Police powers revision

Police Powers

• In order to detect criminals and prevents crime, it is necessary for police to have powers. Equally Important is the idea of Human Rights and the Rule of Law. The rights the police have must comply with these two ideas- a suspects Human Rights cannot be taken away without justification, and the police are not above the law.
• In the 70's Police powers were inconsistent and confusing. They were a mixture of common law, local customs and legislation. Pressure for a reform gathered momentum following the Maxwell Confait case in 1977 and the Brixton Riots in 1981.
• Following an investigation by the Royal Commission on Criminal Procedure, PACE was passed, in 1984, which sought to control the excercise of police powers by more rigorous procedural requirements for fairness in arrest and detention of suspects.
• One concept that runs throughout the Act is that of 'reasonableness'. Many of the provisions refer to reasonableness, for example reasonable suspicion, reasonable behaviour and reasonable force.

PACE important sections

• SECTION 1- STOP AND SEARCH
• SECTION 8- SEARCH WITH A WARRANT
• SECTION 17- EMERGENCY SEARCH OF PROPERTY
• SECTION 19- SEIZURE OF EVIDENCE
• SECTION 24- ARREST
• SECTION 30- POLICE STATION ASAP
• SECTION 41- DURATION OF TIME IN DETENTION
• SECTION 56- PHONE CALL
• SECTION 58- LEGAL ADVICE
• SECTION 61- FINGERPRINTS ETC
• SECTION 76- ADMISSIBILITY OF EVIDENCE
• SECTION 78- ADMISSIBILITY OF CONFESSION/STATEMENTS.

Codes of Practice (PACE)

• Section 66 of PACE provides for the home secretary to issue Codes of Practice. These codes are not law as such, but are crucial as they are intended to clarify certain sections of the Act for both the police, and members of the public who may, for example, be held in custody. Copies of such codes must be held in every custody and station. they must also be accessible for the public. A breach of a code can result in evidence being excluded at trial and can therefore endanger a prosecution. It must however be a 'serious or substantial breach'. It could also result in the officer being disciplined for misconduct.
• CODE A- STOP AND SEARCH
• CODE B- SEARCH AND SEIZURE OF PROPERTY
• CODE C- ARREST, DETENTION, TREATMENT AND QUESTIONING OF SUSPECTS
• CODE D- IDENTIFICATION
• CODE E- INTERVIEW

Stop and search under PACE

• Vagrancy Act 1824- This was the laws before PACE on stopping. This basically meant that the police could stop anybody and was knows as the 'sus laws'. It could be anyone they deemed suspicious. It was too vague and wide and also did not protect the public or their rights.
• The reform was well needed, and states that a constable may search ANY PERSON OR VEHICLE IN A PUBLIC PLACE, if that officer has REASONABLE GROUNDS for suspecting that the person is in possession of stolen or prohibited items on them or in the vehicle. BUT WHAT ARE PROHIBITED ITEMS?
• Offensive weapons
• Articles for use in Theft Act offences
• Articles made, adapted or intended for use in destroying or damaging property (CRIMINAL JUSTICE ACT 2003) eg, paint sprays/tools to use in graffiti
• Fireworks (SOCPA 2005)
• Police can also search for drugs (MISUSE OF DRUGS ACT 1971) and terrorism related items (TERRORISM ACT 2000)

Procedure of Stop and Search

• WHERE CAN YOU BE SEARCHED?- It has to be in a public place.
• WHAT CAN BE SEARCHED IN PUBLIC?- s2(9) states only outer garments can be searched in public (bags and coats, or vehicle. If an officer wants the suspect to remove any extra clothing eg hats, shoes, then it must be performed in private and by a same sex officer.
• Section 2(3) states that the police officer must identify himself if not in uniform with a warrant card.
• They must give the name of the station he/she works and provide a reason for the stop and search
• Section 3 states a written record of the search must be provided regardless of arrest.

Grounds for stop and search

• OBJECTION TEST- WOULD THE ORDINARY REASONABLE PERSON THINK THAT THE SUSPECT HAD STOLEN/PROHIBITED ITEMS IN THEIR POSSESSION?.
• CODE A, 2.2 states that there must be an objective basis for that suspicion based on facts, information and/or relevant intelligence in relation to the likelihood of finding prohibited items. Reasonable suspicion can never be supported on the basis of personal factors alone, without reliable supporting intelligence or information specific to the person concerned. Personal factors include race, appearance, age, or past convictions. Reasonable suspicion cannot be based on generalisations of stereotypical images of certain groups or categories of people as more likely to be involved in criminal activity.
• 2.3 states that suspicion can sometimes exist without previous intelligence if it is based of the behaviour of the suspect and the circumstances. (if this behaviour uis often linked to the possession of prohibited items
• 2.6 states that clothing/ appearance can be used as suspicion if their clothing/appearance is distinctive to a certain gang suspected of carrying out such crimes. Eg. distinctive tattoo or item of clothing.

Conduct of a search (CODE A)

• Must be carried out with courtesy, consideration and respect for the person concerned. Search must also be carried out at the place in which the persona was detained. Every effort must be made to minimise embarrassment
• A forcible search may be made if it has been established that the person is unwilling to co-operate or resists. Reasonable force may be used as a LAST RESORT if necessary to conduct a search or to detain a person.
• Once stopped, that person is technically detained, therefore if the police have not complied with a code, or the search is unlawful, they risk being sued for false imprisonment, as a breach of Right to Liberty.
• The thoroughness of the search depends on what it is they're searching for. For example, if the police believe an offence weapon is slipped in to a pocket of the suspect, and they have no other suspicion, the search must be confined to THAT pocket. In contrast to this, a smaller article such as drugs, a more extensive search can be done as it is easily concealed.

Vehicle stops (Road Traffic Act 1988)

• Section 163 of the Road Traffic Act gives the police the right stop a person whilst driving, or riding a bicycle whenever they want. This is a very wide power, and if you do not stop your vehicle you could receive a fine as this is a criminal offence. The Act states that the person stopping you must be a police officer in uniform or a traffic officer. The police cannot use this act for fun, it must be in the execution of their duty. They must have a good reason to stop a vehicle such as
• To require the driver to produce a drivers license
• To require the driver to give his name/address
• To require the driver to give the name/address of the owner of the vehicle
• To require the driver to produce their certificate of insurance
• To have the vehicle examined to see if it complies construction and use regulations
• To have the vehicle examined to see if it is in a dangerous condition
• You must comply with all of these details and if you do not, you are obstructing the police in their duty. If an officer believes you have committed an offence, you must be cautioned before they speak with you. Random breathalising is not allowed, however if after the vehicle has been stopped, officer believes the suspect has been drinking, they can breathalise.
• Police have the power under PACE, and the Misuse of Drugs Act 1971 to stop and search a vehicle, provided they have reasonable suspicion that stolen or prohibited items will be found. ONLY UNIFORMED POLICE CAN STOP A MOVING VEHICLE, BUT A NON-UNIFORMED OFFICER CAN SEARCH AN ALREADY STOPPED VEHICLE.

Random and voluntary searches

• Research in 1990 showed that safeguards contained in PACE were being undermined and breached but the use of 'voluntary searches'. A lot of people were unaware that they have the right to say no to a search, and this led to police searches without suspicion being legal as the person volunteered. Code A issued in 2003 that voluntary searches were to be eliminated and that the person must only be searched in relation to necessary powers, not their own consent.
• Random stops and searches, under the Terrorism Act 2000 allowed the police to randomly stop anybody in relation to terrorism in areas deemed a particular risk to such an attack (London). This has now been abolished due to the ECHR after the case of Pennie Quinton and Kevin Gillan.
• Now, they have the right to stop and search people without suspicion for items related to terrorism, if a senior officer has authorised it. This cannot last longer than 14 days and must be confined to a particular area.

Police Arrest with a warrant

• There are 140,000 police in E&W and annually they arrest over one and a half million citizens. Every arrest means a person is deprived of their personal liberty for hours, even days. Arrest is a formal act by which a police officer (or citizen) detains someone suspected of a crime. If an arrest is made on insufficient or unreasonable suspicion it will be false imprisonment. Officers can be sued in the High Court for false imprisonment. Arrest, like search, can be either with or without a warrant.
• Arrest with a warrant is extremely rare, but can happen if someone has failed to comply with bail conditions or failed to appear in court. It is covered by the Magistrates Court Act 1980. The police should apply to the mag for an arrest warrant, and need to provide written evidence which include details of the person and the reason for the warrant. If it is issued, it allows them to enter a private property to arrest the person within. An arrest warrant can only be applied for if a person is wanted in relation to an offence which is punishable by imprisonment or if the address of the suspect is unknown or unclear.

Police arrest without a warrant

• A Lawful arrest under section 24 of PACE, (as amended by SOCPA in 2005), requires two elements:
• The police must reasonably suspect a persons involvement (or attempted involvement) in the commission of a criminal offence;
• AND
• The police must have reasonable grounds for believing that the persons arrest is necessary.
• In the past, a police officer could only arrest someone without a warrant if the suspected offence was punishable by a sentence of 5 years or more (known as an arrestable offence) but this has now gone.
• Since January 2006, under SOCPA, the police have more power to arrest for all offences. This means there is no longer a distinction between arrestable and non-arrestable offences. The police can now arrest for even the most minor crimes such as litter, but it has to be NECESSARY.
• The necessity test acts as a safeguard as it will mean the officer has to focus on the individual circumstances of a case, the circumstances of the offender, and the needs of the investigation.
• REASONABLE SUSPICION.
• The threshold for the foundation of a suspicion is a low one. Suspecting a person of having committed a criminal offence falls a long way short of having demonstrable proof that this is the case. (Castorina v Chief Constable of Surrey 1988)
• NECESSITY TEST
• Could the matter be dealt with via a summons or a fixed penalty notice? If not then arrest may be necessary.

Necessity criteria for arrest

• An arrest is necessary if it prevents the suspect;
• disappearing
• causing physical harm to himself or others
• suffering physical injury
• causing loss or damage to property
• committing an offence against public decency
• causing unlawful obstructions of the highway
• OR
• to allow the prompt and effective investigation of the offence
• to discover the name or address of the suspect
• to protect a child or vulnerable person

Procedure on arrest

• Section 28 of PACE states that a person must be informed they are under arrest and the grounds for the arrest in order for it to be legal. This must be done as soon as practicable. They must also be cautioned
• reasonable force may be used as is necessary for the arrest, (section 117)
• arrested person must be taken to the station as soon as possible (section 30)
• Those who are going to be detained for 6 hours or more must be taken to a designated police station(one that has proper facilities for dealing with detained suspects)

Other arrest information

• Arrest for breach of the peace-
• The police can arrest if there has been, or is likely to be a breach of the peace. A breach of peace is defied as "an act done or threatened to be done which will either actually harm a person or property or is likely to cause such harm".
• The condition for this must be as follows;
• there must be a real and present threat to the peace
• the threat must come from the person arrested
• the conduct of that person must clearly interfere with the rights of somebody else, which may result in violence
• the conduct of the arrested person must be unreasonable
• Citizens arrest
• Section 24 gives a citizen the power to arrest. However it is very limited in situations. If a citizen believes a crime took place but it turns out that it never, this will be an illegal arrest (R v Self 1992).
• A citizen cannot arrest if they believe a crime is ABOUT to take place, it must be directly after.

Entering and searching WITH a warrant

• All searching of premises are governed by the POLICE AND CRIMINAL EVIDENCE 1984. Any
• search must be proportionate with the Human Rights Rights Act 1998.
• Search Warrants
• The Magistrates Court may issue a search warrant under s8 PACE 1984, The Terrorism Act 2000 and other statutes such as the Theft Act 1967. If a warrant has been issued by a Mag, the warrant must e shown before this search starts. Under Section 8 the police may seize and retain items covered by the warrant, if they are stolen or may be use din evidence. They may also take them in order to prevent them being concealed, lost, altered or destroyed. They cannot take communications between professional legal advior and client, as these come under legal privilege. Only 12 percent of all searched are carried out with a warrant. This means the vast majority are carried out without, in many cases the occupier would have consented to the search making a warrant unnecessary.
• CONSENT SEARCHES
• Consent searches of property are FULLY legal and are permitted under PACE Code B. The occupier of the premises can give consent, this could be the owner of the premises, or the lodger/tenant if the premises are rented.

Entry&Search WITHOUT a warrant

• Section 17
• allows an officer to enter and search premises WITHOUT a warrant only if they are arresting a person named in an arrest warrant, or they are preventing a crime from taking place. They are not entering to search for anything and they must have 'Reasonable Suspicion'. This must only be carried out in 'Hot Pursuit' and there must be an element of urgency.
• Section 18
• allows a PC to search the premises of a person arrested for offences triable in the Crown Court, IF there is Reasonable Suspicion the premises have any evidence relating to to the offence. This can occur immediately after arrest, or after the person has been granted bail. (Jeffreys v Black 1978). The search MUST be in writing.
• Section 19
• allows a PC to seize any item from premises if there is reasonable suspicion the items have been obtained in the commission of an offence or the items are at risk of being concealed, destroyed, lost or damaged. This includes any equipment, substances, tools or paraphernalia.

Searching School Premises

• OFFENSIVE WEAPONS ACT 1996
• This allows the police to search school premises and persons for weapons
• MUST be based on belief not suspicion (more evidence)
• If somebody in the school is caught with such items, they can be arrested immediately.

Procedure and rules- search

• Unless it would seriously hinder the investigation or endanger officers of other people then..
• The search must be at a reasonable hour
• The police must identify themselves and state the reasons for the search and the grounds
• They may only use reasonable force., and search only to the extent necessary with due consideration for the property and the occupiers
• A friend, neighbour or other person must be allowed to witness the search if the occupier wishes
• A search may not continue once the object of that search has been achieved
• No search may continue once the officer is satisfied whatever is being sought is not on the premises

Detention and questioning

• The detention and questioning of suspects is controlled under CODE C of PACE 1984