Why have 2 Metropolitan Police Officers been sacked in respect of the stop and search of 2 black world-renowned athletes?

On Wednesday 25 October 2023, 2 MPS police constables were sacked without notice, upon being found guilty of gross misconduct. This is the most serious sanction in the context of police discplinary proceedings, and therefore a somewhat rare outcome, particularly in the context of stop and search practice.

PCs Jonathan Clapham and Sam Frank were judged to have lied about smelling cannabis; lying is in breach of the police ‘Standard of Professional Behaviour’, honesty and integrity.

However the other three officers involved in the stop and search, were acquitted of gross misconduct, in part as the panel found as unproven that the race of the athletes played a role in their treatment. Nevertheless, the panel recommended that those officers should undertake a reflective practice process.

What happened? The background

On 4 July 2020, armed police officers of the Territorial Support Group (‘TSG’) stopped Bianca Williams and Ricardo Dos Santos in Maida Vale, whilst they were driving home from training that day, in a Mercedes. They had their 3 month old son with them, in the car.

The officers alleged the vehicle had been driving suspiciously, including driving on the wrong side of the road. They also said the vehicle had failed to stop when indicated to do so, and ‘made off at speed’

The couple vehemently denied the allegations made by the police, and Dos Santos told the misconduct panel he believes he was targeted for the stop because he was driving whilst black, or ‘DWB’, in a Mercedes.

The athletes were told they were being detained for a section 1 PACE search (see below). They were told they were searched on suspicion of having drugs and weapons.

Following approximately 45 minutes of searching both the vehicle and the athletes, in front of their neighbours, nothing was found. Dos Santos had been handcuffed in the process. No arrests were made. Dos Santos and Williams were then allowed to continue on their way.

To add to the distress of the situation, whilst being searched, the couple’s baby was left in the hands of the police.

The athletes were unsurprisingly traumatised by this incident, as are many who are unlawfully stopped and searched, particularly where the belief is that the misconduct is racially-motivated.

From there a long battle to hold the police to account through the police complaints process, ensued, culminating this week.

Police / IOPC comments post-hearing

Following the misconduct ruling, MPS Deputy Assistant Commissioner Matt Ward has said:

"Honesty and integrity are at the core of policing and, as the panel has concluded, there can be no place in the Met for officers who do not uphold these values” and "Mr Dos Santos and Ms Williams deserved better and I apologise to them for the distress they have suffered." He has added that the panel's findings highlight they "still have a long way to go to earn the trust of our communities, particularly our black communities, when it comes to our use of stop and search".

IOPC Director Steve Noonan has stated:

“We are acutely aware that Bianca and Ricardo’s interaction with police and their feeling of being treated less favourably by officers because of their race, is reflective of the experiences of many Black people across London and throughout England and Wales.

“We know that Black people are almost nine times more likely to be stopped and searched by police than White people, and nearly nine times more likely to be searched for drugs - despite a lower find rate of drugs for Black people than White people. The officers in this case claimed they smelled cannabis in the athletes’ car despite no drugs being found in the search.

“It’s figures like these and cases like Bianca and Ricardo’s which emphasise why Black people report having low trust and confidence in policing.

“The Casey review highlighted widespread cultural issues and discriminatory conduct or attitudes in the Met. It’s clear that the Met and policing as a whole need to work hard to restore the trust and confidence of Black people. We acknowledge that the Met’s Commissioner has accepted systemic and cultural failings in his force and has put plans in place to attempt to rebuild trust with Londoners.

“We would encourage anyone who feels they have been mistreated or discriminated against by the police to exercise your right to complain. It is only by speaking up, that you can make your voice heard.”

What is stop and search?

The police have the power to stop and search members of the public, in certain situations.

One of the most commonly used powers of stop and search, is found in the ‘Police and Criminal Evidence Act 1984’, also known as ‘PACE’, and is commonly referred to as a ‘section 1 search’.

PACE section 1: a police officer can search any person or vehicle for stolen or prohibited articles and detain the person or vehicle to carry out that search, where there are reasonable grounds for suspecting that such items will be found.

Another commonly used stop and search power can be found as follows:

Misuse of Drugs Act (MDA) 1971 s23(2): a police officer may stop and search a person if there are reasonable grounds to suspect that the person is in possession of a controlled drug and the officer can detain the person for the purpose of searching him. This power to detain includes taking a person to a place where the search can properly be carried out.

The police do not require a search warrant in these types of searches. However, given the legal test of ‘reasonable grounds for suspicion’, Officers must be ready to justify the basis for their suspicion by reference to intelligence or information about, or some specific behaviour by, the person concerned.

Reasonable suspicion can never be supported on the basis of personal factors alone, such as a person’s colour. The following cannot therefore be used as a basis for reasonable suspicion, either alone or combined:

(a)A person’s physical appearance

(b)Generalisations or stereotypical images that certain groups or categories of people are more likely to be involved in criminal activity.

In this case, the force said patrols were taking place in response to an increase in violence involving weapons in the area.

Note that under the Road Traffic Act, police officers can stop vehicles without any grounds, but are unable to search the vehicles without reasonable grounds for suspecting possession of prohibited items. They are only able to ask questions of the driver and request licence details.

Can the police use force during a stop and search?

Yes.

Section 117 of PACE allows a police officer to use reasonable force in carrying out stop and search and other functions under the Act. This extends to detaining a person to allow a search to be carried out.

What is reasonable in a given case depends upon the specific facts.  It will generally turn on whether it was the minimum force needed in all the circumstances. Put another way, if a less forceful alternative was available but not used, the force used will generally be considered unreasonable and therefore, unlawful.

By way of example, tasering someone who is compliant with police demands is generally going to be considered excessive (and therefore unlawful), given the inherent risks involved in tasering someone. Applying handcuffs on the other hand, is much less risky or forceful, and will generally be easier to justify (again, depending upon the specific facts of the case).

Do the police have to give me any information about the search?

Section 2 of PACE contains important safeguards applicable to all pre-arrest stop and searches.​ The officer must take reasonable steps to bring to the attention of the person being searched certain information before commencing the search. The police use the acronym ‘GOWISELY’ to remind them what to do and tell the person to be searched:​

G: Grounds for proposing to make the search​

O: Object of the proposed search​

W: show Warrant card if not in uniform​

I: Identify name and​

S: Station to which officer attached​

E: Entitlement of searched person to record of search​

L: Legislation under which searched​

Y: to be informed that the person is detained for the purpose of a search.​

If any of these requirements are not complied with, the search is likely to be rendered unlawful.

The searching officer must also make a record of the search with prescribed information included such as the object of the search and the ground. You have a right to request this search record.

Is smelling cannabis a valid ground for a stop and search?

Strictly speaking, smelling cannabis can form the basis for a lawful stop and search. However, given the huge potential for its misuse (it is practically-speaking, very difficult to prove that someone did not believe they could smell cannabis emanating from a person), the IOPC has previously recommended against stop and searches based on the smell of cannabis alone.

Our current Mayor of London, Sadiq Khan, stated on 12 July 2021:

“I have welcomed the MPS’s acceptance of all of the Independent Office for Police Conduct (IOPC) recommendations on stop and search, including reaffirming their policy that officers should not rely on the smell of cannabis alone when deciding to stop and search someone, instead using grounds on multiple objective factors.  This position is in accordance with the national Authorised Professional Practice.  It is vital that oversight is strengthened to give Londoners confidence that the professional practice is followed”. 

A recent IOPC report (April 2022) has identified themes from its recent investigations, one of which includes that the police frequently claim to have smelled cannabis, as a justification for stop and searching someone (by implication, where the complainant knows the smell could not have been coming from them).

Relating to the case mentioned in this article, the report also noted the routine use of handcuffs, irrespective of whether a use of such force is necessary. Also vehicle stops perceived as being used as a ‘fishing’ power.

Are police stop and search powers used disproportionately against people of colour and black people in particular?

See above comment of the IOPC’s Mr Noonan. It is now well-documented that stop and search powers have disproportionately been used in respect of ethnic minority groups and black people in particular, unjustifiably.

Concerningly, the evidence is that the disparity in treatment is growing even wider, with black people becoming 9.5 times more likely than white people to be stopped in 2018/19. In addition, confidence is at an all time low within black communities, some 85% of whom are reported to lack confidence that they would be treated the same as a white person, by the police.

At Saunders Law, we frequently bring discrimination claims against the police, in respect of racially-motivated misuse of police powers.

Can I refuse to answer questions when stopped by the police?

Generally speaking, the police have no power to stop or detain a person purely to question them. If this happens, the person can refuse to answer questions and walk away. If an officer were then to detain the person without arresting them, it is likely this will amount to false imprisonment.

There are now some obligations however, to answer police questions when stopped. For example, it is an offence for a person to refuse to provide their name and address when asked by a police officer who has reason to believe the person is acting in an anti-social manner.

Our lawyers at Saunders law are experts in actions against the police and public authorities and we are passionate about assisting members of the public to protect their rights. For advice about making a claim against the state, or if you have been affected by any of the issues mentioned above, please contact us on 020 7632 4300 to discuss your concerns.