Police Powers

Police Powers

1. Stop and Search

   • PACE (Police and Criminal Evidence Act)
     • S1= Police officer can stop and search any person in a any place the public have access to if the officer has reasonable suspicion prohibited/stolen articles will be found.
     • S2= Safeguards. Section 2 provides statutory safeguards in relation to PACE and any other stop and search powers. Before searching a person an officer must make the person aware of their name, attached station, object they are searching for and grounds for the search.
       • Osman v DPP 1999
         • When conducting a stop and search officers did not follow s2 and did not give their names or station. The Queens Bench Division ruled the search as unlawul. Osman therefore could not be found guilty of assaulting a police officer in the execution of their duty. If an officer fails to give a reason for the search then the search is unlawful.
     • S3= When an officer conducts a search they must make a written record of the search as soon as practically possible. When an officer conducts a search only an outer coat/jacket and gloves may be removed in public. A more detailed search can be made in a police van/ nearby station out of public sight by an officer of the same sex.
     • Code of Practice A
     • Main piece of stop and search legislation
   • TACT 2000
     • S47A
       • A senior police officer may give authorisation in relation to a specified area or place if the officer: reasonable suspects an act of terrorism will take place and considers that:
         • the authorisation is necessary to prevent such an act
         • the duration of the authorisation is no longer than is necessary to prevent such an act
         • the specified area or place is no greater than is necessary to prevent such as act
     • S43
       • A constable may stop and search a person whom he reasonable suspects to be a terrorist to discover whether he has in his possession anything which may constitute that he/she s a terrorist
     • S44
       • This section gives the police the power to stop and search individuals without reasonable suspicion if an authorisation had been given by a senior officer and they were in the designated area. An authorisation under this section may have been given only if the person giving it considered it expedient for the prevention for acts of terrorism. An example is inner city London. The officer must have been looking for any item which could be used in connection with terrorism.
       • The European court of human rights ruled that S44 TACT stop and search is unlawful following the case of Gillan & Quentin v UK 2000. It was ruled that a breach of Article 8 HRA (right to respect for family and private life).
         • Gillan & Quentin v UK was two journalists who were stopped and search in inner city london under the power. They were stopped for articles which could be used in connection with terorism. However nothing incriminating was found. Both journalists complained to the courts but the High Court ruled that the powers excessed by police were legitimate. In breach of Article 8 s44 was repealed.
       • REPEALED
   • CJPOA
     • S60
       • Provides that an officer of superintendent rank or higher may authorise stop and searchs in specific areas at a specific time where that officer believes that there may be incidents of serious violence to occur. Under s60 a police officer may stop and search without reasonable suspicion in a designated area.
         • S60s intended purpose was to deal with riots and organised protests however it is now commonly used at events such as football matches.
           • In anticipation of violence.
   • Sporting Events Act
     • Allows search for alcohol at or on the way (public transport) to sporting events.
   • Misuse Of Drugs Act
     • Allows the police to stop and search for controlled drugs (A-C)
   • Organised Crime and Police Act
     • Amended the Police Reform Act
     • The police can search a young person who fails to hand over alcohol or the container when required to do so. The officer must reasonably believe that the person has alcohol or the container in possession. The officer can also search for anything else they have the power to seize such as tobacco.
   • Terminology.
     • Reasonable suspicion
       • Intelligence/ information on an objective basis, can also be a witness description or statement.
       • Never on personal factors, such as religion, race, age, gender, previous convictions or stereotyping.
     • Prohibited/stolen articles.
       • Stolen goods, offensive weapons, articles intended for damage or use in offence, controlled drugs.
     • Public Place
       • Extends further than streets including pub car parks and private gardens if the officer has grounds to believe the person does not live there.
   • What protection is offered to the public through Code Of Practice A?
     • Positive
       • Offers privacy to the person. An intimate search is conducted out of public view.
       • You have the right to challenge the lawfulness if you are handled unjustly or without respect because you ahem the officers name and station.
       • Permanent written record provides protection as the officer will have to justify grounds for the stop and search.
       • Officer is held accountable and is held open for scrutiny.
       • Stop and search must be conducted under reasonable suspicion and must have an objective basis without using bias grounds or stereotypes.
     • Negative
       • Many people are not aware of s+s rights so they may not know to challenge and unlawful s+s.
       • Reasonable suspicion it too brief, each officer may mind different actions suspicious
       • Does it adequately protect people who are having civil liberties interfered with
   • Against stop and search
     • Racist issues are being brought up due to the police powers -- disproportionate use of s60 powers on black youths combined with low arrest rates has led to accusations of racial profiling
     • 27% of cases examined by officers were not 'reasonable reasons' to stop and search.
     • Despite factors such as ethnicity not being a reasonable ground for s+s. ethnic minority groups were twice more likely to be stopped then white people.
   • For stop and search
     • It can reduce crime and protects the public
     • Still gives people their personal privacy (same sex officer) (privacy while searching in van/station)
     • Critical to tackle, gun, knife, drug and gang crimes
   • TACT stop and searches. Arrests and outcomes.
     • No searches were mad by police in GB under s47A of TACT. To date no searches under this power have been made in GB.
     • The MET Police stopped and searched 450 people under s43 of TACT in March '13-'14.

2. Arrests

   • S24 of PACE amended by SOCPA 2005 s110 and s111
   • All offences are arrestable.
   • A lawful arrest has two elements of when police are allowed to arrest without a warrant . Code of Practice G gives guidelines for arrest.
     • First Element= commission of criminal activity. Reasonable grounds of arrest are if the person has committed a crime, is in the process of committing a crime or if the person is about to commit a crime.
     • Second Element = limitations and the necessity test of making an arrest. An officer can only arrest if she/he has reasonable grounds for believing it is necessary to make the arrest for one of the following reasons:
       • To allow the name and address of the suspect be be ascertained
       • To prevent the person causing physical injury to himself or any other person
       • If someone is causing loss or damage to property
       • If someone is committing an offence of public indecency
       • To protect a vulnerable child or person
       • To allow prompt investigation of the offence or the conduct of the person
       • To prevent any prosecution for the offence from being hindered by the disappearance of the person in question
       • The police must tell a person at the time of arrest or soon after, why they are under arrest, the reason for arrest, why the arrest in necessary and give a caution.
       • An officer must also identify themselves if not in uniform to make the arrest lawful.
   • Arrest for breach of peace.
     • Causing harm to a person or property and interfering with the rights of others
       • Case: Bibby v Chief Constable of Essex Police. Police called to a shop where bailiff was attempting to enforce liability due to unpaid rates. he debtor was uncooperative. Police arrested bailiff but was released uncharged and later sued for wrong imprisonment.
   • Arresting with a warrant.
     • Magistrates court Act requires written information supported by evidence under oath showing that a person has or is suspected to have committed an offence. Police can enter and search suspects home for the purposes for making the arrest.
   • S41 Terrorism Act
     • The police may arrest without a warrant someone whom they reasonable suspect is a terrorist.
   • Citizens Arrest.
     • This is not a police power. This arrest can be make by a citizen when there are no avail officers around, if the person suspects an indictable offence is being committed. If this power is being used unlawfully a 5+ year imprisonment sentence can be issued.
   • Arrest for breach of bail conditions.
     • S46A of PACE gives an officer the right to arrest without a warrant someone who having been released on police bail fails to attend the station at a set time.

3. Searches and Samples at the police station.

   • There is no automatic right to search a person in custody. However the custody officer has a duty to record everything a suspect has on him on arrival at the station so if the CO thinks a search is necessary to carry out their duty then a non intimate search may be made.
     • While checking at the station, he CO can conduct a check in search to search for stolen/prohibited articles .
     • A strip search can also be conducted if there is reasonable suspicion that detainee has something that they should not be allowed to keep. This must be conducted be an officer of the same sex and only half clothes can be removed at a time.
   • An intimate search (a physical examination of a persons bodily orifices other than the mouth) can only be conducted if there is reasonable suspicion that a detainee has an item which could cause physical injury to themselves or others such as weapons or the possession of class A drugs. This search must have the authorisation of a high ranking police officer and must be carried put by a qualified person such as a doctor or nurse or officer is authorised.
   • S61 of PACE gives any officer the right to conduct a non intimate sample of the detainee. This includes samples of fingerprints, hair and saliva.
   • S62-63 PACE gives a GP/nurse (when authorised by a senior officer and the detainees permission) the right to conduct an intimate search. This includes samples of blood, semen, pubic hair or any other tissue fluid. Swabs can also be taken from part of a persons genitals or bodily orifice other than the mouth. dental impressions can also be taken.
     • If the detainee does refuse permission for this intimate search to go ahead, inferences can be made based on refusal however a person can not be prosecuted on refusal inferences alone.
   • Advantages of samples.
     • Is a person commits a further offence details are already logged.
     • Helps to speed up further crime prevention investigations, cost effective.
     • helps to solve cases
     • If criminals know their details are logged onto a database it may deter them rom reoffending, decreasing criminal activity.
   • Disadvantages of samples.
     • Personal and private concerns for info being held on a database nationally (cyber attacks)
     • Samples of innocent people held when they haven't been charged.
     • People are less inclined to give their information this could discourage people from volunteering to give their samples.
     • S and Marper v UK (2008). S had been found not guilty of attempted robbery. Harper was charged with harassment of his partner but the case had been discontinued. Defendants argued that the retention of samples was contrary to the right to respect for private and family life (Article 8 of Human Rights Act). The European Court of Human Rights held that the indefinite retention of samples was a breach of Article 8 due to the innocents people samples being held when they had not been convicted.

4. Detention and Custody.

   • Detention.
     • Detention starts as soon as the arrested person arrives at the police station and the custody officer decides there is reason to detain him based on the evidence.
       • If the custody officer believes there is insufficient evidence to charge the person must be released unless the officer has reason to believe it will secure/preserve evidence.
       • The custody officer must open a custody record which all events in the police station in relation to the suspect must be written down. This includes time of arrival, reasons of detention and visits t the detanee.
         • AFTER 6 HOURS: the first review by the CO is complete. If detention is unnecesary the suspect may be released, reviews must take place every 9 HOURS from this point.
           • AFTER 24 HOURS: the max period for a summary offence without a charge.
             • AFTER 36 HOURS: the period of detention without charge for indictable offences but may be extended by up to 36 hours by magistrates.
               • 96 HOURS: maximum detention time for an arrested person. Police MUST arrest or release the detainee.
     • Summary offence = maximum of 24 HOUR detention.
     • Detention beyond 36 HOURS for an indictable offence must apply to Magistrates Court. Magistrates can order the detention up to 96 HOURS.
     • If the suspect has been arrested for terrorism offences, the detention may be extended for a maximum of 14 days by a magistrate.
     • Indictable offence = maximum of 36 HOUR detention with permission from a senior officer.
   • Individual Rights while in custody.
     • The right to have a custody officer monitor detention and keep a custody record to ensure codes of practice are adhered to.
     • Right to have someone informed of detention. (can be delayed up to 36 hours for indictable crimes.
     • If under the age of 17 or suffering any mental illness, the right to have a person responsible for their welfare informed of the arrest.
     • The right to consult the codes of practice.
     • The right to legal advice (which is free) though this is usually limited to telephone advice and being allowed to consult privately with a solicitor.
     • The right to an interpreter.
     • The right to medical advice and treatment should it be necessary while in detention.
     • The right to be released after 24 hours if a summary offence unless charged.
     • Right to be held for 36 hours if indictable offence with permission of a police officer of the rank of superintendent or above.
     • If the alleged offence is indictable then the right to be held for a maximum of 96 hours if authorised by a magistrate.
     • If suspected terrorism cases, the right to be held for a maximum of 14 days.
     • The right to be detained in an adequately heated, ventilated, cleaned and lit cell.
     • The right to two light meals and one main meal in any 24 hours plus drinks.
     • In any 24 hours a detainee must be given a continuos period of 8 hours to rest.
   • Interviews.
     • All interviews must be taped and a caution given.
     • The interview room must be heated to a reasonable temperature and breaks and refreshments must be provided.
     • The presence of an appropriate adult is required in certain circumstances.
     • There is a right to have legal advice but this may be limited to advice via the phone.
     • The right of silence.