at all times

While there is a need for the police and criminal justice system to infringe upon the rights of

individuals there must be sanctions that govern to what extent these rights can be infringed upon

and under what circumstances As mentioned above article five of the European Convention of

Human Rights provides a good starting point but as it must be applicable to the state legislature of

all member states of the European Union it is far too general and leaves plenty of gaps to fill in

This is where the Police and Criminal Evidence Act 1984 and its corresponding Codes of Practice

comes into play as these help with outlining the provisions for the polices ability to infringe upon

9

the civil liberties of the public It was introduced following some cases of gross police misconduct

that had come to light causing miscarriages of justice of several high-profile cases which put a

strain on the relationship between the police and the public One such case included the R v

McIlkenny and others (1991) more famously known as the Birmingham Six where six innocent

men were wrongfully convicted as a result of police officers having beaten witnesses to obtain

satisfactory statements in addition to distorting forensic evidence (The Economist 1990) The

Police and Criminal Evidence Act 1984 and the associated Codes of Practice was introduced in an

attempt to remedy this through providing guidelines for how evidence was to be obtained legally

how suspects and detained persons were to be treated how and when certain police powers could be

legally enforced as well as providing the criminal justice system with transparency and

accountability (Fahy P in Ozin P Norton H and Spivey P 2013 pv)

Through its introduction the Police and Criminal Evidence Act 1984 and its corresponding Codes of

Practice drastically changed the manner in which policing was carried out causing a bit of a

culture shock for some officers that were threatened by the new developments (Wilding B

undated in Cape E and Young R 2008 p127) As there were suddenly demands being put on

officers that did not exist previously in addition to clear frameworks dictating what kind of

behaviour was deemed acceptable All to ensure that investigations were carried out both

objectively and with integrity two elements which are important to maintain public confidence in

the police force (Wilding B undated in Cape E and Young R 2008 p127) However while the

drastic changes might have come as a shock to some officers it is now common practice and

heavily ingrained to the very core of policing Additionally while the Act generally focuses on the

protection of the suspects victims and witnesses it simultaneously provides the police with

safeguards to avoid suspicion of unlawfully acquired evidence as everything from physical

evidence to verbal or written confessions must be recorded and processed in detail (Police and

Criminal Evidence Act 1984 sNUMBER sNUMBER) ensuring that the police runs a lower risk of

being unjustly accused of foul play

32 Critiques and Issues

While the Act and the Codes of Practice has played a significant part in making the police ldquomore

accountable in terms of performance and standards than virtually any other public bodyrdquo (Wilding

B undated in Cape E and Young R 2008 p130) as well as supposedly having ldquoushered in new

ethical standards for the servicerdquo (Wilding B undated in Cape E and Young R 2008 p127) It

has been subjected to a significant amount of criticism from non-governmental organisations such

as Liberty members of the police itself and academics scrutinising everything from how the Act

10

takes the police off the streets and placing them behind desks to carry out extensive amounts of

paperwork (Wilding B undated in Cape E and Young R 2008 p127) to questioning whom the

Act is really favouring (Benz S 2010) Furthermore the actual contents of the Act and the Codes of

Practice has been criticised in particular the Acts first part concerning stop and search (see chapter

5) resulting in a large number of edits and moderations to remedy these and provide a better

balance between the police and the rights of the public

11

Chapter 5

Reasonable Suspicion

While the Police and Criminal Evidence Act 1984 provides the police with guidelines for how and

when they may use their powers to infringe upon civil liberties these are not enough to ensure that

policing is carried out correctly in accordance to the act The Act must therefore be read alongside

the Codes of Practice as these further explain the limitations of the powers in addition to the

requirements that must be fulfilled in order for an officer to implement them One such requirement

that is found repeatedly throughout the Act and the Codes of Practice is the need for an officer to

have reasonable grounds for suspecting that the person(s) of interest are doing have done is about

to do or is in possession of something illegal (Police and Criminal Evidence Act s1(7)-1(9)

s3(1)(a)-3(1)(d)) This requirement is one that has been subjected to some controversy and scrutiny

especially in connection to the power of stop and search (addressed below) as it is often described

in very vague or broad terms often making it unclear what exactly constitutes appropriate grounds

for reasonable suspicion Additionally it should also be noted that the appropriate grounds for

suspicion might differ slightly from one section of the Act to another making it important to

separate these definitions from each other when studying them as they may all have their own

interpretations definitions regulations and issues However as this research explores the ethical

implications of reasonable suspicion in relation to stop and search it must be acknowledged that the

results may not be applicable to sections of the Police and Criminal Evidence Act 1984 and Codes

of Practice concerning other police powers

51 Reasonable Suspicion and Stop and Search

In the first part of the Police and Criminal Evidence Act 1984 it is identified that an officer cannot

stop and search an individual unless they have reasonable grounds for suspecting that any stolen or

prohibited articles listed under s1(7)-1(9) of the Act will be found on their person (s1(3) Police and

Criminal Evidence Act 1984) That being said there are many limitations placed upon what may

constitute a reasonable ground for suspecting that prohibited or stolen articles will be found on the

person(s) (Codes of Practice A s22) and that these can differ depending on the circumstances of

each case [Ozin P et al 2013 p4] However while suspicion might be raised for different reasons

in each case the Code emphasises that suspicion may never be based on personal factors

stereotypes or generalisations (Codes of Practice A s22) Nor may it be ldquoprovided retrospectively

by [hellip] questioning during a persons detention or by refusal to answer any questionsrdquo (Codes of

Practice A s29) Instead it is stressed that suspicion should have an objective basis derived from

known facts and information (Codes of Practice A s22)

12

Whether these demands put on officers by the Codes of Practice A to establish objective grounds

for suspicion are followed is questionable though At least when taking into consideration that the

sections of the Police and Criminal Evidence Act 1984 and the Codes of Practice concerning stop

and search has been subjected to heavy criticism mainly due to the disproportionate amount of

members from minority ethnic groups being searched in comparison to Caucasians Because even

though the Codes of Practice A does identify that there are situations where reasonable grounds for

suspicion might exist without the need for known facts or information such as initiating searches

based on an individuals behaviour or body language (Codes of Practice A s23) it does not explain

why black people are up to ldquosix times more likely to be stop[ped and] searched than would be

expected based on their numbers in the general populationrdquo (Bowling B and Phillips C 2007

p958) Nor does it explain how the recorded stops and searches of Asians since the mid-nineties

have remained between 15 and 25 times higher than those of Caucasians (Equality and Human

Rights Commission 2010 p13) These are worrying statistics that raise questions as to whether the

guidelines provided by the Police and Criminal Evidence Act 1984 and the Codes of Practice are

sufficient in order to ensure that this power is used appropriately and fairly Because even though

non-Caucasians are stopped and searched more frequently arrests following searches are distributed

quite evenly across all ethnic groups (StopWatch 2014)

There is a possibility that this targeting of minority ethnic groups could be a direct result of the

socio-economic conditions that traps many families from poor neighbourhoods in a cycle of poverty

and disadvantage (Joseph I and Gunter A 2011 p3) Especially as it has been found that these

groups often respond ldquoto their powerlessness with frustration rage and the creation of alternative

social and cultural values that promotes and normalizes gang membership and violencerdquo (Joseph I

and Gunter A 2011 p3) Due to the normalisation of such behaviour this could provide an

explanation to why some disproportionality might exist as the Codes of Practice provides an

exception to searches based on physical appearance when it is related to gang culture stating that

ldquowhere there is reliable information or intelligence that members of a group or gang

habitually carry knives unlawfully or weapons or controlled drugs and wear a

distinctive item of clothing or other means of identification to indicate their

membership of the group or gang that distinctive item of clothing or other means

of identification may provide reasonable grounds to stop and search a personrdquo

(Codes of Practice A s26)

13

However while this provision could support the existence of some disproportionality it does not

disprove that minority ethnic groups are being targeted by the police nor does it provide a

reasonable explanation to why blacks are being six times more likely to be subjected to a stop and

search This means there is a risk that this section of the Codes of Practice is being used by police

to maliciously target ethnic minority groups by stereotyping them as more likely to be involved

with criminal gangs

52 Reasonable Suspicion Stop and Search and Morality

While statistics and studies show that stop and search is used disproportionally and suggests that

individuals belonging to minority ethnic groups are being targeted by the police it does not mean

that the power itself nor the legislation governing it is unethical Because even though they tend to

overlap ldquothere is no necessary connection between law and moralsrdquo (Hart H L A 1958 cited by

Green L 2012 in Hart H L A 2012 pxxxiii) as the law applies to everyone unconditionally

while moral only applies to those that sympathise with the ideologies in question Kantian ethics

however arguing that one should do the right thing because of it being right views morality as a

supplement to the law (Zupancic A 2000 p16) therefore ensuring that we are not only doing what

is right but that we are also doing it for the right reasons (Sandel M 2011) Which from Kants

viewpoint is synonymous to acting out of duty which as established in Chapter 3 means that

onersquos actions must be converted to those that are able to pass the tests of generalisation and

universalisation As such one must convert the sections of the Police and Criminal Evidence Act

1984 and its associated Codes of Practice concerning stop and search into an order to establish

whether it is ethical

However while the Police and Criminal Evidence Act 1984 identifies that reasonable suspicion is

necessary in order to conduct a stop and search one cannot simply create a maxim stating that

police officers can stop and search anyone they reasonably suspect is carrying illegal or stolen

items Because even though this maxim does provide an accurate description of the necessary

requirements to perform a stop and search it is far too broad Such a maxim does not place a limit

upon what the suspicion might be based on resulting in a possibility for officers to target certain

groups of people based on prejudice or stereotypes Therefore such a maxim can neither be

generalised nor universalised meaning it would be considered entirely unethical by Kantian

principles However by using the guidelines and limitations of reasonable suspicion presented in

the Codes of Practice A that were identified earlier in this chapter this maxim can be broken down

into three separate parts These being

14

police officers may stop and search individuals for illegal or stolen items if it is in

accordance with known facts and information and they believe that such items will be found upon

searching the person

police officers may stop and search individuals acting in an obviously suspicious manner for

illegal or stolen items but only if they suspect that such items will be found upon searching the

person and

police officers may stop and search individuals based on articles of clothing piercings

andor tattoos if these are known to be worn by members of a gang(s) that are known to carry

illegal or stolen items and only if the police suspects that such items will be found upon searching

the person

These provide a much more limited and concentrated approach to the attempted moralisation of the

polices power to stop and search individuals for prohibited or stolen articles Because unlike the

previous maxim these are not only limiting what the basis for suspicion might be but also limiting

when the power itself may be enforced As such the likelihood of these being able to pass the tests

of generalisation and universalisation are increased

521 Generalisation and Universalisation

In order to accurately establish whether acts are moral they must pass the tests of generalisation and

universalisation as Kant believed that moral acts were ones that could be applied to everyone as a

universal law without becoming contradictory or illogical (see chapter 3) However as these deal

with police powers and Kant argued that acts must be applicable to everyone without exception

these will also be examined using Singers generalisation principle because it would be illogical for

such powers to be implemented by everyone Singers generalisation principle makes it possible to

bypass this issue as it argues that ldquowhat is right (or wrong) for one person must be right (or wrong)

for any similar person in similar circumstancesrdquo (Singer G M undated cited by ONeill O 2013

p78) Additionally this approach puts a utilitarian twist on Kants frameworks as it determines

morality based on the consequences of onersquos actions (ONeill O 2013 p79) rather than the

motivation behind them As such this test functions as a middle ground between the tests of

generalisation and universalisation ensuring that the generalised maxim does not cause an illogical

or chaotic result in addition to limiting the generalised maxim from anyone that is not a member of

the police service Analysing the maxim using these tests therefore requires them to be studied

individually so that they can be dissected and examined more closely

Looking at the first of the three maxims created using the guidelines and limitations of reasonable

15

suspicion as identified by the Codes of Practice A it can be established that it is comprised from

three different elements Namely

the police may only search for illegal or stolen items

the police may only search an individual based on known facts and information and finally

the police may only search the individual if they believe illegal or stolen items will be found

Attempting to generalise any of these elements of the maxim individually would not be reasonable

as they do not provide enough limitations or guidelines for it to be functional Because the first part

allows the police to search anyone for illegal or stolen items without the necessity of a suspicion

that any such items will be found which would result in a police state where the police could search

anyone they please The necessity of believing that illegal or stolen items will be found upon

conducting a search is added by the third element of the maxim but there are still no requirements

for the police to have any kind of reasonable basis for their decision to stop and search someone as

this is added by the maxims second element However this element cannot be moralised on its own

either as it does not specify what the police may search for However when all three elements of

the maxim are combined all necessary limitations are present meaning the generalisation of it

should not produce a contradictory or illogical result

However passing the test of generalisation does not mean that the maxim is ethical as it must also

be universalisable Meaning it should be able to be enforced as a (hypothetical) law that applies to

everyone unconditionally As the maxim places a requirement on the police to only stop and search

individuals if they have a factual basis for their suspicion to find illegal or stolen items upon

searching the person this should be a universalisable action Because assuming all police officers

were required to follow this maxim it would result in a world where only specific items may be

searched for if they have a factual reason to conduct the search and only if they believe that such

items will be found upon searching the person(s) As this would not produce any undesirable

consequences this maxim would not only pass Kants test of universalisation but also fulfil the

necessary criteria for Singers generalisation principle

This is essentially what the Police and Criminal Evidence Act 1984 and the Codes of Practice A

seeks to do meaning that if the guidelines were followed by the police unlawful stops and searches

should not occur However since there are more aspects to the laws that govern the polices power

to stop and search individuals for illegal or stolen items such as searches based on suspicious

behaviour or searches of suspected gang members other aspects must be explored as well before

16

declaring whether it is ethical or not For this reason the two additional maxims (mentioned earlier)

are needed and must therefore be tested as well As these maxims can be implemented in such

situations by the removal of the need for a factual basis for suspicion and replacing it with either

the possibility to

search individuals acting in an obviously suspicious manner or

search individuals based on clothing piercings andor tattoos if these are known to be worn

by members of gangs that are known to carry illegal or stolen items

As with the various elements of the maxim analysed previously these are also unable to be

moralised individually Because the first of the two does not specify what may be searched for and

neither of the sections specify that the police should expect to find illegal or stolen items upon

stopping and searching an individual As such neither of these elements can function as a maxim on

their own as they are illogical and can neither be generalised nor universalised However when

these are combined with the other elements of the maxims these issues should be resolved thus

passing Kants test of generalisation

Universalising these maxims is a bit more problematic than the one analysed previously through

For example with the first of these two maxims police officers would be enforced to stop and

search anyone that is acting in an obviously suspicious manner for illegal or stolen items if they

believe any such items will be found upon searching them The phrase behaving in an obviously

suspicious manner is a bit of an issue here as there is no definition available as to what can be

classified as such However a reasonable person would probably equate behaving in an obviously

suspicious manner to trying to hide something which is used as an example in the Codes of

Practice A s23 It could therefore be worth substituting the phrase behaving in an obviously

suspicious manner with trying to hide something as this would be more specific However by

doing this the maxim would become much more limited as it would no longer allow individuals

behaving suspiciously in other ways to be searched Nevertheless should this interpretation be used

the likeliness of the maxim passing the test of universalisation might be increased as the likeliness

of it producing a chaotic result would decrease Additionally implementing such an interpretation

would also make it more likely for the maxim to pass Singers generalisation principle As the

conduction of stops and searches of people that are obviously trying to hide something is less likely

to produce an undesirable outcome in comparison to searching anyone acting suspiciously

Finally the universalisation of the third and final of the maxims would enforce the police to stop

17

and search anyone dressed or in any other ways being physically identifiable as a possible member

of a gang known to carry illegal or stolen items if they believe any such items will be found upon

searching them As with the maxim analysed above there are issues related to universalising this

maxim due to the possibility of it causing certain people to be targeted because of the clothes they

wear or any piercings or tattoos on their body being related to or similar to ones connected to a

criminal gang Universalising this maxim could therefore worsen an already prevalent issue where

innocent members of the public get their civil liberties infringed upon due to their personal style

especially as the maxim allows quite a broad range of items accessories and body art to be used as

an indicator for suspicion In a study by Jackson and Smith (2013) the experiences of young people

from London that had been subjected to stop and search was surveyed where the participants

identified what kind of clothing might fit the criteria of being a presumed gang member It was

suggested that ldquoemulating American hip hop artists by wearing low-slung jeans hoodies and

branded trainers and walking and talking in a certain wayrdquo (p6) was stereotyped by the police as

gagster behaviour and dress The same study also identified an experience that was shared by one

of the participants whom stated that ldquoThey just say youre in a drug infested area and youve got a

hood on so were stopping and searching yourdquo (Jackson L and Smith L 2013 p6)

Taking this into consideration it can therefore be seen that the universalisation of a maxim asking

the police to stop and search anyone perceived to be involved with a criminal gang for illegal or

stolen items could result in a form of criminalisation of the hoodie and other specific pieces of

clothing as these are stereotyped as being related to gang membership This would be problematic

as the hoodie in particular is a comfortable and often affordable piece of clothing that is a staple in

the wardrobes of many of societys subcultures such as emos and skaters that are generally not

stereotyped as criminals (Braddock K 2011) As such it can be established that neither Kant nor

Singer would be able to universalise this maxim as having officers search anyone wearing specific

clothes would neither be reasonable nor produce any desirable consequences

522 Issues

While two out of three of the different maxims appear to be moral in the eyes of Kant there are still

some issues relating to them which must be acknowledged Primarily there might be an issue with

these maxims being too specific as it has been noted that ldquoany maxim that is highly restricted is

likely to pass the universalisability testrdquo [Guyer P 2007 cited by Perold L M 2010 p19]

because the more descriptive a maxim is the less likely it is that it would become contradictory As

all of the maxims created from the Codes of Practice A are highly restrictive specifying who may

carry out the act under what circumstances they may carry it out and the limitations of the actions

18

itself Additionally as noted earlier in this chapter the maxims cannot be made more general either

as this would prevent them from being moralised this means that there is a risk of these maxims

passing the tests of universalisation and generalisation simply because of their overly descriptive

nature rather than actually being moral

There might also be an issue with the phrasing of the maxims specifically the use of the term

police officers as this might cause some uncertainties regarding exactly who the maxim applies to

Because by using the term police officer or even police it becomes questionable if an officer must

be in uniform in other words his or her position as a police officer is overt when carrying out the

search However since these maxims need to be exclusive to the police it could be hard to bypass

this issue without adding yet another specification to it that clarifies whether there is a need for the

officer to be in uniform or not

Finally there could also be an issue of the maxims conflicting with each other as the first of the

maxims states that the decision to stop and search someone needs to be in accordance with known

facts and information Something that might not be available when a stop and search is made

utilising the second or third maxim as these can be initiated without a need of known facts or

information This raises a question to whether one of the maxims would naturally take precedence

over the others as all three maxims regarding stop and search can never operate at the same time

Generally Kantianism argues that when one is faced with opposing maxims the perfect duty will

always take precedence over an imperfect one (Stohr K 2010 p3) However as all of the maxims

are addressing what is essentially the same action being the possibility to stop and search

individuals for illegal andor stolen items this could be problematic Furthermore while there are

three maxims identified within this study there also exists another fourth maxim which concerns

the possibility of not searching anyone for illegal or stolen items This fourth maxim is also

considered a perfect duty as it would generally be easier to universalise not searching people as

opposed to searching individuals fitting certain requirements This means that the maxim regarding

the omission to act would in this case take precedence over the other maxims identified within this

research essentially rendering them powerless

19

Chapter 6

Conclusion

From this study it can be seen that the legislation governing a heavily criticised police power such

as stop and search has the possibility to be morally justifiable by the ethical frameworks developed

by Kant Because while Kants ethical theory does not rectify or justify the issue of ethnic minorities

being subjected to a disproportionate amount of stops and searches in comparison to Caucasians it

is important to remember that the ldquolaw in theory and the law in practice differrdquo (Westmarland L in

Newburn T 2011 p255) Meaning that the moralisation of the legislation does not ensure that it

will be applied ethically by the police Additionally as Kantian ethics values the motivation behind

ones actions over the consequences produced from them the potential issues caused by ones actions

are irrelevant as long as the action itself can be universalised without producing a chaotic or

undesirable result

However as there are several layers to stop and search there are some implications to morally

justifying this power as it is multi-faceted Being designed to deal with a variety of different

situations and bases from which suspicion might arise to justify the stopping and searching of an

individual Because while Kantian ethics can ethically justify police officers to stop and search

individuals for illegal or stolen items if it is in accordance with known facts and information and

they believe that such items will be found upon searching the person this encompasses only one of

the many facets of the power As such the power cannot be justified as a whole as any maxim used

to describe it would not provide the necessary limitations needed for it to successfully pass the tests

of generalisation and universalisation

While the power cannot be moralised as a whole it is possible to create two additional maxims

using the limitations and exceptions to the necessity criteria of reasonable suspicion found in the

Codes of Practice A to create an additional two maxims These represent two additional facets of

stop and search being that

police officers may stop and search individuals acting in an obviously suspicious manner for

illegal or stolen items but only if they suspect that such items will be found upon searching the

person and

police officers may stop and search individuals based on articles of clothing piercings

andor tattoos if these are known to be worn by members of a gang(s) that are known to carry

20

illegal or stolen items and only if the police suspects that such items will be found upon searching

the person

However only the first of these two maxims can be justified utilising Kants ethical framework and

Singers generalisation principle because the latter cannot be universalised without becoming

unreasonable Furthermore the latter cannot be justified without providing further limitations

requiring the phrase acting in an obviously suspicious manner to be replaced by obviously hiding

something

From the issues presented from the creation of the two additional maxims above it can be

established that stop and search cannot be considered morally justifiable under all circumstances

Because different situations calls for different maxims meaning that should the search not be

initiated based on known facts or information it is unlikely to be ethical Nevertheless even though

all facets of this police power cannot be morally justified it does seem that the majority of them can

be considered ethical to some extent Meaning the legislation governing it is generally ethical but

as a whole it becomes a bit of a moral ambiguity This shows that the police power as identified by

the Police and Criminal Evidence Act 1984 and the Codes of Practice A has a potential to be

ethically justified with the exception of the section permitting searches where physical appearance

can be used as a basis for suspicion Additionally this research identified that the reasons for why

this particular section is not justifiable could also be part of the reason to the disproportionate

amount of searches of ethnic minorities As it might provide officers maliciously targeting

minorities with a possibility to justify their actions by claiming a particular article of clothing body

art or similar was the reason for the stop

As such it can be established that the legislation governing the polices power to stop and search

individuals for prohibited or stolen articles cannot be fully moralised as not all sections of the

Police and Criminal Evidence Act 1984 or the Codes of Practice A concerning this power can be

ethically justified However while the legislation as whole is morally ambiguous at best the

searches conducted with factual information as a basis for suspicion suggests that the sections of the

legislation addressing this type of search cannot be implemented in an unethical manner Because as

the universalised maxim requires the police to act in a manner promoted by the Act and Codes this

shows that any unethical searches carried out using this type of search are caused as a result of

police misconduct rather than an actual issue with the legislation

21

However it should be noted that this research can only provide a limited account of the morality of

this police power as it has only explored it through the limitations put upon it through the necessity

requirement of reasonable suspicion Additionally it can only account for the morality of the

sections of the Police and Criminal Evidence Act 1984 and the Codes of Practice A addressing this

particular police power and only through the limitations explored within this research Finally it is

also important to recognise that the police power has only been analysed using a Kantian approach

to ethics and morality This means that further studies of the police power and indeed the Act and

Codes in general are needed in order to provide a more accurate account of the morality and ethical

issues present It is therefore suggested that additional research should be carried out to study the

legislation governing the power of stop and search utilising other ethical theories or utilising

Kantian ethics with a different focus point of the legislation

However while further research is needed in order to gain a more accurate account of the overall

morality of the police power and the legislation governing it it does not mean the research

presented in this paper is of any less value Because even though the study can only provide a

limited account of the legislations morality it has succeeded in presenting the probabilities for the

moral justification of the Acts first part along with the associated Codes of Practice as well as

identifying that the issues connected to the Act may be caused primarily by the polices failure to

accurately conduct stops and searches according to the law Meaning the research has produced

some valuable results in addition to providing a stepping stone for further research on the topic

22

Bibliography

BBC [2014] Duty-Based Ethics Available at

httpwwwbbccoukethicsintroductionduty_1shtml [Accessed 20-03-2014]

Benz S [2010] ldquoThe Police and Criminal Evidence Act 1984 balancing civil liberties and public

securityrdquo Diffusion 5(2) Available at httpatpuclanacukbuddypressdiffusionp=1255

[Accessed 25-04-2014]

Bowling B and Phillips C [2007] Disproportionate and Discriminatory Reviewing the Evidence

on Police Stop and Search Oxford Blackwell Publishing p958 httpwwwstop-

watchorguploadsdocumentsmodern_law_reviewpdf

Braddock K [2011] ldquoThe Power of the Hoodierdquo The Guardian Available at

httpwwwtheguardiancomuk2011aug09power-of-the-hoodie [Accessed21-04-2014]

Codes of Practice A

Council of Europe [2010] European Convention on Human Rights Strasbourg European Court of

Human Rights p 7 Available at httpwwwechrcoeintDocumentsConvention_ENGpdf

[Accessed 09-03-2014]

The Economic and Social Research Council [2012] Frameworks for Research Ethics Swindon

Economic and Social Research Council pp2-3 3 Available at

httpwwwesrcacuk_imagesframework-for-research-ethics-09-12_tcm8-4586pdf [Accessed 01-

04-2014]

The Economist [1990] End Game Available

athttpgogalegroupcompsidoid=GALE7CA9390713ampv=21ampu=uceampit=rampp=SPJSP0

0ampsw=wampasid=f6f778fcf0a20b3f0f18df5e20a57f27 [Accessed 19-03-2014]

Fahy P [undated] ldquoForewordrdquo In Ozin P Norton H and Spivey P [2013] PACE ndash A Practical

Guide to the Police and Criminal Evidence Act 1984 3rd

Edition Oxford Oxford University Press

p v

Flick U [2011] Introducing Research Methodology London Sage p 125

Garret J [2006] Kants Duty Ethics Available at

httppeoplewkuedujangarrettethicskanthtm [Accessed 20-03-2014]

Govuk [2013] Guidance Police and Criminal Evidence Act 1984 (PACE) Codes of Practice

London Home Office Available at httpswwwgovukpolice-and-criminal-evidence-act-1984-

pace-codes-of-practice [Accessed 02-04-2014]

Guyer P (2007) cited by Perold L M [2010] Does Immanuel Kants Categorical Imperative

Commit Him to the View that Lying is Always Morally Wrong Master of Arts thesis University of

the Witwatersrand p 19 Available at

httpwiredspacewitsaczabitstreamhandle1053910096M20Perold20Research20Reportp

dfsequence=2 [Accessed 24-04-2014]

8

Chapter 4

PACE A Brief Introduction

The following chapter will be providing a brief introduction to the Police and Criminal Evidence

Act 1984 and its associated Codes of Practice Providing a basic understanding of the legislations

history and purpose in addition to some criticisms of the act and issues that has developed as a

result of its development As such this chapter alongside with chapter 3 provides a foundation for

the following chapters where specific parts of the legislation will be explored more thoroughly in

addition to being analysed through the Kantian frameworks for ethics

41 Background

Policing in England and Wales is nowadays comprised of a tough balancing act where ldquothe interests

of the community and the rights of the individualrdquo (Royal Commission undated cited by Zander

2011 p3) must be taken into account while also maintaining public order In addition to being

required to evaluate to what extent they may infringe upon civil liberties to do their job the police

is also under constant public scrutiny This means that any infringement upon the rights of an

individual that cannot be justified by the Police and Criminal Evidence Act 1984 the Human Rights

Act 1998 or other pieces of legislation can have dire consequences for the police Such

infringements can result in lawsuits against the police or rendering evidence inadmissible in court

as was seen in the case of R v Miller (1993) where the confessions from the suspects were rendered

inadmissible due to hostile and oppressive questioning by police However while it is noted that

infringement of civil liberties should be avoided and the rights of the public should be respected it

is also identified in Article 5 of the European Convention of Human Rights that there are

circumstances when the police and the criminal justice system must be granted the power to

lawfully infringe upon these (Council of Europe 2010 p7) Because without these exceptions legal

and justice systems would no longer function as criminal justice cannot function if the rights of the

individual is to be respected at all times

While there is a need for the police and criminal justice system to infringe upon the rights of

individuals there must be sanctions that govern to what extent these rights can be infringed upon

and under what circumstances As mentioned above article five of the European Convention of

Human Rights provides a good starting point but as it must be applicable to the state legislature of

all member states of the European Union it is far too general and leaves plenty of gaps to fill in

This is where the Police and Criminal Evidence Act 1984 and its corresponding Codes of Practice

comes into play as these help with outlining the provisions for the polices ability to infringe upon

9

the civil liberties of the public It was introduced following some cases of gross police misconduct

that had come to light causing miscarriages of justice of several high-profile cases which put a

strain on the relationship between the police and the public One such case included the R v

McIlkenny and others (1991) more famously known as the Birmingham Six where six innocent

men were wrongfully convicted as a result of police officers having beaten witnesses to obtain

satisfactory statements in addition to distorting forensic evidence (The Economist 1990) The

Police and Criminal Evidence Act 1984 and the associated Codes of Practice was introduced in an

attempt to remedy this through providing guidelines for how evidence was to be obtained legally

how suspects and detained persons were to be treated how and when certain police powers could be

legally enforced as well as providing the criminal justice system with transparency and

accountability (Fahy P in Ozin P Norton H and Spivey P 2013 pv)

Through its introduction the Police and Criminal Evidence Act 1984 and its corresponding Codes of

Practice drastically changed the manner in which policing was carried out causing a bit of a

culture shock for some officers that were threatened by the new developments (Wilding B

undated in Cape E and Young R 2008 p127) As there were suddenly demands being put on

officers that did not exist previously in addition to clear frameworks dictating what kind of

behaviour was deemed acceptable All to ensure that investigations were carried out both

objectively and with integrity two elements which are important to maintain public confidence in

the police force (Wilding B undated in Cape E and Young R 2008 p127) However while the

drastic changes might have come as a shock to some officers it is now common practice and

heavily ingrained to the very core of policing Additionally while the Act generally focuses on the

protection of the suspects victims and witnesses it simultaneously provides the police with

safeguards to avoid suspicion of unlawfully acquired evidence as everything from physical

evidence to verbal or written confessions must be recorded and processed in detail (Police and

Criminal Evidence Act 1984 sNUMBER sNUMBER) ensuring that the police runs a lower risk of

being unjustly accused of foul play

32 Critiques and Issues

While the Act and the Codes of Practice has played a significant part in making the police ldquomore

accountable in terms of performance and standards than virtually any other public bodyrdquo (Wilding

B undated in Cape E and Young R 2008 p130) as well as supposedly having ldquoushered in new

ethical standards for the servicerdquo (Wilding B undated in Cape E and Young R 2008 p127) It

has been subjected to a significant amount of criticism from non-governmental organisations such

as Liberty members of the police itself and academics scrutinising everything from how the Act

10

takes the police off the streets and placing them behind desks to carry out extensive amounts of

paperwork (Wilding B undated in Cape E and Young R 2008 p127) to questioning whom the

Act is really favouring (Benz S 2010) Furthermore the actual contents of the Act and the Codes of

Practice has been criticised in particular the Acts first part concerning stop and search (see chapter

5) resulting in a large number of edits and moderations to remedy these and provide a better

balance between the police and the rights of the public

11

Chapter 5

Reasonable Suspicion

While the Police and Criminal Evidence Act 1984 provides the police with guidelines for how and

when they may use their powers to infringe upon civil liberties these are not enough to ensure that

policing is carried out correctly in accordance to the act The Act must therefore be read alongside

the Codes of Practice as these further explain the limitations of the powers in addition to the

requirements that must be fulfilled in order for an officer to implement them One such requirement

that is found repeatedly throughout the Act and the Codes of Practice is the need for an officer to

have reasonable grounds for suspecting that the person(s) of interest are doing have done is about

to do or is in possession of something illegal (Police and Criminal Evidence Act s1(7)-1(9)

s3(1)(a)-3(1)(d)) This requirement is one that has been subjected to some controversy and scrutiny

especially in connection to the power of stop and search (addressed below) as it is often described

in very vague or broad terms often making it unclear what exactly constitutes appropriate grounds

for reasonable suspicion Additionally it should also be noted that the appropriate grounds for

suspicion might differ slightly from one section of the Act to another making it important to

separate these definitions from each other when studying them as they may all have their own

interpretations definitions regulations and issues However as this research explores the ethical

implications of reasonable suspicion in relation to stop and search it must be acknowledged that the

results may not be applicable to sections of the Police and Criminal Evidence Act 1984 and Codes

of Practice concerning other police powers

51 Reasonable Suspicion and Stop and Search

In the first part of the Police and Criminal Evidence Act 1984 it is identified that an officer cannot

stop and search an individual unless they have reasonable grounds for suspecting that any stolen or

prohibited articles listed under s1(7)-1(9) of the Act will be found on their person (s1(3) Police and

Criminal Evidence Act 1984) That being said there are many limitations placed upon what may

constitute a reasonable ground for suspecting that prohibited or stolen articles will be found on the

person(s) (Codes of Practice A s22) and that these can differ depending on the circumstances of

each case [Ozin P et al 2013 p4] However while suspicion might be raised for different reasons

in each case the Code emphasises that suspicion may never be based on personal factors

stereotypes or generalisations (Codes of Practice A s22) Nor may it be ldquoprovided retrospectively

by [hellip] questioning during a persons detention or by refusal to answer any questionsrdquo (Codes of

Practice A s29) Instead it is stressed that suspicion should have an objective basis derived from

known facts and information (Codes of Practice A s22)

12

Whether these demands put on officers by the Codes of Practice A to establish objective grounds

for suspicion are followed is questionable though At least when taking into consideration that the

sections of the Police and Criminal Evidence Act 1984 and the Codes of Practice concerning stop

and search has been subjected to heavy criticism mainly due to the disproportionate amount of

members from minority ethnic groups being searched in comparison to Caucasians Because even

though the Codes of Practice A does identify that there are situations where reasonable grounds for

suspicion might exist without the need for known facts or information such as initiating searches

based on an individuals behaviour or body language (Codes of Practice A s23) it does not explain

why black people are up to ldquosix times more likely to be stop[ped and] searched than would be

expected based on their numbers in the general populationrdquo (Bowling B and Phillips C 2007

p958) Nor does it explain how the recorded stops and searches of Asians since the mid-nineties

have remained between 15 and 25 times higher than those of Caucasians (Equality and Human

Rights Commission 2010 p13) These are worrying statistics that raise questions as to whether the

guidelines provided by the Police and Criminal Evidence Act 1984 and the Codes of Practice are

sufficient in order to ensure that this power is used appropriately and fairly Because even though

non-Caucasians are stopped and searched more frequently arrests following searches are distributed

quite evenly across all ethnic groups (StopWatch 2014)

There is a possibility that this targeting of minority ethnic groups could be a direct result of the

socio-economic conditions that traps many families from poor neighbourhoods in a cycle of poverty

and disadvantage (Joseph I and Gunter A 2011 p3) Especially as it has been found that these

groups often respond ldquoto their powerlessness with frustration rage and the creation of alternative

social and cultural values that promotes and normalizes gang membership and violencerdquo (Joseph I

and Gunter A 2011 p3) Due to the normalisation of such behaviour this could provide an

explanation to why some disproportionality might exist as the Codes of Practice provides an

exception to searches based on physical appearance when it is related to gang culture stating that

ldquowhere there is reliable information or intelligence that members of a group or gang

habitually carry knives unlawfully or weapons or controlled drugs and wear a

distinctive item of clothing or other means of identification to indicate their

membership of the group or gang that distinctive item of clothing or other means

of identification may provide reasonable grounds to stop and search a personrdquo

(Codes of Practice A s26)

13

However while this provision could support the existence of some disproportionality it does not

disprove that minority ethnic groups are being targeted by the police nor does it provide a

reasonable explanation to why blacks are being six times more likely to be subjected to a stop and

search This means there is a risk that this section of the Codes of Practice is being used by police

to maliciously target ethnic minority groups by stereotyping them as more likely to be involved

with criminal gangs

52 Reasonable Suspicion Stop and Search and Morality

While statistics and studies show that stop and search is used disproportionally and suggests that

individuals belonging to minority ethnic groups are being targeted by the police it does not mean

that the power itself nor the legislation governing it is unethical Because even though they tend to

overlap ldquothere is no necessary connection between law and moralsrdquo (Hart H L A 1958 cited by

Green L 2012 in Hart H L A 2012 pxxxiii) as the law applies to everyone unconditionally

while moral only applies to those that sympathise with the ideologies in question Kantian ethics

however arguing that one should do the right thing because of it being right views morality as a

supplement to the law (Zupancic A 2000 p16) therefore ensuring that we are not only doing what

is right but that we are also doing it for the right reasons (Sandel M 2011) Which from Kants

viewpoint is synonymous to acting out of duty which as established in Chapter 3 means that

onersquos actions must be converted to those that are able to pass the tests of generalisation and

universalisation As such one must convert the sections of the Police and Criminal Evidence Act

1984 and its associated Codes of Practice concerning stop and search into an order to establish

whether it is ethical

However while the Police and Criminal Evidence Act 1984 identifies that reasonable suspicion is

necessary in order to conduct a stop and search one cannot simply create a maxim stating that

police officers can stop and search anyone they reasonably suspect is carrying illegal or stolen

items Because even though this maxim does provide an accurate description of the necessary

requirements to perform a stop and search it is far too broad Such a maxim does not place a limit

upon what the suspicion might be based on resulting in a possibility for officers to target certain

groups of people based on prejudice or stereotypes Therefore such a maxim can neither be

generalised nor universalised meaning it would be considered entirely unethical by Kantian

principles However by using the guidelines and limitations of reasonable suspicion presented in

the Codes of Practice A that were identified earlier in this chapter this maxim can be broken down

into three separate parts These being

14

police officers may stop and search individuals for illegal or stolen items if it is in

accordance with known facts and information and they believe that such items will be found upon

searching the person

police officers may stop and search individuals acting in an obviously suspicious manner for

illegal or stolen items but only if they suspect that such items will be found upon searching the

person and

police officers may stop and search individuals based on articles of clothing piercings

andor tattoos if these are known to be worn by members of a gang(s) that are known to carry

illegal or stolen items and only if the police suspects that such items will be found upon searching

the person

These provide a much more limited and concentrated approach to the attempted moralisation of the

polices power to stop and search individuals for prohibited or stolen articles Because unlike the

previous maxim these are not only limiting what the basis for suspicion might be but also limiting

when the power itself may be enforced As such the likelihood of these being able to pass the tests

of generalisation and universalisation are increased

521 Generalisation and Universalisation

In order to accurately establish whether acts are moral they must pass the tests of generalisation and

universalisation as Kant believed that moral acts were ones that could be applied to everyone as a

universal law without becoming contradictory or illogical (see chapter 3) However as these deal

with police powers and Kant argued that acts must be applicable to everyone without exception

these will also be examined using Singers generalisation principle because it would be illogical for

such powers to be implemented by everyone Singers generalisation principle makes it possible to

bypass this issue as it argues that ldquowhat is right (or wrong) for one person must be right (or wrong)

for any similar person in similar circumstancesrdquo (Singer G M undated cited by ONeill O 2013

p78) Additionally this approach puts a utilitarian twist on Kants frameworks as it determines

morality based on the consequences of onersquos actions (ONeill O 2013 p79) rather than the

motivation behind them As such this test functions as a middle ground between the tests of

generalisation and universalisation ensuring that the generalised maxim does not cause an illogical

or chaotic result in addition to limiting the generalised maxim from anyone that is not a member of

the police service Analysing the maxim using these tests therefore requires them to be studied

individually so that they can be dissected and examined more closely

Looking at the first of the three maxims created using the guidelines and limitations of reasonable

15

suspicion as identified by the Codes of Practice A it can be established that it is comprised from

three different elements Namely

the police may only search for illegal or stolen items

the police may only search an individual based on known facts and information and finally

the police may only search the individual if they believe illegal or stolen items will be found

Attempting to generalise any of these elements of the maxim individually would not be reasonable

as they do not provide enough limitations or guidelines for it to be functional Because the first part

allows the police to search anyone for illegal or stolen items without the necessity of a suspicion

that any such items will be found which would result in a police state where the police could search

anyone they please The necessity of believing that illegal or stolen items will be found upon

conducting a search is added by the third element of the maxim but there are still no requirements

for the police to have any kind of reasonable basis for their decision to stop and search someone as

this is added by the maxims second element However this element cannot be moralised on its own

either as it does not specify what the police may search for However when all three elements of

the maxim are combined all necessary limitations are present meaning the generalisation of it

should not produce a contradictory or illogical result

However passing the test of generalisation does not mean that the maxim is ethical as it must also

be universalisable Meaning it should be able to be enforced as a (hypothetical) law that applies to

everyone unconditionally As the maxim places a requirement on the police to only stop and search

individuals if they have a factual basis for their suspicion to find illegal or stolen items upon

searching the person this should be a universalisable action Because assuming all police officers

were required to follow this maxim it would result in a world where only specific items may be

searched for if they have a factual reason to conduct the search and only if they believe that such

items will be found upon searching the person(s) As this would not produce any undesirable

consequences this maxim would not only pass Kants test of universalisation but also fulfil the

necessary criteria for Singers generalisation principle

This is essentially what the Police and Criminal Evidence Act 1984 and the Codes of Practice A

seeks to do meaning that if the guidelines were followed by the police unlawful stops and searches

should not occur However since there are more aspects to the laws that govern the polices power

to stop and search individuals for illegal or stolen items such as searches based on suspicious

behaviour or searches of suspected gang members other aspects must be explored as well before

16

declaring whether it is ethical or not For this reason the two additional maxims (mentioned earlier)

are needed and must therefore be tested as well As these maxims can be implemented in such

situations by the removal of the need for a factual basis for suspicion and replacing it with either

the possibility to

search individuals acting in an obviously suspicious manner or

search individuals based on clothing piercings andor tattoos if these are known to be worn

by members of gangs that are known to carry illegal or stolen items

As with the various elements of the maxim analysed previously these are also unable to be

moralised individually Because the first of the two does not specify what may be searched for and

neither of the sections specify that the police should expect to find illegal or stolen items upon

stopping and searching an individual As such neither of these elements can function as a maxim on

their own as they are illogical and can neither be generalised nor universalised However when

these are combined with the other elements of the maxims these issues should be resolved thus

passing Kants test of generalisation

Universalising these maxims is a bit more problematic than the one analysed previously through

For example with the first of these two maxims police officers would be enforced to stop and

search anyone that is acting in an obviously suspicious manner for illegal or stolen items if they

believe any such items will be found upon searching them The phrase behaving in an obviously

suspicious manner is a bit of an issue here as there is no definition available as to what can be

classified as such However a reasonable person would probably equate behaving in an obviously

suspicious manner to trying to hide something which is used as an example in the Codes of

Practice A s23 It could therefore be worth substituting the phrase behaving in an obviously

suspicious manner with trying to hide something as this would be more specific However by

doing this the maxim would become much more limited as it would no longer allow individuals

behaving suspiciously in other ways to be searched Nevertheless should this interpretation be used

the likeliness of the maxim passing the test of universalisation might be increased as the likeliness

of it producing a chaotic result would decrease Additionally implementing such an interpretation

would also make it more likely for the maxim to pass Singers generalisation principle As the

conduction of stops and searches of people that are obviously trying to hide something is less likely

to produce an undesirable outcome in comparison to searching anyone acting suspiciously

Finally the universalisation of the third and final of the maxims would enforce the police to stop

17

and search anyone dressed or in any other ways being physically identifiable as a possible member

of a gang known to carry illegal or stolen items if they believe any such items will be found upon

searching them As with the maxim analysed above there are issues related to universalising this

maxim due to the possibility of it causing certain people to be targeted because of the clothes they

wear or any piercings or tattoos on their body being related to or similar to ones connected to a

criminal gang Universalising this maxim could therefore worsen an already prevalent issue where

innocent members of the public get their civil liberties infringed upon due to their personal style

especially as the maxim allows quite a broad range of items accessories and body art to be used as

an indicator for suspicion In a study by Jackson and Smith (2013) the experiences of young people

from London that had been subjected to stop and search was surveyed where the participants

identified what kind of clothing might fit the criteria of being a presumed gang member It was

suggested that ldquoemulating American hip hop artists by wearing low-slung jeans hoodies and

branded trainers and walking and talking in a certain wayrdquo (p6) was stereotyped by the police as

gagster behaviour and dress The same study also identified an experience that was shared by one

of the participants whom stated that ldquoThey just say youre in a drug infested area and youve got a

hood on so were stopping and searching yourdquo (Jackson L and Smith L 2013 p6)

Taking this into consideration it can therefore be seen that the universalisation of a maxim asking

the police to stop and search anyone perceived to be involved with a criminal gang for illegal or

stolen items could result in a form of criminalisation of the hoodie and other specific pieces of

clothing as these are stereotyped as being related to gang membership This would be problematic

as the hoodie in particular is a comfortable and often affordable piece of clothing that is a staple in

the wardrobes of many of societys subcultures such as emos and skaters that are generally not

stereotyped as criminals (Braddock K 2011) As such it can be established that neither Kant nor

Singer would be able to universalise this maxim as having officers search anyone wearing specific

clothes would neither be reasonable nor produce any desirable consequences

522 Issues

While two out of three of the different maxims appear to be moral in the eyes of Kant there are still

some issues relating to them which must be acknowledged Primarily there might be an issue with

these maxims being too specific as it has been noted that ldquoany maxim that is highly restricted is

likely to pass the universalisability testrdquo [Guyer P 2007 cited by Perold L M 2010 p19]

because the more descriptive a maxim is the less likely it is that it would become contradictory As

all of the maxims created from the Codes of Practice A are highly restrictive specifying who may

carry out the act under what circumstances they may carry it out and the limitations of the actions

18

itself Additionally as noted earlier in this chapter the maxims cannot be made more general either

as this would prevent them from being moralised this means that there is a risk of these maxims

passing the tests of universalisation and generalisation simply because of their overly descriptive

nature rather than actually being moral

There might also be an issue with the phrasing of the maxims specifically the use of the term

police officers as this might cause some uncertainties regarding exactly who the maxim applies to

Because by using the term police officer or even police it becomes questionable if an officer must

be in uniform in other words his or her position as a police officer is overt when carrying out the

search However since these maxims need to be exclusive to the police it could be hard to bypass

this issue without adding yet another specification to it that clarifies whether there is a need for the

officer to be in uniform or not

Finally there could also be an issue of the maxims conflicting with each other as the first of the

maxims states that the decision to stop and search someone needs to be in accordance with known

facts and information Something that might not be available when a stop and search is made

utilising the second or third maxim as these can be initiated without a need of known facts or

information This raises a question to whether one of the maxims would naturally take precedence

over the others as all three maxims regarding stop and search can never operate at the same time

Generally Kantianism argues that when one is faced with opposing maxims the perfect duty will

always take precedence over an imperfect one (Stohr K 2010 p3) However as all of the maxims

are addressing what is essentially the same action being the possibility to stop and search

individuals for illegal andor stolen items this could be problematic Furthermore while there are

three maxims identified within this study there also exists another fourth maxim which concerns

the possibility of not searching anyone for illegal or stolen items This fourth maxim is also

considered a perfect duty as it would generally be easier to universalise not searching people as

opposed to searching individuals fitting certain requirements This means that the maxim regarding

the omission to act would in this case take precedence over the other maxims identified within this

research essentially rendering them powerless

19

Chapter 6

Conclusion

From this study it can be seen that the legislation governing a heavily criticised police power such

as stop and search has the possibility to be morally justifiable by the ethical frameworks developed

by Kant Because while Kants ethical theory does not rectify or justify the issue of ethnic minorities

being subjected to a disproportionate amount of stops and searches in comparison to Caucasians it

is important to remember that the ldquolaw in theory and the law in practice differrdquo (Westmarland L in

Newburn T 2011 p255) Meaning that the moralisation of the legislation does not ensure that it

will be applied ethically by the police Additionally as Kantian ethics values the motivation behind

ones actions over the consequences produced from them the potential issues caused by ones actions

are irrelevant as long as the action itself can be universalised without producing a chaotic or

undesirable result

However as there are several layers to stop and search there are some implications to morally

justifying this power as it is multi-faceted Being designed to deal with a variety of different

situations and bases from which suspicion might arise to justify the stopping and searching of an

individual Because while Kantian ethics can ethically justify police officers to stop and search

individuals for illegal or stolen items if it is in accordance with known facts and information and

they believe that such items will be found upon searching the person this encompasses only one of

the many facets of the power As such the power cannot be justified as a whole as any maxim used

to describe it would not provide the necessary limitations needed for it to successfully pass the tests

of generalisation and universalisation

While the power cannot be moralised as a whole it is possible to create two additional maxims

using the limitations and exceptions to the necessity criteria of reasonable suspicion found in the

Codes of Practice A to create an additional two maxims These represent two additional facets of

stop and search being that

police officers may stop and search individuals acting in an obviously suspicious manner for

illegal or stolen items but only if they suspect that such items will be found upon searching the

person and

police officers may stop and search individuals based on articles of clothing piercings

andor tattoos if these are known to be worn by members of a gang(s) that are known to carry

20

illegal or stolen items and only if the police suspects that such items will be found upon searching

the person

However only the first of these two maxims can be justified utilising Kants ethical framework and

Singers generalisation principle because the latter cannot be universalised without becoming

unreasonable Furthermore the latter cannot be justified without providing further limitations

requiring the phrase acting in an obviously suspicious manner to be replaced by obviously hiding

something

From the issues presented from the creation of the two additional maxims above it can be

established that stop and search cannot be considered morally justifiable under all circumstances

Because different situations calls for different maxims meaning that should the search not be

initiated based on known facts or information it is unlikely to be ethical Nevertheless even though

all facets of this police power cannot be morally justified it does seem that the majority of them can

be considered ethical to some extent Meaning the legislation governing it is generally ethical but

as a whole it becomes a bit of a moral ambiguity This shows that the police power as identified by

the Police and Criminal Evidence Act 1984 and the Codes of Practice A has a potential to be

ethically justified with the exception of the section permitting searches where physical appearance

can be used as a basis for suspicion Additionally this research identified that the reasons for why

this particular section is not justifiable could also be part of the reason to the disproportionate

amount of searches of ethnic minorities As it might provide officers maliciously targeting

minorities with a possibility to justify their actions by claiming a particular article of clothing body

art or similar was the reason for the stop

As such it can be established that the legislation governing the polices power to stop and search

individuals for prohibited or stolen articles cannot be fully moralised as not all sections of the

Police and Criminal Evidence Act 1984 or the Codes of Practice A concerning this power can be

ethically justified However while the legislation as whole is morally ambiguous at best the

searches conducted with factual information as a basis for suspicion suggests that the sections of the

legislation addressing this type of search cannot be implemented in an unethical manner Because as

the universalised maxim requires the police to act in a manner promoted by the Act and Codes this

shows that any unethical searches carried out using this type of search are caused as a result of

police misconduct rather than an actual issue with the legislation

21

However it should be noted that this research can only provide a limited account of the morality of

this police power as it has only explored it through the limitations put upon it through the necessity

requirement of reasonable suspicion Additionally it can only account for the morality of the

sections of the Police and Criminal Evidence Act 1984 and the Codes of Practice A addressing this

particular police power and only through the limitations explored within this research Finally it is

also important to recognise that the police power has only been analysed using a Kantian approach

to ethics and morality This means that further studies of the police power and indeed the Act and

Codes in general are needed in order to provide a more accurate account of the morality and ethical

issues present It is therefore suggested that additional research should be carried out to study the

legislation governing the power of stop and search utilising other ethical theories or utilising

Kantian ethics with a different focus point of the legislation

However while further research is needed in order to gain a more accurate account of the overall

morality of the police power and the legislation governing it it does not mean the research

presented in this paper is of any less value Because even though the study can only provide a

limited account of the legislations morality it has succeeded in presenting the probabilities for the

moral justification of the Acts first part along with the associated Codes of Practice as well as

identifying that the issues connected to the Act may be caused primarily by the polices failure to

accurately conduct stops and searches according to the law Meaning the research has produced

some valuable results in addition to providing a stepping stone for further research on the topic

22

Bibliography

BBC [2014] Duty-Based Ethics Available at

httpwwwbbccoukethicsintroductionduty_1shtml [Accessed 20-03-2014]

Benz S [2010] ldquoThe Police and Criminal Evidence Act 1984 balancing civil liberties and public

securityrdquo Diffusion 5(2) Available at httpatpuclanacukbuddypressdiffusionp=1255

[Accessed 25-04-2014]

Bowling B and Phillips C [2007] Disproportionate and Discriminatory Reviewing the Evidence

on Police Stop and Search Oxford Blackwell Publishing p958 httpwwwstop-

watchorguploadsdocumentsmodern_law_reviewpdf

Braddock K [2011] ldquoThe Power of the Hoodierdquo The Guardian Available at

httpwwwtheguardiancomuk2011aug09power-of-the-hoodie [Accessed21-04-2014]

Codes of Practice A

Council of Europe [2010] European Convention on Human Rights Strasbourg European Court of

Human Rights p 7 Available at httpwwwechrcoeintDocumentsConvention_ENGpdf

[Accessed 09-03-2014]

The Economic and Social Research Council [2012] Frameworks for Research Ethics Swindon

Economic and Social Research Council pp2-3 3 Available at

httpwwwesrcacuk_imagesframework-for-research-ethics-09-12_tcm8-4586pdf [Accessed 01-

04-2014]

The Economist [1990] End Game Available

athttpgogalegroupcompsidoid=GALE7CA9390713ampv=21ampu=uceampit=rampp=SPJSP0

0ampsw=wampasid=f6f778fcf0a20b3f0f18df5e20a57f27 [Accessed 19-03-2014]

Fahy P [undated] ldquoForewordrdquo In Ozin P Norton H and Spivey P [2013] PACE ndash A Practical

Guide to the Police and Criminal Evidence Act 1984 3rd

Edition Oxford Oxford University Press

p v

Flick U [2011] Introducing Research Methodology London Sage p 125

Garret J [2006] Kants Duty Ethics Available at

httppeoplewkuedujangarrettethicskanthtm [Accessed 20-03-2014]

Govuk [2013] Guidance Police and Criminal Evidence Act 1984 (PACE) Codes of Practice

London Home Office Available at httpswwwgovukpolice-and-criminal-evidence-act-1984-

pace-codes-of-practice [Accessed 02-04-2014]

Guyer P (2007) cited by Perold L M [2010] Does Immanuel Kants Categorical Imperative

Commit Him to the View that Lying is Always Morally Wrong Master of Arts thesis University of

the Witwatersrand p 19 Available at

httpwiredspacewitsaczabitstreamhandle1053910096M20Perold20Research20Reportp

dfsequence=2 [Accessed 24-04-2014]

9

the civil liberties of the public It was introduced following some cases of gross police misconduct

that had come to light causing miscarriages of justice of several high-profile cases which put a

strain on the relationship between the police and the public One such case included the R v

McIlkenny and others (1991) more famously known as the Birmingham Six where six innocent

men were wrongfully convicted as a result of police officers having beaten witnesses to obtain

satisfactory statements in addition to distorting forensic evidence (The Economist 1990) The

Police and Criminal Evidence Act 1984 and the associated Codes of Practice was introduced in an

attempt to remedy this through providing guidelines for how evidence was to be obtained legally

how suspects and detained persons were to be treated how and when certain police powers could be

legally enforced as well as providing the criminal justice system with transparency and

accountability (Fahy P in Ozin P Norton H and Spivey P 2013 pv)

Through its introduction the Police and Criminal Evidence Act 1984 and its corresponding Codes of

Practice drastically changed the manner in which policing was carried out causing a bit of a

culture shock for some officers that were threatened by the new developments (Wilding B

undated in Cape E and Young R 2008 p127) As there were suddenly demands being put on

officers that did not exist previously in addition to clear frameworks dictating what kind of

behaviour was deemed acceptable All to ensure that investigations were carried out both

objectively and with integrity two elements which are important to maintain public confidence in

the police force (Wilding B undated in Cape E and Young R 2008 p127) However while the

drastic changes might have come as a shock to some officers it is now common practice and

heavily ingrained to the very core of policing Additionally while the Act generally focuses on the

protection of the suspects victims and witnesses it simultaneously provides the police with

safeguards to avoid suspicion of unlawfully acquired evidence as everything from physical

evidence to verbal or written confessions must be recorded and processed in detail (Police and

Criminal Evidence Act 1984 sNUMBER sNUMBER) ensuring that the police runs a lower risk of

being unjustly accused of foul play

32 Critiques and Issues

While the Act and the Codes of Practice has played a significant part in making the police ldquomore

accountable in terms of performance and standards than virtually any other public bodyrdquo (Wilding

B undated in Cape E and Young R 2008 p130) as well as supposedly having ldquoushered in new

ethical standards for the servicerdquo (Wilding B undated in Cape E and Young R 2008 p127) It

has been subjected to a significant amount of criticism from non-governmental organisations such

as Liberty members of the police itself and academics scrutinising everything from how the Act

10

takes the police off the streets and placing them behind desks to carry out extensive amounts of

paperwork (Wilding B undated in Cape E and Young R 2008 p127) to questioning whom the

Act is really favouring (Benz S 2010) Furthermore the actual contents of the Act and the Codes of

Practice has been criticised in particular the Acts first part concerning stop and search (see chapter

5) resulting in a large number of edits and moderations to remedy these and provide a better

balance between the police and the rights of the public

11

Chapter 5

Reasonable Suspicion

While the Police and Criminal Evidence Act 1984 provides the police with guidelines for how and

when they may use their powers to infringe upon civil liberties these are not enough to ensure that

policing is carried out correctly in accordance to the act The Act must therefore be read alongside

the Codes of Practice as these further explain the limitations of the powers in addition to the

requirements that must be fulfilled in order for an officer to implement them One such requirement

that is found repeatedly throughout the Act and the Codes of Practice is the need for an officer to

have reasonable grounds for suspecting that the person(s) of interest are doing have done is about

to do or is in possession of something illegal (Police and Criminal Evidence Act s1(7)-1(9)

s3(1)(a)-3(1)(d)) This requirement is one that has been subjected to some controversy and scrutiny

especially in connection to the power of stop and search (addressed below) as it is often described

in very vague or broad terms often making it unclear what exactly constitutes appropriate grounds

for reasonable suspicion Additionally it should also be noted that the appropriate grounds for

suspicion might differ slightly from one section of the Act to another making it important to

separate these definitions from each other when studying them as they may all have their own

interpretations definitions regulations and issues However as this research explores the ethical

implications of reasonable suspicion in relation to stop and search it must be acknowledged that the

results may not be applicable to sections of the Police and Criminal Evidence Act 1984 and Codes

of Practice concerning other police powers

51 Reasonable Suspicion and Stop and Search

In the first part of the Police and Criminal Evidence Act 1984 it is identified that an officer cannot

stop and search an individual unless they have reasonable grounds for suspecting that any stolen or

prohibited articles listed under s1(7)-1(9) of the Act will be found on their person (s1(3) Police and

Criminal Evidence Act 1984) That being said there are many limitations placed upon what may

constitute a reasonable ground for suspecting that prohibited or stolen articles will be found on the

person(s) (Codes of Practice A s22) and that these can differ depending on the circumstances of

each case [Ozin P et al 2013 p4] However while suspicion might be raised for different reasons

in each case the Code emphasises that suspicion may never be based on personal factors

stereotypes or generalisations (Codes of Practice A s22) Nor may it be ldquoprovided retrospectively

by [hellip] questioning during a persons detention or by refusal to answer any questionsrdquo (Codes of

Practice A s29) Instead it is stressed that suspicion should have an objective basis derived from

known facts and information (Codes of Practice A s22)

12

Whether these demands put on officers by the Codes of Practice A to establish objective grounds

for suspicion are followed is questionable though At least when taking into consideration that the

sections of the Police and Criminal Evidence Act 1984 and the Codes of Practice concerning stop

and search has been subjected to heavy criticism mainly due to the disproportionate amount of

members from minority ethnic groups being searched in comparison to Caucasians Because even

though the Codes of Practice A does identify that there are situations where reasonable grounds for

suspicion might exist without the need for known facts or information such as initiating searches

based on an individuals behaviour or body language (Codes of Practice A s23) it does not explain

why black people are up to ldquosix times more likely to be stop[ped and] searched than would be

expected based on their numbers in the general populationrdquo (Bowling B and Phillips C 2007

p958) Nor does it explain how the recorded stops and searches of Asians since the mid-nineties

have remained between 15 and 25 times higher than those of Caucasians (Equality and Human

Rights Commission 2010 p13) These are worrying statistics that raise questions as to whether the

guidelines provided by the Police and Criminal Evidence Act 1984 and the Codes of Practice are

sufficient in order to ensure that this power is used appropriately and fairly Because even though

non-Caucasians are stopped and searched more frequently arrests following searches are distributed

quite evenly across all ethnic groups (StopWatch 2014)

There is a possibility that this targeting of minority ethnic groups could be a direct result of the

socio-economic conditions that traps many families from poor neighbourhoods in a cycle of poverty

and disadvantage (Joseph I and Gunter A 2011 p3) Especially as it has been found that these

groups often respond ldquoto their powerlessness with frustration rage and the creation of alternative

social and cultural values that promotes and normalizes gang membership and violencerdquo (Joseph I

and Gunter A 2011 p3) Due to the normalisation of such behaviour this could provide an

explanation to why some disproportionality might exist as the Codes of Practice provides an

exception to searches based on physical appearance when it is related to gang culture stating that

ldquowhere there is reliable information or intelligence that members of a group or gang

habitually carry knives unlawfully or weapons or controlled drugs and wear a

distinctive item of clothing or other means of identification to indicate their

membership of the group or gang that distinctive item of clothing or other means

of identification may provide reasonable grounds to stop and search a personrdquo

(Codes of Practice A s26)

13

However while this provision could support the existence of some disproportionality it does not

disprove that minority ethnic groups are being targeted by the police nor does it provide a

reasonable explanation to why blacks are being six times more likely to be subjected to a stop and

search This means there is a risk that this section of the Codes of Practice is being used by police

to maliciously target ethnic minority groups by stereotyping them as more likely to be involved

with criminal gangs

52 Reasonable Suspicion Stop and Search and Morality

While statistics and studies show that stop and search is used disproportionally and suggests that

individuals belonging to minority ethnic groups are being targeted by the police it does not mean

that the power itself nor the legislation governing it is unethical Because even though they tend to

overlap ldquothere is no necessary connection between law and moralsrdquo (Hart H L A 1958 cited by

Green L 2012 in Hart H L A 2012 pxxxiii) as the law applies to everyone unconditionally

while moral only applies to those that sympathise with the ideologies in question Kantian ethics

however arguing that one should do the right thing because of it being right views morality as a

supplement to the law (Zupancic A 2000 p16) therefore ensuring that we are not only doing what

is right but that we are also doing it for the right reasons (Sandel M 2011) Which from Kants

viewpoint is synonymous to acting out of duty which as established in Chapter 3 means that

onersquos actions must be converted to those that are able to pass the tests of generalisation and

universalisation As such one must convert the sections of the Police and Criminal Evidence Act

1984 and its associated Codes of Practice concerning stop and search into an order to establish

whether it is ethical

However while the Police and Criminal Evidence Act 1984 identifies that reasonable suspicion is

necessary in order to conduct a stop and search one cannot simply create a maxim stating that

police officers can stop and search anyone they reasonably suspect is carrying illegal or stolen

items Because even though this maxim does provide an accurate description of the necessary

requirements to perform a stop and search it is far too broad Such a maxim does not place a limit

upon what the suspicion might be based on resulting in a possibility for officers to target certain

groups of people based on prejudice or stereotypes Therefore such a maxim can neither be

generalised nor universalised meaning it would be considered entirely unethical by Kantian

principles However by using the guidelines and limitations of reasonable suspicion presented in

the Codes of Practice A that were identified earlier in this chapter this maxim can be broken down

into three separate parts These being

14

police officers may stop and search individuals for illegal or stolen items if it is in

accordance with known facts and information and they believe that such items will be found upon

searching the person

police officers may stop and search individuals acting in an obviously suspicious manner for

illegal or stolen items but only if they suspect that such items will be found upon searching the

person and

police officers may stop and search individuals based on articles of clothing piercings

andor tattoos if these are known to be worn by members of a gang(s) that are known to carry

illegal or stolen items and only if the police suspects that such items will be found upon searching

the person

These provide a much more limited and concentrated approach to the attempted moralisation of the

polices power to stop and search individuals for prohibited or stolen articles Because unlike the

previous maxim these are not only limiting what the basis for suspicion might be but also limiting

when the power itself may be enforced As such the likelihood of these being able to pass the tests

of generalisation and universalisation are increased

521 Generalisation and Universalisation

In order to accurately establish whether acts are moral they must pass the tests of generalisation and

universalisation as Kant believed that moral acts were ones that could be applied to everyone as a

universal law without becoming contradictory or illogical (see chapter 3) However as these deal

with police powers and Kant argued that acts must be applicable to everyone without exception

these will also be examined using Singers generalisation principle because it would be illogical for

such powers to be implemented by everyone Singers generalisation principle makes it possible to

bypass this issue as it argues that ldquowhat is right (or wrong) for one person must be right (or wrong)

for any similar person in similar circumstancesrdquo (Singer G M undated cited by ONeill O 2013

p78) Additionally this approach puts a utilitarian twist on Kants frameworks as it determines

morality based on the consequences of onersquos actions (ONeill O 2013 p79) rather than the

motivation behind them As such this test functions as a middle ground between the tests of

generalisation and universalisation ensuring that the generalised maxim does not cause an illogical

or chaotic result in addition to limiting the generalised maxim from anyone that is not a member of

the police service Analysing the maxim using these tests therefore requires them to be studied

individually so that they can be dissected and examined more closely

Looking at the first of the three maxims created using the guidelines and limitations of reasonable

15

suspicion as identified by the Codes of Practice A it can be established that it is comprised from

three different elements Namely

the police may only search for illegal or stolen items

the police may only search an individual based on known facts and information and finally

the police may only search the individual if they believe illegal or stolen items will be found

Attempting to generalise any of these elements of the maxim individually would not be reasonable

as they do not provide enough limitations or guidelines for it to be functional Because the first part

allows the police to search anyone for illegal or stolen items without the necessity of a suspicion

that any such items will be found which would result in a police state where the police could search

anyone they please The necessity of believing that illegal or stolen items will be found upon

conducting a search is added by the third element of the maxim but there are still no requirements

for the police to have any kind of reasonable basis for their decision to stop and search someone as

this is added by the maxims second element However this element cannot be moralised on its own

either as it does not specify what the police may search for However when all three elements of

the maxim are combined all necessary limitations are present meaning the generalisation of it

should not produce a contradictory or illogical result

However passing the test of generalisation does not mean that the maxim is ethical as it must also

be universalisable Meaning it should be able to be enforced as a (hypothetical) law that applies to

everyone unconditionally As the maxim places a requirement on the police to only stop and search

individuals if they have a factual basis for their suspicion to find illegal or stolen items upon

searching the person this should be a universalisable action Because assuming all police officers

were required to follow this maxim it would result in a world where only specific items may be

searched for if they have a factual reason to conduct the search and only if they believe that such

items will be found upon searching the person(s) As this would not produce any undesirable

consequences this maxim would not only pass Kants test of universalisation but also fulfil the

necessary criteria for Singers generalisation principle

This is essentially what the Police and Criminal Evidence Act 1984 and the Codes of Practice A

seeks to do meaning that if the guidelines were followed by the police unlawful stops and searches

should not occur However since there are more aspects to the laws that govern the polices power

to stop and search individuals for illegal or stolen items such as searches based on suspicious

behaviour or searches of suspected gang members other aspects must be explored as well before

16

declaring whether it is ethical or not For this reason the two additional maxims (mentioned earlier)

are needed and must therefore be tested as well As these maxims can be implemented in such

situations by the removal of the need for a factual basis for suspicion and replacing it with either

the possibility to

search individuals acting in an obviously suspicious manner or

search individuals based on clothing piercings andor tattoos if these are known to be worn

by members of gangs that are known to carry illegal or stolen items

As with the various elements of the maxim analysed previously these are also unable to be

moralised individually Because the first of the two does not specify what may be searched for and

neither of the sections specify that the police should expect to find illegal or stolen items upon

stopping and searching an individual As such neither of these elements can function as a maxim on

their own as they are illogical and can neither be generalised nor universalised However when

these are combined with the other elements of the maxims these issues should be resolved thus

passing Kants test of generalisation

Universalising these maxims is a bit more problematic than the one analysed previously through

For example with the first of these two maxims police officers would be enforced to stop and

search anyone that is acting in an obviously suspicious manner for illegal or stolen items if they

believe any such items will be found upon searching them The phrase behaving in an obviously

suspicious manner is a bit of an issue here as there is no definition available as to what can be

classified as such However a reasonable person would probably equate behaving in an obviously

suspicious manner to trying to hide something which is used as an example in the Codes of

Practice A s23 It could therefore be worth substituting the phrase behaving in an obviously

suspicious manner with trying to hide something as this would be more specific However by

doing this the maxim would become much more limited as it would no longer allow individuals

behaving suspiciously in other ways to be searched Nevertheless should this interpretation be used

the likeliness of the maxim passing the test of universalisation might be increased as the likeliness

of it producing a chaotic result would decrease Additionally implementing such an interpretation

would also make it more likely for the maxim to pass Singers generalisation principle As the

conduction of stops and searches of people that are obviously trying to hide something is less likely

to produce an undesirable outcome in comparison to searching anyone acting suspiciously

Finally the universalisation of the third and final of the maxims would enforce the police to stop

17

and search anyone dressed or in any other ways being physically identifiable as a possible member

of a gang known to carry illegal or stolen items if they believe any such items will be found upon

searching them As with the maxim analysed above there are issues related to universalising this

maxim due to the possibility of it causing certain people to be targeted because of the clothes they

wear or any piercings or tattoos on their body being related to or similar to ones connected to a

criminal gang Universalising this maxim could therefore worsen an already prevalent issue where

innocent members of the public get their civil liberties infringed upon due to their personal style

especially as the maxim allows quite a broad range of items accessories and body art to be used as

an indicator for suspicion In a study by Jackson and Smith (2013) the experiences of young people

from London that had been subjected to stop and search was surveyed where the participants

identified what kind of clothing might fit the criteria of being a presumed gang member It was

suggested that ldquoemulating American hip hop artists by wearing low-slung jeans hoodies and

branded trainers and walking and talking in a certain wayrdquo (p6) was stereotyped by the police as

gagster behaviour and dress The same study also identified an experience that was shared by one

of the participants whom stated that ldquoThey just say youre in a drug infested area and youve got a

hood on so were stopping and searching yourdquo (Jackson L and Smith L 2013 p6)

Taking this into consideration it can therefore be seen that the universalisation of a maxim asking

the police to stop and search anyone perceived to be involved with a criminal gang for illegal or

stolen items could result in a form of criminalisation of the hoodie and other specific pieces of

clothing as these are stereotyped as being related to gang membership This would be problematic

as the hoodie in particular is a comfortable and often affordable piece of clothing that is a staple in

the wardrobes of many of societys subcultures such as emos and skaters that are generally not

stereotyped as criminals (Braddock K 2011) As such it can be established that neither Kant nor

Singer would be able to universalise this maxim as having officers search anyone wearing specific

clothes would neither be reasonable nor produce any desirable consequences

522 Issues

While two out of three of the different maxims appear to be moral in the eyes of Kant there are still

some issues relating to them which must be acknowledged Primarily there might be an issue with

these maxims being too specific as it has been noted that ldquoany maxim that is highly restricted is

likely to pass the universalisability testrdquo [Guyer P 2007 cited by Perold L M 2010 p19]

because the more descriptive a maxim is the less likely it is that it would become contradictory As

all of the maxims created from the Codes of Practice A are highly restrictive specifying who may

carry out the act under what circumstances they may carry it out and the limitations of the actions

18

itself Additionally as noted earlier in this chapter the maxims cannot be made more general either

as this would prevent them from being moralised this means that there is a risk of these maxims

passing the tests of universalisation and generalisation simply because of their overly descriptive

nature rather than actually being moral

There might also be an issue with the phrasing of the maxims specifically the use of the term

police officers as this might cause some uncertainties regarding exactly who the maxim applies to

Because by using the term police officer or even police it becomes questionable if an officer must

be in uniform in other words his or her position as a police officer is overt when carrying out the

search However since these maxims need to be exclusive to the police it could be hard to bypass

this issue without adding yet another specification to it that clarifies whether there is a need for the

officer to be in uniform or not

Finally there could also be an issue of the maxims conflicting with each other as the first of the

maxims states that the decision to stop and search someone needs to be in accordance with known

facts and information Something that might not be available when a stop and search is made

utilising the second or third maxim as these can be initiated without a need of known facts or

information This raises a question to whether one of the maxims would naturally take precedence

over the others as all three maxims regarding stop and search can never operate at the same time

Generally Kantianism argues that when one is faced with opposing maxims the perfect duty will

always take precedence over an imperfect one (Stohr K 2010 p3) However as all of the maxims

are addressing what is essentially the same action being the possibility to stop and search

individuals for illegal andor stolen items this could be problematic Furthermore while there are

three maxims identified within this study there also exists another fourth maxim which concerns

the possibility of not searching anyone for illegal or stolen items This fourth maxim is also

considered a perfect duty as it would generally be easier to universalise not searching people as

opposed to searching individuals fitting certain requirements This means that the maxim regarding

the omission to act would in this case take precedence over the other maxims identified within this

research essentially rendering them powerless

19

Chapter 6

Conclusion

From this study it can be seen that the legislation governing a heavily criticised police power such

as stop and search has the possibility to be morally justifiable by the ethical frameworks developed

by Kant Because while Kants ethical theory does not rectify or justify the issue of ethnic minorities

being subjected to a disproportionate amount of stops and searches in comparison to Caucasians it

is important to remember that the ldquolaw in theory and the law in practice differrdquo (Westmarland L in

Newburn T 2011 p255) Meaning that the moralisation of the legislation does not ensure that it

will be applied ethically by the police Additionally as Kantian ethics values the motivation behind

ones actions over the consequences produced from them the potential issues caused by ones actions

are irrelevant as long as the action itself can be universalised without producing a chaotic or

undesirable result

However as there are several layers to stop and search there are some implications to morally

justifying this power as it is multi-faceted Being designed to deal with a variety of different

situations and bases from which suspicion might arise to justify the stopping and searching of an

individual Because while Kantian ethics can ethically justify police officers to stop and search

individuals for illegal or stolen items if it is in accordance with known facts and information and

they believe that such items will be found upon searching the person this encompasses only one of

the many facets of the power As such the power cannot be justified as a whole as any maxim used

to describe it would not provide the necessary limitations needed for it to successfully pass the tests

of generalisation and universalisation

While the power cannot be moralised as a whole it is possible to create two additional maxims

using the limitations and exceptions to the necessity criteria of reasonable suspicion found in the

Codes of Practice A to create an additional two maxims These represent two additional facets of

stop and search being that

police officers may stop and search individuals acting in an obviously suspicious manner for

illegal or stolen items but only if they suspect that such items will be found upon searching the

person and

police officers may stop and search individuals based on articles of clothing piercings

andor tattoos if these are known to be worn by members of a gang(s) that are known to carry

20

illegal or stolen items and only if the police suspects that such items will be found upon searching

the person

However only the first of these two maxims can be justified utilising Kants ethical framework and

Singers generalisation principle because the latter cannot be universalised without becoming

unreasonable Furthermore the latter cannot be justified without providing further limitations

requiring the phrase acting in an obviously suspicious manner to be replaced by obviously hiding

something

From the issues presented from the creation of the two additional maxims above it can be

established that stop and search cannot be considered morally justifiable under all circumstances

Because different situations calls for different maxims meaning that should the search not be

initiated based on known facts or information it is unlikely to be ethical Nevertheless even though

all facets of this police power cannot be morally justified it does seem that the majority of them can

be considered ethical to some extent Meaning the legislation governing it is generally ethical but

as a whole it becomes a bit of a moral ambiguity This shows that the police power as identified by

the Police and Criminal Evidence Act 1984 and the Codes of Practice A has a potential to be

ethically justified with the exception of the section permitting searches where physical appearance

can be used as a basis for suspicion Additionally this research identified that the reasons for why

this particular section is not justifiable could also be part of the reason to the disproportionate

amount of searches of ethnic minorities As it might provide officers maliciously targeting

minorities with a possibility to justify their actions by claiming a particular article of clothing body

art or similar was the reason for the stop

As such it can be established that the legislation governing the polices power to stop and search

individuals for prohibited or stolen articles cannot be fully moralised as not all sections of the

Police and Criminal Evidence Act 1984 or the Codes of Practice A concerning this power can be

ethically justified However while the legislation as whole is morally ambiguous at best the

searches conducted with factual information as a basis for suspicion suggests that the sections of the

legislation addressing this type of search cannot be implemented in an unethical manner Because as

the universalised maxim requires the police to act in a manner promoted by the Act and Codes this

shows that any unethical searches carried out using this type of search are caused as a result of

police misconduct rather than an actual issue with the legislation

21

However it should be noted that this research can only provide a limited account of the morality of

this police power as it has only explored it through the limitations put upon it through the necessity

requirement of reasonable suspicion Additionally it can only account for the morality of the

sections of the Police and Criminal Evidence Act 1984 and the Codes of Practice A addressing this

particular police power and only through the limitations explored within this research Finally it is

also important to recognise that the police power has only been analysed using a Kantian approach

to ethics and morality This means that further studies of the police power and indeed the Act and

Codes in general are needed in order to provide a more accurate account of the morality and ethical

issues present It is therefore suggested that additional research should be carried out to study the

legislation governing the power of stop and search utilising other ethical theories or utilising

Kantian ethics with a different focus point of the legislation

However while further research is needed in order to gain a more accurate account of the overall

morality of the police power and the legislation governing it it does not mean the research

presented in this paper is of any less value Because even though the study can only provide a

limited account of the legislations morality it has succeeded in presenting the probabilities for the

moral justification of the Acts first part along with the associated Codes of Practice as well as

identifying that the issues connected to the Act may be caused primarily by the polices failure to

accurately conduct stops and searches according to the law Meaning the research has produced

some valuable results in addition to providing a stepping stone for further research on the topic

22

Bibliography

BBC [2014] Duty-Based Ethics Available at

httpwwwbbccoukethicsintroductionduty_1shtml [Accessed 20-03-2014]

Benz S [2010] ldquoThe Police and Criminal Evidence Act 1984 balancing civil liberties and public

securityrdquo Diffusion 5(2) Available at httpatpuclanacukbuddypressdiffusionp=1255

[Accessed 25-04-2014]

Bowling B and Phillips C [2007] Disproportionate and Discriminatory Reviewing the Evidence

on Police Stop and Search Oxford Blackwell Publishing p958 httpwwwstop-

watchorguploadsdocumentsmodern_law_reviewpdf

Braddock K [2011] ldquoThe Power of the Hoodierdquo The Guardian Available at

httpwwwtheguardiancomuk2011aug09power-of-the-hoodie [Accessed21-04-2014]

Codes of Practice A

Council of Europe [2010] European Convention on Human Rights Strasbourg European Court of

Human Rights p 7 Available at httpwwwechrcoeintDocumentsConvention_ENGpdf

[Accessed 09-03-2014]

The Economic and Social Research Council [2012] Frameworks for Research Ethics Swindon

Economic and Social Research Council pp2-3 3 Available at

httpwwwesrcacuk_imagesframework-for-research-ethics-09-12_tcm8-4586pdf [Accessed 01-

04-2014]

The Economist [1990] End Game Available

athttpgogalegroupcompsidoid=GALE7CA9390713ampv=21ampu=uceampit=rampp=SPJSP0

0ampsw=wampasid=f6f778fcf0a20b3f0f18df5e20a57f27 [Accessed 19-03-2014]

Fahy P [undated] ldquoForewordrdquo In Ozin P Norton H and Spivey P [2013] PACE ndash A Practical

Guide to the Police and Criminal Evidence Act 1984 3rd

Edition Oxford Oxford University Press

p v

Flick U [2011] Introducing Research Methodology London Sage p 125

Garret J [2006] Kants Duty Ethics Available at

httppeoplewkuedujangarrettethicskanthtm [Accessed 20-03-2014]

Govuk [2013] Guidance Police and Criminal Evidence Act 1984 (PACE) Codes of Practice

London Home Office Available at httpswwwgovukpolice-and-criminal-evidence-act-1984-

pace-codes-of-practice [Accessed 02-04-2014]

Guyer P (2007) cited by Perold L M [2010] Does Immanuel Kants Categorical Imperative

Commit Him to the View that Lying is Always Morally Wrong Master of Arts thesis University of

the Witwatersrand p 19 Available at

httpwiredspacewitsaczabitstreamhandle1053910096M20Perold20Research20Reportp

dfsequence=2 [Accessed 24-04-2014]

10

takes the police off the streets and placing them behind desks to carry out extensive amounts of

paperwork (Wilding B undated in Cape E and Young R 2008 p127) to questioning whom the

Act is really favouring (Benz S 2010) Furthermore the actual contents of the Act and the Codes of

Practice has been criticised in particular the Acts first part concerning stop and search (see chapter

5) resulting in a large number of edits and moderations to remedy these and provide a better

balance between the police and the rights of the public

11

Chapter 5

Reasonable Suspicion

While the Police and Criminal Evidence Act 1984 provides the police with guidelines for how and

when they may use their powers to infringe upon civil liberties these are not enough to ensure that

policing is carried out correctly in accordance to the act The Act must therefore be read alongside

the Codes of Practice as these further explain the limitations of the powers in addition to the

requirements that must be fulfilled in order for an officer to implement them One such requirement

that is found repeatedly throughout the Act and the Codes of Practice is the need for an officer to

have reasonable grounds for suspecting that the person(s) of interest are doing have done is about

to do or is in possession of something illegal (Police and Criminal Evidence Act s1(7)-1(9)

s3(1)(a)-3(1)(d)) This requirement is one that has been subjected to some controversy and scrutiny

especially in connection to the power of stop and search (addressed below) as it is often described

in very vague or broad terms often making it unclear what exactly constitutes appropriate grounds

for reasonable suspicion Additionally it should also be noted that the appropriate grounds for

suspicion might differ slightly from one section of the Act to another making it important to

separate these definitions from each other when studying them as they may all have their own

interpretations definitions regulations and issues However as this research explores the ethical

implications of reasonable suspicion in relation to stop and search it must be acknowledged that the

results may not be applicable to sections of the Police and Criminal Evidence Act 1984 and Codes

of Practice concerning other police powers

51 Reasonable Suspicion and Stop and Search

In the first part of the Police and Criminal Evidence Act 1984 it is identified that an officer cannot

stop and search an individual unless they have reasonable grounds for suspecting that any stolen or

prohibited articles listed under s1(7)-1(9) of the Act will be found on their person (s1(3) Police and

Criminal Evidence Act 1984) That being said there are many limitations placed upon what may

constitute a reasonable ground for suspecting that prohibited or stolen articles will be found on the

person(s) (Codes of Practice A s22) and that these can differ depending on the circumstances of

each case [Ozin P et al 2013 p4] However while suspicion might be raised for different reasons

in each case the Code emphasises that suspicion may never be based on personal factors

stereotypes or generalisations (Codes of Practice A s22) Nor may it be ldquoprovided retrospectively

by [hellip] questioning during a persons detention or by refusal to answer any questionsrdquo (Codes of

Practice A s29) Instead it is stressed that suspicion should have an objective basis derived from

known facts and information (Codes of Practice A s22)

12

Whether these demands put on officers by the Codes of Practice A to establish objective grounds

for suspicion are followed is questionable though At least when taking into consideration that the

sections of the Police and Criminal Evidence Act 1984 and the Codes of Practice concerning stop

and search has been subjected to heavy criticism mainly due to the disproportionate amount of

members from minority ethnic groups being searched in comparison to Caucasians Because even

though the Codes of Practice A does identify that there are situations where reasonable grounds for

suspicion might exist without the need for known facts or information such as initiating searches

based on an individuals behaviour or body language (Codes of Practice A s23) it does not explain

why black people are up to ldquosix times more likely to be stop[ped and] searched than would be

expected based on their numbers in the general populationrdquo (Bowling B and Phillips C 2007

p958) Nor does it explain how the recorded stops and searches of Asians since the mid-nineties

have remained between 15 and 25 times higher than those of Caucasians (Equality and Human

Rights Commission 2010 p13) These are worrying statistics that raise questions as to whether the

guidelines provided by the Police and Criminal Evidence Act 1984 and the Codes of Practice are

sufficient in order to ensure that this power is used appropriately and fairly Because even though

non-Caucasians are stopped and searched more frequently arrests following searches are distributed

quite evenly across all ethnic groups (StopWatch 2014)

There is a possibility that this targeting of minority ethnic groups could be a direct result of the

socio-economic conditions that traps many families from poor neighbourhoods in a cycle of poverty

and disadvantage (Joseph I and Gunter A 2011 p3) Especially as it has been found that these

groups often respond ldquoto their powerlessness with frustration rage and the creation of alternative

social and cultural values that promotes and normalizes gang membership and violencerdquo (Joseph I

and Gunter A 2011 p3) Due to the normalisation of such behaviour this could provide an

explanation to why some disproportionality might exist as the Codes of Practice provides an

exception to searches based on physical appearance when it is related to gang culture stating that

ldquowhere there is reliable information or intelligence that members of a group or gang

habitually carry knives unlawfully or weapons or controlled drugs and wear a

distinctive item of clothing or other means of identification to indicate their

membership of the group or gang that distinctive item of clothing or other means

of identification may provide reasonable grounds to stop and search a personrdquo

(Codes of Practice A s26)

13

However while this provision could support the existence of some disproportionality it does not

disprove that minority ethnic groups are being targeted by the police nor does it provide a

reasonable explanation to why blacks are being six times more likely to be subjected to a stop and

search This means there is a risk that this section of the Codes of Practice is being used by police

to maliciously target ethnic minority groups by stereotyping them as more likely to be involved

with criminal gangs

52 Reasonable Suspicion Stop and Search and Morality

While statistics and studies show that stop and search is used disproportionally and suggests that

individuals belonging to minority ethnic groups are being targeted by the police it does not mean

that the power itself nor the legislation governing it is unethical Because even though they tend to

overlap ldquothere is no necessary connection between law and moralsrdquo (Hart H L A 1958 cited by

Green L 2012 in Hart H L A 2012 pxxxiii) as the law applies to everyone unconditionally

while moral only applies to those that sympathise with the ideologies in question Kantian ethics

however arguing that one should do the right thing because of it being right views morality as a

supplement to the law (Zupancic A 2000 p16) therefore ensuring that we are not only doing what

is right but that we are also doing it for the right reasons (Sandel M 2011) Which from Kants

viewpoint is synonymous to acting out of duty which as established in Chapter 3 means that

onersquos actions must be converted to those that are able to pass the tests of generalisation and

universalisation As such one must convert the sections of the Police and Criminal Evidence Act

1984 and its associated Codes of Practice concerning stop and search into an order to establish

whether it is ethical

However while the Police and Criminal Evidence Act 1984 identifies that reasonable suspicion is

necessary in order to conduct a stop and search one cannot simply create a maxim stating that

police officers can stop and search anyone they reasonably suspect is carrying illegal or stolen

items Because even though this maxim does provide an accurate description of the necessary

requirements to perform a stop and search it is far too broad Such a maxim does not place a limit

upon what the suspicion might be based on resulting in a possibility for officers to target certain

groups of people based on prejudice or stereotypes Therefore such a maxim can neither be

generalised nor universalised meaning it would be considered entirely unethical by Kantian

principles However by using the guidelines and limitations of reasonable suspicion presented in

the Codes of Practice A that were identified earlier in this chapter this maxim can be broken down

into three separate parts These being

14

police officers may stop and search individuals for illegal or stolen items if it is in

accordance with known facts and information and they believe that such items will be found upon

searching the person

police officers may stop and search individuals acting in an obviously suspicious manner for

illegal or stolen items but only if they suspect that such items will be found upon searching the

person and

police officers may stop and search individuals based on articles of clothing piercings

andor tattoos if these are known to be worn by members of a gang(s) that are known to carry

illegal or stolen items and only if the police suspects that such items will be found upon searching

the person

These provide a much more limited and concentrated approach to the attempted moralisation of the

polices power to stop and search individuals for prohibited or stolen articles Because unlike the

previous maxim these are not only limiting what the basis for suspicion might be but also limiting

when the power itself may be enforced As such the likelihood of these being able to pass the tests

of generalisation and universalisation are increased

521 Generalisation and Universalisation

In order to accurately establish whether acts are moral they must pass the tests of generalisation and

universalisation as Kant believed that moral acts were ones that could be applied to everyone as a

universal law without becoming contradictory or illogical (see chapter 3) However as these deal

with police powers and Kant argued that acts must be applicable to everyone without exception

these will also be examined using Singers generalisation principle because it would be illogical for

such powers to be implemented by everyone Singers generalisation principle makes it possible to

bypass this issue as it argues that ldquowhat is right (or wrong) for one person must be right (or wrong)

for any similar person in similar circumstancesrdquo (Singer G M undated cited by ONeill O 2013

p78) Additionally this approach puts a utilitarian twist on Kants frameworks as it determines

morality based on the consequences of onersquos actions (ONeill O 2013 p79) rather than the

motivation behind them As such this test functions as a middle ground between the tests of

generalisation and universalisation ensuring that the generalised maxim does not cause an illogical

or chaotic result in addition to limiting the generalised maxim from anyone that is not a member of

the police service Analysing the maxim using these tests therefore requires them to be studied

individually so that they can be dissected and examined more closely

Looking at the first of the three maxims created using the guidelines and limitations of reasonable

15

suspicion as identified by the Codes of Practice A it can be established that it is comprised from

three different elements Namely

the police may only search for illegal or stolen items

the police may only search an individual based on known facts and information and finally

the police may only search the individual if they believe illegal or stolen items will be found

Attempting to generalise any of these elements of the maxim individually would not be reasonable

as they do not provide enough limitations or guidelines for it to be functional Because the first part

allows the police to search anyone for illegal or stolen items without the necessity of a suspicion

that any such items will be found which would result in a police state where the police could search

anyone they please The necessity of believing that illegal or stolen items will be found upon

conducting a search is added by the third element of the maxim but there are still no requirements

for the police to have any kind of reasonable basis for their decision to stop and search someone as

this is added by the maxims second element However this element cannot be moralised on its own

either as it does not specify what the police may search for However when all three elements of

the maxim are combined all necessary limitations are present meaning the generalisation of it

should not produce a contradictory or illogical result

However passing the test of generalisation does not mean that the maxim is ethical as it must also

be universalisable Meaning it should be able to be enforced as a (hypothetical) law that applies to

everyone unconditionally As the maxim places a requirement on the police to only stop and search

individuals if they have a factual basis for their suspicion to find illegal or stolen items upon

searching the person this should be a universalisable action Because assuming all police officers

were required to follow this maxim it would result in a world where only specific items may be

searched for if they have a factual reason to conduct the search and only if they believe that such

items will be found upon searching the person(s) As this would not produce any undesirable

consequences this maxim would not only pass Kants test of universalisation but also fulfil the

necessary criteria for Singers generalisation principle

This is essentially what the Police and Criminal Evidence Act 1984 and the Codes of Practice A

seeks to do meaning that if the guidelines were followed by the police unlawful stops and searches

should not occur However since there are more aspects to the laws that govern the polices power

to stop and search individuals for illegal or stolen items such as searches based on suspicious

behaviour or searches of suspected gang members other aspects must be explored as well before

16

declaring whether it is ethical or not For this reason the two additional maxims (mentioned earlier)

are needed and must therefore be tested as well As these maxims can be implemented in such

situations by the removal of the need for a factual basis for suspicion and replacing it with either

the possibility to

search individuals acting in an obviously suspicious manner or

search individuals based on clothing piercings andor tattoos if these are known to be worn

by members of gangs that are known to carry illegal or stolen items

As with the various elements of the maxim analysed previously these are also unable to be

moralised individually Because the first of the two does not specify what may be searched for and

neither of the sections specify that the police should expect to find illegal or stolen items upon

stopping and searching an individual As such neither of these elements can function as a maxim on

their own as they are illogical and can neither be generalised nor universalised However when

these are combined with the other elements of the maxims these issues should be resolved thus

passing Kants test of generalisation

Universalising these maxims is a bit more problematic than the one analysed previously through

For example with the first of these two maxims police officers would be enforced to stop and

search anyone that is acting in an obviously suspicious manner for illegal or stolen items if they

believe any such items will be found upon searching them The phrase behaving in an obviously

suspicious manner is a bit of an issue here as there is no definition available as to what can be

classified as such However a reasonable person would probably equate behaving in an obviously

suspicious manner to trying to hide something which is used as an example in the Codes of

Practice A s23 It could therefore be worth substituting the phrase behaving in an obviously

suspicious manner with trying to hide something as this would be more specific However by

doing this the maxim would become much more limited as it would no longer allow individuals

behaving suspiciously in other ways to be searched Nevertheless should this interpretation be used

the likeliness of the maxim passing the test of universalisation might be increased as the likeliness

of it producing a chaotic result would decrease Additionally implementing such an interpretation

would also make it more likely for the maxim to pass Singers generalisation principle As the

conduction of stops and searches of people that are obviously trying to hide something is less likely

to produce an undesirable outcome in comparison to searching anyone acting suspiciously

Finally the universalisation of the third and final of the maxims would enforce the police to stop

17

and search anyone dressed or in any other ways being physically identifiable as a possible member

of a gang known to carry illegal or stolen items if they believe any such items will be found upon

searching them As with the maxim analysed above there are issues related to universalising this

maxim due to the possibility of it causing certain people to be targeted because of the clothes they

wear or any piercings or tattoos on their body being related to or similar to ones connected to a

criminal gang Universalising this maxim could therefore worsen an already prevalent issue where

innocent members of the public get their civil liberties infringed upon due to their personal style

especially as the maxim allows quite a broad range of items accessories and body art to be used as

an indicator for suspicion In a study by Jackson and Smith (2013) the experiences of young people

from London that had been subjected to stop and search was surveyed where the participants

identified what kind of clothing might fit the criteria of being a presumed gang member It was

suggested that ldquoemulating American hip hop artists by wearing low-slung jeans hoodies and

branded trainers and walking and talking in a certain wayrdquo (p6) was stereotyped by the police as

gagster behaviour and dress The same study also identified an experience that was shared by one

of the participants whom stated that ldquoThey just say youre in a drug infested area and youve got a

hood on so were stopping and searching yourdquo (Jackson L and Smith L 2013 p6)

Taking this into consideration it can therefore be seen that the universalisation of a maxim asking

the police to stop and search anyone perceived to be involved with a criminal gang for illegal or

stolen items could result in a form of criminalisation of the hoodie and other specific pieces of

clothing as these are stereotyped as being related to gang membership This would be problematic

as the hoodie in particular is a comfortable and often affordable piece of clothing that is a staple in

the wardrobes of many of societys subcultures such as emos and skaters that are generally not

stereotyped as criminals (Braddock K 2011) As such it can be established that neither Kant nor

Singer would be able to universalise this maxim as having officers search anyone wearing specific

clothes would neither be reasonable nor produce any desirable consequences

522 Issues

While two out of three of the different maxims appear to be moral in the eyes of Kant there are still

some issues relating to them which must be acknowledged Primarily there might be an issue with

these maxims being too specific as it has been noted that ldquoany maxim that is highly restricted is

likely to pass the universalisability testrdquo [Guyer P 2007 cited by Perold L M 2010 p19]

because the more descriptive a maxim is the less likely it is that it would become contradictory As

all of the maxims created from the Codes of Practice A are highly restrictive specifying who may

carry out the act under what circumstances they may carry it out and the limitations of the actions

18

itself Additionally as noted earlier in this chapter the maxims cannot be made more general either

as this would prevent them from being moralised this means that there is a risk of these maxims

passing the tests of universalisation and generalisation simply because of their overly descriptive

nature rather than actually being moral

There might also be an issue with the phrasing of the maxims specifically the use of the term

police officers as this might cause some uncertainties regarding exactly who the maxim applies to

Because by using the term police officer or even police it becomes questionable if an officer must

be in uniform in other words his or her position as a police officer is overt when carrying out the

search However since these maxims need to be exclusive to the police it could be hard to bypass

this issue without adding yet another specification to it that clarifies whether there is a need for the

officer to be in uniform or not

Finally there could also be an issue of the maxims conflicting with each other as the first of the

maxims states that the decision to stop and search someone needs to be in accordance with known

facts and information Something that might not be available when a stop and search is made

utilising the second or third maxim as these can be initiated without a need of known facts or

information This raises a question to whether one of the maxims would naturally take precedence

over the others as all three maxims regarding stop and search can never operate at the same time

Generally Kantianism argues that when one is faced with opposing maxims the perfect duty will

always take precedence over an imperfect one (Stohr K 2010 p3) However as all of the maxims

are addressing what is essentially the same action being the possibility to stop and search

individuals for illegal andor stolen items this could be problematic Furthermore while there are

three maxims identified within this study there also exists another fourth maxim which concerns

the possibility of not searching anyone for illegal or stolen items This fourth maxim is also

considered a perfect duty as it would generally be easier to universalise not searching people as

opposed to searching individuals fitting certain requirements This means that the maxim regarding

the omission to act would in this case take precedence over the other maxims identified within this

research essentially rendering them powerless

19

Chapter 6

Conclusion

From this study it can be seen that the legislation governing a heavily criticised police power such

as stop and search has the possibility to be morally justifiable by the ethical frameworks developed

by Kant Because while Kants ethical theory does not rectify or justify the issue of ethnic minorities

being subjected to a disproportionate amount of stops and searches in comparison to Caucasians it

is important to remember that the ldquolaw in theory and the law in practice differrdquo (Westmarland L in

Newburn T 2011 p255) Meaning that the moralisation of the legislation does not ensure that it

will be applied ethically by the police Additionally as Kantian ethics values the motivation behind

ones actions over the consequences produced from them the potential issues caused by ones actions

are irrelevant as long as the action itself can be universalised without producing a chaotic or

undesirable result

However as there are several layers to stop and search there are some implications to morally

justifying this power as it is multi-faceted Being designed to deal with a variety of different

situations and bases from which suspicion might arise to justify the stopping and searching of an

individual Because while Kantian ethics can ethically justify police officers to stop and search

individuals for illegal or stolen items if it is in accordance with known facts and information and

they believe that such items will be found upon searching the person this encompasses only one of

the many facets of the power As such the power cannot be justified as a whole as any maxim used

to describe it would not provide the necessary limitations needed for it to successfully pass the tests

of generalisation and universalisation

While the power cannot be moralised as a whole it is possible to create two additional maxims

using the limitations and exceptions to the necessity criteria of reasonable suspicion found in the

Codes of Practice A to create an additional two maxims These represent two additional facets of

stop and search being that

police officers may stop and search individuals acting in an obviously suspicious manner for

illegal or stolen items but only if they suspect that such items will be found upon searching the

person and

police officers may stop and search individuals based on articles of clothing piercings

andor tattoos if these are known to be worn by members of a gang(s) that are known to carry

20

illegal or stolen items and only if the police suspects that such items will be found upon searching

the person

However only the first of these two maxims can be justified utilising Kants ethical framework and

Singers generalisation principle because the latter cannot be universalised without becoming

unreasonable Furthermore the latter cannot be justified without providing further limitations

requiring the phrase acting in an obviously suspicious manner to be replaced by obviously hiding

something

From the issues presented from the creation of the two additional maxims above it can be

established that stop and search cannot be considered morally justifiable under all circumstances

Because different situations calls for different maxims meaning that should the search not be

initiated based on known facts or information it is unlikely to be ethical Nevertheless even though

all facets of this police power cannot be morally justified it does seem that the majority of them can

be considered ethical to some extent Meaning the legislation governing it is generally ethical but

as a whole it becomes a bit of a moral ambiguity This shows that the police power as identified by

the Police and Criminal Evidence Act 1984 and the Codes of Practice A has a potential to be

ethically justified with the exception of the section permitting searches where physical appearance

can be used as a basis for suspicion Additionally this research identified that the reasons for why

this particular section is not justifiable could also be part of the reason to the disproportionate

amount of searches of ethnic minorities As it might provide officers maliciously targeting

minorities with a possibility to justify their actions by claiming a particular article of clothing body

art or similar was the reason for the stop

As such it can be established that the legislation governing the polices power to stop and search

individuals for prohibited or stolen articles cannot be fully moralised as not all sections of the

Police and Criminal Evidence Act 1984 or the Codes of Practice A concerning this power can be

ethically justified However while the legislation as whole is morally ambiguous at best the

searches conducted with factual information as a basis for suspicion suggests that the sections of the

legislation addressing this type of search cannot be implemented in an unethical manner Because as

the universalised maxim requires the police to act in a manner promoted by the Act and Codes this

shows that any unethical searches carried out using this type of search are caused as a result of

police misconduct rather than an actual issue with the legislation

21

However it should be noted that this research can only provide a limited account of the morality of

this police power as it has only explored it through the limitations put upon it through the necessity

requirement of reasonable suspicion Additionally it can only account for the morality of the

sections of the Police and Criminal Evidence Act 1984 and the Codes of Practice A addressing this

particular police power and only through the limitations explored within this research Finally it is

also important to recognise that the police power has only been analysed using a Kantian approach

to ethics and morality This means that further studies of the police power and indeed the Act and

Codes in general are needed in order to provide a more accurate account of the morality and ethical

issues present It is therefore suggested that additional research should be carried out to study the

legislation governing the power of stop and search utilising other ethical theories or utilising

Kantian ethics with a different focus point of the legislation

However while further research is needed in order to gain a more accurate account of the overall

morality of the police power and the legislation governing it it does not mean the research

presented in this paper is of any less value Because even though the study can only provide a

limited account of the legislations morality it has succeeded in presenting the probabilities for the

moral justification of the Acts first part along with the associated Codes of Practice as well as

identifying that the issues connected to the Act may be caused primarily by the polices failure to

accurately conduct stops and searches according to the law Meaning the research has produced

some valuable results in addition to providing a stepping stone for further research on the topic

22

Bibliography

BBC [2014] Duty-Based Ethics Available at

httpwwwbbccoukethicsintroductionduty_1shtml [Accessed 20-03-2014]

Benz S [2010] ldquoThe Police and Criminal Evidence Act 1984 balancing civil liberties and public

securityrdquo Diffusion 5(2) Available at httpatpuclanacukbuddypressdiffusionp=1255

[Accessed 25-04-2014]

Bowling B and Phillips C [2007] Disproportionate and Discriminatory Reviewing the Evidence

on Police Stop and Search Oxford Blackwell Publishing p958 httpwwwstop-

watchorguploadsdocumentsmodern_law_reviewpdf

Braddock K [2011] ldquoThe Power of the Hoodierdquo The Guardian Available at

httpwwwtheguardiancomuk2011aug09power-of-the-hoodie [Accessed21-04-2014]

Codes of Practice A

Council of Europe [2010] European Convention on Human Rights Strasbourg European Court of

Human Rights p 7 Available at httpwwwechrcoeintDocumentsConvention_ENGpdf

[Accessed 09-03-2014]

The Economic and Social Research Council [2012] Frameworks for Research Ethics Swindon

Economic and Social Research Council pp2-3 3 Available at

httpwwwesrcacuk_imagesframework-for-research-ethics-09-12_tcm8-4586pdf [Accessed 01-

04-2014]

The Economist [1990] End Game Available

athttpgogalegroupcompsidoid=GALE7CA9390713ampv=21ampu=uceampit=rampp=SPJSP0

0ampsw=wampasid=f6f778fcf0a20b3f0f18df5e20a57f27 [Accessed 19-03-2014]

Fahy P [undated] ldquoForewordrdquo In Ozin P Norton H and Spivey P [2013] PACE ndash A Practical

Guide to the Police and Criminal Evidence Act 1984 3rd

Edition Oxford Oxford University Press

p v

Flick U [2011] Introducing Research Methodology London Sage p 125

Garret J [2006] Kants Duty Ethics Available at

httppeoplewkuedujangarrettethicskanthtm [Accessed 20-03-2014]

Govuk [2013] Guidance Police and Criminal Evidence Act 1984 (PACE) Codes of Practice

London Home Office Available at httpswwwgovukpolice-and-criminal-evidence-act-1984-

pace-codes-of-practice [Accessed 02-04-2014]

Guyer P (2007) cited by Perold L M [2010] Does Immanuel Kants Categorical Imperative

Commit Him to the View that Lying is Always Morally Wrong Master of Arts thesis University of

the Witwatersrand p 19 Available at

httpwiredspacewitsaczabitstreamhandle1053910096M20Perold20Research20Reportp

dfsequence=2 [Accessed 24-04-2014]

11

Chapter 5

Reasonable Suspicion

While the Police and Criminal Evidence Act 1984 provides the police with guidelines for how and

when they may use their powers to infringe upon civil liberties these are not enough to ensure that

policing is carried out correctly in accordance to the act The Act must therefore be read alongside

the Codes of Practice as these further explain the limitations of the powers in addition to the

requirements that must be fulfilled in order for an officer to implement them One such requirement

that is found repeatedly throughout the Act and the Codes of Practice is the need for an officer to

have reasonable grounds for suspecting that the person(s) of interest are doing have done is about

to do or is in possession of something illegal (Police and Criminal Evidence Act s1(7)-1(9)

s3(1)(a)-3(1)(d)) This requirement is one that has been subjected to some controversy and scrutiny

especially in connection to the power of stop and search (addressed below) as it is often described

in very vague or broad terms often making it unclear what exactly constitutes appropriate grounds

for reasonable suspicion Additionally it should also be noted that the appropriate grounds for

suspicion might differ slightly from one section of the Act to another making it important to

separate these definitions from each other when studying them as they may all have their own

interpretations definitions regulations and issues However as this research explores the ethical

implications of reasonable suspicion in relation to stop and search it must be acknowledged that the

results may not be applicable to sections of the Police and Criminal Evidence Act 1984 and Codes

of Practice concerning other police powers

51 Reasonable Suspicion and Stop and Search

In the first part of the Police and Criminal Evidence Act 1984 it is identified that an officer cannot

stop and search an individual unless they have reasonable grounds for suspecting that any stolen or

prohibited articles listed under s1(7)-1(9) of the Act will be found on their person (s1(3) Police and

Criminal Evidence Act 1984) That being said there are many limitations placed upon what may

constitute a reasonable ground for suspecting that prohibited or stolen articles will be found on the

person(s) (Codes of Practice A s22) and that these can differ depending on the circumstances of

each case [Ozin P et al 2013 p4] However while suspicion might be raised for different reasons

in each case the Code emphasises that suspicion may never be based on personal factors

stereotypes or generalisations (Codes of Practice A s22) Nor may it be ldquoprovided retrospectively

by [hellip] questioning during a persons detention or by refusal to answer any questionsrdquo (Codes of

Practice A s29) Instead it is stressed that suspicion should have an objective basis derived from

known facts and information (Codes of Practice A s22)

12

Whether these demands put on officers by the Codes of Practice A to establish objective grounds

for suspicion are followed is questionable though At least when taking into consideration that the

sections of the Police and Criminal Evidence Act 1984 and the Codes of Practice concerning stop

and search has been subjected to heavy criticism mainly due to the disproportionate amount of

members from minority ethnic groups being searched in comparison to Caucasians Because even

though the Codes of Practice A does identify that there are situations where reasonable grounds for

suspicion might exist without the need for known facts or information such as initiating searches

based on an individuals behaviour or body language (Codes of Practice A s23) it does not explain

why black people are up to ldquosix times more likely to be stop[ped and] searched than would be

expected based on their numbers in the general populationrdquo (Bowling B and Phillips C 2007

p958) Nor does it explain how the recorded stops and searches of Asians since the mid-nineties

have remained between 15 and 25 times higher than those of Caucasians (Equality and Human

Rights Commission 2010 p13) These are worrying statistics that raise questions as to whether the

guidelines provided by the Police and Criminal Evidence Act 1984 and the Codes of Practice are

sufficient in order to ensure that this power is used appropriately and fairly Because even though

non-Caucasians are stopped and searched more frequently arrests following searches are distributed

quite evenly across all ethnic groups (StopWatch 2014)

There is a possibility that this targeting of minority ethnic groups could be a direct result of the

socio-economic conditions that traps many families from poor neighbourhoods in a cycle of poverty

and disadvantage (Joseph I and Gunter A 2011 p3) Especially as it has been found that these

groups often respond ldquoto their powerlessness with frustration rage and the creation of alternative

social and cultural values that promotes and normalizes gang membership and violencerdquo (Joseph I

and Gunter A 2011 p3) Due to the normalisation of such behaviour this could provide an

explanation to why some disproportionality might exist as the Codes of Practice provides an

exception to searches based on physical appearance when it is related to gang culture stating that

ldquowhere there is reliable information or intelligence that members of a group or gang

habitually carry knives unlawfully or weapons or controlled drugs and wear a

distinctive item of clothing or other means of identification to indicate their

membership of the group or gang that distinctive item of clothing or other means

of identification may provide reasonable grounds to stop and search a personrdquo

(Codes of Practice A s26)

13

However while this provision could support the existence of some disproportionality it does not

disprove that minority ethnic groups are being targeted by the police nor does it provide a

reasonable explanation to why blacks are being six times more likely to be subjected to a stop and

search This means there is a risk that this section of the Codes of Practice is being used by police

to maliciously target ethnic minority groups by stereotyping them as more likely to be involved

with criminal gangs

52 Reasonable Suspicion Stop and Search and Morality

While statistics and studies show that stop and search is used disproportionally and suggests that

individuals belonging to minority ethnic groups are being targeted by the police it does not mean

that the power itself nor the legislation governing it is unethical Because even though they tend to

overlap ldquothere is no necessary connection between law and moralsrdquo (Hart H L A 1958 cited by

Green L 2012 in Hart H L A 2012 pxxxiii) as the law applies to everyone unconditionally

while moral only applies to those that sympathise with the ideologies in question Kantian ethics

however arguing that one should do the right thing because of it being right views morality as a

supplement to the law (Zupancic A 2000 p16) therefore ensuring that we are not only doing what

is right but that we are also doing it for the right reasons (Sandel M 2011) Which from Kants

viewpoint is synonymous to acting out of duty which as established in Chapter 3 means that

onersquos actions must be converted to those that are able to pass the tests of generalisation and

universalisation As such one must convert the sections of the Police and Criminal Evidence Act

1984 and its associated Codes of Practice concerning stop and search into an order to establish

whether it is ethical

However while the Police and Criminal Evidence Act 1984 identifies that reasonable suspicion is

necessary in order to conduct a stop and search one cannot simply create a maxim stating that

police officers can stop and search anyone they reasonably suspect is carrying illegal or stolen

items Because even though this maxim does provide an accurate description of the necessary

requirements to perform a stop and search it is far too broad Such a maxim does not place a limit

upon what the suspicion might be based on resulting in a possibility for officers to target certain

groups of people based on prejudice or stereotypes Therefore such a maxim can neither be

generalised nor universalised meaning it would be considered entirely unethical by Kantian

principles However by using the guidelines and limitations of reasonable suspicion presented in

the Codes of Practice A that were identified earlier in this chapter this maxim can be broken down

into three separate parts These being

14

police officers may stop and search individuals for illegal or stolen items if it is in

accordance with known facts and information and they believe that such items will be found upon

searching the person

police officers may stop and search individuals acting in an obviously suspicious manner for

illegal or stolen items but only if they suspect that such items will be found upon searching the

person and

police officers may stop and search individuals based on articles of clothing piercings

andor tattoos if these are known to be worn by members of a gang(s) that are known to carry

illegal or stolen items and only if the police suspects that such items will be found upon searching

the person

These provide a much more limited and concentrated approach to the attempted moralisation of the

polices power to stop and search individuals for prohibited or stolen articles Because unlike the

previous maxim these are not only limiting what the basis for suspicion might be but also limiting

when the power itself may be enforced As such the likelihood of these being able to pass the tests

of generalisation and universalisation are increased

521 Generalisation and Universalisation

In order to accurately establish whether acts are moral they must pass the tests of generalisation and

universalisation as Kant believed that moral acts were ones that could be applied to everyone as a

universal law without becoming contradictory or illogical (see chapter 3) However as these deal

with police powers and Kant argued that acts must be applicable to everyone without exception

these will also be examined using Singers generalisation principle because it would be illogical for

such powers to be implemented by everyone Singers generalisation principle makes it possible to

bypass this issue as it argues that ldquowhat is right (or wrong) for one person must be right (or wrong)

for any similar person in similar circumstancesrdquo (Singer G M undated cited by ONeill O 2013

p78) Additionally this approach puts a utilitarian twist on Kants frameworks as it determines

morality based on the consequences of onersquos actions (ONeill O 2013 p79) rather than the

motivation behind them As such this test functions as a middle ground between the tests of

generalisation and universalisation ensuring that the generalised maxim does not cause an illogical

or chaotic result in addition to limiting the generalised maxim from anyone that is not a member of

the police service Analysing the maxim using these tests therefore requires them to be studied

individually so that they can be dissected and examined more closely

Looking at the first of the three maxims created using the guidelines and limitations of reasonable

15

suspicion as identified by the Codes of Practice A it can be established that it is comprised from

three different elements Namely

the police may only search for illegal or stolen items

the police may only search an individual based on known facts and information and finally

the police may only search the individual if they believe illegal or stolen items will be found

Attempting to generalise any of these elements of the maxim individually would not be reasonable

as they do not provide enough limitations or guidelines for it to be functional Because the first part

allows the police to search anyone for illegal or stolen items without the necessity of a suspicion

that any such items will be found which would result in a police state where the police could search

anyone they please The necessity of believing that illegal or stolen items will be found upon

conducting a search is added by the third element of the maxim but there are still no requirements

for the police to have any kind of reasonable basis for their decision to stop and search someone as

this is added by the maxims second element However this element cannot be moralised on its own

either as it does not specify what the police may search for However when all three elements of

the maxim are combined all necessary limitations are present meaning the generalisation of it

should not produce a contradictory or illogical result

However passing the test of generalisation does not mean that the maxim is ethical as it must also

be universalisable Meaning it should be able to be enforced as a (hypothetical) law that applies to

everyone unconditionally As the maxim places a requirement on the police to only stop and search

individuals if they have a factual basis for their suspicion to find illegal or stolen items upon

searching the person this should be a universalisable action Because assuming all police officers

were required to follow this maxim it would result in a world where only specific items may be

searched for if they have a factual reason to conduct the search and only if they believe that such

items will be found upon searching the person(s) As this would not produce any undesirable

consequences this maxim would not only pass Kants test of universalisation but also fulfil the

necessary criteria for Singers generalisation principle

This is essentially what the Police and Criminal Evidence Act 1984 and the Codes of Practice A

seeks to do meaning that if the guidelines were followed by the police unlawful stops and searches

should not occur However since there are more aspects to the laws that govern the polices power

to stop and search individuals for illegal or stolen items such as searches based on suspicious

behaviour or searches of suspected gang members other aspects must be explored as well before

16

declaring whether it is ethical or not For this reason the two additional maxims (mentioned earlier)

are needed and must therefore be tested as well As these maxims can be implemented in such

situations by the removal of the need for a factual basis for suspicion and replacing it with either

the possibility to

search individuals acting in an obviously suspicious manner or

search individuals based on clothing piercings andor tattoos if these are known to be worn

by members of gangs that are known to carry illegal or stolen items

As with the various elements of the maxim analysed previously these are also unable to be

moralised individually Because the first of the two does not specify what may be searched for and

neither of the sections specify that the police should expect to find illegal or stolen items upon

stopping and searching an individual As such neither of these elements can function as a maxim on

their own as they are illogical and can neither be generalised nor universalised However when

these are combined with the other elements of the maxims these issues should be resolved thus

passing Kants test of generalisation

Universalising these maxims is a bit more problematic than the one analysed previously through

For example with the first of these two maxims police officers would be enforced to stop and

search anyone that is acting in an obviously suspicious manner for illegal or stolen items if they

believe any such items will be found upon searching them The phrase behaving in an obviously

suspicious manner is a bit of an issue here as there is no definition available as to what can be

classified as such However a reasonable person would probably equate behaving in an obviously

suspicious manner to trying to hide something which is used as an example in the Codes of

Practice A s23 It could therefore be worth substituting the phrase behaving in an obviously

suspicious manner with trying to hide something as this would be more specific However by

doing this the maxim would become much more limited as it would no longer allow individuals

behaving suspiciously in other ways to be searched Nevertheless should this interpretation be used

the likeliness of the maxim passing the test of universalisation might be increased as the likeliness

of it producing a chaotic result would decrease Additionally implementing such an interpretation

would also make it more likely for the maxim to pass Singers generalisation principle As the

conduction of stops and searches of people that are obviously trying to hide something is less likely

to produce an undesirable outcome in comparison to searching anyone acting suspiciously

Finally the universalisation of the third and final of the maxims would enforce the police to stop

17

and search anyone dressed or in any other ways being physically identifiable as a possible member

of a gang known to carry illegal or stolen items if they believe any such items will be found upon

searching them As with the maxim analysed above there are issues related to universalising this

maxim due to the possibility of it causing certain people to be targeted because of the clothes they

wear or any piercings or tattoos on their body being related to or similar to ones connected to a

criminal gang Universalising this maxim could therefore worsen an already prevalent issue where

innocent members of the public get their civil liberties infringed upon due to their personal style

especially as the maxim allows quite a broad range of items accessories and body art to be used as

an indicator for suspicion In a study by Jackson and Smith (2013) the experiences of young people

from London that had been subjected to stop and search was surveyed where the participants

identified what kind of clothing might fit the criteria of being a presumed gang member It was

suggested that ldquoemulating American hip hop artists by wearing low-slung jeans hoodies and

branded trainers and walking and talking in a certain wayrdquo (p6) was stereotyped by the police as

gagster behaviour and dress The same study also identified an experience that was shared by one

of the participants whom stated that ldquoThey just say youre in a drug infested area and youve got a

hood on so were stopping and searching yourdquo (Jackson L and Smith L 2013 p6)

Taking this into consideration it can therefore be seen that the universalisation of a maxim asking

the police to stop and search anyone perceived to be involved with a criminal gang for illegal or

stolen items could result in a form of criminalisation of the hoodie and other specific pieces of

clothing as these are stereotyped as being related to gang membership This would be problematic

as the hoodie in particular is a comfortable and often affordable piece of clothing that is a staple in

the wardrobes of many of societys subcultures such as emos and skaters that are generally not

stereotyped as criminals (Braddock K 2011) As such it can be established that neither Kant nor

Singer would be able to universalise this maxim as having officers search anyone wearing specific

clothes would neither be reasonable nor produce any desirable consequences

522 Issues

While two out of three of the different maxims appear to be moral in the eyes of Kant there are still

some issues relating to them which must be acknowledged Primarily there might be an issue with

these maxims being too specific as it has been noted that ldquoany maxim that is highly restricted is

likely to pass the universalisability testrdquo [Guyer P 2007 cited by Perold L M 2010 p19]

because the more descriptive a maxim is the less likely it is that it would become contradictory As

all of the maxims created from the Codes of Practice A are highly restrictive specifying who may

carry out the act under what circumstances they may carry it out and the limitations of the actions

18

itself Additionally as noted earlier in this chapter the maxims cannot be made more general either

as this would prevent them from being moralised this means that there is a risk of these maxims

passing the tests of universalisation and generalisation simply because of their overly descriptive

nature rather than actually being moral

There might also be an issue with the phrasing of the maxims specifically the use of the term

police officers as this might cause some uncertainties regarding exactly who the maxim applies to

Because by using the term police officer or even police it becomes questionable if an officer must

be in uniform in other words his or her position as a police officer is overt when carrying out the

search However since these maxims need to be exclusive to the police it could be hard to bypass

this issue without adding yet another specification to it that clarifies whether there is a need for the

officer to be in uniform or not

Finally there could also be an issue of the maxims conflicting with each other as the first of the

maxims states that the decision to stop and search someone needs to be in accordance with known

facts and information Something that might not be available when a stop and search is made

utilising the second or third maxim as these can be initiated without a need of known facts or

information This raises a question to whether one of the maxims would naturally take precedence

over the others as all three maxims regarding stop and search can never operate at the same time

Generally Kantianism argues that when one is faced with opposing maxims the perfect duty will

always take precedence over an imperfect one (Stohr K 2010 p3) However as all of the maxims

are addressing what is essentially the same action being the possibility to stop and search

individuals for illegal andor stolen items this could be problematic Furthermore while there are

three maxims identified within this study there also exists another fourth maxim which concerns

the possibility of not searching anyone for illegal or stolen items This fourth maxim is also

considered a perfect duty as it would generally be easier to universalise not searching people as

opposed to searching individuals fitting certain requirements This means that the maxim regarding

the omission to act would in this case take precedence over the other maxims identified within this

research essentially rendering them powerless

19

Chapter 6

Conclusion

From this study it can be seen that the legislation governing a heavily criticised police power such

as stop and search has the possibility to be morally justifiable by the ethical frameworks developed

by Kant Because while Kants ethical theory does not rectify or justify the issue of ethnic minorities

being subjected to a disproportionate amount of stops and searches in comparison to Caucasians it

is important to remember that the ldquolaw in theory and the law in practice differrdquo (Westmarland L in

Newburn T 2011 p255) Meaning that the moralisation of the legislation does not ensure that it

will be applied ethically by the police Additionally as Kantian ethics values the motivation behind

ones actions over the consequences produced from them the potential issues caused by ones actions

are irrelevant as long as the action itself can be universalised without producing a chaotic or

undesirable result

However as there are several layers to stop and search there are some implications to morally

justifying this power as it is multi-faceted Being designed to deal with a variety of different

situations and bases from which suspicion might arise to justify the stopping and searching of an

individual Because while Kantian ethics can ethically justify police officers to stop and search

individuals for illegal or stolen items if it is in accordance with known facts and information and

they believe that such items will be found upon searching the person this encompasses only one of

the many facets of the power As such the power cannot be justified as a whole as any maxim used

to describe it would not provide the necessary limitations needed for it to successfully pass the tests

of generalisation and universalisation

While the power cannot be moralised as a whole it is possible to create two additional maxims

using the limitations and exceptions to the necessity criteria of reasonable suspicion found in the

Codes of Practice A to create an additional two maxims These represent two additional facets of

stop and search being that

police officers may stop and search individuals acting in an obviously suspicious manner for

illegal or stolen items but only if they suspect that such items will be found upon searching the

person and

police officers may stop and search individuals based on articles of clothing piercings

andor tattoos if these are known to be worn by members of a gang(s) that are known to carry

20

illegal or stolen items and only if the police suspects that such items will be found upon searching

the person

However only the first of these two maxims can be justified utilising Kants ethical framework and

Singers generalisation principle because the latter cannot be universalised without becoming

unreasonable Furthermore the latter cannot be justified without providing further limitations

requiring the phrase acting in an obviously suspicious manner to be replaced by obviously hiding

something

From the issues presented from the creation of the two additional maxims above it can be

established that stop and search cannot be considered morally justifiable under all circumstances

Because different situations calls for different maxims meaning that should the search not be

initiated based on known facts or information it is unlikely to be ethical Nevertheless even though

all facets of this police power cannot be morally justified it does seem that the majority of them can

be considered ethical to some extent Meaning the legislation governing it is generally ethical but

as a whole it becomes a bit of a moral ambiguity This shows that the police power as identified by

the Police and Criminal Evidence Act 1984 and the Codes of Practice A has a potential to be

ethically justified with the exception of the section permitting searches where physical appearance

can be used as a basis for suspicion Additionally this research identified that the reasons for why

this particular section is not justifiable could also be part of the reason to the disproportionate

amount of searches of ethnic minorities As it might provide officers maliciously targeting

minorities with a possibility to justify their actions by claiming a particular article of clothing body

art or similar was the reason for the stop

As such it can be established that the legislation governing the polices power to stop and search

individuals for prohibited or stolen articles cannot be fully moralised as not all sections of the

Police and Criminal Evidence Act 1984 or the Codes of Practice A concerning this power can be

ethically justified However while the legislation as whole is morally ambiguous at best the

searches conducted with factual information as a basis for suspicion suggests that the sections of the

legislation addressing this type of search cannot be implemented in an unethical manner Because as

the universalised maxim requires the police to act in a manner promoted by the Act and Codes this

shows that any unethical searches carried out using this type of search are caused as a result of

police misconduct rather than an actual issue with the legislation

21

However it should be noted that this research can only provide a limited account of the morality of

this police power as it has only explored it through the limitations put upon it through the necessity

requirement of reasonable suspicion Additionally it can only account for the morality of the

sections of the Police and Criminal Evidence Act 1984 and the Codes of Practice A addressing this

particular police power and only through the limitations explored within this research Finally it is

also important to recognise that the police power has only been analysed using a Kantian approach

to ethics and morality This means that further studies of the police power and indeed the Act and

Codes in general are needed in order to provide a more accurate account of the morality and ethical

issues present It is therefore suggested that additional research should be carried out to study the

legislation governing the power of stop and search utilising other ethical theories or utilising

Kantian ethics with a different focus point of the legislation

However while further research is needed in order to gain a more accurate account of the overall

morality of the police power and the legislation governing it it does not mean the research

presented in this paper is of any less value Because even though the study can only provide a

limited account of the legislations morality it has succeeded in presenting the probabilities for the

moral justification of the Acts first part along with the associated Codes of Practice as well as

identifying that the issues connected to the Act may be caused primarily by the polices failure to

accurately conduct stops and searches according to the law Meaning the research has produced

some valuable results in addition to providing a stepping stone for further research on the topic

22

Bibliography

BBC [2014] Duty-Based Ethics Available at

httpwwwbbccoukethicsintroductionduty_1shtml [Accessed 20-03-2014]

Benz S [2010] ldquoThe Police and Criminal Evidence Act 1984 balancing civil liberties and public

securityrdquo Diffusion 5(2) Available at httpatpuclanacukbuddypressdiffusionp=1255

[Accessed 25-04-2014]

Bowling B and Phillips C [2007] Disproportionate and Discriminatory Reviewing the Evidence

on Police Stop and Search Oxford Blackwell Publishing p958 httpwwwstop-

watchorguploadsdocumentsmodern_law_reviewpdf

Braddock K [2011] ldquoThe Power of the Hoodierdquo The Guardian Available at

httpwwwtheguardiancomuk2011aug09power-of-the-hoodie [Accessed21-04-2014]

Codes of Practice A

Council of Europe [2010] European Convention on Human Rights Strasbourg European Court of

Human Rights p 7 Available at httpwwwechrcoeintDocumentsConvention_ENGpdf

[Accessed 09-03-2014]

The Economic and Social Research Council [2012] Frameworks for Research Ethics Swindon

Economic and Social Research Council pp2-3 3 Available at

httpwwwesrcacuk_imagesframework-for-research-ethics-09-12_tcm8-4586pdf [Accessed 01-

04-2014]

The Economist [1990] End Game Available

athttpgogalegroupcompsidoid=GALE7CA9390713ampv=21ampu=uceampit=rampp=SPJSP0

0ampsw=wampasid=f6f778fcf0a20b3f0f18df5e20a57f27 [Accessed 19-03-2014]

Fahy P [undated] ldquoForewordrdquo In Ozin P Norton H and Spivey P [2013] PACE ndash A Practical

Guide to the Police and Criminal Evidence Act 1984 3rd

Edition Oxford Oxford University Press

p v

Flick U [2011] Introducing Research Methodology London Sage p 125

Garret J [2006] Kants Duty Ethics Available at

httppeoplewkuedujangarrettethicskanthtm [Accessed 20-03-2014]

Govuk [2013] Guidance Police and Criminal Evidence Act 1984 (PACE) Codes of Practice

London Home Office Available at httpswwwgovukpolice-and-criminal-evidence-act-1984-

pace-codes-of-practice [Accessed 02-04-2014]

Guyer P (2007) cited by Perold L M [2010] Does Immanuel Kants Categorical Imperative

Commit Him to the View that Lying is Always Morally Wrong Master of Arts thesis University of

the Witwatersrand p 19 Available at

httpwiredspacewitsaczabitstreamhandle1053910096M20Perold20Research20Reportp

dfsequence=2 [Accessed 24-04-2014]

12

Whether these demands put on officers by the Codes of Practice A to establish objective grounds

for suspicion are followed is questionable though At least when taking into consideration that the

sections of the Police and Criminal Evidence Act 1984 and the Codes of Practice concerning stop

and search has been subjected to heavy criticism mainly due to the disproportionate amount of

members from minority ethnic groups being searched in comparison to Caucasians Because even

though the Codes of Practice A does identify that there are situations where reasonable grounds for

suspicion might exist without the need for known facts or information such as initiating searches

based on an individuals behaviour or body language (Codes of Practice A s23) it does not explain

why black people are up to ldquosix times more likely to be stop[ped and] searched than would be

expected based on their numbers in the general populationrdquo (Bowling B and Phillips C 2007

p958) Nor does it explain how the recorded stops and searches of Asians since the mid-nineties

have remained between 15 and 25 times higher than those of Caucasians (Equality and Human

Rights Commission 2010 p13) These are worrying statistics that raise questions as to whether the

guidelines provided by the Police and Criminal Evidence Act 1984 and the Codes of Practice are

sufficient in order to ensure that this power is used appropriately and fairly Because even though

non-Caucasians are stopped and searched more frequently arrests following searches are distributed

quite evenly across all ethnic groups (StopWatch 2014)

There is a possibility that this targeting of minority ethnic groups could be a direct result of the

socio-economic conditions that traps many families from poor neighbourhoods in a cycle of poverty

and disadvantage (Joseph I and Gunter A 2011 p3) Especially as it has been found that these

groups often respond ldquoto their powerlessness with frustration rage and the creation of alternative

social and cultural values that promotes and normalizes gang membership and violencerdquo (Joseph I

and Gunter A 2011 p3) Due to the normalisation of such behaviour this could provide an

explanation to why some disproportionality might exist as the Codes of Practice provides an

exception to searches based on physical appearance when it is related to gang culture stating that

ldquowhere there is reliable information or intelligence that members of a group or gang

habitually carry knives unlawfully or weapons or controlled drugs and wear a

distinctive item of clothing or other means of identification to indicate their

membership of the group or gang that distinctive item of clothing or other means

of identification may provide reasonable grounds to stop and search a personrdquo

(Codes of Practice A s26)

13

However while this provision could support the existence of some disproportionality it does not

disprove that minority ethnic groups are being targeted by the police nor does it provide a

reasonable explanation to why blacks are being six times more likely to be subjected to a stop and

search This means there is a risk that this section of the Codes of Practice is being used by police

to maliciously target ethnic minority groups by stereotyping them as more likely to be involved

with criminal gangs

52 Reasonable Suspicion Stop and Search and Morality

While statistics and studies show that stop and search is used disproportionally and suggests that

individuals belonging to minority ethnic groups are being targeted by the police it does not mean

that the power itself nor the legislation governing it is unethical Because even though they tend to

overlap ldquothere is no necessary connection between law and moralsrdquo (Hart H L A 1958 cited by

Green L 2012 in Hart H L A 2012 pxxxiii) as the law applies to everyone unconditionally

while moral only applies to those that sympathise with the ideologies in question Kantian ethics

however arguing that one should do the right thing because of it being right views morality as a

supplement to the law (Zupancic A 2000 p16) therefore ensuring that we are not only doing what

is right but that we are also doing it for the right reasons (Sandel M 2011) Which from Kants

viewpoint is synonymous to acting out of duty which as established in Chapter 3 means that

onersquos actions must be converted to those that are able to pass the tests of generalisation and

universalisation As such one must convert the sections of the Police and Criminal Evidence Act

1984 and its associated Codes of Practice concerning stop and search into an order to establish

whether it is ethical

However while the Police and Criminal Evidence Act 1984 identifies that reasonable suspicion is

necessary in order to conduct a stop and search one cannot simply create a maxim stating that

police officers can stop and search anyone they reasonably suspect is carrying illegal or stolen

items Because even though this maxim does provide an accurate description of the necessary

requirements to perform a stop and search it is far too broad Such a maxim does not place a limit

upon what the suspicion might be based on resulting in a possibility for officers to target certain

groups of people based on prejudice or stereotypes Therefore such a maxim can neither be

generalised nor universalised meaning it would be considered entirely unethical by Kantian

principles However by using the guidelines and limitations of reasonable suspicion presented in

the Codes of Practice A that were identified earlier in this chapter this maxim can be broken down

into three separate parts These being

14

police officers may stop and search individuals for illegal or stolen items if it is in

accordance with known facts and information and they believe that such items will be found upon

searching the person

police officers may stop and search individuals acting in an obviously suspicious manner for

illegal or stolen items but only if they suspect that such items will be found upon searching the

person and

police officers may stop and search individuals based on articles of clothing piercings

andor tattoos if these are known to be worn by members of a gang(s) that are known to carry

illegal or stolen items and only if the police suspects that such items will be found upon searching

the person

These provide a much more limited and concentrated approach to the attempted moralisation of the

polices power to stop and search individuals for prohibited or stolen articles Because unlike the

previous maxim these are not only limiting what the basis for suspicion might be but also limiting

when the power itself may be enforced As such the likelihood of these being able to pass the tests

of generalisation and universalisation are increased

521 Generalisation and Universalisation

In order to accurately establish whether acts are moral they must pass the tests of generalisation and

universalisation as Kant believed that moral acts were ones that could be applied to everyone as a

universal law without becoming contradictory or illogical (see chapter 3) However as these deal

with police powers and Kant argued that acts must be applicable to everyone without exception

these will also be examined using Singers generalisation principle because it would be illogical for

such powers to be implemented by everyone Singers generalisation principle makes it possible to

bypass this issue as it argues that ldquowhat is right (or wrong) for one person must be right (or wrong)

for any similar person in similar circumstancesrdquo (Singer G M undated cited by ONeill O 2013

p78) Additionally this approach puts a utilitarian twist on Kants frameworks as it determines

morality based on the consequences of onersquos actions (ONeill O 2013 p79) rather than the

motivation behind them As such this test functions as a middle ground between the tests of

generalisation and universalisation ensuring that the generalised maxim does not cause an illogical

or chaotic result in addition to limiting the generalised maxim from anyone that is not a member of

the police service Analysing the maxim using these tests therefore requires them to be studied

individually so that they can be dissected and examined more closely

Looking at the first of the three maxims created using the guidelines and limitations of reasonable

15

suspicion as identified by the Codes of Practice A it can be established that it is comprised from

three different elements Namely

the police may only search for illegal or stolen items

the police may only search an individual based on known facts and information and finally

the police may only search the individual if they believe illegal or stolen items will be found

Attempting to generalise any of these elements of the maxim individually would not be reasonable

as they do not provide enough limitations or guidelines for it to be functional Because the first part

allows the police to search anyone for illegal or stolen items without the necessity of a suspicion

that any such items will be found which would result in a police state where the police could search

anyone they please The necessity of believing that illegal or stolen items will be found upon

conducting a search is added by the third element of the maxim but there are still no requirements

for the police to have any kind of reasonable basis for their decision to stop and search someone as

this is added by the maxims second element However this element cannot be moralised on its own

either as it does not specify what the police may search for However when all three elements of

the maxim are combined all necessary limitations are present meaning the generalisation of it

should not produce a contradictory or illogical result

However passing the test of generalisation does not mean that the maxim is ethical as it must also

be universalisable Meaning it should be able to be enforced as a (hypothetical) law that applies to

everyone unconditionally As the maxim places a requirement on the police to only stop and search

individuals if they have a factual basis for their suspicion to find illegal or stolen items upon

searching the person this should be a universalisable action Because assuming all police officers

were required to follow this maxim it would result in a world where only specific items may be

searched for if they have a factual reason to conduct the search and only if they believe that such

items will be found upon searching the person(s) As this would not produce any undesirable

consequences this maxim would not only pass Kants test of universalisation but also fulfil the

necessary criteria for Singers generalisation principle

This is essentially what the Police and Criminal Evidence Act 1984 and the Codes of Practice A

seeks to do meaning that if the guidelines were followed by the police unlawful stops and searches

should not occur However since there are more aspects to the laws that govern the polices power

to stop and search individuals for illegal or stolen items such as searches based on suspicious

behaviour or searches of suspected gang members other aspects must be explored as well before

16

declaring whether it is ethical or not For this reason the two additional maxims (mentioned earlier)

are needed and must therefore be tested as well As these maxims can be implemented in such

situations by the removal of the need for a factual basis for suspicion and replacing it with either

the possibility to

search individuals acting in an obviously suspicious manner or

search individuals based on clothing piercings andor tattoos if these are known to be worn

by members of gangs that are known to carry illegal or stolen items

As with the various elements of the maxim analysed previously these are also unable to be

moralised individually Because the first of the two does not specify what may be searched for and

neither of the sections specify that the police should expect to find illegal or stolen items upon

stopping and searching an individual As such neither of these elements can function as a maxim on

their own as they are illogical and can neither be generalised nor universalised However when

these are combined with the other elements of the maxims these issues should be resolved thus

passing Kants test of generalisation

Universalising these maxims is a bit more problematic than the one analysed previously through

For example with the first of these two maxims police officers would be enforced to stop and

search anyone that is acting in an obviously suspicious manner for illegal or stolen items if they

believe any such items will be found upon searching them The phrase behaving in an obviously

suspicious manner is a bit of an issue here as there is no definition available as to what can be

classified as such However a reasonable person would probably equate behaving in an obviously

suspicious manner to trying to hide something which is used as an example in the Codes of

Practice A s23 It could therefore be worth substituting the phrase behaving in an obviously

suspicious manner with trying to hide something as this would be more specific However by

doing this the maxim would become much more limited as it would no longer allow individuals

behaving suspiciously in other ways to be searched Nevertheless should this interpretation be used

the likeliness of the maxim passing the test of universalisation might be increased as the likeliness

of it producing a chaotic result would decrease Additionally implementing such an interpretation

would also make it more likely for the maxim to pass Singers generalisation principle As the

conduction of stops and searches of people that are obviously trying to hide something is less likely

to produce an undesirable outcome in comparison to searching anyone acting suspiciously

Finally the universalisation of the third and final of the maxims would enforce the police to stop

17

and search anyone dressed or in any other ways being physically identifiable as a possible member

of a gang known to carry illegal or stolen items if they believe any such items will be found upon

searching them As with the maxim analysed above there are issues related to universalising this

maxim due to the possibility of it causing certain people to be targeted because of the clothes they

wear or any piercings or tattoos on their body being related to or similar to ones connected to a

criminal gang Universalising this maxim could therefore worsen an already prevalent issue where

innocent members of the public get their civil liberties infringed upon due to their personal style

especially as the maxim allows quite a broad range of items accessories and body art to be used as

an indicator for suspicion In a study by Jackson and Smith (2013) the experiences of young people

from London that had been subjected to stop and search was surveyed where the participants

identified what kind of clothing might fit the criteria of being a presumed gang member It was

suggested that ldquoemulating American hip hop artists by wearing low-slung jeans hoodies and

branded trainers and walking and talking in a certain wayrdquo (p6) was stereotyped by the police as

gagster behaviour and dress The same study also identified an experience that was shared by one

of the participants whom stated that ldquoThey just say youre in a drug infested area and youve got a

hood on so were stopping and searching yourdquo (Jackson L and Smith L 2013 p6)

Taking this into consideration it can therefore be seen that the universalisation of a maxim asking

the police to stop and search anyone perceived to be involved with a criminal gang for illegal or

stolen items could result in a form of criminalisation of the hoodie and other specific pieces of

clothing as these are stereotyped as being related to gang membership This would be problematic

as the hoodie in particular is a comfortable and often affordable piece of clothing that is a staple in

the wardrobes of many of societys subcultures such as emos and skaters that are generally not

stereotyped as criminals (Braddock K 2011) As such it can be established that neither Kant nor

Singer would be able to universalise this maxim as having officers search anyone wearing specific

clothes would neither be reasonable nor produce any desirable consequences

522 Issues

While two out of three of the different maxims appear to be moral in the eyes of Kant there are still

some issues relating to them which must be acknowledged Primarily there might be an issue with

these maxims being too specific as it has been noted that ldquoany maxim that is highly restricted is

likely to pass the universalisability testrdquo [Guyer P 2007 cited by Perold L M 2010 p19]

because the more descriptive a maxim is the less likely it is that it would become contradictory As

all of the maxims created from the Codes of Practice A are highly restrictive specifying who may

carry out the act under what circumstances they may carry it out and the limitations of the actions

18

itself Additionally as noted earlier in this chapter the maxims cannot be made more general either

as this would prevent them from being moralised this means that there is a risk of these maxims

passing the tests of universalisation and generalisation simply because of their overly descriptive

nature rather than actually being moral

There might also be an issue with the phrasing of the maxims specifically the use of the term

police officers as this might cause some uncertainties regarding exactly who the maxim applies to

Because by using the term police officer or even police it becomes questionable if an officer must

be in uniform in other words his or her position as a police officer is overt when carrying out the

search However since these maxims need to be exclusive to the police it could be hard to bypass

this issue without adding yet another specification to it that clarifies whether there is a need for the

officer to be in uniform or not

Finally there could also be an issue of the maxims conflicting with each other as the first of the

maxims states that the decision to stop and search someone needs to be in accordance with known

facts and information Something that might not be available when a stop and search is made

utilising the second or third maxim as these can be initiated without a need of known facts or

information This raises a question to whether one of the maxims would naturally take precedence

over the others as all three maxims regarding stop and search can never operate at the same time

Generally Kantianism argues that when one is faced with opposing maxims the perfect duty will

always take precedence over an imperfect one (Stohr K 2010 p3) However as all of the maxims

are addressing what is essentially the same action being the possibility to stop and search

individuals for illegal andor stolen items this could be problematic Furthermore while there are

three maxims identified within this study there also exists another fourth maxim which concerns

the possibility of not searching anyone for illegal or stolen items This fourth maxim is also

considered a perfect duty as it would generally be easier to universalise not searching people as

opposed to searching individuals fitting certain requirements This means that the maxim regarding

the omission to act would in this case take precedence over the other maxims identified within this

research essentially rendering them powerless

19

Chapter 6

Conclusion

From this study it can be seen that the legislation governing a heavily criticised police power such

as stop and search has the possibility to be morally justifiable by the ethical frameworks developed

by Kant Because while Kants ethical theory does not rectify or justify the issue of ethnic minorities

being subjected to a disproportionate amount of stops and searches in comparison to Caucasians it

is important to remember that the ldquolaw in theory and the law in practice differrdquo (Westmarland L in

Newburn T 2011 p255) Meaning that the moralisation of the legislation does not ensure that it

will be applied ethically by the police Additionally as Kantian ethics values the motivation behind

ones actions over the consequences produced from them the potential issues caused by ones actions

are irrelevant as long as the action itself can be universalised without producing a chaotic or

undesirable result

However as there are several layers to stop and search there are some implications to morally

justifying this power as it is multi-faceted Being designed to deal with a variety of different

situations and bases from which suspicion might arise to justify the stopping and searching of an

individual Because while Kantian ethics can ethically justify police officers to stop and search

individuals for illegal or stolen items if it is in accordance with known facts and information and

they believe that such items will be found upon searching the person this encompasses only one of

the many facets of the power As such the power cannot be justified as a whole as any maxim used

to describe it would not provide the necessary limitations needed for it to successfully pass the tests

of generalisation and universalisation

While the power cannot be moralised as a whole it is possible to create two additional maxims

using the limitations and exceptions to the necessity criteria of reasonable suspicion found in the

Codes of Practice A to create an additional two maxims These represent two additional facets of

stop and search being that

police officers may stop and search individuals acting in an obviously suspicious manner for

illegal or stolen items but only if they suspect that such items will be found upon searching the

person and

police officers may stop and search individuals based on articles of clothing piercings

andor tattoos if these are known to be worn by members of a gang(s) that are known to carry

20

illegal or stolen items and only if the police suspects that such items will be found upon searching

the person

However only the first of these two maxims can be justified utilising Kants ethical framework and

Singers generalisation principle because the latter cannot be universalised without becoming

unreasonable Furthermore the latter cannot be justified without providing further limitations

requiring the phrase acting in an obviously suspicious manner to be replaced by obviously hiding

something

From the issues presented from the creation of the two additional maxims above it can be

established that stop and search cannot be considered morally justifiable under all circumstances

Because different situations calls for different maxims meaning that should the search not be

initiated based on known facts or information it is unlikely to be ethical Nevertheless even though

all facets of this police power cannot be morally justified it does seem that the majority of them can

be considered ethical to some extent Meaning the legislation governing it is generally ethical but

as a whole it becomes a bit of a moral ambiguity This shows that the police power as identified by

the Police and Criminal Evidence Act 1984 and the Codes of Practice A has a potential to be

ethically justified with the exception of the section permitting searches where physical appearance

can be used as a basis for suspicion Additionally this research identified that the reasons for why

this particular section is not justifiable could also be part of the reason to the disproportionate

amount of searches of ethnic minorities As it might provide officers maliciously targeting

minorities with a possibility to justify their actions by claiming a particular article of clothing body

art or similar was the reason for the stop

As such it can be established that the legislation governing the polices power to stop and search

individuals for prohibited or stolen articles cannot be fully moralised as not all sections of the

Police and Criminal Evidence Act 1984 or the Codes of Practice A concerning this power can be

ethically justified However while the legislation as whole is morally ambiguous at best the

searches conducted with factual information as a basis for suspicion suggests that the sections of the

legislation addressing this type of search cannot be implemented in an unethical manner Because as

the universalised maxim requires the police to act in a manner promoted by the Act and Codes this

shows that any unethical searches carried out using this type of search are caused as a result of

police misconduct rather than an actual issue with the legislation

21

However it should be noted that this research can only provide a limited account of the morality of

this police power as it has only explored it through the limitations put upon it through the necessity

requirement of reasonable suspicion Additionally it can only account for the morality of the

sections of the Police and Criminal Evidence Act 1984 and the Codes of Practice A addressing this

particular police power and only through the limitations explored within this research Finally it is

also important to recognise that the police power has only been analysed using a Kantian approach

to ethics and morality This means that further studies of the police power and indeed the Act and

Codes in general are needed in order to provide a more accurate account of the morality and ethical

issues present It is therefore suggested that additional research should be carried out to study the

legislation governing the power of stop and search utilising other ethical theories or utilising

Kantian ethics with a different focus point of the legislation

However while further research is needed in order to gain a more accurate account of the overall

morality of the police power and the legislation governing it it does not mean the research

presented in this paper is of any less value Because even though the study can only provide a

limited account of the legislations morality it has succeeded in presenting the probabilities for the

moral justification of the Acts first part along with the associated Codes of Practice as well as

identifying that the issues connected to the Act may be caused primarily by the polices failure to

accurately conduct stops and searches according to the law Meaning the research has produced

some valuable results in addition to providing a stepping stone for further research on the topic

22

Bibliography

BBC [2014] Duty-Based Ethics Available at

httpwwwbbccoukethicsintroductionduty_1shtml [Accessed 20-03-2014]

Benz S [2010] ldquoThe Police and Criminal Evidence Act 1984 balancing civil liberties and public

securityrdquo Diffusion 5(2) Available at httpatpuclanacukbuddypressdiffusionp=1255

[Accessed 25-04-2014]

Bowling B and Phillips C [2007] Disproportionate and Discriminatory Reviewing the Evidence

on Police Stop and Search Oxford Blackwell Publishing p958 httpwwwstop-

watchorguploadsdocumentsmodern_law_reviewpdf

Braddock K [2011] ldquoThe Power of the Hoodierdquo The Guardian Available at

httpwwwtheguardiancomuk2011aug09power-of-the-hoodie [Accessed21-04-2014]

Codes of Practice A

Council of Europe [2010] European Convention on Human Rights Strasbourg European Court of

Human Rights p 7 Available at httpwwwechrcoeintDocumentsConvention_ENGpdf

[Accessed 09-03-2014]

The Economic and Social Research Council [2012] Frameworks for Research Ethics Swindon

Economic and Social Research Council pp2-3 3 Available at

httpwwwesrcacuk_imagesframework-for-research-ethics-09-12_tcm8-4586pdf [Accessed 01-

04-2014]

The Economist [1990] End Game Available

athttpgogalegroupcompsidoid=GALE7CA9390713ampv=21ampu=uceampit=rampp=SPJSP0

0ampsw=wampasid=f6f778fcf0a20b3f0f18df5e20a57f27 [Accessed 19-03-2014]

Fahy P [undated] ldquoForewordrdquo In Ozin P Norton H and Spivey P [2013] PACE ndash A Practical

Guide to the Police and Criminal Evidence Act 1984 3rd

Edition Oxford Oxford University Press

p v

Flick U [2011] Introducing Research Methodology London Sage p 125

Garret J [2006] Kants Duty Ethics Available at

httppeoplewkuedujangarrettethicskanthtm [Accessed 20-03-2014]

Govuk [2013] Guidance Police and Criminal Evidence Act 1984 (PACE) Codes of Practice

London Home Office Available at httpswwwgovukpolice-and-criminal-evidence-act-1984-

pace-codes-of-practice [Accessed 02-04-2014]

Guyer P (2007) cited by Perold L M [2010] Does Immanuel Kants Categorical Imperative

Commit Him to the View that Lying is Always Morally Wrong Master of Arts thesis University of

the Witwatersrand p 19 Available at

httpwiredspacewitsaczabitstreamhandle1053910096M20Perold20Research20Reportp

dfsequence=2 [Accessed 24-04-2014]

13

However while this provision could support the existence of some disproportionality it does not

disprove that minority ethnic groups are being targeted by the police nor does it provide a

reasonable explanation to why blacks are being six times more likely to be subjected to a stop and

search This means there is a risk that this section of the Codes of Practice is being used by police

to maliciously target ethnic minority groups by stereotyping them as more likely to be involved

with criminal gangs

52 Reasonable Suspicion Stop and Search and Morality

While statistics and studies show that stop and search is used disproportionally and suggests that

individuals belonging to minority ethnic groups are being targeted by the police it does not mean

that the power itself nor the legislation governing it is unethical Because even though they tend to

overlap ldquothere is no necessary connection between law and moralsrdquo (Hart H L A 1958 cited by

Green L 2012 in Hart H L A 2012 pxxxiii) as the law applies to everyone unconditionally

while moral only applies to those that sympathise with the ideologies in question Kantian ethics

however arguing that one should do the right thing because of it being right views morality as a

supplement to the law (Zupancic A 2000 p16) therefore ensuring that we are not only doing what

is right but that we are also doing it for the right reasons (Sandel M 2011) Which from Kants

viewpoint is synonymous to acting out of duty which as established in Chapter 3 means that

onersquos actions must be converted to those that are able to pass the tests of generalisation and

universalisation As such one must convert the sections of the Police and Criminal Evidence Act

1984 and its associated Codes of Practice concerning stop and search into an order to establish

whether it is ethical

However while the Police and Criminal Evidence Act 1984 identifies that reasonable suspicion is

necessary in order to conduct a stop and search one cannot simply create a maxim stating that

police officers can stop and search anyone they reasonably suspect is carrying illegal or stolen

items Because even though this maxim does provide an accurate description of the necessary

requirements to perform a stop and search it is far too broad Such a maxim does not place a limit

upon what the suspicion might be based on resulting in a possibility for officers to target certain

groups of people based on prejudice or stereotypes Therefore such a maxim can neither be

generalised nor universalised meaning it would be considered entirely unethical by Kantian

principles However by using the guidelines and limitations of reasonable suspicion presented in

the Codes of Practice A that were identified earlier in this chapter this maxim can be broken down

into three separate parts These being

14

police officers may stop and search individuals for illegal or stolen items if it is in

accordance with known facts and information and they believe that such items will be found upon

searching the person

police officers may stop and search individuals acting in an obviously suspicious manner for

illegal or stolen items but only if they suspect that such items will be found upon searching the

person and

police officers may stop and search individuals based on articles of clothing piercings

andor tattoos if these are known to be worn by members of a gang(s) that are known to carry

illegal or stolen items and only if the police suspects that such items will be found upon searching

the person

These provide a much more limited and concentrated approach to the attempted moralisation of the

polices power to stop and search individuals for prohibited or stolen articles Because unlike the

previous maxim these are not only limiting what the basis for suspicion might be but also limiting

when the power itself may be enforced As such the likelihood of these being able to pass the tests

of generalisation and universalisation are increased

521 Generalisation and Universalisation

In order to accurately establish whether acts are moral they must pass the tests of generalisation and

universalisation as Kant believed that moral acts were ones that could be applied to everyone as a

universal law without becoming contradictory or illogical (see chapter 3) However as these deal

with police powers and Kant argued that acts must be applicable to everyone without exception

these will also be examined using Singers generalisation principle because it would be illogical for

such powers to be implemented by everyone Singers generalisation principle makes it possible to

bypass this issue as it argues that ldquowhat is right (or wrong) for one person must be right (or wrong)

for any similar person in similar circumstancesrdquo (Singer G M undated cited by ONeill O 2013

p78) Additionally this approach puts a utilitarian twist on Kants frameworks as it determines

morality based on the consequences of onersquos actions (ONeill O 2013 p79) rather than the

motivation behind them As such this test functions as a middle ground between the tests of

generalisation and universalisation ensuring that the generalised maxim does not cause an illogical

or chaotic result in addition to limiting the generalised maxim from anyone that is not a member of

the police service Analysing the maxim using these tests therefore requires them to be studied

individually so that they can be dissected and examined more closely

Looking at the first of the three maxims created using the guidelines and limitations of reasonable

15

suspicion as identified by the Codes of Practice A it can be established that it is comprised from

three different elements Namely

the police may only search for illegal or stolen items

the police may only search an individual based on known facts and information and finally

the police may only search the individual if they believe illegal or stolen items will be found

Attempting to generalise any of these elements of the maxim individually would not be reasonable

as they do not provide enough limitations or guidelines for it to be functional Because the first part

allows the police to search anyone for illegal or stolen items without the necessity of a suspicion

that any such items will be found which would result in a police state where the police could search

anyone they please The necessity of believing that illegal or stolen items will be found upon

conducting a search is added by the third element of the maxim but there are still no requirements

for the police to have any kind of reasonable basis for their decision to stop and search someone as

this is added by the maxims second element However this element cannot be moralised on its own

either as it does not specify what the police may search for However when all three elements of

the maxim are combined all necessary limitations are present meaning the generalisation of it

should not produce a contradictory or illogical result

However passing the test of generalisation does not mean that the maxim is ethical as it must also

be universalisable Meaning it should be able to be enforced as a (hypothetical) law that applies to

everyone unconditionally As the maxim places a requirement on the police to only stop and search

individuals if they have a factual basis for their suspicion to find illegal or stolen items upon

searching the person this should be a universalisable action Because assuming all police officers

were required to follow this maxim it would result in a world where only specific items may be

searched for if they have a factual reason to conduct the search and only if they believe that such

items will be found upon searching the person(s) As this would not produce any undesirable

consequences this maxim would not only pass Kants test of universalisation but also fulfil the

necessary criteria for Singers generalisation principle

This is essentially what the Police and Criminal Evidence Act 1984 and the Codes of Practice A

seeks to do meaning that if the guidelines were followed by the police unlawful stops and searches

should not occur However since there are more aspects to the laws that govern the polices power

to stop and search individuals for illegal or stolen items such as searches based on suspicious

behaviour or searches of suspected gang members other aspects must be explored as well before

16

declaring whether it is ethical or not For this reason the two additional maxims (mentioned earlier)

are needed and must therefore be tested as well As these maxims can be implemented in such

situations by the removal of the need for a factual basis for suspicion and replacing it with either

the possibility to

search individuals acting in an obviously suspicious manner or

search individuals based on clothing piercings andor tattoos if these are known to be worn

by members of gangs that are known to carry illegal or stolen items

As with the various elements of the maxim analysed previously these are also unable to be

moralised individually Because the first of the two does not specify what may be searched for and

neither of the sections specify that the police should expect to find illegal or stolen items upon

stopping and searching an individual As such neither of these elements can function as a maxim on

their own as they are illogical and can neither be generalised nor universalised However when

these are combined with the other elements of the maxims these issues should be resolved thus

passing Kants test of generalisation

Universalising these maxims is a bit more problematic than the one analysed previously through

For example with the first of these two maxims police officers would be enforced to stop and

search anyone that is acting in an obviously suspicious manner for illegal or stolen items if they

believe any such items will be found upon searching them The phrase behaving in an obviously

suspicious manner is a bit of an issue here as there is no definition available as to what can be

classified as such However a reasonable person would probably equate behaving in an obviously

suspicious manner to trying to hide something which is used as an example in the Codes of

Practice A s23 It could therefore be worth substituting the phrase behaving in an obviously

suspicious manner with trying to hide something as this would be more specific However by

doing this the maxim would become much more limited as it would no longer allow individuals

behaving suspiciously in other ways to be searched Nevertheless should this interpretation be used

the likeliness of the maxim passing the test of universalisation might be increased as the likeliness

of it producing a chaotic result would decrease Additionally implementing such an interpretation

would also make it more likely for the maxim to pass Singers generalisation principle As the

conduction of stops and searches of people that are obviously trying to hide something is less likely

to produce an undesirable outcome in comparison to searching anyone acting suspiciously

Finally the universalisation of the third and final of the maxims would enforce the police to stop

17

and search anyone dressed or in any other ways being physically identifiable as a possible member

of a gang known to carry illegal or stolen items if they believe any such items will be found upon

searching them As with the maxim analysed above there are issues related to universalising this

maxim due to the possibility of it causing certain people to be targeted because of the clothes they

wear or any piercings or tattoos on their body being related to or similar to ones connected to a

criminal gang Universalising this maxim could therefore worsen an already prevalent issue where

innocent members of the public get their civil liberties infringed upon due to their personal style

especially as the maxim allows quite a broad range of items accessories and body art to be used as

an indicator for suspicion In a study by Jackson and Smith (2013) the experiences of young people

from London that had been subjected to stop and search was surveyed where the participants

identified what kind of clothing might fit the criteria of being a presumed gang member It was

suggested that ldquoemulating American hip hop artists by wearing low-slung jeans hoodies and

branded trainers and walking and talking in a certain wayrdquo (p6) was stereotyped by the police as

gagster behaviour and dress The same study also identified an experience that was shared by one

of the participants whom stated that ldquoThey just say youre in a drug infested area and youve got a

hood on so were stopping and searching yourdquo (Jackson L and Smith L 2013 p6)

Taking this into consideration it can therefore be seen that the universalisation of a maxim asking

the police to stop and search anyone perceived to be involved with a criminal gang for illegal or

stolen items could result in a form of criminalisation of the hoodie and other specific pieces of

clothing as these are stereotyped as being related to gang membership This would be problematic

as the hoodie in particular is a comfortable and often affordable piece of clothing that is a staple in

the wardrobes of many of societys subcultures such as emos and skaters that are generally not

stereotyped as criminals (Braddock K 2011) As such it can be established that neither Kant nor

Singer would be able to universalise this maxim as having officers search anyone wearing specific

clothes would neither be reasonable nor produce any desirable consequences

522 Issues

While two out of three of the different maxims appear to be moral in the eyes of Kant there are still

some issues relating to them which must be acknowledged Primarily there might be an issue with

these maxims being too specific as it has been noted that ldquoany maxim that is highly restricted is

likely to pass the universalisability testrdquo [Guyer P 2007 cited by Perold L M 2010 p19]

because the more descriptive a maxim is the less likely it is that it would become contradictory As

all of the maxims created from the Codes of Practice A are highly restrictive specifying who may

carry out the act under what circumstances they may carry it out and the limitations of the actions

18

itself Additionally as noted earlier in this chapter the maxims cannot be made more general either

as this would prevent them from being moralised this means that there is a risk of these maxims

passing the tests of universalisation and generalisation simply because of their overly descriptive

nature rather than actually being moral

There might also be an issue with the phrasing of the maxims specifically the use of the term

police officers as this might cause some uncertainties regarding exactly who the maxim applies to

Because by using the term police officer or even police it becomes questionable if an officer must

be in uniform in other words his or her position as a police officer is overt when carrying out the

search However since these maxims need to be exclusive to the police it could be hard to bypass

this issue without adding yet another specification to it that clarifies whether there is a need for the

officer to be in uniform or not

Finally there could also be an issue of the maxims conflicting with each other as the first of the

maxims states that the decision to stop and search someone needs to be in accordance with known

facts and information Something that might not be available when a stop and search is made

utilising the second or third maxim as these can be initiated without a need of known facts or

information This raises a question to whether one of the maxims would naturally take precedence

over the others as all three maxims regarding stop and search can never operate at the same time

Generally Kantianism argues that when one is faced with opposing maxims the perfect duty will

always take precedence over an imperfect one (Stohr K 2010 p3) However as all of the maxims

are addressing what is essentially the same action being the possibility to stop and search

individuals for illegal andor stolen items this could be problematic Furthermore while there are

three maxims identified within this study there also exists another fourth maxim which concerns

the possibility of not searching anyone for illegal or stolen items This fourth maxim is also

considered a perfect duty as it would generally be easier to universalise not searching people as

opposed to searching individuals fitting certain requirements This means that the maxim regarding

the omission to act would in this case take precedence over the other maxims identified within this

research essentially rendering them powerless

19

Chapter 6

Conclusion

From this study it can be seen that the legislation governing a heavily criticised police power such

as stop and search has the possibility to be morally justifiable by the ethical frameworks developed

by Kant Because while Kants ethical theory does not rectify or justify the issue of ethnic minorities

being subjected to a disproportionate amount of stops and searches in comparison to Caucasians it

is important to remember that the ldquolaw in theory and the law in practice differrdquo (Westmarland L in

Newburn T 2011 p255) Meaning that the moralisation of the legislation does not ensure that it

will be applied ethically by the police Additionally as Kantian ethics values the motivation behind

ones actions over the consequences produced from them the potential issues caused by ones actions

are irrelevant as long as the action itself can be universalised without producing a chaotic or

undesirable result

However as there are several layers to stop and search there are some implications to morally

justifying this power as it is multi-faceted Being designed to deal with a variety of different

situations and bases from which suspicion might arise to justify the stopping and searching of an

individual Because while Kantian ethics can ethically justify police officers to stop and search

individuals for illegal or stolen items if it is in accordance with known facts and information and

they believe that such items will be found upon searching the person this encompasses only one of

the many facets of the power As such the power cannot be justified as a whole as any maxim used

to describe it would not provide the necessary limitations needed for it to successfully pass the tests

of generalisation and universalisation

While the power cannot be moralised as a whole it is possible to create two additional maxims

using the limitations and exceptions to the necessity criteria of reasonable suspicion found in the

Codes of Practice A to create an additional two maxims These represent two additional facets of

stop and search being that

police officers may stop and search individuals acting in an obviously suspicious manner for

illegal or stolen items but only if they suspect that such items will be found upon searching the

person and

police officers may stop and search individuals based on articles of clothing piercings

andor tattoos if these are known to be worn by members of a gang(s) that are known to carry

20

illegal or stolen items and only if the police suspects that such items will be found upon searching

the person

However only the first of these two maxims can be justified utilising Kants ethical framework and

Singers generalisation principle because the latter cannot be universalised without becoming

unreasonable Furthermore the latter cannot be justified without providing further limitations

requiring the phrase acting in an obviously suspicious manner to be replaced by obviously hiding

something

From the issues presented from the creation of the two additional maxims above it can be

established that stop and search cannot be considered morally justifiable under all circumstances

Because different situations calls for different maxims meaning that should the search not be

initiated based on known facts or information it is unlikely to be ethical Nevertheless even though

all facets of this police power cannot be morally justified it does seem that the majority of them can

be considered ethical to some extent Meaning the legislation governing it is generally ethical but

as a whole it becomes a bit of a moral ambiguity This shows that the police power as identified by

the Police and Criminal Evidence Act 1984 and the Codes of Practice A has a potential to be

ethically justified with the exception of the section permitting searches where physical appearance

can be used as a basis for suspicion Additionally this research identified that the reasons for why

this particular section is not justifiable could also be part of the reason to the disproportionate

amount of searches of ethnic minorities As it might provide officers maliciously targeting

minorities with a possibility to justify their actions by claiming a particular article of clothing body

art or similar was the reason for the stop

As such it can be established that the legislation governing the polices power to stop and search

individuals for prohibited or stolen articles cannot be fully moralised as not all sections of the

Police and Criminal Evidence Act 1984 or the Codes of Practice A concerning this power can be

ethically justified However while the legislation as whole is morally ambiguous at best the

searches conducted with factual information as a basis for suspicion suggests that the sections of the

legislation addressing this type of search cannot be implemented in an unethical manner Because as

the universalised maxim requires the police to act in a manner promoted by the Act and Codes this

shows that any unethical searches carried out using this type of search are caused as a result of

police misconduct rather than an actual issue with the legislation

21

However it should be noted that this research can only provide a limited account of the morality of

this police power as it has only explored it through the limitations put upon it through the necessity

requirement of reasonable suspicion Additionally it can only account for the morality of the

sections of the Police and Criminal Evidence Act 1984 and the Codes of Practice A addressing this

particular police power and only through the limitations explored within this research Finally it is

also important to recognise that the police power has only been analysed using a Kantian approach

to ethics and morality This means that further studies of the police power and indeed the Act and

Codes in general are needed in order to provide a more accurate account of the morality and ethical

issues present It is therefore suggested that additional research should be carried out to study the

legislation governing the power of stop and search utilising other ethical theories or utilising

Kantian ethics with a different focus point of the legislation

However while further research is needed in order to gain a more accurate account of the overall

morality of the police power and the legislation governing it it does not mean the research

presented in this paper is of any less value Because even though the study can only provide a

limited account of the legislations morality it has succeeded in presenting the probabilities for the

moral justification of the Acts first part along with the associated Codes of Practice as well as

identifying that the issues connected to the Act may be caused primarily by the polices failure to

accurately conduct stops and searches according to the law Meaning the research has produced

some valuable results in addition to providing a stepping stone for further research on the topic

22

Bibliography

BBC [2014] Duty-Based Ethics Available at

httpwwwbbccoukethicsintroductionduty_1shtml [Accessed 20-03-2014]

Benz S [2010] ldquoThe Police and Criminal Evidence Act 1984 balancing civil liberties and public

securityrdquo Diffusion 5(2) Available at httpatpuclanacukbuddypressdiffusionp=1255

[Accessed 25-04-2014]

Bowling B and Phillips C [2007] Disproportionate and Discriminatory Reviewing the Evidence

on Police Stop and Search Oxford Blackwell Publishing p958 httpwwwstop-

watchorguploadsdocumentsmodern_law_reviewpdf

Braddock K [2011] ldquoThe Power of the Hoodierdquo The Guardian Available at

httpwwwtheguardiancomuk2011aug09power-of-the-hoodie [Accessed21-04-2014]

Codes of Practice A

Council of Europe [2010] European Convention on Human Rights Strasbourg European Court of

Human Rights p 7 Available at httpwwwechrcoeintDocumentsConvention_ENGpdf

[Accessed 09-03-2014]

The Economic and Social Research Council [2012] Frameworks for Research Ethics Swindon

Economic and Social Research Council pp2-3 3 Available at

httpwwwesrcacuk_imagesframework-for-research-ethics-09-12_tcm8-4586pdf [Accessed 01-

04-2014]

The Economist [1990] End Game Available

athttpgogalegroupcompsidoid=GALE7CA9390713ampv=21ampu=uceampit=rampp=SPJSP0

0ampsw=wampasid=f6f778fcf0a20b3f0f18df5e20a57f27 [Accessed 19-03-2014]

Fahy P [undated] ldquoForewordrdquo In Ozin P Norton H and Spivey P [2013] PACE ndash A Practical

Guide to the Police and Criminal Evidence Act 1984 3rd

Edition Oxford Oxford University Press

p v

Flick U [2011] Introducing Research Methodology London Sage p 125

Garret J [2006] Kants Duty Ethics Available at

httppeoplewkuedujangarrettethicskanthtm [Accessed 20-03-2014]

Govuk [2013] Guidance Police and Criminal Evidence Act 1984 (PACE) Codes of Practice

London Home Office Available at httpswwwgovukpolice-and-criminal-evidence-act-1984-

pace-codes-of-practice [Accessed 02-04-2014]

Guyer P (2007) cited by Perold L M [2010] Does Immanuel Kants Categorical Imperative

Commit Him to the View that Lying is Always Morally Wrong Master of Arts thesis University of

the Witwatersrand p 19 Available at

httpwiredspacewitsaczabitstreamhandle1053910096M20Perold20Research20Reportp

dfsequence=2 [Accessed 24-04-2014]

14

police officers may stop and search individuals for illegal or stolen items if it is in

accordance with known facts and information and they believe that such items will be found upon

searching the person

police officers may stop and search individuals acting in an obviously suspicious manner for

illegal or stolen items but only if they suspect that such items will be found upon searching the

person and

police officers may stop and search individuals based on articles of clothing piercings

andor tattoos if these are known to be worn by members of a gang(s) that are known to carry

illegal or stolen items and only if the police suspects that such items will be found upon searching

the person

These provide a much more limited and concentrated approach to the attempted moralisation of the

polices power to stop and search individuals for prohibited or stolen articles Because unlike the

previous maxim these are not only limiting what the basis for suspicion might be but also limiting

when the power itself may be enforced As such the likelihood of these being able to pass the tests

of generalisation and universalisation are increased

521 Generalisation and Universalisation

In order to accurately establish whether acts are moral they must pass the tests of generalisation and

universalisation as Kant believed that moral acts were ones that could be applied to everyone as a

universal law without becoming contradictory or illogical (see chapter 3) However as these deal

with police powers and Kant argued that acts must be applicable to everyone without exception

these will also be examined using Singers generalisation principle because it would be illogical for

such powers to be implemented by everyone Singers generalisation principle makes it possible to

bypass this issue as it argues that ldquowhat is right (or wrong) for one person must be right (or wrong)

for any similar person in similar circumstancesrdquo (Singer G M undated cited by ONeill O 2013

p78) Additionally this approach puts a utilitarian twist on Kants frameworks as it determines

morality based on the consequences of onersquos actions (ONeill O 2013 p79) rather than the

motivation behind them As such this test functions as a middle ground between the tests of

generalisation and universalisation ensuring that the generalised maxim does not cause an illogical

or chaotic result in addition to limiting the generalised maxim from anyone that is not a member of

the police service Analysing the maxim using these tests therefore requires them to be studied

individually so that they can be dissected and examined more closely

Looking at the first of the three maxims created using the guidelines and limitations of reasonable

15

suspicion as identified by the Codes of Practice A it can be established that it is comprised from

three different elements Namely

the police may only search for illegal or stolen items

the police may only search an individual based on known facts and information and finally

the police may only search the individual if they believe illegal or stolen items will be found

Attempting to generalise any of these elements of the maxim individually would not be reasonable

as they do not provide enough limitations or guidelines for it to be functional Because the first part

allows the police to search anyone for illegal or stolen items without the necessity of a suspicion

that any such items will be found which would result in a police state where the police could search

anyone they please The necessity of believing that illegal or stolen items will be found upon

conducting a search is added by the third element of the maxim but there are still no requirements

for the police to have any kind of reasonable basis for their decision to stop and search someone as

this is added by the maxims second element However this element cannot be moralised on its own

either as it does not specify what the police may search for However when all three elements of

the maxim are combined all necessary limitations are present meaning the generalisation of it

should not produce a contradictory or illogical result

However passing the test of generalisation does not mean that the maxim is ethical as it must also

be universalisable Meaning it should be able to be enforced as a (hypothetical) law that applies to

everyone unconditionally As the maxim places a requirement on the police to only stop and search

individuals if they have a factual basis for their suspicion to find illegal or stolen items upon

searching the person this should be a universalisable action Because assuming all police officers

were required to follow this maxim it would result in a world where only specific items may be

searched for if they have a factual reason to conduct the search and only if they believe that such

items will be found upon searching the person(s) As this would not produce any undesirable

consequences this maxim would not only pass Kants test of universalisation but also fulfil the

necessary criteria for Singers generalisation principle

This is essentially what the Police and Criminal Evidence Act 1984 and the Codes of Practice A

seeks to do meaning that if the guidelines were followed by the police unlawful stops and searches

should not occur However since there are more aspects to the laws that govern the polices power

to stop and search individuals for illegal or stolen items such as searches based on suspicious

behaviour or searches of suspected gang members other aspects must be explored as well before

16

declaring whether it is ethical or not For this reason the two additional maxims (mentioned earlier)

are needed and must therefore be tested as well As these maxims can be implemented in such

situations by the removal of the need for a factual basis for suspicion and replacing it with either

the possibility to

search individuals acting in an obviously suspicious manner or

search individuals based on clothing piercings andor tattoos if these are known to be worn

by members of gangs that are known to carry illegal or stolen items

As with the various elements of the maxim analysed previously these are also unable to be

moralised individually Because the first of the two does not specify what may be searched for and

neither of the sections specify that the police should expect to find illegal or stolen items upon

stopping and searching an individual As such neither of these elements can function as a maxim on

their own as they are illogical and can neither be generalised nor universalised However when

these are combined with the other elements of the maxims these issues should be resolved thus

passing Kants test of generalisation

Universalising these maxims is a bit more problematic than the one analysed previously through

For example with the first of these two maxims police officers would be enforced to stop and

search anyone that is acting in an obviously suspicious manner for illegal or stolen items if they

believe any such items will be found upon searching them The phrase behaving in an obviously

suspicious manner is a bit of an issue here as there is no definition available as to what can be

classified as such However a reasonable person would probably equate behaving in an obviously

suspicious manner to trying to hide something which is used as an example in the Codes of

Practice A s23 It could therefore be worth substituting the phrase behaving in an obviously

suspicious manner with trying to hide something as this would be more specific However by

doing this the maxim would become much more limited as it would no longer allow individuals

behaving suspiciously in other ways to be searched Nevertheless should this interpretation be used

the likeliness of the maxim passing the test of universalisation might be increased as the likeliness

of it producing a chaotic result would decrease Additionally implementing such an interpretation

would also make it more likely for the maxim to pass Singers generalisation principle As the

conduction of stops and searches of people that are obviously trying to hide something is less likely

to produce an undesirable outcome in comparison to searching anyone acting suspiciously

Finally the universalisation of the third and final of the maxims would enforce the police to stop

17

and search anyone dressed or in any other ways being physically identifiable as a possible member

of a gang known to carry illegal or stolen items if they believe any such items will be found upon

searching them As with the maxim analysed above there are issues related to universalising this

maxim due to the possibility of it causing certain people to be targeted because of the clothes they

wear or any piercings or tattoos on their body being related to or similar to ones connected to a

criminal gang Universalising this maxim could therefore worsen an already prevalent issue where

innocent members of the public get their civil liberties infringed upon due to their personal style

especially as the maxim allows quite a broad range of items accessories and body art to be used as

an indicator for suspicion In a study by Jackson and Smith (2013) the experiences of young people

from London that had been subjected to stop and search was surveyed where the participants

identified what kind of clothing might fit the criteria of being a presumed gang member It was

suggested that ldquoemulating American hip hop artists by wearing low-slung jeans hoodies and

branded trainers and walking and talking in a certain wayrdquo (p6) was stereotyped by the police as

gagster behaviour and dress The same study also identified an experience that was shared by one

of the participants whom stated that ldquoThey just say youre in a drug infested area and youve got a

hood on so were stopping and searching yourdquo (Jackson L and Smith L 2013 p6)

Taking this into consideration it can therefore be seen that the universalisation of a maxim asking

the police to stop and search anyone perceived to be involved with a criminal gang for illegal or

stolen items could result in a form of criminalisation of the hoodie and other specific pieces of

clothing as these are stereotyped as being related to gang membership This would be problematic

as the hoodie in particular is a comfortable and often affordable piece of clothing that is a staple in

the wardrobes of many of societys subcultures such as emos and skaters that are generally not

stereotyped as criminals (Braddock K 2011) As such it can be established that neither Kant nor

Singer would be able to universalise this maxim as having officers search anyone wearing specific

clothes would neither be reasonable nor produce any desirable consequences

522 Issues

While two out of three of the different maxims appear to be moral in the eyes of Kant there are still

some issues relating to them which must be acknowledged Primarily there might be an issue with

these maxims being too specific as it has been noted that ldquoany maxim that is highly restricted is

likely to pass the universalisability testrdquo [Guyer P 2007 cited by Perold L M 2010 p19]

because the more descriptive a maxim is the less likely it is that it would become contradictory As

all of the maxims created from the Codes of Practice A are highly restrictive specifying who may

carry out the act under what circumstances they may carry it out and the limitations of the actions

18

itself Additionally as noted earlier in this chapter the maxims cannot be made more general either

as this would prevent them from being moralised this means that there is a risk of these maxims

passing the tests of universalisation and generalisation simply because of their overly descriptive

nature rather than actually being moral

There might also be an issue with the phrasing of the maxims specifically the use of the term

police officers as this might cause some uncertainties regarding exactly who the maxim applies to

Because by using the term police officer or even police it becomes questionable if an officer must

be in uniform in other words his or her position as a police officer is overt when carrying out the

search However since these maxims need to be exclusive to the police it could be hard to bypass

this issue without adding yet another specification to it that clarifies whether there is a need for the

officer to be in uniform or not

Finally there could also be an issue of the maxims conflicting with each other as the first of the

maxims states that the decision to stop and search someone needs to be in accordance with known

facts and information Something that might not be available when a stop and search is made

utilising the second or third maxim as these can be initiated without a need of known facts or

information This raises a question to whether one of the maxims would naturally take precedence

over the others as all three maxims regarding stop and search can never operate at the same time

Generally Kantianism argues that when one is faced with opposing maxims the perfect duty will

always take precedence over an imperfect one (Stohr K 2010 p3) However as all of the maxims

are addressing what is essentially the same action being the possibility to stop and search

individuals for illegal andor stolen items this could be problematic Furthermore while there are

three maxims identified within this study there also exists another fourth maxim which concerns

the possibility of not searching anyone for illegal or stolen items This fourth maxim is also

considered a perfect duty as it would generally be easier to universalise not searching people as

opposed to searching individuals fitting certain requirements This means that the maxim regarding

the omission to act would in this case take precedence over the other maxims identified within this

research essentially rendering them powerless

19

Chapter 6

Conclusion

From this study it can be seen that the legislation governing a heavily criticised police power such

as stop and search has the possibility to be morally justifiable by the ethical frameworks developed

by Kant Because while Kants ethical theory does not rectify or justify the issue of ethnic minorities

being subjected to a disproportionate amount of stops and searches in comparison to Caucasians it

is important to remember that the ldquolaw in theory and the law in practice differrdquo (Westmarland L in

Newburn T 2011 p255) Meaning that the moralisation of the legislation does not ensure that it

will be applied ethically by the police Additionally as Kantian ethics values the motivation behind

ones actions over the consequences produced from them the potential issues caused by ones actions

are irrelevant as long as the action itself can be universalised without producing a chaotic or

undesirable result

However as there are several layers to stop and search there are some implications to morally

justifying this power as it is multi-faceted Being designed to deal with a variety of different

situations and bases from which suspicion might arise to justify the stopping and searching of an

individual Because while Kantian ethics can ethically justify police officers to stop and search

individuals for illegal or stolen items if it is in accordance with known facts and information and

they believe that such items will be found upon searching the person this encompasses only one of

the many facets of the power As such the power cannot be justified as a whole as any maxim used

to describe it would not provide the necessary limitations needed for it to successfully pass the tests

of generalisation and universalisation

While the power cannot be moralised as a whole it is possible to create two additional maxims

using the limitations and exceptions to the necessity criteria of reasonable suspicion found in the

Codes of Practice A to create an additional two maxims These represent two additional facets of

stop and search being that

police officers may stop and search individuals acting in an obviously suspicious manner for

illegal or stolen items but only if they suspect that such items will be found upon searching the

person and

police officers may stop and search individuals based on articles of clothing piercings

andor tattoos if these are known to be worn by members of a gang(s) that are known to carry

20

illegal or stolen items and only if the police suspects that such items will be found upon searching

the person

However only the first of these two maxims can be justified utilising Kants ethical framework and

Singers generalisation principle because the latter cannot be universalised without becoming

unreasonable Furthermore the latter cannot be justified without providing further limitations

requiring the phrase acting in an obviously suspicious manner to be replaced by obviously hiding

something

From the issues presented from the creation of the two additional maxims above it can be

established that stop and search cannot be considered morally justifiable under all circumstances

Because different situations calls for different maxims meaning that should the search not be

initiated based on known facts or information it is unlikely to be ethical Nevertheless even though

all facets of this police power cannot be morally justified it does seem that the majority of them can

be considered ethical to some extent Meaning the legislation governing it is generally ethical but

as a whole it becomes a bit of a moral ambiguity This shows that the police power as identified by

the Police and Criminal Evidence Act 1984 and the Codes of Practice A has a potential to be

ethically justified with the exception of the section permitting searches where physical appearance

can be used as a basis for suspicion Additionally this research identified that the reasons for why

this particular section is not justifiable could also be part of the reason to the disproportionate

amount of searches of ethnic minorities As it might provide officers maliciously targeting

minorities with a possibility to justify their actions by claiming a particular article of clothing body

art or similar was the reason for the stop

As such it can be established that the legislation governing the polices power to stop and search

individuals for prohibited or stolen articles cannot be fully moralised as not all sections of the

Police and Criminal Evidence Act 1984 or the Codes of Practice A concerning this power can be

ethically justified However while the legislation as whole is morally ambiguous at best the

searches conducted with factual information as a basis for suspicion suggests that the sections of the

legislation addressing this type of search cannot be implemented in an unethical manner Because as

the universalised maxim requires the police to act in a manner promoted by the Act and Codes this

shows that any unethical searches carried out using this type of search are caused as a result of

police misconduct rather than an actual issue with the legislation

21

However it should be noted that this research can only provide a limited account of the morality of

this police power as it has only explored it through the limitations put upon it through the necessity

requirement of reasonable suspicion Additionally it can only account for the morality of the

sections of the Police and Criminal Evidence Act 1984 and the Codes of Practice A addressing this

particular police power and only through the limitations explored within this research Finally it is

also important to recognise that the police power has only been analysed using a Kantian approach

to ethics and morality This means that further studies of the police power and indeed the Act and

Codes in general are needed in order to provide a more accurate account of the morality and ethical

issues present It is therefore suggested that additional research should be carried out to study the

legislation governing the power of stop and search utilising other ethical theories or utilising

Kantian ethics with a different focus point of the legislation

However while further research is needed in order to gain a more accurate account of the overall

morality of the police power and the legislation governing it it does not mean the research

presented in this paper is of any less value Because even though the study can only provide a

limited account of the legislations morality it has succeeded in presenting the probabilities for the

moral justification of the Acts first part along with the associated Codes of Practice as well as

identifying that the issues connected to the Act may be caused primarily by the polices failure to

accurately conduct stops and searches according to the law Meaning the research has produced

some valuable results in addition to providing a stepping stone for further research on the topic

22

Bibliography

BBC [2014] Duty-Based Ethics Available at

httpwwwbbccoukethicsintroductionduty_1shtml [Accessed 20-03-2014]

Benz S [2010] ldquoThe Police and Criminal Evidence Act 1984 balancing civil liberties and public

securityrdquo Diffusion 5(2) Available at httpatpuclanacukbuddypressdiffusionp=1255

[Accessed 25-04-2014]

Bowling B and Phillips C [2007] Disproportionate and Discriminatory Reviewing the Evidence

on Police Stop and Search Oxford Blackwell Publishing p958 httpwwwstop-

watchorguploadsdocumentsmodern_law_reviewpdf

Braddock K [2011] ldquoThe Power of the Hoodierdquo The Guardian Available at

httpwwwtheguardiancomuk2011aug09power-of-the-hoodie [Accessed21-04-2014]

Codes of Practice A

Council of Europe [2010] European Convention on Human Rights Strasbourg European Court of

Human Rights p 7 Available at httpwwwechrcoeintDocumentsConvention_ENGpdf

[Accessed 09-03-2014]

The Economic and Social Research Council [2012] Frameworks for Research Ethics Swindon

Economic and Social Research Council pp2-3 3 Available at

httpwwwesrcacuk_imagesframework-for-research-ethics-09-12_tcm8-4586pdf [Accessed 01-

04-2014]

The Economist [1990] End Game Available

athttpgogalegroupcompsidoid=GALE7CA9390713ampv=21ampu=uceampit=rampp=SPJSP0

0ampsw=wampasid=f6f778fcf0a20b3f0f18df5e20a57f27 [Accessed 19-03-2014]

Fahy P [undated] ldquoForewordrdquo In Ozin P Norton H and Spivey P [2013] PACE ndash A Practical

Guide to the Police and Criminal Evidence Act 1984 3rd

Edition Oxford Oxford University Press

p v

Flick U [2011] Introducing Research Methodology London Sage p 125

Garret J [2006] Kants Duty Ethics Available at

httppeoplewkuedujangarrettethicskanthtm [Accessed 20-03-2014]

Govuk [2013] Guidance Police and Criminal Evidence Act 1984 (PACE) Codes of Practice

London Home Office Available at httpswwwgovukpolice-and-criminal-evidence-act-1984-

pace-codes-of-practice [Accessed 02-04-2014]

Guyer P (2007) cited by Perold L M [2010] Does Immanuel Kants Categorical Imperative

Commit Him to the View that Lying is Always Morally Wrong Master of Arts thesis University of

the Witwatersrand p 19 Available at

httpwiredspacewitsaczabitstreamhandle1053910096M20Perold20Research20Reportp

dfsequence=2 [Accessed 24-04-2014]

15

suspicion as identified by the Codes of Practice A it can be established that it is comprised from

three different elements Namely

the police may only search for illegal or stolen items

the police may only search an individual based on known facts and information and finally

the police may only search the individual if they believe illegal or stolen items will be found

Attempting to generalise any of these elements of the maxim individually would not be reasonable

as they do not provide enough limitations or guidelines for it to be functional Because the first part

allows the police to search anyone for illegal or stolen items without the necessity of a suspicion

that any such items will be found which would result in a police state where the police could search

anyone they please The necessity of believing that illegal or stolen items will be found upon

conducting a search is added by the third element of the maxim but there are still no requirements

for the police to have any kind of reasonable basis for their decision to stop and search someone as

this is added by the maxims second element However this element cannot be moralised on its own

either as it does not specify what the police may search for However when all three elements of

the maxim are combined all necessary limitations are present meaning the generalisation of it

should not produce a contradictory or illogical result

However passing the test of generalisation does not mean that the maxim is ethical as it must also

be universalisable Meaning it should be able to be enforced as a (hypothetical) law that applies to

everyone unconditionally As the maxim places a requirement on the police to only stop and search

individuals if they have a factual basis for their suspicion to find illegal or stolen items upon

searching the person this should be a universalisable action Because assuming all police officers

were required to follow this maxim it would result in a world where only specific items may be

searched for if they have a factual reason to conduct the search and only if they believe that such

items will be found upon searching the person(s) As this would not produce any undesirable

consequences this maxim would not only pass Kants test of universalisation but also fulfil the

necessary criteria for Singers generalisation principle

This is essentially what the Police and Criminal Evidence Act 1984 and the Codes of Practice A

seeks to do meaning that if the guidelines were followed by the police unlawful stops and searches

should not occur However since there are more aspects to the laws that govern the polices power

to stop and search individuals for illegal or stolen items such as searches based on suspicious

behaviour or searches of suspected gang members other aspects must be explored as well before

16

declaring whether it is ethical or not For this reason the two additional maxims (mentioned earlier)

are needed and must therefore be tested as well As these maxims can be implemented in such

situations by the removal of the need for a factual basis for suspicion and replacing it with either

the possibility to

search individuals acting in an obviously suspicious manner or

search individuals based on clothing piercings andor tattoos if these are known to be worn

by members of gangs that are known to carry illegal or stolen items

As with the various elements of the maxim analysed previously these are also unable to be

moralised individually Because the first of the two does not specify what may be searched for and

neither of the sections specify that the police should expect to find illegal or stolen items upon

stopping and searching an individual As such neither of these elements can function as a maxim on

their own as they are illogical and can neither be generalised nor universalised However when

these are combined with the other elements of the maxims these issues should be resolved thus

passing Kants test of generalisation

Universalising these maxims is a bit more problematic than the one analysed previously through

For example with the first of these two maxims police officers would be enforced to stop and

search anyone that is acting in an obviously suspicious manner for illegal or stolen items if they

believe any such items will be found upon searching them The phrase behaving in an obviously

suspicious manner is a bit of an issue here as there is no definition available as to what can be

classified as such However a reasonable person would probably equate behaving in an obviously

suspicious manner to trying to hide something which is used as an example in the Codes of

Practice A s23 It could therefore be worth substituting the phrase behaving in an obviously

suspicious manner with trying to hide something as this would be more specific However by

doing this the maxim would become much more limited as it would no longer allow individuals

behaving suspiciously in other ways to be searched Nevertheless should this interpretation be used

the likeliness of the maxim passing the test of universalisation might be increased as the likeliness

of it producing a chaotic result would decrease Additionally implementing such an interpretation

would also make it more likely for the maxim to pass Singers generalisation principle As the

conduction of stops and searches of people that are obviously trying to hide something is less likely

to produce an undesirable outcome in comparison to searching anyone acting suspiciously

Finally the universalisation of the third and final of the maxims would enforce the police to stop

17

and search anyone dressed or in any other ways being physically identifiable as a possible member

of a gang known to carry illegal or stolen items if they believe any such items will be found upon

searching them As with the maxim analysed above there are issues related to universalising this

maxim due to the possibility of it causing certain people to be targeted because of the clothes they

wear or any piercings or tattoos on their body being related to or similar to ones connected to a

criminal gang Universalising this maxim could therefore worsen an already prevalent issue where

innocent members of the public get their civil liberties infringed upon due to their personal style

especially as the maxim allows quite a broad range of items accessories and body art to be used as

an indicator for suspicion In a study by Jackson and Smith (2013) the experiences of young people

from London that had been subjected to stop and search was surveyed where the participants

identified what kind of clothing might fit the criteria of being a presumed gang member It was

suggested that ldquoemulating American hip hop artists by wearing low-slung jeans hoodies and

branded trainers and walking and talking in a certain wayrdquo (p6) was stereotyped by the police as

gagster behaviour and dress The same study also identified an experience that was shared by one

of the participants whom stated that ldquoThey just say youre in a drug infested area and youve got a

hood on so were stopping and searching yourdquo (Jackson L and Smith L 2013 p6)

Taking this into consideration it can therefore be seen that the universalisation of a maxim asking

the police to stop and search anyone perceived to be involved with a criminal gang for illegal or

stolen items could result in a form of criminalisation of the hoodie and other specific pieces of

clothing as these are stereotyped as being related to gang membership This would be problematic

as the hoodie in particular is a comfortable and often affordable piece of clothing that is a staple in

the wardrobes of many of societys subcultures such as emos and skaters that are generally not

stereotyped as criminals (Braddock K 2011) As such it can be established that neither Kant nor

Singer would be able to universalise this maxim as having officers search anyone wearing specific

clothes would neither be reasonable nor produce any desirable consequences

522 Issues

While two out of three of the different maxims appear to be moral in the eyes of Kant there are still

some issues relating to them which must be acknowledged Primarily there might be an issue with

these maxims being too specific as it has been noted that ldquoany maxim that is highly restricted is

likely to pass the universalisability testrdquo [Guyer P 2007 cited by Perold L M 2010 p19]

because the more descriptive a maxim is the less likely it is that it would become contradictory As

all of the maxims created from the Codes of Practice A are highly restrictive specifying who may

carry out the act under what circumstances they may carry it out and the limitations of the actions

18

itself Additionally as noted earlier in this chapter the maxims cannot be made more general either

as this would prevent them from being moralised this means that there is a risk of these maxims

passing the tests of universalisation and generalisation simply because of their overly descriptive

nature rather than actually being moral

There might also be an issue with the phrasing of the maxims specifically the use of the term

police officers as this might cause some uncertainties regarding exactly who the maxim applies to

Because by using the term police officer or even police it becomes questionable if an officer must

be in uniform in other words his or her position as a police officer is overt when carrying out the

search However since these maxims need to be exclusive to the police it could be hard to bypass

this issue without adding yet another specification to it that clarifies whether there is a need for the

officer to be in uniform or not

Finally there could also be an issue of the maxims conflicting with each other as the first of the

maxims states that the decision to stop and search someone needs to be in accordance with known

facts and information Something that might not be available when a stop and search is made

utilising the second or third maxim as these can be initiated without a need of known facts or

information This raises a question to whether one of the maxims would naturally take precedence

over the others as all three maxims regarding stop and search can never operate at the same time

Generally Kantianism argues that when one is faced with opposing maxims the perfect duty will

always take precedence over an imperfect one (Stohr K 2010 p3) However as all of the maxims

are addressing what is essentially the same action being the possibility to stop and search

individuals for illegal andor stolen items this could be problematic Furthermore while there are

three maxims identified within this study there also exists another fourth maxim which concerns

the possibility of not searching anyone for illegal or stolen items This fourth maxim is also

considered a perfect duty as it would generally be easier to universalise not searching people as

opposed to searching individuals fitting certain requirements This means that the maxim regarding

the omission to act would in this case take precedence over the other maxims identified within this

research essentially rendering them powerless

19

Chapter 6

Conclusion

From this study it can be seen that the legislation governing a heavily criticised police power such

as stop and search has the possibility to be morally justifiable by the ethical frameworks developed

by Kant Because while Kants ethical theory does not rectify or justify the issue of ethnic minorities

being subjected to a disproportionate amount of stops and searches in comparison to Caucasians it

is important to remember that the ldquolaw in theory and the law in practice differrdquo (Westmarland L in

Newburn T 2011 p255) Meaning that the moralisation of the legislation does not ensure that it

will be applied ethically by the police Additionally as Kantian ethics values the motivation behind

ones actions over the consequences produced from them the potential issues caused by ones actions

are irrelevant as long as the action itself can be universalised without producing a chaotic or

undesirable result

However as there are several layers to stop and search there are some implications to morally

justifying this power as it is multi-faceted Being designed to deal with a variety of different

situations and bases from which suspicion might arise to justify the stopping and searching of an

individual Because while Kantian ethics can ethically justify police officers to stop and search

individuals for illegal or stolen items if it is in accordance with known facts and information and

they believe that such items will be found upon searching the person this encompasses only one of

the many facets of the power As such the power cannot be justified as a whole as any maxim used

to describe it would not provide the necessary limitations needed for it to successfully pass the tests

of generalisation and universalisation

While the power cannot be moralised as a whole it is possible to create two additional maxims

using the limitations and exceptions to the necessity criteria of reasonable suspicion found in the

Codes of Practice A to create an additional two maxims These represent two additional facets of

stop and search being that

police officers may stop and search individuals acting in an obviously suspicious manner for

illegal or stolen items but only if they suspect that such items will be found upon searching the

person and

police officers may stop and search individuals based on articles of clothing piercings

andor tattoos if these are known to be worn by members of a gang(s) that are known to carry

20

illegal or stolen items and only if the police suspects that such items will be found upon searching

the person

However only the first of these two maxims can be justified utilising Kants ethical framework and

Singers generalisation principle because the latter cannot be universalised without becoming

unreasonable Furthermore the latter cannot be justified without providing further limitations

requiring the phrase acting in an obviously suspicious manner to be replaced by obviously hiding

something

From the issues presented from the creation of the two additional maxims above it can be

established that stop and search cannot be considered morally justifiable under all circumstances

Because different situations calls for different maxims meaning that should the search not be

initiated based on known facts or information it is unlikely to be ethical Nevertheless even though

all facets of this police power cannot be morally justified it does seem that the majority of them can

be considered ethical to some extent Meaning the legislation governing it is generally ethical but

as a whole it becomes a bit of a moral ambiguity This shows that the police power as identified by

the Police and Criminal Evidence Act 1984 and the Codes of Practice A has a potential to be

ethically justified with the exception of the section permitting searches where physical appearance

can be used as a basis for suspicion Additionally this research identified that the reasons for why

this particular section is not justifiable could also be part of the reason to the disproportionate

amount of searches of ethnic minorities As it might provide officers maliciously targeting

minorities with a possibility to justify their actions by claiming a particular article of clothing body

art or similar was the reason for the stop

As such it can be established that the legislation governing the polices power to stop and search

individuals for prohibited or stolen articles cannot be fully moralised as not all sections of the

Police and Criminal Evidence Act 1984 or the Codes of Practice A concerning this power can be

ethically justified However while the legislation as whole is morally ambiguous at best the

searches conducted with factual information as a basis for suspicion suggests that the sections of the

legislation addressing this type of search cannot be implemented in an unethical manner Because as

the universalised maxim requires the police to act in a manner promoted by the Act and Codes this

shows that any unethical searches carried out using this type of search are caused as a result of

police misconduct rather than an actual issue with the legislation

21

However it should be noted that this research can only provide a limited account of the morality of

this police power as it has only explored it through the limitations put upon it through the necessity

requirement of reasonable suspicion Additionally it can only account for the morality of the

sections of the Police and Criminal Evidence Act 1984 and the Codes of Practice A addressing this

particular police power and only through the limitations explored within this research Finally it is

also important to recognise that the police power has only been analysed using a Kantian approach

to ethics and morality This means that further studies of the police power and indeed the Act and

Codes in general are needed in order to provide a more accurate account of the morality and ethical

issues present It is therefore suggested that additional research should be carried out to study the

legislation governing the power of stop and search utilising other ethical theories or utilising

Kantian ethics with a different focus point of the legislation

However while further research is needed in order to gain a more accurate account of the overall

morality of the police power and the legislation governing it it does not mean the research

presented in this paper is of any less value Because even though the study can only provide a

limited account of the legislations morality it has succeeded in presenting the probabilities for the

moral justification of the Acts first part along with the associated Codes of Practice as well as

identifying that the issues connected to the Act may be caused primarily by the polices failure to

accurately conduct stops and searches according to the law Meaning the research has produced

some valuable results in addition to providing a stepping stone for further research on the topic

22

Bibliography

BBC [2014] Duty-Based Ethics Available at

httpwwwbbccoukethicsintroductionduty_1shtml [Accessed 20-03-2014]

Benz S [2010] ldquoThe Police and Criminal Evidence Act 1984 balancing civil liberties and public

securityrdquo Diffusion 5(2) Available at httpatpuclanacukbuddypressdiffusionp=1255

[Accessed 25-04-2014]

Bowling B and Phillips C [2007] Disproportionate and Discriminatory Reviewing the Evidence

on Police Stop and Search Oxford Blackwell Publishing p958 httpwwwstop-

watchorguploadsdocumentsmodern_law_reviewpdf

Braddock K [2011] ldquoThe Power of the Hoodierdquo The Guardian Available at

httpwwwtheguardiancomuk2011aug09power-of-the-hoodie [Accessed21-04-2014]

Codes of Practice A

Council of Europe [2010] European Convention on Human Rights Strasbourg European Court of

Human Rights p 7 Available at httpwwwechrcoeintDocumentsConvention_ENGpdf

[Accessed 09-03-2014]

The Economic and Social Research Council [2012] Frameworks for Research Ethics Swindon

Economic and Social Research Council pp2-3 3 Available at

httpwwwesrcacuk_imagesframework-for-research-ethics-09-12_tcm8-4586pdf [Accessed 01-

04-2014]

The Economist [1990] End Game Available

athttpgogalegroupcompsidoid=GALE7CA9390713ampv=21ampu=uceampit=rampp=SPJSP0

0ampsw=wampasid=f6f778fcf0a20b3f0f18df5e20a57f27 [Accessed 19-03-2014]

Fahy P [undated] ldquoForewordrdquo In Ozin P Norton H and Spivey P [2013] PACE ndash A Practical

Guide to the Police and Criminal Evidence Act 1984 3rd

Edition Oxford Oxford University Press

p v

Flick U [2011] Introducing Research Methodology London Sage p 125

Garret J [2006] Kants Duty Ethics Available at

httppeoplewkuedujangarrettethicskanthtm [Accessed 20-03-2014]

Govuk [2013] Guidance Police and Criminal Evidence Act 1984 (PACE) Codes of Practice

London Home Office Available at httpswwwgovukpolice-and-criminal-evidence-act-1984-

pace-codes-of-practice [Accessed 02-04-2014]

Guyer P (2007) cited by Perold L M [2010] Does Immanuel Kants Categorical Imperative

Commit Him to the View that Lying is Always Morally Wrong Master of Arts thesis University of

the Witwatersrand p 19 Available at

httpwiredspacewitsaczabitstreamhandle1053910096M20Perold20Research20Reportp

dfsequence=2 [Accessed 24-04-2014]

16

declaring whether it is ethical or not For this reason the two additional maxims (mentioned earlier)

are needed and must therefore be tested as well As these maxims can be implemented in such

situations by the removal of the need for a factual basis for suspicion and replacing it with either

the possibility to

search individuals acting in an obviously suspicious manner or

search individuals based on clothing piercings andor tattoos if these are known to be worn

by members of gangs that are known to carry illegal or stolen items

As with the various elements of the maxim analysed previously these are also unable to be

moralised individually Because the first of the two does not specify what may be searched for and

neither of the sections specify that the police should expect to find illegal or stolen items upon

stopping and searching an individual As such neither of these elements can function as a maxim on

their own as they are illogical and can neither be generalised nor universalised However when

these are combined with the other elements of the maxims these issues should be resolved thus

passing Kants test of generalisation

Universalising these maxims is a bit more problematic than the one analysed previously through

For example with the first of these two maxims police officers would be enforced to stop and

search anyone that is acting in an obviously suspicious manner for illegal or stolen items if they

believe any such items will be found upon searching them The phrase behaving in an obviously

suspicious manner is a bit of an issue here as there is no definition available as to what can be

classified as such However a reasonable person would probably equate behaving in an obviously

suspicious manner to trying to hide something which is used as an example in the Codes of

Practice A s23 It could therefore be worth substituting the phrase behaving in an obviously

suspicious manner with trying to hide something as this would be more specific However by

doing this the maxim would become much more limited as it would no longer allow individuals

behaving suspiciously in other ways to be searched Nevertheless should this interpretation be used

the likeliness of the maxim passing the test of universalisation might be increased as the likeliness

of it producing a chaotic result would decrease Additionally implementing such an interpretation

would also make it more likely for the maxim to pass Singers generalisation principle As the

conduction of stops and searches of people that are obviously trying to hide something is less likely

to produce an undesirable outcome in comparison to searching anyone acting suspiciously

Finally the universalisation of the third and final of the maxims would enforce the police to stop

17

and search anyone dressed or in any other ways being physically identifiable as a possible member

of a gang known to carry illegal or stolen items if they believe any such items will be found upon

searching them As with the maxim analysed above there are issues related to universalising this

maxim due to the possibility of it causing certain people to be targeted because of the clothes they

wear or any piercings or tattoos on their body being related to or similar to ones connected to a

criminal gang Universalising this maxim could therefore worsen an already prevalent issue where

innocent members of the public get their civil liberties infringed upon due to their personal style

especially as the maxim allows quite a broad range of items accessories and body art to be used as

an indicator for suspicion In a study by Jackson and Smith (2013) the experiences of young people

from London that had been subjected to stop and search was surveyed where the participants

identified what kind of clothing might fit the criteria of being a presumed gang member It was

suggested that ldquoemulating American hip hop artists by wearing low-slung jeans hoodies and

branded trainers and walking and talking in a certain wayrdquo (p6) was stereotyped by the police as

gagster behaviour and dress The same study also identified an experience that was shared by one

of the participants whom stated that ldquoThey just say youre in a drug infested area and youve got a

hood on so were stopping and searching yourdquo (Jackson L and Smith L 2013 p6)

Taking this into consideration it can therefore be seen that the universalisation of a maxim asking

the police to stop and search anyone perceived to be involved with a criminal gang for illegal or

stolen items could result in a form of criminalisation of the hoodie and other specific pieces of

clothing as these are stereotyped as being related to gang membership This would be problematic

as the hoodie in particular is a comfortable and often affordable piece of clothing that is a staple in

the wardrobes of many of societys subcultures such as emos and skaters that are generally not

stereotyped as criminals (Braddock K 2011) As such it can be established that neither Kant nor

Singer would be able to universalise this maxim as having officers search anyone wearing specific

clothes would neither be reasonable nor produce any desirable consequences

522 Issues

While two out of three of the different maxims appear to be moral in the eyes of Kant there are still

some issues relating to them which must be acknowledged Primarily there might be an issue with

these maxims being too specific as it has been noted that ldquoany maxim that is highly restricted is

likely to pass the universalisability testrdquo [Guyer P 2007 cited by Perold L M 2010 p19]

because the more descriptive a maxim is the less likely it is that it would become contradictory As

all of the maxims created from the Codes of Practice A are highly restrictive specifying who may

carry out the act under what circumstances they may carry it out and the limitations of the actions

18

itself Additionally as noted earlier in this chapter the maxims cannot be made more general either

as this would prevent them from being moralised this means that there is a risk of these maxims

passing the tests of universalisation and generalisation simply because of their overly descriptive

nature rather than actually being moral

There might also be an issue with the phrasing of the maxims specifically the use of the term

police officers as this might cause some uncertainties regarding exactly who the maxim applies to

Because by using the term police officer or even police it becomes questionable if an officer must

be in uniform in other words his or her position as a police officer is overt when carrying out the

search However since these maxims need to be exclusive to the police it could be hard to bypass

this issue without adding yet another specification to it that clarifies whether there is a need for the

officer to be in uniform or not

Finally there could also be an issue of the maxims conflicting with each other as the first of the

maxims states that the decision to stop and search someone needs to be in accordance with known

facts and information Something that might not be available when a stop and search is made

utilising the second or third maxim as these can be initiated without a need of known facts or

information This raises a question to whether one of the maxims would naturally take precedence

over the others as all three maxims regarding stop and search can never operate at the same time

Generally Kantianism argues that when one is faced with opposing maxims the perfect duty will

always take precedence over an imperfect one (Stohr K 2010 p3) However as all of the maxims

are addressing what is essentially the same action being the possibility to stop and search

individuals for illegal andor stolen items this could be problematic Furthermore while there are

three maxims identified within this study there also exists another fourth maxim which concerns

the possibility of not searching anyone for illegal or stolen items This fourth maxim is also

considered a perfect duty as it would generally be easier to universalise not searching people as

opposed to searching individuals fitting certain requirements This means that the maxim regarding

the omission to act would in this case take precedence over the other maxims identified within this

research essentially rendering them powerless

19

Chapter 6

Conclusion

From this study it can be seen that the legislation governing a heavily criticised police power such

as stop and search has the possibility to be morally justifiable by the ethical frameworks developed

by Kant Because while Kants ethical theory does not rectify or justify the issue of ethnic minorities

being subjected to a disproportionate amount of stops and searches in comparison to Caucasians it

is important to remember that the ldquolaw in theory and the law in practice differrdquo (Westmarland L in

Newburn T 2011 p255) Meaning that the moralisation of the legislation does not ensure that it

will be applied ethically by the police Additionally as Kantian ethics values the motivation behind

ones actions over the consequences produced from them the potential issues caused by ones actions

are irrelevant as long as the action itself can be universalised without producing a chaotic or

undesirable result

However as there are several layers to stop and search there are some implications to morally

justifying this power as it is multi-faceted Being designed to deal with a variety of different

situations and bases from which suspicion might arise to justify the stopping and searching of an

individual Because while Kantian ethics can ethically justify police officers to stop and search

individuals for illegal or stolen items if it is in accordance with known facts and information and

they believe that such items will be found upon searching the person this encompasses only one of

the many facets of the power As such the power cannot be justified as a whole as any maxim used

to describe it would not provide the necessary limitations needed for it to successfully pass the tests

of generalisation and universalisation

While the power cannot be moralised as a whole it is possible to create two additional maxims

using the limitations and exceptions to the necessity criteria of reasonable suspicion found in the

Codes of Practice A to create an additional two maxims These represent two additional facets of

stop and search being that

police officers may stop and search individuals acting in an obviously suspicious manner for

illegal or stolen items but only if they suspect that such items will be found upon searching the

person and

police officers may stop and search individuals based on articles of clothing piercings

andor tattoos if these are known to be worn by members of a gang(s) that are known to carry

20

illegal or stolen items and only if the police suspects that such items will be found upon searching

the person

However only the first of these two maxims can be justified utilising Kants ethical framework and

Singers generalisation principle because the latter cannot be universalised without becoming

unreasonable Furthermore the latter cannot be justified without providing further limitations

requiring the phrase acting in an obviously suspicious manner to be replaced by obviously hiding

something

From the issues presented from the creation of the two additional maxims above it can be

established that stop and search cannot be considered morally justifiable under all circumstances

Because different situations calls for different maxims meaning that should the search not be

initiated based on known facts or information it is unlikely to be ethical Nevertheless even though

all facets of this police power cannot be morally justified it does seem that the majority of them can

be considered ethical to some extent Meaning the legislation governing it is generally ethical but

as a whole it becomes a bit of a moral ambiguity This shows that the police power as identified by

the Police and Criminal Evidence Act 1984 and the Codes of Practice A has a potential to be

ethically justified with the exception of the section permitting searches where physical appearance

can be used as a basis for suspicion Additionally this research identified that the reasons for why

this particular section is not justifiable could also be part of the reason to the disproportionate

amount of searches of ethnic minorities As it might provide officers maliciously targeting

minorities with a possibility to justify their actions by claiming a particular article of clothing body

art or similar was the reason for the stop

As such it can be established that the legislation governing the polices power to stop and search

individuals for prohibited or stolen articles cannot be fully moralised as not all sections of the

Police and Criminal Evidence Act 1984 or the Codes of Practice A concerning this power can be

ethically justified However while the legislation as whole is morally ambiguous at best the

searches conducted with factual information as a basis for suspicion suggests that the sections of the

legislation addressing this type of search cannot be implemented in an unethical manner Because as

the universalised maxim requires the police to act in a manner promoted by the Act and Codes this

shows that any unethical searches carried out using this type of search are caused as a result of

police misconduct rather than an actual issue with the legislation

21

However it should be noted that this research can only provide a limited account of the morality of

this police power as it has only explored it through the limitations put upon it through the necessity

requirement of reasonable suspicion Additionally it can only account for the morality of the

sections of the Police and Criminal Evidence Act 1984 and the Codes of Practice A addressing this

particular police power and only through the limitations explored within this research Finally it is

also important to recognise that the police power has only been analysed using a Kantian approach

to ethics and morality This means that further studies of the police power and indeed the Act and

Codes in general are needed in order to provide a more accurate account of the morality and ethical

issues present It is therefore suggested that additional research should be carried out to study the

legislation governing the power of stop and search utilising other ethical theories or utilising

Kantian ethics with a different focus point of the legislation

However while further research is needed in order to gain a more accurate account of the overall

morality of the police power and the legislation governing it it does not mean the research

presented in this paper is of any less value Because even though the study can only provide a

limited account of the legislations morality it has succeeded in presenting the probabilities for the

moral justification of the Acts first part along with the associated Codes of Practice as well as

identifying that the issues connected to the Act may be caused primarily by the polices failure to

accurately conduct stops and searches according to the law Meaning the research has produced

some valuable results in addition to providing a stepping stone for further research on the topic

22

Bibliography

BBC [2014] Duty-Based Ethics Available at

httpwwwbbccoukethicsintroductionduty_1shtml [Accessed 20-03-2014]

Benz S [2010] ldquoThe Police and Criminal Evidence Act 1984 balancing civil liberties and public

securityrdquo Diffusion 5(2) Available at httpatpuclanacukbuddypressdiffusionp=1255

[Accessed 25-04-2014]

Bowling B and Phillips C [2007] Disproportionate and Discriminatory Reviewing the Evidence

on Police Stop and Search Oxford Blackwell Publishing p958 httpwwwstop-

watchorguploadsdocumentsmodern_law_reviewpdf

Braddock K [2011] ldquoThe Power of the Hoodierdquo The Guardian Available at

httpwwwtheguardiancomuk2011aug09power-of-the-hoodie [Accessed21-04-2014]

Codes of Practice A

Council of Europe [2010] European Convention on Human Rights Strasbourg European Court of

Human Rights p 7 Available at httpwwwechrcoeintDocumentsConvention_ENGpdf

[Accessed 09-03-2014]

The Economic and Social Research Council [2012] Frameworks for Research Ethics Swindon

Economic and Social Research Council pp2-3 3 Available at

httpwwwesrcacuk_imagesframework-for-research-ethics-09-12_tcm8-4586pdf [Accessed 01-

04-2014]

The Economist [1990] End Game Available

athttpgogalegroupcompsidoid=GALE7CA9390713ampv=21ampu=uceampit=rampp=SPJSP0

0ampsw=wampasid=f6f778fcf0a20b3f0f18df5e20a57f27 [Accessed 19-03-2014]

Fahy P [undated] ldquoForewordrdquo In Ozin P Norton H and Spivey P [2013] PACE ndash A Practical

Guide to the Police and Criminal Evidence Act 1984 3rd

Edition Oxford Oxford University Press

p v

Flick U [2011] Introducing Research Methodology London Sage p 125

Garret J [2006] Kants Duty Ethics Available at

httppeoplewkuedujangarrettethicskanthtm [Accessed 20-03-2014]

Govuk [2013] Guidance Police and Criminal Evidence Act 1984 (PACE) Codes of Practice

London Home Office Available at httpswwwgovukpolice-and-criminal-evidence-act-1984-

pace-codes-of-practice [Accessed 02-04-2014]

Guyer P (2007) cited by Perold L M [2010] Does Immanuel Kants Categorical Imperative

Commit Him to the View that Lying is Always Morally Wrong Master of Arts thesis University of

the Witwatersrand p 19 Available at

httpwiredspacewitsaczabitstreamhandle1053910096M20Perold20Research20Reportp

dfsequence=2 [Accessed 24-04-2014]

17

and search anyone dressed or in any other ways being physically identifiable as a possible member

of a gang known to carry illegal or stolen items if they believe any such items will be found upon

searching them As with the maxim analysed above there are issues related to universalising this

maxim due to the possibility of it causing certain people to be targeted because of the clothes they

wear or any piercings or tattoos on their body being related to or similar to ones connected to a

criminal gang Universalising this maxim could therefore worsen an already prevalent issue where

innocent members of the public get their civil liberties infringed upon due to their personal style

especially as the maxim allows quite a broad range of items accessories and body art to be used as

an indicator for suspicion In a study by Jackson and Smith (2013) the experiences of young people

from London that had been subjected to stop and search was surveyed where the participants

identified what kind of clothing might fit the criteria of being a presumed gang member It was

suggested that ldquoemulating American hip hop artists by wearing low-slung jeans hoodies and

branded trainers and walking and talking in a certain wayrdquo (p6) was stereotyped by the police as

gagster behaviour and dress The same study also identified an experience that was shared by one

of the participants whom stated that ldquoThey just say youre in a drug infested area and youve got a

hood on so were stopping and searching yourdquo (Jackson L and Smith L 2013 p6)

Taking this into consideration it can therefore be seen that the universalisation of a maxim asking

the police to stop and search anyone perceived to be involved with a criminal gang for illegal or

stolen items could result in a form of criminalisation of the hoodie and other specific pieces of

clothing as these are stereotyped as being related to gang membership This would be problematic

as the hoodie in particular is a comfortable and often affordable piece of clothing that is a staple in

the wardrobes of many of societys subcultures such as emos and skaters that are generally not

stereotyped as criminals (Braddock K 2011) As such it can be established that neither Kant nor

Singer would be able to universalise this maxim as having officers search anyone wearing specific

clothes would neither be reasonable nor produce any desirable consequences

522 Issues

While two out of three of the different maxims appear to be moral in the eyes of Kant there are still

some issues relating to them which must be acknowledged Primarily there might be an issue with

these maxims being too specific as it has been noted that ldquoany maxim that is highly restricted is

likely to pass the universalisability testrdquo [Guyer P 2007 cited by Perold L M 2010 p19]

because the more descriptive a maxim is the less likely it is that it would become contradictory As

all of the maxims created from the Codes of Practice A are highly restrictive specifying who may

carry out the act under what circumstances they may carry it out and the limitations of the actions

18

itself Additionally as noted earlier in this chapter the maxims cannot be made more general either

as this would prevent them from being moralised this means that there is a risk of these maxims

passing the tests of universalisation and generalisation simply because of their overly descriptive

nature rather than actually being moral

There might also be an issue with the phrasing of the maxims specifically the use of the term

police officers as this might cause some uncertainties regarding exactly who the maxim applies to

Because by using the term police officer or even police it becomes questionable if an officer must

be in uniform in other words his or her position as a police officer is overt when carrying out the

search However since these maxims need to be exclusive to the police it could be hard to bypass

this issue without adding yet another specification to it that clarifies whether there is a need for the

officer to be in uniform or not

Finally there could also be an issue of the maxims conflicting with each other as the first of the

maxims states that the decision to stop and search someone needs to be in accordance with known

facts and information Something that might not be available when a stop and search is made

utilising the second or third maxim as these can be initiated without a need of known facts or

information This raises a question to whether one of the maxims would naturally take precedence

over the others as all three maxims regarding stop and search can never operate at the same time

Generally Kantianism argues that when one is faced with opposing maxims the perfect duty will

always take precedence over an imperfect one (Stohr K 2010 p3) However as all of the maxims

are addressing what is essentially the same action being the possibility to stop and search

individuals for illegal andor stolen items this could be problematic Furthermore while there are

three maxims identified within this study there also exists another fourth maxim which concerns

the possibility of not searching anyone for illegal or stolen items This fourth maxim is also

considered a perfect duty as it would generally be easier to universalise not searching people as

opposed to searching individuals fitting certain requirements This means that the maxim regarding

the omission to act would in this case take precedence over the other maxims identified within this

research essentially rendering them powerless

19

Chapter 6

Conclusion

From this study it can be seen that the legislation governing a heavily criticised police power such

as stop and search has the possibility to be morally justifiable by the ethical frameworks developed

by Kant Because while Kants ethical theory does not rectify or justify the issue of ethnic minorities

being subjected to a disproportionate amount of stops and searches in comparison to Caucasians it

is important to remember that the ldquolaw in theory and the law in practice differrdquo (Westmarland L in

Newburn T 2011 p255) Meaning that the moralisation of the legislation does not ensure that it

will be applied ethically by the police Additionally as Kantian ethics values the motivation behind

ones actions over the consequences produced from them the potential issues caused by ones actions

are irrelevant as long as the action itself can be universalised without producing a chaotic or

undesirable result

However as there are several layers to stop and search there are some implications to morally

justifying this power as it is multi-faceted Being designed to deal with a variety of different

situations and bases from which suspicion might arise to justify the stopping and searching of an

individual Because while Kantian ethics can ethically justify police officers to stop and search

individuals for illegal or stolen items if it is in accordance with known facts and information and

they believe that such items will be found upon searching the person this encompasses only one of

the many facets of the power As such the power cannot be justified as a whole as any maxim used

to describe it would not provide the necessary limitations needed for it to successfully pass the tests

of generalisation and universalisation

While the power cannot be moralised as a whole it is possible to create two additional maxims

using the limitations and exceptions to the necessity criteria of reasonable suspicion found in the

Codes of Practice A to create an additional two maxims These represent two additional facets of

stop and search being that

police officers may stop and search individuals acting in an obviously suspicious manner for

illegal or stolen items but only if they suspect that such items will be found upon searching the

person and

police officers may stop and search individuals based on articles of clothing piercings

andor tattoos if these are known to be worn by members of a gang(s) that are known to carry

20

illegal or stolen items and only if the police suspects that such items will be found upon searching

the person

However only the first of these two maxims can be justified utilising Kants ethical framework and

Singers generalisation principle because the latter cannot be universalised without becoming

unreasonable Furthermore the latter cannot be justified without providing further limitations

requiring the phrase acting in an obviously suspicious manner to be replaced by obviously hiding

something

From the issues presented from the creation of the two additional maxims above it can be

established that stop and search cannot be considered morally justifiable under all circumstances

Because different situations calls for different maxims meaning that should the search not be

initiated based on known facts or information it is unlikely to be ethical Nevertheless even though

all facets of this police power cannot be morally justified it does seem that the majority of them can

be considered ethical to some extent Meaning the legislation governing it is generally ethical but

as a whole it becomes a bit of a moral ambiguity This shows that the police power as identified by

the Police and Criminal Evidence Act 1984 and the Codes of Practice A has a potential to be

ethically justified with the exception of the section permitting searches where physical appearance

can be used as a basis for suspicion Additionally this research identified that the reasons for why

this particular section is not justifiable could also be part of the reason to the disproportionate

amount of searches of ethnic minorities As it might provide officers maliciously targeting

minorities with a possibility to justify their actions by claiming a particular article of clothing body

art or similar was the reason for the stop

As such it can be established that the legislation governing the polices power to stop and search

individuals for prohibited or stolen articles cannot be fully moralised as not all sections of the

Police and Criminal Evidence Act 1984 or the Codes of Practice A concerning this power can be

ethically justified However while the legislation as whole is morally ambiguous at best the

searches conducted with factual information as a basis for suspicion suggests that the sections of the

legislation addressing this type of search cannot be implemented in an unethical manner Because as

the universalised maxim requires the police to act in a manner promoted by the Act and Codes this

shows that any unethical searches carried out using this type of search are caused as a result of

police misconduct rather than an actual issue with the legislation

21

However it should be noted that this research can only provide a limited account of the morality of

this police power as it has only explored it through the limitations put upon it through the necessity

requirement of reasonable suspicion Additionally it can only account for the morality of the

sections of the Police and Criminal Evidence Act 1984 and the Codes of Practice A addressing this

particular police power and only through the limitations explored within this research Finally it is

also important to recognise that the police power has only been analysed using a Kantian approach

to ethics and morality This means that further studies of the police power and indeed the Act and

Codes in general are needed in order to provide a more accurate account of the morality and ethical

issues present It is therefore suggested that additional research should be carried out to study the

legislation governing the power of stop and search utilising other ethical theories or utilising

Kantian ethics with a different focus point of the legislation

However while further research is needed in order to gain a more accurate account of the overall

morality of the police power and the legislation governing it it does not mean the research

presented in this paper is of any less value Because even though the study can only provide a

limited account of the legislations morality it has succeeded in presenting the probabilities for the

moral justification of the Acts first part along with the associated Codes of Practice as well as

identifying that the issues connected to the Act may be caused primarily by the polices failure to

accurately conduct stops and searches according to the law Meaning the research has produced

some valuable results in addition to providing a stepping stone for further research on the topic

22

Bibliography

BBC [2014] Duty-Based Ethics Available at

httpwwwbbccoukethicsintroductionduty_1shtml [Accessed 20-03-2014]

Benz S [2010] ldquoThe Police and Criminal Evidence Act 1984 balancing civil liberties and public

securityrdquo Diffusion 5(2) Available at httpatpuclanacukbuddypressdiffusionp=1255

[Accessed 25-04-2014]

Bowling B and Phillips C [2007] Disproportionate and Discriminatory Reviewing the Evidence

on Police Stop and Search Oxford Blackwell Publishing p958 httpwwwstop-

watchorguploadsdocumentsmodern_law_reviewpdf

Braddock K [2011] ldquoThe Power of the Hoodierdquo The Guardian Available at

httpwwwtheguardiancomuk2011aug09power-of-the-hoodie [Accessed21-04-2014]

Codes of Practice A

Council of Europe [2010] European Convention on Human Rights Strasbourg European Court of

Human Rights p 7 Available at httpwwwechrcoeintDocumentsConvention_ENGpdf

[Accessed 09-03-2014]

The Economic and Social Research Council [2012] Frameworks for Research Ethics Swindon

Economic and Social Research Council pp2-3 3 Available at

httpwwwesrcacuk_imagesframework-for-research-ethics-09-12_tcm8-4586pdf [Accessed 01-

04-2014]

The Economist [1990] End Game Available

athttpgogalegroupcompsidoid=GALE7CA9390713ampv=21ampu=uceampit=rampp=SPJSP0

0ampsw=wampasid=f6f778fcf0a20b3f0f18df5e20a57f27 [Accessed 19-03-2014]

Fahy P [undated] ldquoForewordrdquo In Ozin P Norton H and Spivey P [2013] PACE ndash A Practical

Guide to the Police and Criminal Evidence Act 1984 3rd

Edition Oxford Oxford University Press

p v

Flick U [2011] Introducing Research Methodology London Sage p 125

Garret J [2006] Kants Duty Ethics Available at

httppeoplewkuedujangarrettethicskanthtm [Accessed 20-03-2014]

Govuk [2013] Guidance Police and Criminal Evidence Act 1984 (PACE) Codes of Practice

London Home Office Available at httpswwwgovukpolice-and-criminal-evidence-act-1984-

pace-codes-of-practice [Accessed 02-04-2014]

Guyer P (2007) cited by Perold L M [2010] Does Immanuel Kants Categorical Imperative

Commit Him to the View that Lying is Always Morally Wrong Master of Arts thesis University of

the Witwatersrand p 19 Available at

httpwiredspacewitsaczabitstreamhandle1053910096M20Perold20Research20Reportp

dfsequence=2 [Accessed 24-04-2014]

18

itself Additionally as noted earlier in this chapter the maxims cannot be made more general either

as this would prevent them from being moralised this means that there is a risk of these maxims

passing the tests of universalisation and generalisation simply because of their overly descriptive

nature rather than actually being moral

There might also be an issue with the phrasing of the maxims specifically the use of the term

police officers as this might cause some uncertainties regarding exactly who the maxim applies to

Because by using the term police officer or even police it becomes questionable if an officer must

be in uniform in other words his or her position as a police officer is overt when carrying out the

search However since these maxims need to be exclusive to the police it could be hard to bypass

this issue without adding yet another specification to it that clarifies whether there is a need for the

officer to be in uniform or not

Finally there could also be an issue of the maxims conflicting with each other as the first of the

maxims states that the decision to stop and search someone needs to be in accordance with known

facts and information Something that might not be available when a stop and search is made

utilising the second or third maxim as these can be initiated without a need of known facts or

information This raises a question to whether one of the maxims would naturally take precedence

over the others as all three maxims regarding stop and search can never operate at the same time

Generally Kantianism argues that when one is faced with opposing maxims the perfect duty will

always take precedence over an imperfect one (Stohr K 2010 p3) However as all of the maxims

are addressing what is essentially the same action being the possibility to stop and search

individuals for illegal andor stolen items this could be problematic Furthermore while there are

three maxims identified within this study there also exists another fourth maxim which concerns

the possibility of not searching anyone for illegal or stolen items This fourth maxim is also

considered a perfect duty as it would generally be easier to universalise not searching people as

opposed to searching individuals fitting certain requirements This means that the maxim regarding

the omission to act would in this case take precedence over the other maxims identified within this

research essentially rendering them powerless

19

Chapter 6

Conclusion

From this study it can be seen that the legislation governing a heavily criticised police power such

as stop and search has the possibility to be morally justifiable by the ethical frameworks developed

by Kant Because while Kants ethical theory does not rectify or justify the issue of ethnic minorities

being subjected to a disproportionate amount of stops and searches in comparison to Caucasians it

is important to remember that the ldquolaw in theory and the law in practice differrdquo (Westmarland L in

Newburn T 2011 p255) Meaning that the moralisation of the legislation does not ensure that it

will be applied ethically by the police Additionally as Kantian ethics values the motivation behind

ones actions over the consequences produced from them the potential issues caused by ones actions

are irrelevant as long as the action itself can be universalised without producing a chaotic or

undesirable result

However as there are several layers to stop and search there are some implications to morally

justifying this power as it is multi-faceted Being designed to deal with a variety of different

situations and bases from which suspicion might arise to justify the stopping and searching of an

individual Because while Kantian ethics can ethically justify police officers to stop and search

individuals for illegal or stolen items if it is in accordance with known facts and information and

they believe that such items will be found upon searching the person this encompasses only one of

the many facets of the power As such the power cannot be justified as a whole as any maxim used

to describe it would not provide the necessary limitations needed for it to successfully pass the tests

of generalisation and universalisation

While the power cannot be moralised as a whole it is possible to create two additional maxims

using the limitations and exceptions to the necessity criteria of reasonable suspicion found in the

Codes of Practice A to create an additional two maxims These represent two additional facets of

stop and search being that

police officers may stop and search individuals acting in an obviously suspicious manner for

illegal or stolen items but only if they suspect that such items will be found upon searching the

person and

police officers may stop and search individuals based on articles of clothing piercings

andor tattoos if these are known to be worn by members of a gang(s) that are known to carry

20

illegal or stolen items and only if the police suspects that such items will be found upon searching

the person

However only the first of these two maxims can be justified utilising Kants ethical framework and

Singers generalisation principle because the latter cannot be universalised without becoming

unreasonable Furthermore the latter cannot be justified without providing further limitations

requiring the phrase acting in an obviously suspicious manner to be replaced by obviously hiding

something

From the issues presented from the creation of the two additional maxims above it can be

established that stop and search cannot be considered morally justifiable under all circumstances

Because different situations calls for different maxims meaning that should the search not be

initiated based on known facts or information it is unlikely to be ethical Nevertheless even though

all facets of this police power cannot be morally justified it does seem that the majority of them can

be considered ethical to some extent Meaning the legislation governing it is generally ethical but

as a whole it becomes a bit of a moral ambiguity This shows that the police power as identified by

the Police and Criminal Evidence Act 1984 and the Codes of Practice A has a potential to be

ethically justified with the exception of the section permitting searches where physical appearance

can be used as a basis for suspicion Additionally this research identified that the reasons for why

this particular section is not justifiable could also be part of the reason to the disproportionate

amount of searches of ethnic minorities As it might provide officers maliciously targeting

minorities with a possibility to justify their actions by claiming a particular article of clothing body

art or similar was the reason for the stop

As such it can be established that the legislation governing the polices power to stop and search

individuals for prohibited or stolen articles cannot be fully moralised as not all sections of the

Police and Criminal Evidence Act 1984 or the Codes of Practice A concerning this power can be

ethically justified However while the legislation as whole is morally ambiguous at best the

searches conducted with factual information as a basis for suspicion suggests that the sections of the

legislation addressing this type of search cannot be implemented in an unethical manner Because as

the universalised maxim requires the police to act in a manner promoted by the Act and Codes this

shows that any unethical searches carried out using this type of search are caused as a result of

police misconduct rather than an actual issue with the legislation

21

However it should be noted that this research can only provide a limited account of the morality of

this police power as it has only explored it through the limitations put upon it through the necessity

requirement of reasonable suspicion Additionally it can only account for the morality of the

sections of the Police and Criminal Evidence Act 1984 and the Codes of Practice A addressing this

particular police power and only through the limitations explored within this research Finally it is

also important to recognise that the police power has only been analysed using a Kantian approach

to ethics and morality This means that further studies of the police power and indeed the Act and

Codes in general are needed in order to provide a more accurate account of the morality and ethical

issues present It is therefore suggested that additional research should be carried out to study the

legislation governing the power of stop and search utilising other ethical theories or utilising

Kantian ethics with a different focus point of the legislation

However while further research is needed in order to gain a more accurate account of the overall

morality of the police power and the legislation governing it it does not mean the research

presented in this paper is of any less value Because even though the study can only provide a

limited account of the legislations morality it has succeeded in presenting the probabilities for the

moral justification of the Acts first part along with the associated Codes of Practice as well as

identifying that the issues connected to the Act may be caused primarily by the polices failure to

accurately conduct stops and searches according to the law Meaning the research has produced

some valuable results in addition to providing a stepping stone for further research on the topic

22

Bibliography

BBC [2014] Duty-Based Ethics Available at

httpwwwbbccoukethicsintroductionduty_1shtml [Accessed 20-03-2014]

Benz S [2010] ldquoThe Police and Criminal Evidence Act 1984 balancing civil liberties and public

securityrdquo Diffusion 5(2) Available at httpatpuclanacukbuddypressdiffusionp=1255

[Accessed 25-04-2014]

Bowling B and Phillips C [2007] Disproportionate and Discriminatory Reviewing the Evidence

on Police Stop and Search Oxford Blackwell Publishing p958 httpwwwstop-

watchorguploadsdocumentsmodern_law_reviewpdf

Braddock K [2011] ldquoThe Power of the Hoodierdquo The Guardian Available at

httpwwwtheguardiancomuk2011aug09power-of-the-hoodie [Accessed21-04-2014]

Codes of Practice A

Council of Europe [2010] European Convention on Human Rights Strasbourg European Court of

Human Rights p 7 Available at httpwwwechrcoeintDocumentsConvention_ENGpdf

[Accessed 09-03-2014]

The Economic and Social Research Council [2012] Frameworks for Research Ethics Swindon

Economic and Social Research Council pp2-3 3 Available at

httpwwwesrcacuk_imagesframework-for-research-ethics-09-12_tcm8-4586pdf [Accessed 01-

04-2014]

The Economist [1990] End Game Available

athttpgogalegroupcompsidoid=GALE7CA9390713ampv=21ampu=uceampit=rampp=SPJSP0

0ampsw=wampasid=f6f778fcf0a20b3f0f18df5e20a57f27 [Accessed 19-03-2014]

Fahy P [undated] ldquoForewordrdquo In Ozin P Norton H and Spivey P [2013] PACE ndash A Practical

Guide to the Police and Criminal Evidence Act 1984 3rd

Edition Oxford Oxford University Press

p v

Flick U [2011] Introducing Research Methodology London Sage p 125

Garret J [2006] Kants Duty Ethics Available at

httppeoplewkuedujangarrettethicskanthtm [Accessed 20-03-2014]

Govuk [2013] Guidance Police and Criminal Evidence Act 1984 (PACE) Codes of Practice

London Home Office Available at httpswwwgovukpolice-and-criminal-evidence-act-1984-

pace-codes-of-practice [Accessed 02-04-2014]

Guyer P (2007) cited by Perold L M [2010] Does Immanuel Kants Categorical Imperative

Commit Him to the View that Lying is Always Morally Wrong Master of Arts thesis University of

the Witwatersrand p 19 Available at

httpwiredspacewitsaczabitstreamhandle1053910096M20Perold20Research20Reportp

dfsequence=2 [Accessed 24-04-2014]

19

Chapter 6

Conclusion

From this study it can be seen that the legislation governing a heavily criticised police power such

as stop and search has the possibility to be morally justifiable by the ethical frameworks developed

by Kant Because while Kants ethical theory does not rectify or justify the issue of ethnic minorities

being subjected to a disproportionate amount of stops and searches in comparison to Caucasians it

is important to remember that the ldquolaw in theory and the law in practice differrdquo (Westmarland L in

Newburn T 2011 p255) Meaning that the moralisation of the legislation does not ensure that it

will be applied ethically by the police Additionally as Kantian ethics values the motivation behind

ones actions over the consequences produced from them the potential issues caused by ones actions

are irrelevant as long as the action itself can be universalised without producing a chaotic or

undesirable result

However as there are several layers to stop and search there are some implications to morally

justifying this power as it is multi-faceted Being designed to deal with a variety of different

situations and bases from which suspicion might arise to justify the stopping and searching of an

individual Because while Kantian ethics can ethically justify police officers to stop and search

individuals for illegal or stolen items if it is in accordance with known facts and information and

they believe that such items will be found upon searching the person this encompasses only one of

the many facets of the power As such the power cannot be justified as a whole as any maxim used

to describe it would not provide the necessary limitations needed for it to successfully pass the tests

of generalisation and universalisation

While the power cannot be moralised as a whole it is possible to create two additional maxims

using the limitations and exceptions to the necessity criteria of reasonable suspicion found in the

Codes of Practice A to create an additional two maxims These represent two additional facets of

stop and search being that

police officers may stop and search individuals acting in an obviously suspicious manner for

illegal or stolen items but only if they suspect that such items will be found upon searching the

person and

police officers may stop and search individuals based on articles of clothing piercings

andor tattoos if these are known to be worn by members of a gang(s) that are known to carry

20

illegal or stolen items and only if the police suspects that such items will be found upon searching

the person

However only the first of these two maxims can be justified utilising Kants ethical framework and

Singers generalisation principle because the latter cannot be universalised without becoming

unreasonable Furthermore the latter cannot be justified without providing further limitations

requiring the phrase acting in an obviously suspicious manner to be replaced by obviously hiding

something

From the issues presented from the creation of the two additional maxims above it can be

established that stop and search cannot be considered morally justifiable under all circumstances

Because different situations calls for different maxims meaning that should the search not be

initiated based on known facts or information it is unlikely to be ethical Nevertheless even though

all facets of this police power cannot be morally justified it does seem that the majority of them can

be considered ethical to some extent Meaning the legislation governing it is generally ethical but

as a whole it becomes a bit of a moral ambiguity This shows that the police power as identified by

the Police and Criminal Evidence Act 1984 and the Codes of Practice A has a potential to be

ethically justified with the exception of the section permitting searches where physical appearance

can be used as a basis for suspicion Additionally this research identified that the reasons for why

this particular section is not justifiable could also be part of the reason to the disproportionate

amount of searches of ethnic minorities As it might provide officers maliciously targeting

minorities with a possibility to justify their actions by claiming a particular article of clothing body

art or similar was the reason for the stop

As such it can be established that the legislation governing the polices power to stop and search

individuals for prohibited or stolen articles cannot be fully moralised as not all sections of the

Police and Criminal Evidence Act 1984 or the Codes of Practice A concerning this power can be

ethically justified However while the legislation as whole is morally ambiguous at best the

searches conducted with factual information as a basis for suspicion suggests that the sections of the

legislation addressing this type of search cannot be implemented in an unethical manner Because as

the universalised maxim requires the police to act in a manner promoted by the Act and Codes this

shows that any unethical searches carried out using this type of search are caused as a result of

police misconduct rather than an actual issue with the legislation

21

However it should be noted that this research can only provide a limited account of the morality of

this police power as it has only explored it through the limitations put upon it through the necessity

requirement of reasonable suspicion Additionally it can only account for the morality of the

sections of the Police and Criminal Evidence Act 1984 and the Codes of Practice A addressing this

particular police power and only through the limitations explored within this research Finally it is

also important to recognise that the police power has only been analysed using a Kantian approach

to ethics and morality This means that further studies of the police power and indeed the Act and

Codes in general are needed in order to provide a more accurate account of the morality and ethical

issues present It is therefore suggested that additional research should be carried out to study the

legislation governing the power of stop and search utilising other ethical theories or utilising

Kantian ethics with a different focus point of the legislation

However while further research is needed in order to gain a more accurate account of the overall

morality of the police power and the legislation governing it it does not mean the research

presented in this paper is of any less value Because even though the study can only provide a

limited account of the legislations morality it has succeeded in presenting the probabilities for the

moral justification of the Acts first part along with the associated Codes of Practice as well as

identifying that the issues connected to the Act may be caused primarily by the polices failure to

accurately conduct stops and searches according to the law Meaning the research has produced

some valuable results in addition to providing a stepping stone for further research on the topic

22

Bibliography

BBC [2014] Duty-Based Ethics Available at

httpwwwbbccoukethicsintroductionduty_1shtml [Accessed 20-03-2014]

Benz S [2010] ldquoThe Police and Criminal Evidence Act 1984 balancing civil liberties and public

securityrdquo Diffusion 5(2) Available at httpatpuclanacukbuddypressdiffusionp=1255

[Accessed 25-04-2014]

Bowling B and Phillips C [2007] Disproportionate and Discriminatory Reviewing the Evidence

on Police Stop and Search Oxford Blackwell Publishing p958 httpwwwstop-

watchorguploadsdocumentsmodern_law_reviewpdf

Braddock K [2011] ldquoThe Power of the Hoodierdquo The Guardian Available at

httpwwwtheguardiancomuk2011aug09power-of-the-hoodie [Accessed21-04-2014]

Codes of Practice A

Council of Europe [2010] European Convention on Human Rights Strasbourg European Court of

Human Rights p 7 Available at httpwwwechrcoeintDocumentsConvention_ENGpdf

[Accessed 09-03-2014]

The Economic and Social Research Council [2012] Frameworks for Research Ethics Swindon

Economic and Social Research Council pp2-3 3 Available at

httpwwwesrcacuk_imagesframework-for-research-ethics-09-12_tcm8-4586pdf [Accessed 01-

04-2014]

The Economist [1990] End Game Available

athttpgogalegroupcompsidoid=GALE7CA9390713ampv=21ampu=uceampit=rampp=SPJSP0

0ampsw=wampasid=f6f778fcf0a20b3f0f18df5e20a57f27 [Accessed 19-03-2014]

Fahy P [undated] ldquoForewordrdquo In Ozin P Norton H and Spivey P [2013] PACE ndash A Practical

Guide to the Police and Criminal Evidence Act 1984 3rd

Edition Oxford Oxford University Press

p v

Flick U [2011] Introducing Research Methodology London Sage p 125

Garret J [2006] Kants Duty Ethics Available at

httppeoplewkuedujangarrettethicskanthtm [Accessed 20-03-2014]

Govuk [2013] Guidance Police and Criminal Evidence Act 1984 (PACE) Codes of Practice

London Home Office Available at httpswwwgovukpolice-and-criminal-evidence-act-1984-

pace-codes-of-practice [Accessed 02-04-2014]

Guyer P (2007) cited by Perold L M [2010] Does Immanuel Kants Categorical Imperative

Commit Him to the View that Lying is Always Morally Wrong Master of Arts thesis University of

the Witwatersrand p 19 Available at

httpwiredspacewitsaczabitstreamhandle1053910096M20Perold20Research20Reportp

dfsequence=2 [Accessed 24-04-2014]

20

illegal or stolen items and only if the police suspects that such items will be found upon searching

the person

However only the first of these two maxims can be justified utilising Kants ethical framework and

Singers generalisation principle because the latter cannot be universalised without becoming

unreasonable Furthermore the latter cannot be justified without providing further limitations

requiring the phrase acting in an obviously suspicious manner to be replaced by obviously hiding

something

From the issues presented from the creation of the two additional maxims above it can be

established that stop and search cannot be considered morally justifiable under all circumstances

Because different situations calls for different maxims meaning that should the search not be

initiated based on known facts or information it is unlikely to be ethical Nevertheless even though

all facets of this police power cannot be morally justified it does seem that the majority of them can

be considered ethical to some extent Meaning the legislation governing it is generally ethical but

as a whole it becomes a bit of a moral ambiguity This shows that the police power as identified by

the Police and Criminal Evidence Act 1984 and the Codes of Practice A has a potential to be

ethically justified with the exception of the section permitting searches where physical appearance

can be used as a basis for suspicion Additionally this research identified that the reasons for why

this particular section is not justifiable could also be part of the reason to the disproportionate

amount of searches of ethnic minorities As it might provide officers maliciously targeting

minorities with a possibility to justify their actions by claiming a particular article of clothing body

art or similar was the reason for the stop

As such it can be established that the legislation governing the polices power to stop and search

individuals for prohibited or stolen articles cannot be fully moralised as not all sections of the

Police and Criminal Evidence Act 1984 or the Codes of Practice A concerning this power can be

ethically justified However while the legislation as whole is morally ambiguous at best the

searches conducted with factual information as a basis for suspicion suggests that the sections of the

legislation addressing this type of search cannot be implemented in an unethical manner Because as

the universalised maxim requires the police to act in a manner promoted by the Act and Codes this

shows that any unethical searches carried out using this type of search are caused as a result of

police misconduct rather than an actual issue with the legislation

21

However it should be noted that this research can only provide a limited account of the morality of

this police power as it has only explored it through the limitations put upon it through the necessity

requirement of reasonable suspicion Additionally it can only account for the morality of the

sections of the Police and Criminal Evidence Act 1984 and the Codes of Practice A addressing this

particular police power and only through the limitations explored within this research Finally it is

also important to recognise that the police power has only been analysed using a Kantian approach

to ethics and morality This means that further studies of the police power and indeed the Act and

Codes in general are needed in order to provide a more accurate account of the morality and ethical

issues present It is therefore suggested that additional research should be carried out to study the

legislation governing the power of stop and search utilising other ethical theories or utilising

Kantian ethics with a different focus point of the legislation

However while further research is needed in order to gain a more accurate account of the overall

morality of the police power and the legislation governing it it does not mean the research

presented in this paper is of any less value Because even though the study can only provide a

limited account of the legislations morality it has succeeded in presenting the probabilities for the

moral justification of the Acts first part along with the associated Codes of Practice as well as

identifying that the issues connected to the Act may be caused primarily by the polices failure to

accurately conduct stops and searches according to the law Meaning the research has produced

some valuable results in addition to providing a stepping stone for further research on the topic

22

Bibliography

BBC [2014] Duty-Based Ethics Available at

httpwwwbbccoukethicsintroductionduty_1shtml [Accessed 20-03-2014]

Benz S [2010] ldquoThe Police and Criminal Evidence Act 1984 balancing civil liberties and public

securityrdquo Diffusion 5(2) Available at httpatpuclanacukbuddypressdiffusionp=1255

[Accessed 25-04-2014]

Bowling B and Phillips C [2007] Disproportionate and Discriminatory Reviewing the Evidence

on Police Stop and Search Oxford Blackwell Publishing p958 httpwwwstop-

watchorguploadsdocumentsmodern_law_reviewpdf

Braddock K [2011] ldquoThe Power of the Hoodierdquo The Guardian Available at

httpwwwtheguardiancomuk2011aug09power-of-the-hoodie [Accessed21-04-2014]

Codes of Practice A

Council of Europe [2010] European Convention on Human Rights Strasbourg European Court of

Human Rights p 7 Available at httpwwwechrcoeintDocumentsConvention_ENGpdf

[Accessed 09-03-2014]

The Economic and Social Research Council [2012] Frameworks for Research Ethics Swindon

Economic and Social Research Council pp2-3 3 Available at

httpwwwesrcacuk_imagesframework-for-research-ethics-09-12_tcm8-4586pdf [Accessed 01-

04-2014]

The Economist [1990] End Game Available

athttpgogalegroupcompsidoid=GALE7CA9390713ampv=21ampu=uceampit=rampp=SPJSP0

0ampsw=wampasid=f6f778fcf0a20b3f0f18df5e20a57f27 [Accessed 19-03-2014]

Fahy P [undated] ldquoForewordrdquo In Ozin P Norton H and Spivey P [2013] PACE ndash A Practical

Guide to the Police and Criminal Evidence Act 1984 3rd

Edition Oxford Oxford University Press

p v

Flick U [2011] Introducing Research Methodology London Sage p 125

Garret J [2006] Kants Duty Ethics Available at

httppeoplewkuedujangarrettethicskanthtm [Accessed 20-03-2014]

Govuk [2013] Guidance Police and Criminal Evidence Act 1984 (PACE) Codes of Practice

London Home Office Available at httpswwwgovukpolice-and-criminal-evidence-act-1984-

pace-codes-of-practice [Accessed 02-04-2014]

Guyer P (2007) cited by Perold L M [2010] Does Immanuel Kants Categorical Imperative

Commit Him to the View that Lying is Always Morally Wrong Master of Arts thesis University of

the Witwatersrand p 19 Available at

httpwiredspacewitsaczabitstreamhandle1053910096M20Perold20Research20Reportp

dfsequence=2 [Accessed 24-04-2014]

21

However it should be noted that this research can only provide a limited account of the morality of

this police power as it has only explored it through the limitations put upon it through the necessity

requirement of reasonable suspicion Additionally it can only account for the morality of the

sections of the Police and Criminal Evidence Act 1984 and the Codes of Practice A addressing this

particular police power and only through the limitations explored within this research Finally it is

also important to recognise that the police power has only been analysed using a Kantian approach

to ethics and morality This means that further studies of the police power and indeed the Act and

Codes in general are needed in order to provide a more accurate account of the morality and ethical

issues present It is therefore suggested that additional research should be carried out to study the

legislation governing the power of stop and search utilising other ethical theories or utilising

Kantian ethics with a different focus point of the legislation

However while further research is needed in order to gain a more accurate account of the overall

morality of the police power and the legislation governing it it does not mean the research

presented in this paper is of any less value Because even though the study can only provide a

limited account of the legislations morality it has succeeded in presenting the probabilities for the

moral justification of the Acts first part along with the associated Codes of Practice as well as

identifying that the issues connected to the Act may be caused primarily by the polices failure to

accurately conduct stops and searches according to the law Meaning the research has produced

some valuable results in addition to providing a stepping stone for further research on the topic

22

Bibliography

BBC [2014] Duty-Based Ethics Available at

httpwwwbbccoukethicsintroductionduty_1shtml [Accessed 20-03-2014]

Benz S [2010] ldquoThe Police and Criminal Evidence Act 1984 balancing civil liberties and public

securityrdquo Diffusion 5(2) Available at httpatpuclanacukbuddypressdiffusionp=1255

[Accessed 25-04-2014]

Bowling B and Phillips C [2007] Disproportionate and Discriminatory Reviewing the Evidence

on Police Stop and Search Oxford Blackwell Publishing p958 httpwwwstop-

watchorguploadsdocumentsmodern_law_reviewpdf

Braddock K [2011] ldquoThe Power of the Hoodierdquo The Guardian Available at

httpwwwtheguardiancomuk2011aug09power-of-the-hoodie [Accessed21-04-2014]

Codes of Practice A

Council of Europe [2010] European Convention on Human Rights Strasbourg European Court of

Human Rights p 7 Available at httpwwwechrcoeintDocumentsConvention_ENGpdf

[Accessed 09-03-2014]

The Economic and Social Research Council [2012] Frameworks for Research Ethics Swindon

Economic and Social Research Council pp2-3 3 Available at

httpwwwesrcacuk_imagesframework-for-research-ethics-09-12_tcm8-4586pdf [Accessed 01-

04-2014]

The Economist [1990] End Game Available

athttpgogalegroupcompsidoid=GALE7CA9390713ampv=21ampu=uceampit=rampp=SPJSP0

0ampsw=wampasid=f6f778fcf0a20b3f0f18df5e20a57f27 [Accessed 19-03-2014]

Fahy P [undated] ldquoForewordrdquo In Ozin P Norton H and Spivey P [2013] PACE ndash A Practical

Guide to the Police and Criminal Evidence Act 1984 3rd

Edition Oxford Oxford University Press

p v

Flick U [2011] Introducing Research Methodology London Sage p 125

Garret J [2006] Kants Duty Ethics Available at

httppeoplewkuedujangarrettethicskanthtm [Accessed 20-03-2014]

Govuk [2013] Guidance Police and Criminal Evidence Act 1984 (PACE) Codes of Practice

London Home Office Available at httpswwwgovukpolice-and-criminal-evidence-act-1984-

pace-codes-of-practice [Accessed 02-04-2014]

Guyer P (2007) cited by Perold L M [2010] Does Immanuel Kants Categorical Imperative

Commit Him to the View that Lying is Always Morally Wrong Master of Arts thesis University of

the Witwatersrand p 19 Available at

httpwiredspacewitsaczabitstreamhandle1053910096M20Perold20Research20Reportp

dfsequence=2 [Accessed 24-04-2014]

22

Bibliography

BBC [2014] Duty-Based Ethics Available at

httpwwwbbccoukethicsintroductionduty_1shtml [Accessed 20-03-2014]

Benz S [2010] ldquoThe Police and Criminal Evidence Act 1984 balancing civil liberties and public

securityrdquo Diffusion 5(2) Available at httpatpuclanacukbuddypressdiffusionp=1255

[Accessed 25-04-2014]

Bowling B and Phillips C [2007] Disproportionate and Discriminatory Reviewing the Evidence

on Police Stop and Search Oxford Blackwell Publishing p958 httpwwwstop-

watchorguploadsdocumentsmodern_law_reviewpdf

Braddock K [2011] ldquoThe Power of the Hoodierdquo The Guardian Available at

httpwwwtheguardiancomuk2011aug09power-of-the-hoodie [Accessed21-04-2014]

Codes of Practice A

Council of Europe [2010] European Convention on Human Rights Strasbourg European Court of

Human Rights p 7 Available at httpwwwechrcoeintDocumentsConvention_ENGpdf

[Accessed 09-03-2014]

The Economic and Social Research Council [2012] Frameworks for Research Ethics Swindon

Economic and Social Research Council pp2-3 3 Available at

httpwwwesrcacuk_imagesframework-for-research-ethics-09-12_tcm8-4586pdf [Accessed 01-

04-2014]

The Economist [1990] End Game Available

athttpgogalegroupcompsidoid=GALE7CA9390713ampv=21ampu=uceampit=rampp=SPJSP0

0ampsw=wampasid=f6f778fcf0a20b3f0f18df5e20a57f27 [Accessed 19-03-2014]

Fahy P [undated] ldquoForewordrdquo In Ozin P Norton H and Spivey P [2013] PACE ndash A Practical

Guide to the Police and Criminal Evidence Act 1984 3rd

Edition Oxford Oxford University Press

p v

Flick U [2011] Introducing Research Methodology London Sage p 125

Garret J [2006] Kants Duty Ethics Available at

httppeoplewkuedujangarrettethicskanthtm [Accessed 20-03-2014]

Govuk [2013] Guidance Police and Criminal Evidence Act 1984 (PACE) Codes of Practice

London Home Office Available at httpswwwgovukpolice-and-criminal-evidence-act-1984-

pace-codes-of-practice [Accessed 02-04-2014]

Guyer P (2007) cited by Perold L M [2010] Does Immanuel Kants Categorical Imperative

Commit Him to the View that Lying is Always Morally Wrong Master of Arts thesis University of

the Witwatersrand p 19 Available at

httpwiredspacewitsaczabitstreamhandle1053910096M20Perold20Research20Reportp

dfsequence=2 [Accessed 24-04-2014]

23

Hart HLA [1958] cited by Green L [2012] ldquoIntroductionrdquo in Hart H L A [2012] The

Concept of Law 3rd

Edition Oxford Oxford University Press p xxxiii Available at

httpbooksgooglecoukbookshl=enamplr=ampid=53u8K7jNGioCampoi=fndamppg=PP2ampdq=law+and+

moralityampots=3fiRAxxSFFampsig=BoQfC4sR_Lnb-

GD4OzEUXvIryfov=onepageampq=law20and20moralityampf=false [Accessed 12-04-2014]

Jackson L and Smith L [2013] Research into young Londoners experiences and perceptions of

stop and search London Office for Public Management p 6 Available at

httpwwwlondongovuksitesdefaultfiles14-02-06-OPM20-

20Young20peoples20views20stop20and20search20-20FINALpdf [Accessed 21-

04-2014]

Joseph I And Gunter A [2011] Gangs Revisited Whats a Gang and Whats Race Got to Do with

It - Politics and Policy into Practice London Runnymede p3 Available at

httpwwwrunnymedetrustorguploadspublicationspdfsGangsRevisited(online)-2011pdf

[Accessed 08-04-2014]

Kumar R [2011] Research Methodology a Step-by-Step Guide for Beginners London Sage

p139 164

Mawby R and Wright A [2005] Police Accountability in the United Kingdom p6 Available at

httpwwwhumanrightsinitiativeorgprogramsajpoliceres_matpolice_accountability_in_ukpdf

[Accessed 02-04-2014]

McQueen R A and Knussen C [2002] Research Methods for Social Science ndash an Introduction

Harlow Pearson pp83-85 84-85

ONeill O [2013] Acting on Principle An Essay on Kantian Ethics 2nd

Edition Cambridge

Cambridge University Press p78 79 Available at

httpbooksgooglecoukbookshl=enamplr=ampid=QbXCAQAAQBAJampoi=fndamppg=PA1ampdq=k

ant+test+generalisationampots=NXBySSMUcHampsig=Tmkkjwa13rHvefEVPtp3WnOaZpIv=on

epageampq=kant20test20generalisationampf=false [Accessed 17-04-2014]

ONeill O [2000] Bounds of Justice Cambridge Cambridge University Press p67

Ozin P Norton H and Spivey P [2013] PACE ndash A Practical Guide to the Police and Criminal

Evidence Act 1984 3rd

Edition Oxford Oxford University Press p 4

Paton H J [1969] The Moral Law London Hutchinson amp Co ltd p22

Police and Criminal Evidence Act 1984 Ch 60 London HMSO

R v McIlkenny and others [1991] 2 All ER 417 Available at

httploginwestlawcoukmafwlukappdocumentampsrguid=ia744d06500000145a7ddf45f8cfdf386

ampdocguid=I59AD10F1E42811DA8FC2A0F0355337E9amphitguid=I59AD10F1E42811DA8FC2A0F

0355337E9amprank=1ampspos=1ampepos=1amptd=1ampcrumb-action=appendampcontext=17ampresolvein=true

[Accessed 28-04-2014]

24

R v Miller [1993] 97 Cr App R 99 Available at

httploginwestlawcoukmafwlukappdocumentampsrguid=ia744cc64000001458ea70ccbfa4bdcd

aampdocguid=I60145160E42811DA8FC2A0F0355337E9amphitguid=I60145160E42811DA8FC2A0F0

355337E9amprank=9ampspos=9ampepos=9amptd=14ampcrumb-action=appendampcontext=78ampresolvein=true

[Accessed 22-04-2014]

Rachels J [1986] Kantian Theory The Idea of Human Dignity Random House Inc p1 Available

at httppubliccallutheranedu~chenxiphil345_022pdf [Accessed 20-03-2014]

Royal Commission [undated] cited by Zander M [2011] PACE (The Police and Criminal

Evidence Act 1984) Past Present and Future London LSE Law Society and Economy Working

Papers p3 Available at wwwlseacukcollectionslawwpswpshtm [Accessed 19-03-2014]

Sandel M [2011] Episode 6 ndash Discussion Guide (Advanced) Available at

httpwwwjusticeharvardorgresourcesepisode-6-discussion-guide-advanced [Accessed 27-04-

2014]

Singer G M [undated] cited by ONeill O [2013] Acting on Principle An Essay on Kantian

Ethics 2nd

Edition Cambridge Cambridge University Press p78 Available at

httpbooksgooglecoukbookshl=enamplr=ampid=QbXCAQAAQBAJampoi=fndamppg=PA1ampdq=k

ant+test+generalisationampots=NXBySSMUcHampsig=Tmkkjwa13rHvefEVPtp3WnOaZpIv=on

epageampq=kant20test20generalisationampf=false [Accessed 17-04-2014]

Stohr K [2010 ndash forthcoming] ldquoKantian Beneficence and the Problem of Obligatory Aidrdquo Journal

of Moral Philosophy p3 Available at

httpwww9georgetownedufacultykes39Stohr_Kantian_Beneficence_and_the_Problem_of

_Obligatory_Aidpdf [Accessed 25-04-2014]

StopWatch [2014] Stop and Search Factsheet Available at httpwwwstop-watchorgget-

informedfactsheetstop-and-search [Accessed 13-03-2014]

Westmarland L [undated] ldquoPolice Culturesrdquo in Newburn T (ed) [2011] Handbook of Policing

2nd

Edition Abingdon Taylor amp Francis p255

Westmarland L [2011] Researching Crime and Justice ndash Tales from the Field London Routledge

p141

Wilding B [undated] ldquoTipping the Scales of Justice A Review of the Impact of PACErdquo in Cape

E and Young R (eds) [2008] Regulating Policing The Police and Criminal Evidence Act 1984

Past Present and Future Portland Hart Publishing p127 130 Available at

httplibmyilibrarycomOpenaspxid=204843ampsrc=0 [Accessed 09-03-2014]

Zupancic A [2000] Ethics of the Real London Verso p16

25

APPENDIX 1

Six Key Principles of Ethical Research

26

Principles procedures and minimum requirements of the Framework for Research Ethics

(FRE)

There are six key principles of ethical research that the ESRC expects to be addressed whenever

applicable

1 Research should be designed reviewed and undertaken to ensure integrity quality and

transparency

2 Research staff and participants must normally be informed fully about the purpose methods and

intended possible uses of the research what their participation in the research entails and what risks

if any are involved Some variation is allowed in very specific research contexts for which detailed

guidance is provided in Section 2

3 The confidentiality of information supplied by research participants and the anonymity of

respondents must be respected

4 Research participants must take part voluntarily free from any coercion

5 Harm to research participants and researchers must be avoided in all instances

6 The independence of research must be clear and any conflicts of interest and partiality must be

explicit

The Economic and Social Research Council [2012] Frameworks for Research Ethics Swindon

Economic and Social Research Council pp2-3 Available at

httpwwwesrcacuk_imagesframework-for-research-ethics-09-12_tcm8-4586pdf [Accessed

27-04-2014]

26

Principles procedures and minimum requirements of the Framework for Research Ethics

(FRE)

There are six key principles of ethical research that the ESRC expects to be addressed whenever

applicable

1 Research should be designed reviewed and undertaken to ensure integrity quality and

transparency

2 Research staff and participants must normally be informed fully about the purpose methods and

intended possible uses of the research what their participation in the research entails and what risks

if any are involved Some variation is allowed in very specific research contexts for which detailed

guidance is provided in Section 2

3 The confidentiality of information supplied by research participants and the anonymity of

respondents must be respected

4 Research participants must take part voluntarily free from any coercion

5 Harm to research participants and researchers must be avoided in all instances

6 The independence of research must be clear and any conflicts of interest and partiality must be

explicit

The Economic and Social Research Council [2012] Frameworks for Research Ethics Swindon

Economic and Social Research Council pp2-3 Available at

httpwwwesrcacuk_imagesframework-for-research-ethics-09-12_tcm8-4586pdf [Accessed

27-04-2014]

27

APPENDIX 2

Ethics Approval Form

28

Request for Ethical Approval

Section 1 ndash to be completed by the researcher

Full name

Jens Knut Elias Klots

Module number and title (student researchers

only)

Extended Research Project [Criminology amp Criminal Investigation]

Research Proposal title

ldquoAn Ethical Analysis of the Police and Criminal Evidence Act 1984rdquo

Funding body applying to if applicable

-

Brief outline of proposal

(including research questions where

appropriate)

You are also asked to

submit with your application copies of

any questionnaires

letters recruitment material you intend to

use if these are available at the time

of requesting approval

The research will ethically evaluate part I III and

IV-V along with the corresponding Codes of Practice [A B C E F and G] using Kantian ethics

Seeking to establish whether the main piece of legislation governing how policing should be carried out in England and Wales can be ethically

justified by Kantian ideologies as well as establishing what ethical issues might be present

etc

Level of research eg staff undergraduate

postgraduate masterrsquos (award related) MPhil

PhD

Undergraduate

Please outline the

methodology that would be implemented in the course of this research

The research will be purely based on secondary

resources using books journals web-sources etc

Please indicate the ethical issues that have

been considered and how these will be

There should be no ethical issues in terms of the research carried out However I have identified

that my choice to only use only one ethical theory for my analysis could be considered biased My

29

addressed

choice however was to ensure that my research will be as focused as possible so a more in depth analysis could be made which will be noted within

the dissertation

Please indicate any

issues that may arise relating to diversity and

equality whilst undertaking this research and how you

will manage these

-

Please indicate how

participants will be de-briefed about their

involvement in the research process and or provided with

opportunities for reflection and evaluation

-

Please answer the following questions by circling or highlighting the appropriate response

1 Will your research project involve young people under the age of 18 NO

YES but not directly ndash primarily teachers If yes do you have an Enhanced Disclosure Certificate from the Criminal Records

Bureau

YES

2 Will your research project involve vulnerable adults

NO

3 For which category of proposal are you applying for ethical approval

Category A

28

Request for Ethical Approval

Section 1 ndash to be completed by the researcher

Full name

Jens Knut Elias Klots

Module number and title (student researchers

only)

Extended Research Project [Criminology amp Criminal Investigation]

Research Proposal title

ldquoAn Ethical Analysis of the Police and Criminal Evidence Act 1984rdquo

Funding body applying to if applicable

-

Brief outline of proposal

(including research questions where

appropriate)

You are also asked to

submit with your application copies of

any questionnaires

letters recruitment material you intend to

use if these are available at the time

of requesting approval

The research will ethically evaluate part I III and

IV-V along with the corresponding Codes of Practice [A B C E F and G] using Kantian ethics

Seeking to establish whether the main piece of legislation governing how policing should be carried out in England and Wales can be ethically

justified by Kantian ideologies as well as establishing what ethical issues might be present

etc

Level of research eg staff undergraduate

postgraduate masterrsquos (award related) MPhil

PhD

Undergraduate

Please outline the

methodology that would be implemented in the course of this research

The research will be purely based on secondary

resources using books journals web-sources etc

Please indicate the ethical issues that have

been considered and how these will be

There should be no ethical issues in terms of the research carried out However I have identified

that my choice to only use only one ethical theory for my analysis could be considered biased My

29

addressed

choice however was to ensure that my research will be as focused as possible so a more in depth analysis could be made which will be noted within

the dissertation

Please indicate any

issues that may arise relating to diversity and

equality whilst undertaking this research and how you

will manage these

-

Please indicate how

participants will be de-briefed about their

involvement in the research process and or provided with

opportunities for reflection and evaluation

-

Please answer the following questions by circling or highlighting the appropriate response

1 Will your research project involve young people under the age of 18 NO

YES but not directly ndash primarily teachers If yes do you have an Enhanced Disclosure Certificate from the Criminal Records

Bureau

YES

2 Will your research project involve vulnerable adults

NO

3 For which category of proposal are you applying for ethical approval

Category A

29

addressed

choice however was to ensure that my research will be as focused as possible so a more in depth analysis could be made which will be noted within

the dissertation

Please indicate any

issues that may arise relating to diversity and

equality whilst undertaking this research and how you

will manage these

-

Please indicate how

participants will be de-briefed about their

involvement in the research process and or provided with

opportunities for reflection and evaluation

-

Please answer the following questions by circling or highlighting the appropriate response

1 Will your research project involve young people under the age of 18 NO

YES but not directly ndash primarily teachers If yes do you have an Enhanced Disclosure Certificate from the Criminal Records

Bureau

YES

2 Will your research project involve vulnerable adults

NO

3 For which category of proposal are you applying for ethical approval

Category A