Why until stop and search laws are abolished, the UK should introduce the concept of excluding evidence that has been obtained unlawfully, known as "fruits of the poison tree".
There is a serious and enduring problem in the UK with ethnic profiling and stop and search. Time and time again studies have consistently shown that stop and search is used disproportionately against black men and boys, with no correlation to the corresponding crime rates for drugs and weapons, which is broadly equal between white people and black people. Calls were made by former Prime Minister Theresa May to scale back stop and search and reserve its use where there is actual intelligence or evidence in relation to a specific person. However during the ‘knife crime epidemic’ beginning in 2018 police have increased the use of stop and search with new vigour; a carte blanche approach; and zero accountability.
I am a criminal defence lawyer. Day in day out police stop and search black children and young men simply because they are black and are in a "gang area" or "area with high knife crime". They get stopped if they don't look at the police car because that's suspicious. They get stopped if they do look at the police car, so that's suspicious. This is regularly the kind of explanation that is provided, even when the police are plain clothed, in an unmarked car and the individual would have no way of knowing they are even police. Officers frame it in this way, because they know under the legislation and guidance on police powers that there has to be some element of the person's behaviour that gives rise to "reasonable suspicion". They know they are not allowed to admit they are ethnic profiling so they spuriously justify their actions by making some reference to how the person is acting.
In the USA, evidence obtained illegally cannot be used in criminal proceedings. Here in the UK we have no such rule. If the defence can prove that the fact that the evidence was obtained unlawfully, means that the evidence is unreliable, and it would have such an impact on the fairness of the proceedings that the court ought not to admit it then it can be excluded. This rule is extremely unlikely to apply in relation to evidence of a criminal offence found as the result of an unlawful stop and search.
Why does that matter? If the person has been caught committing an offence, who cares if the way the police found it was not fair?
It matters because our criminal justice system will remain institutionally racist until this changes. Until there is some consequence for a officer acting outside the law in his powers, we will continue to have a criminal justice system built on racist policing tactics.
Calls to further reform stop and search will not work. The law already makes it unlawful to stop and search anyone on the grounds of their race, ethnicity or physical appearance (unless it matches the description of a suspect in a specific crime). There currently is no real remedy for people who are stopped and searched unlawfully and there is no accountability for officers who break the rules.
If police know that any evidence they obtain as the result of a stop and search of an individual, where there is no actual evidence or intelligence that they may be carrying stolen goods, drugs or weapons, would be thrown out court, we finally see a chance in attitudes.Systems that are blind to or tolerate injustice will continue to perpetuate those injustices. Black lives matter isn’t just a slogan, it requires a fundamental and structural shift to a place where racism is seen as inherently unfair and leads to the exclusion of evidence obtained by its operation.
