Police powers

Police powers

1. Acts

   • Police and Criminal Evidence Act (PACE) 1984
     • S.1 an officer can search a person or their vehicle if they have reasonable grounds to believe they have suspicion that they have a stolen or prohibited item. s.1 does not authorise entry to private premises, does not give power to question, however if questioning is done prior search, then a reasonable explanation may make the search unnecessary.
     • officer must identify themselves
       • Osman v DPP - Mr Osman was searched, officers did not identify themselves, high court ruled that this made a search unlawful.
     • S.2(9) can only ask suspect to remove outer garments excluding hats, shoes and religious clothing
     • S.2.2 Code A - cannot conduct a search based on personal factors e.g race, age, appearance, previous conviction, instead there must be supporting intelligence or suspicious behaviour
       • cannot be based on stereotypes of certain groups or perceptions of people who commit crime
         • HOWEVER in some cases appearance can be acceptable, for instance if intelligence suggests that certain gangs are known for carrying prohibited items and that they wear certain clothes, symbols to show they are part of the gang. E.G bloods + cripps
           • Para 2.11 Code A - No power to stop or detain to find out whether there may be grounds for search – grounds must exist at time officer stops person
     • S.2 + 3 officer must make a record of the search and give a copy to suspect
   • The Misuse of Drugs Act 1971
     • Allows officers to stop and search people who they believe to have illegal drugs
   • The Terrorism Act 2000
     • S.43 and 44 gives the police more powers to stop and search than PACE
       • Gives the police the power to ask suspect to remove headgear and shoes
   • Criminal Justice and Public Order Act 1994
     • S.60 gives officers the right to stop and search in anticipation of violence if a senior officer authorises it, once authorisation is given then an officer does not need reasonable grounds to search
       • also allows the officer to ask the suspect to remove an item of clothing that may conceal their identity
   • Road Traffic Act 1988
     • S.163 – power to stop vehicle

2. Innocent until proven guilty

   • Woolmington v DPP [1935]
     • “the Criminal Law rests on the foundation that, apart from statutory enactment to the contrary, the prosecution must prove the guilt of the prisoner; otherwise he must be acquitted.”
   • Art.6.2 ECHR
     • Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3. Interference with a persons property

   • Entick v Carrington 1765
     • The King’s Messengers entered the plaintiff’s house and seized his papers under a warrant issued by the Secretary of State, a government minister. Held: The common law does not recognise interests of state as a justification for allowing what would otherwise be an unlawful search. Lord Camden CJ said: ‘Our law holds the property of every man so sacred, that no man can set his foot upon his neighbour’s close without his leave; if he does, he is a trespasser' , unless he has a law to justify trespassing

4. General Principles of Stop and Search

   • In absence of consent or some legal justification, police cannot stop person in public place, search person or require person to answer questions.
     • Kenlin v Gardner 1967
       • Two school boys, visiting premises for a lawful purpose, aroused suspicion of police officers on duty in plain clothes. One officer produced his warrant card, stated that they were police officers and asked why they were calling at the houses. The boys did not believe that they were police officers. One of them made as if to run away and one of the constables caught hold of his arm and cautioned him. There was then a struggle which involved the other boy. Held: The officer’s action in catching hold of two schoolboys was performed not in the course of arresting them but for the purpose of detaining them for questioning and so was unlawful.

5. Must be some objective basis giving rise to suspicion

   • Lodwick v Sanders [1985]
     • A police officer is acting in the execution of his duty if, having stopped a vehicle pursuant to the above section, he detains it pending further inquiries having reasonably formed the suspicion that it may have been stolen.

6. Prohibited Objects

   • Offensive weapons (Prevention of Crime Act 1953)
   • Bladed or sharply pointed articles (s.139 Criminal Justice Act 1988)
   • Articles made or adapted for use in burglary, theft, obtaining by deception or offences under s.12 Theft Act 1968 (taking motor vehicle without consent)
   • Fireworks prohibited under firework regulations (Fireworks Act 2003)

7. Under S.2 A search MUST:

   • cause minimum embarrassment
   • Be carried out at or nearby place person stopped
   • Take no longer than is reasonably necessary
   • Not involve removal of clothing in public (other than outer coat, jacket or gloves)
   • Be carried out with co-operation of person concerned – though reasonable force may be used as last resort if necessary

8. Arrest

   • Lewis v Chief Constable of South Wales [1991]
     • The plaintiffs said that their arrests had been unlawful. Held: The arrests were lawful because, whilst their initial arrests were unlawful because the appellants were not told the reasons for them, they became lawful when they were given the reasons at the time of their presentation to the custody officer.
     • Person must be told that he has been arrested (s.28 PACE) Person must be told why arrested (s.28 PACE)
   • Christie v Leachinsky [1947]
     • 1) A citizen is entitled to know on what charge or on suspicion of what crime he is seized. 2)If the citizen is not so informed, but is nevertheless seized, the policeman, apart from certain exceptions, is liable for false imprisonment. 3) the person arrested should be informed of the reason why he is seized naturally does not exist if the circumstances are such that he must know the general nature of the alleged offence for which he is detained. 4) entitled to his freedom and is only required to submit to restraint on his freedom if he knows in substance the reason why it is claimed that restraint should be imposed. 5) The person arrested cannot complain that he has not been supplied with the above information as and when he should be, if he himself produces the situation which makes it practically impossible to inform him, eg, by immediate counter-attack or by running away.
   • Person and premises may be searched following arrest for indictable offence (s.32 PACE)
   • without a warrant24(1)
     • anyone who is about to commit an offence; - anyone who is in the act of committing an offence; - anyone whom he has reasonable grounds for suspecting to be about to commit an offence; - anyone whom he has reasonable grounds for suspecting to be committing an offence; - anyone who is guilty of committing an offence where an offence has been committed; - anyone he has reasonable grounds for suspecting is guilty of an offence which has been committed;
   • Castorina v Chief Constable of Surrey (1988)
     • Lawton LJ said: ‘Suspicion by itself, however, will not justify an arrest. There must be a factual basis for it of a kind which the court would adjudge to be reasonable.