The law as it relates to the police powers to stop, search

Dear Editor,

A recent letter to the editor in the print media written by Sherwood Lowe under the caption, “What are the rules for police ‘ stop and search’”? in Guyana, “ has titillated me to pick up my pen again. I hope that my views will clear up some grey areas and or encourage more enlightened confabulation on the issue. In his missive the writer asked some pertinent questions: is reasonable suspicion required? If so how do the ranks operationalise it on the ground and what is the scope of search of persons, their  belongings and their vehicles? He questioned stop and frisk activity. He attempted to equate the American justice system with that of Guyana particularly on the issue of reasonable suspicion. We are patterned after the British not the American way of dispensing Justice.  Several years ago I attended the Federal Bureau of Investigation National Academy in the United States of America. Among the many courses I successfully completed was one entitled, ‘Legal Issues For Commanders.’ We discussed numerous legal issues but reasonable suspicion never emerged.  Probable cause was the dominant issue. I graduated from the Academy with the feelings that in America reasonable cause went through the window a long time ago if it was in fact in the building. The law enforcement officers generally deal with probable cause and not reasonable suspicion as the writer was positing. I am no legal expert, but it is my layman’s understanding that reasonable suspicion is vastly different from probable cause. They are far apart as Imbotero on the northern tip of Guyana is from Wai Wai village, Gunns Strip in the Deep South, Rupununi or Orealla on the east is from Kaikan on the west of Guyana.

Here is the law as it relates to the police powers to stop, search and detain as set out in Section 18 of the Police Act Chapter 16:01, “Any member of the Force may stop, search and detain any aircraft, vessel or vehicle in upon which there shall be reason to suspect that anything stolen or unlawfully obtained, or that any person suspected of having committed any indictable offence, may be found; and he may also stop, search and detain any person who may be reasonably suspected of having or conveying in any manner anything stolen or unlawfully obtained.” There are several operative words in this section of the law; reasonable suspicion; any member of the force; anything stolen or unlawfully obtained; indictable offence; conveying in any manner anything stolen or unlawfully obtained. The vexed question that the policeman would have to answer is: prior to the stop and search what triggered his reasonable suspicion? To hazard a guess the most common answers one will receive are: the policeman was acting on information received; the rank was acting on intelligence received; it was an intelligence led operation. Those are common buzzwords.

In addition, there is the power to establish Road Barriers. Section 26 (1) of the Police Act Chapter 16:01 states, “Notwithstanding any other Act, any officer, inspector or subordinate officer may, if he considers it necessary so to do for the maintenance and preservation of law and order or for the prevention and detection of crime erect or place or caused to be erected or placed, barriers in or across any road or street or in any public place within Guyana in such manner as he may think fit. “

Under Section 26 (2) of the said Act there is penalty for any driver of any vehicle who fails to comply with any reasonable signal of a member of the Force in uniform, requiring such person to stop such vehicle before reaching any such barrier. He/she is liable on summary conviction to a fine of forty-eight thousand seven hundred and fifty dollar and to imprisonment for twelve months.

What about the reasons for frisk and other searches? I can vividly recall when I was a police trainee over four decades ago my instructor posited several reasons for searching including: the possibility of the prisoner injuring the searcher; possibility of self-injury;  finding evidence relative to the charge; finding evidence of some additional charge; ensuring safe custody of the prisoner’s property; to prevent escape; to prevent the prisoner damaging property- public or private; preventing further offences; gravity of the offence; and weight of evidence. Those reasons were apposite then. They are even more relevant today. They are indelible in my mind.

In order for the police to enforce the law the Commissioner of Police is required to make Standing Orders or what is popularly known as Standard Operational Procedures to give guidelines to his ranks for their efficient and effective performance in order to deliver the highest quality of service to the citizens they swore to serve and protect. These Standing Operational Procedures and Standing Orders must not be inconsistent with the law. They must fit nicely within the ambit of the law. However, it is not unusual that on occasions ranks will breach those SOP’S and SO’S.

Wow! Did I hear somebody say that the law is an ass, or some persons who interpret it, or others who enforce it, or all of the above?

Yours faithfully,

Clinton Conway

Assistant Commissioner of Police (retired)

Around the Web

Comments