Reasonable Suspicion Traffic Stop Part I

 

Police in Barbados stopped my car and wanted to search without a warrant. I refused and after an exchange, they let me go without searching. What is the law in this area because I thought they needed probable cause?

I propose to answer this question in two parts the first dealing with a normal situation and the second an abnormal situation and remedy.

 

Normal Situation

The Road Traffic (Amendment) Act Cap 295 requires a driver to give the name and address of the owner of that vehicle. The officer could proffer this as the reasonable suspicion upon which he could initiate a stop because drivers operate without license, insurance, registration, steal vehicles, it is a requirement by the Act and how would he know that you are compliant with the Act.

Persons start to get uncomfortable after establishing ownership the officer goes on to command you exit the vehicle and subject your person as well as the vehicle you are driving to a search. To my mind, the officer spent his reasonable suspicion on the initial stop, and he must now establish another reasonable suspicion for the search and continued detention of the driver.

The reader must be wondering what a reasonable suspicion is. In Stepuleac v Moldova: 20269/09, [2010] ECHR 465 the European Court Human Rights at paragraph 68 stated

“A reasonable suspicion that a criminal offence has been committed presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed an offence.”

It may appear in O’Hara v The Chief Constable [1997] AC 286 per Lord Steyn that a reasonable suspicion does not mean that he had to have evidence sufficient to ground a prima facie case making it (reasonable suspicion) a lower standard to which the constable must attain. This may explain why this specific situation has gone unchallenged within this jurisdiction.  

A check with our Constitution reveals the following at section 13 (1) (e) Barbados Constitution

“No person shall be deprived of his personal liberty save as may be authorised by law in any of the following cases, that is to say - upon reasonable suspicion of his having committed, or being about to commit, a criminal offence under the law of Barbados.”

Again, without more the constitution points to a lower standard of proof however article 5(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd. 8969) contains a similar provision on which our constitution grounds. It reads as follows: 

"Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: … (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; …" 

Lord Steyn in O'Hara v Chief Constable of the Royal Ulster Constabulary [1997] A.C. 286 explained the provisions’ flexibility. 

“It is clear from the drafting technique employed in article 5(1)(c), and in particular the use of the passive tense, that it contemplates a broader test of whether a reasonable suspicion exists and does not confine it to matters present in the mind of the arresting officer.” 

This broader test seeks to establish the cause, grounds or evidential basis upon which any suspicion could stand. 

Cases from the Caribbean establish a persuasive argument to which this blog has regard. I start with Gary Hemans v Attorney General of Jamaica JM 2013 SC 52 @ 58 and the unqualified position taken by the learned Batts J who explained.

“The reasonable cause to suspect that an individual has or is or is about to commit a crime must relate to peculiar characteristics of the persons or the vehicle he is driving or the manner in which it is operated, or to information received.”

It is clear that this turns on the credibility of the evidence presented. Again, I take guidance from Gary Hemans v Attorney General of Jamaica JM 2013 SC 52 @ 55 stating.

“There was no reasonable or probable cause to stop arrest or charge the Claimant as he had committed no breach of the peace, felony or misdemeanor.”

To my mind, it is unsafe to base a search on a reasonable suspicion without reasonable cause or evidence that a crime has or is in process of commission. It is therefore within the Courts purview to see R v Cassels (1965) 8 WIR 270, draw an adverse inference if the evidence displaces any submission by the investigating officer to the contrary.

This leaves the situation where the officer insists on you exiting and subjecting yourself and vehicle to a search. You could resist an unlawful search without the use of excessive force based on R (on the application of Roberts) v Commissioner of Police of the Metropolis and another [2015] UKSC 79 however if you are wrong about the circumstances then you could pursuant to section 62 Police Act Cap 167 also face assault, obstruction and resisting charges. The case law is saying protest and let the court do the rest because in Gary Hemans v Attorney General of Jamaica JM 2013 SC 52 @ 55 Batts J after an analysis of the evidence concluded.

“The officers responded with excessive force and in an unlawful manner to words of protest offered in response to the stopping and search of the Claimant and his passengers.”

Further to this section 32A (1) (h) Police Act Cap 167 provides for the following.

“a member of the Force shall not

(i) treat any person with whom he may be brought into contact in the execution of his duty in an oppressive manner;

(ii) without good and sufficient cause conduct a search or require a person to submit to any test or procedure, or make any unlawful or unnecessary arrest;

(iii) use any unnecessary violence towards any prisoner or any other person with whom the officer may be brought into contact in the execution of his duty, or improperly threaten that person with violence; or

(iv) be abusive or uncivil to any member of the public;”

Any breach of the Disciplinary Code section 32A (1) (h) Police Act Cap 167 results in an offence against discipline and places the burden on the officer to, section 11 Police Complaints Authority Cap 167A, explain his actions before a disciplinary board.

Next time I propose to deal with any evidence secured in search, state of emergency and remedy if the Court rules the search illegal.

I hope this helps.