Public - Police powers

Wrongful and unlawful behaviour by the police:

In 2022, 'An inspection of vetting, misconduct and misogyny in the police service' was conducted and concluded that it is too easy for the wrong people both to join and stay in the police. Some of them weren't equipped to prevent and investigate misogynistic and predatory behaviour, racism, dishonesty and other forms of corruption.

Who is responsible for policing in the UK?

• Home Secretary is responsible to Parliament for policing in England and Wales

• Devolved executives are responsible to devolved legislatures

• Chief constables of the 43 territorial police forces in England and Wales

Localism v National policing

• No national UK police force

• NI and Scotland have their own police services

• Strong arguments for policing to be rooted in local communities including facilitating accountability and being responsive to local needs

Centralisation; national approach to policing:

• National Crime Agency - created in 2013 by the Crime and Courts Act 2013. Its remit extends to serious and organized crime, border policing, economic and cyber crime and child sexual abuse and exploitation

• National Police Chiefs’ Council - coordinates operational responses in relation to matters such as terrorism and national emergencies

• College of Policing - supports professional development through education and training and sets national standards and issues codes of practice and guidance

Accountability and Governance:

• Complaints can be made to the Chief Constable and each force has a professional standards department

• IOPC (independent office for police conduct) investigates serious complaints and alleged misconduct

• HMICFRS (His Majesty's Inspectorate of Constabulary and Fire and Rescue Services) reports on efficiency and effectiveness of the police

• Police and Crime Commissioners secure the maintenance of an effective and efficient police force for the relevant area

 

Police and Criminal Evidence Act 1984

• S60 and 66 require the Home Secretary to issue detailed Codes of Practice regulating the exercise of police powers and providing clear guidelines for the police and safeguards for the public

• The codes provide police with additional guidance and must be readily accessible

• Codes can be revised simply instead of statutes

Legal remedies against the police:

• Civil liability in tort; assault and battery, false imprisonment, wrongful arrest, negligence etc.

• Judicial review either on traditional grounds or under the HRA as they are public bodies

• Criminal prosecutions

• Habeas Corpus (allows person being detained to be brought under court to be released unless detainee can give reason for why they should be detained)

Stop and search powers:

• Special powers found in Criminal Justice and Public Order Act 1994, Public Order Act 2023 and Terrorism Act 2000

• Almost all the statutory stop and search powers given to the police are governed by Codes of Practice that individual officers are expected to follow (Code A)

• No power to stop and search at common law, needs a statutory basis to it

• Claim in tort can be made if there is no legal basis

• Powers in PACE s1-3 consolidates earlier statutory powers into one

Rice v Connolly [1966] 2 QB 414

• Rice refused to provide name and address and was arrested for obstructing a police officer under the Police Act 1964.

• Court ruled that there is no strict legal obligation and that the obstruction must be 'wilful'.

• Reinforces rights of individuals and established that citizens aren't legally required to cooperate unless they are being lawfully detained.

Impact of stop and search powers:

• Small proportion of stop and searches 14.2% in 2023-24 result in arrests

• Disproportionate impact upon young men from ethnic minority backgrounds

• Black/black British searched at a rate 5x higher than white ethnic groups (per 31st March 2024)

• Brixton Riots of 1981 were result of excessive use of stop and search powers

• July 2020; IOPC thematic investigation into racial disparities in policing

• Feb 2021; HMICFRS super-complaint report on disproportionate stop and search

PACE section 1

General power to stop and search short of an arrest is in the Police and Criminal Evidence Act 1984 s1

Constable may exercise power in any place the public has access to but not a dwelling

(1) A constable may exercise any power conferred by this section—

1. in any place to which at the time when he proposes to exercise the power the public or any section of the public has access, on payment or otherwise, as of right or by virtue of express or implied permission; or

2. in any other place to which people have ready access at the time when he proposes to exercise the power but which is not a dwelling.

Special rules for gardens and yards:

PACE 1984, section 1(4): “If a person is in a garden or yard occupied with and used for the purposes of a dwelling or on other land so occupied and used, a constable may not search him in the exercise of the power conferred by this section unless the constable has reasonable grounds for believing – (a) that he does not reside in the dwelling; and (b) that he is not in the place in question with the express or implied permissible of a person who resides in the dwelling.”

What can be searched and for what? Section 1(2)(a) and (b)

• A person or vehicle or anything in that vehicle

• Stolen and prohibited articles

PACE 1984, section 1(2)(a):

“A constable may search

     (i)  any person or vehicle;

     (ii) anything which is in or on a vehicle, for    

stolen or prohibited articles, any article to  which subsection (8A) below applies, any substance to which subsection (8AA) or any firework to which subsection (8B) below applies.”

PACE 1984, section 1(2)(b): “may detain a person or vehicle for the purpose of such a search.”

Prohibited articles: PACE 1984, section 1(7)

PACE 1984, section 1(7): “An article is prohibited for the purposes of this Part of this Act if it is –

(a) an offensive weapon; or

(b) an article - (i) made or adapted for use in the course of or in connection with an offence to which this sub-paragraph applies; or (ii) intended by the person having it with him for such use by him or by some other person.

Offensive weapons: PACE, section 1(9)

PACE 1984, section 1(9): “In this Part of this Act ‘offensive weapon’ means any article- (a) made or adapted for use for causing injury to persons; or (b) intended by the person having it with him for such use by him or by some other person.”

What is an article to which subsection (8A) applies?

• PACE 1984, section 1(8A): “This subsection applies to any article in relation to which a person has committed, or is committing or is going to commit an offence under section 139 or 139AA of the Criminal Justice Act 1988.”

• Criminal Justice Act 1988, section 139: Offence of having an article with a blade or point in a public place.

• Criminal Justice Act 1988, section 139AA: Offence of threatening with an article with a blade or point or an offensive weapon.

PACE Section 8AA and 8B

PACE 1984, section 1(8AA) applies to any substance or article which contains such a substance in relation to which a person has committed, or is committing or is going to commit an offence under s6 Offensive Weapons Act 2019 – the offence of having a corrosive substance capable of burning human skin by corrosion in a public place

Children under 18 cannot possess fireworks and so subsection 8B provides a stop and search power that can be used to search children to see if they are carrying fireworks

Power of seizure - PACE 1984, section 1(6)

PACE 1984, section 1(6): “If in the course of such a search a constable discovers an article which he has reasonable grounds for suspecting to be a stolen or prohibited article, an article to which subsection (8A) below applies, a substance to which subsection (8AA) or a firework to which subsection (8B) below applies, he may seize it.”

Having reasonable grounds for suspecting is not a general power to stop and search according to the statute.

Procedural requirements under S2:

• If not in uniform, police must provide evidence they are an officer

• Bring their name and station to attention, the object of the proposed search, the grounds for proposing to make it and inform that a record will be made

• S2(9) – There is no power to require a person to remove any of his clothing in public other than an outer coat, jacket or gloves or for a constable not in uniform to stop the vehicle

Osman v DPP [1999] All WE 716

• Police didn’t identify themselves or where they came from

• made the stop and search unlawful so police were sued in tort

Procedural requirements under s3:

Imposes record keeping requirements on the police so details of the search are recorded.

The record shall state

    (i)   the object of the search;

    (ii)  the grounds for making it;

    (iii) the date and time when it was made;

    (iv) the place where it was made;

    (v) the ethnic origin of the person searched or the person in charge of the vehicle searched; and shall identify the constable who carried out the search

Stop and search code of practice A(1)

• Intrusion on liberty must be brief and search must take place at or near location of stop

• Powers must be used fairly with no unlawful discrimination

• Purpose is to allay/confirm suspicions regarding individuals without resorting to arrest

• Unless they have specific intelligence, they can't use physical appearance or beliefs for the basis of stop and search

Stop and search code of practice A(2)

• Previous convictions cannot justify a stop and search

• Must be carried out with "courtesy, consideration and respect"

• Reasonable force may only be used where the suspect resists

• Where necessary to search more than outer clothing, it must be done outside public view and by officer of the same gender

Breach of the code does not necessarily render the stop and search unlawful

suspicionless stop and search powers

Police officer can stop and search a person without reasonable grounds for suspicion if authorised under specific statute (primarily to prevent terrorism)

Criminal Justice and Public Order Act 1994, s60(1)

• If a police officer of or above the rank of inspector reasonably believes

• s60(1)(a): “that incidents involving serious violence may take place in any locality in his police area, and that it is expedient to give an authorisation under this section to prevent their occurrence.” and

• s60(1)(aa): “that an incident involving serious violence has occurred in his police area, a dangerous instrument or offensive weapon used in the incident is being carried by a person in that area, and it is expedient to give an authorisation to find the instrument or weapon” or

• s60(1)(b): “that persons are carrying instruments or offensive weapons in any locality in his police area without good reason”

The inspector can give authorisation for any search even if there are no grounds; NOT AVAILABLE TO POLICE OFFICERS

Authorised for 24 officers then superintendent can authorise for another 24 hours

R (Roberts) v Commissioner of Police for the Metropolis [2015] UKSC 70

• Refused request to show contents of handbag.

• Why they chose her was unclear.

• she sought a declaration that it was a breach of article 5 and 8. Anticipation of serious violence by inspector.

• Courts concluded that it wasn't about the use of the power but the power itself, so it might engage article 8 but not article 5 as it was only for a short time. Article 8 wasn't infringed based upon proportionality test in Bank Mellat.

Arrest definition per Spicer v Holt [1977] AC 987

 “Arrest is an ordinary English word… Whether or not a person has been arrested depends not on the legality of the arrest but on whether he has been deprived of his liberty to go where he pleases.”

Arrest definition per Mohammed-Holgate v Duke [1984] AC 437

“First, it should be noted that arrest is a continuing act; it starts with the arrester taking a person into his custody (… by action or words restraining him from moving anywhere beyond the arrester’s control), and it continues until the person so restrained is either released from custody or, having been brought before a magistrate, is remanded in custody by the magistrate’s judicial act.”

Austin v Metropolitan Police Commissioner [2009] UKHL 5

House of Lords held that restricting the movement of a crowd during a protest was a deprivation of liberty but was not an arrest; Kettling

Using reasonable force

• Reasonable force may be used to effect an arrest: PACE 1984, section 117(power for the police to use force); Criminal Law Act 1967, section 3 (power for the public to prevent crime, assist arrest and prevent escaping using reasonable force)

• Burden of proof is on the police to prove the arrest is lawful, although burden of proving excessive force is on the complainant: Durrant v Chief Constable of Avon and Somerset Constabulary [2014] EWHC 2922 (QB).

3 powers to arrest

• Under warrant issued by court

• Under statutory power e.g. PACE s 24 and s24A

• Under common law for breach of peace

Arrest without a warrant under a statutory power:

• PACE 1984, section 24 – arrest without a  warrant by a constable

• PACE 1984, section 24A – arrest without a warrant by any individual

When may a constable arrest without a warrant?

• Prior to an offence being committed.

• Whilst an offence is being committed

• After an offence has been committed

Who may a constable arrest without a warrant? Section 24(1)

 PACE 1984, section 24(1):

(a) anyone who is about to commit an offence;

(b) anyone who is in the act of committing an offence;

(c) anyone whom he has reasonable grounds for suspecting to be about to commit an offence;

(d) anyone whom he has reasonable grounds for suspecting to be committing an offence.

Have to have a reasonable suspicion to comply with Article 5

 

Article 5(1)(c ) ECHR: "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”.

grounds and necessity required

PACE says that there must be grounds for an arrest and it must also be necessary to make the arrest.

The 'necessity' criterion:

PACE 1984, section 24(4): “the power… is  exercisable only if the constable has reasonable grounds for believing that for any of the reasons mentioned in subsection 5 it is necessary to arrest the person in question.”

The 'necessity' criterion; allowing the prompt and effective investigation of the offence or the person's conduct.

Code G gives guidance on when provision s24(5)( e):

"An arrest may be necessary where an officer has reasonable grounds for believing the person to be arrested has made false statements; has made false statements that cannot readily be verified; has presented false evidence; may steal or destroy evidence; may make contact with co-suspects or conspirators; may intimidate or threaten or make contact with witnesses; or where it is necessary to obtain evidence by questioning"

Reasonable grounds to suspect vs reasonable grounds to believe

• When considering the grounds for an arrest, PACE talks about reasonable grounds to suspect, whereas when considering the necessity for an arrest, PACE talks about reasonable grounds to believe

• Suspicion is a lesser requirement than belief

Necessity test: Hayes v Chief Constable of Merseyside Police [2011] EWCA Civ 911

“40…..(i) the policeman must honestly believe that arrest is necessary for one or more identified s24(5) reasons; and (ii) secondly, his decision must be one which, objectively reviewed afterwards according to the information known to him at the time, is held to have been made on reasonable grounds.”

--> The word necessary does not require the police officer to have gone through all the viable alternatives to arrest before deciding that an arrest is necessary

R (L) v Chief Constable of Surrey Police [2017] EWHC 129 (Admin)

Individual had volunteered to attend interview and agreed not to contact complainant. Arrested to permit interview, search home, and impose bail conditions. Divisional Court – not necessary to arrest to allow prompt and effective investigation.

Test = whether police officer had an honest belief in necessity for one or more reasonable grounds based on information known to the officer at the time of arrest

This did not mean “desirable” or “convenient” – it was not necessary on these facts

Castorina v Chief Constable of Surrey [1988] NLJR 180

If it is alleged that an arrest is unlawful because there are no reasonable grounds to suspect. Three questions need to be asked:

• Did the arresting officer suspect that the person who was arrested was guilty of the offence?

• Assuming that the officer had the necessary suspicion, was there reasonable cause for that suspicion?

• If the answer to both these questions is yes, then the officer has a discretion to arrest, and the question then arises whether it has been exercised in accordance with the Wednesbury principles of reasonableness

Provided they can be established, the arrest will be lawful unless the claimant can show that the decision to arrest was Wednesbury unreasonable

Wednesbury [1948]

Wednesbury case involves being so unreasonable in its decision that no reasonable person would never come to it according to Lord Green.

Reasonable suspicion that the act is illegal: Todd v DPP [1996] Crim LR 344

• D charged with compelling another to abstain from work and obstruction of a police officer in the execution of his duty.

• Occupation of a crane during a protest.

• Court: held even if the offence did not apply to a protest, the officer was still in the execution of his duty if he reasonably suspected the conduct amounted to an offence.

• The Divisional Court disagreed – reasonable suspicion must relate to the existence of facts that in law constitute an offence – not a suspicion about the state of the law itself

Precise legal power: R (Rutherford) v Independent Police Complaints Commission [2010] EWHC 2881 (Admin)

• C stopped and searched on suspicion that he was joy-riding.

• Independent Police Complaints Commission found likely to be a section 1 PACE search.

• Officers hadn’t been able to identify that as the power they were relying upon.

• Held: there was no requirement at common law to be aware of the origin of the power they were exercising, as long as they did in fact have the power, and statute did not provide otherwise

Relying on intelligence: Howarth v Metropolitan Police Commissioner [2011] EWHC 2818 (Admin)

• Search of a group of protestors based on intelligence that carrying molasses/chalk used to cause criminal damage.

• Officers suspected one or more protestors

• Divisional Court held that the officer searching must themselves have reasonable grounds for suspecting – could do so on the basis of the intelligence passed on

Obiter – limits to group search – e.g. very large group for a single can of spray paint vs a large group for a bomb [see paragraph 32].

Precise offence: Chapman v DPP (1988) 89 Cr App R 190

The officer must know the kind of offence being committed

Bingham LJ: “It is not of course to be expected that a police constable in the heat of an emergency, or while in hot pursuit of a suspected criminal, should always have in mind specific statutory provisions, or that he should mentally identify specific offences with technicality or precision. He must, in my judgment, reasonably suspect the existence of facts amounting to an arrestable offence of a kind which he has in mind.”

No specific meaning to the words 'arrestable offence'

Relevant facts: Redmond-Bate v DPP (1999) 163 JP 789

• Street preacher arrested for failing to stop preaching by officer exercising power to prevent a breach of the peace.

• Appeal against conviction for obstructing an officer in the exercise of his duty.

• Divisional Court – the correct test was “whether in light of what he knew and perceived at the time, the court was satisfied that it was reasonable to so believe”.

• However, the officer should have used his power to stop the crowd, not the preacher, from breaching the peace.

Admissible facts: Hussein v Chong Fook Kam [1970] AC 942

• Doesn’t need to be prima facie proof.

• Lorry didn’t stop at the scene of an accident – later arrest on suspicion of reckless driving.

• False imprisonment claim – had been released because there was insufficient evidence.

• Held: can take into account matters that could not be put in evidence but this arrest was not reasonable because the gap between what was suspected and what was the offence was too great – damages ordered. Doesn't have to be admissible in court.

 

Parker v Chief Constable of Essex Police [2018] EWCA Civ 2799

• The complainant Michael Barrymore had been arrested on suspicion of murder and rape six years earlier.

• An arrest could not be lawful if the reasonable grounds for suspicion were not know to the arresting officer even though they were known to another officer who was supposed to make the arrest but had been unable to do so because she was stuck in traffic

DPP v Price [2024] EWHC 2863

• High Court said that it was not necessary that there was a prime face proof of an offence before reasonable grounds to suspect could be found

• police officer who entered premises to arrest Price who appeared to have smashed up the kitchen of the property owned by D and occupied by her and Price.

• The High Court went on to say that there could be reasonable suspicion on the part of the police officer even if the owner of the damaged property was not, at the point of arrest, alleging criminal damage

Hearsay evidence

evidence that doesn't come from a first hand account, not been seen or heard directly

Hearsay evidence: Clarke v Chief Constable of North Wales Police [2000] All ER 477

• Claim for wrongful arrest, assault and false imprisonment.

• Evidence from informants about supply of drugs from C’s car.

• Held: no requirement that the officer have first-hand knowledge of the facts, provided it was reasonable to rely upon the source.

• Didn’t have to positively confirm the reliability of sources – but if apparent that the source was unreliable or non-existent, it would not be reliable to rely on it

Anonymous call: DPP v Wilson [1991] RTR 284

• Divisional Court held that an anonymous phone call was sufficient to reasonably suspect drunk driving, even in the absence of other facts, like the quality of the driving

Police informant: James v Chief Constable of South Wales [1991] 6 CL 80

• Police informer known to senior officers and considered extremely reliable.

• Suspected individual of handling stolen goods.

• Court of Appeal: “any police officer should treat such information with very considerable reserve and should hesitate before regarding it, without more, as a basis for a reasonable suspicion”.

• However, on the facts, this had been done, by interviewing the informant and making inquiries about past reliability

Police computer: Hough v Chief Constable of Staffordshire Police [2001] EWCA Civ 39

• Entry on police national computer sufficient for an arrest.

• Car stopped for a damaged windscreen – computer check carried a firearm warning. Arrest and search by armed response unit.

• COA: reasonableness of the arresting officer, not reasonableness of the computer entry, was what mattered, even if the information was incorrect or false. If there was no urgency – some further enquiry might have been necessary

Relying on superior: O’Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286

• Acting on the mere instruction of a superior officer in insufficient.

• Responsibility and accountability for an arrest is that of an individual officer.

• Briefing contained sufficient information to form a reasonable suspicion.

• That was so even though evidence of the briefing had been “scanty” – trial judge was entitled to find the existence of reasonable grounds

Lord Steyn: “Given the independent responsibility and accountability of a constable… it seems to follow that the mere fact that an arresting officer has been instructed by a superior officer to effect the arrest is not capable of amounting to reasonable grounds for the necessary suspicion…”

Superior as information: Metropolitan Police Commissioner v Raissi [2008] EWCA Civ 1237, [2009] QB 564

• The case involved an arrest of a person whom a police officer reasonably suspected to be a terrorist.

• The arresting officer’s suspicions had been based on the fact that he knew his superiors regarded the claimant as a reasonable suspect and that he was entitled to infer that his superiors knew more than he did.

• COA applied the earlier case of O’Hara v Chief Constable of the Royal Ulster Constabulary. It was not sufficient for the arresting officer to infer that his superiors probably had information justifying the instruction and must have had reasonable grounds for suspicion

Opportunity: Cummings v Chief Constable for Northumbria Police [2003] EWCA Civ 1844

• The police had arrested six individuals on suspicion of having perverted the course of justice by dishonestly tampering with security films tapes, even though they knew that only one person could have committed the offence.

• COA held that there was “nothing in principle which prevents  opportunity from amounting to reasonable grounds for suspicion’

no power to enter property: Entick v Carrington [1765] 2 Wils 275

encapsulates the principle of legality, a key element of the rule of law that interference with a person or their  property can only be justified by the existence of some lawful authority which permits such interference

Power to enter property

• Express consent

• Implied consent or implied license

• Entry under a search warrant

• Entry under statutory authority

• Entry to deal with or prevent an anticipated breach of the peace

• Entry to search for evidence after an arrest

Implied consent or license

• can be revoked by owner of the property

• coruts will apply objective test to misunderstanding and consider whether words used would’ve caused a bystander to believe their implied license had been revoked

Expressions: Snook v Mannion [1982] RTR 321; Gilham v Breidenbach [1982] RTR 328

In the past courts have treated expressions such as ‘fuck off’ as vulgar expletives rather than as a revocation of an implied license

Trespassers: Davis v Lisle [1936] 2 KB 434

Where an implied license has been revoked, a person who remains on the property without some other form of lawful authority will have become a trespasser

Reasonable time to leave: Robson v Hallett [1967] 2 QB 939

Once an implied license has been revoked, the person does not immediately become a trespasser- they must be given a reasonable time in which to leave the property

Entry under a search warrant

Numerous statutes authorize the issuing of a search warrant to search property e.g.

• Theft Act 1968, s26;

• Misuse of Drugs Act 1971, s23;

• Police and Criminal Evidence Act 1984, s8.

General search warrant under PACE s8:

• PACE s8 authorises a magistrate to issue a warrant  to search premises following the receipt of an application from the police

• The application itself must state the ground under which it is made; the enactment under which the warrant would be issued; the premises which it is desired to enter and search; and, so far as possible, the articles or persons to be sought

• An application is made ex parte (without the other side being aware of the application)

A magistrate may issue a search warrant under s8 where they’re satisfied there are reasonable grounds for believing:

• an indictable offence has been committed; and

• there is material on the premises likely to be of substantial value to the investigation; and

• the material is likely to be relevant evidence; and

• it is not legally privileged, excluded material or special procedure material.

Power to enter property under statutory authority - PACE s17:

• PACE also provides for entry and search without a search warrant

• S17 authorizes a constable to enter and search any premises for the purpose of:

• Executing an arrest warrant

• Arresting a person for an indictable offence or one of several offences listed in the section

• Recapturing prisoners who are unlawfully at large and who are being pursued

• Saving life or limb or preventing serious property damage

O’Loughlin v Chief Constable of Essex [1998] 1 WLR 374

• The mere possession of lawful authority does not absolve the police from the need to first request the owner’s permission to enter.

• The fact that the officers wished to enter the premises to question a woman rather than to arrest her meant that their entry did not fall with s17, and they were therefore trespassers.

Entry to deal with or prevent an anticipated breach of the peace: S17(5) PACE:

S17(5) PACE:

• Subject to subsection (6) below, all the rules of common law under which a constable has power to enter premises without a warrant are hereby abolished.

• (6) Nothing in subsection (5) above affects any power of entry to deal with or prevent a breach of the peace

Thomas v Sawkins [1935] 2 KB 249

covers private premises where a meeting was being held

McLeod v Metropolitan Police Commissioner [1994] 4 All ER 553 and McLeod v United Kingdom (1999) 29 EHRR 548

covers private premises involving a domestic dispute

Entry to search for evidence following an arrest: S18 PACE

• 18 PACE permits entry to and search of premises occupied or controlled by a person who is under arrest for an indictable offence provided that are reasonable grounds for suspecting relevant, but not legally privileged evidence, will be found i.e. evidence that relates to that offence or some other indictable offence which is connected with or similar to that offence

• Such property, if found, can be seized

• Before a section 18 search can be carried out a written authorization from an officer of the rank of inspector or above is normally needed s18(4)

• The Act does not define what is meant by “occupied or controlled” but Khan and Metropolitan Police Commissioner 2008 EWCA Civ 723 gives some insight

Khan and Metropolitan Police Commissioner [2008] EWCA Civ 723

• COA said that it was not enough that the officer reasonably believed or had reasonable grounds to believe that the premises were occupied or controlled by the person under arrest.

• The premises had to be occupied or controlled by the person under arrest in fact.

A constable may conduct a search:

(a) before the person is taken to a police station and

(b) without obtaining an authorisation from a senior officer under subsection (4)  if the presence of the person at a place (other than a police station) is necessary for the effective investigation of the offence - s18 (5) and (5A)

Power to search (persons and property):

• Power to stop and search prior to an arrest - s1 PACE (already covered)

• Search of a person and premises upon arrest  (without having a search warrant) -  s32 PACE

• Search of detained persons - s54 PACE (to mention)

• Intimate searches of detained persons - s55 PACE (to mention)

Search of a person and premises upon arrest - s32 PACE:

(1) A constable may search an arrested person, in any case where the person to be searched has been arrested at a place other than a police station, if the constable has reasonable grounds for believing that the arrested person may present a danger to himself or others.

(2) Subject to subsections (3) to (5) below, a constable shall also have power in any such case-

(a) to search the arrested person for anything –

(i) which he might use to assist him to escape from lawful custody; or

(ii) which might be evidence relating to an offence; and

(b) if the offence for which he has been arrested is an indictable offence, to enter and search any premises in which he was arrested or immediately before he was arrested for evidence relating to the offence.

(3) Only a power to search to the extent reasonably required for the purpose of discovering any such thing or evidence

(4) Does not include the removal of clothing in public, other than outer coat, jacket, or gloves but does authorise a search of a person's mouth

(5) Officer must have reasonable grounds for believing that a person to be searched may have concealed on him anything for which a search is permitted under section 32(2)(a)

(6) To conduct a search of premises, an officer must have reasonable grounds for believing that there is evidence for which a search is permitted under paragraph 32(2)(b)

Relationship between the search warrant regime and the statutory powers of search in s18 and s32:

• The power of search of property under s32(2)(b) is only exercisable where a police officer has reasonable grounds for believing there is evidence on the premises relating to the indictable offence for which the defendant was arrested- it is therefore narrower than s18 in terms of the purposes of the search

• PACE provides for both a search warrant regime and post-arrest powers of entry as lawful authority to enter the home or property of a  person suspected of having committed a criminal offence

R (Virdee and another) v National Crime Agency [2018] EWHC 1119

• C’s argued that the searches and seizures of property had been unlawful since they ought to have been undertaken under the search warrant regime rather than under  s18 and s32.

• Holdroyde LJ noted that whilst the power of the state to invade a person’s home is subject to the rule of law both the search warrant system and s18 and s32 provide lawful authority for an entry

Making an arrest in order to activate PACE entry and search powers:

• Can an arrest be necessary solely for the purpose of activating a power of search under s18 or s32(2)(b) thus avoiding the need to get a search warrant? The question has not yet been answered by the courts 

• It was raised in R (L) v Chief Constable of Surrey Police [2017] EWHC 129 (Admin) but the court said it was unnecessary to decide the point—at [66].

Search of a detained person under s54 and s55:

Under s54 a constable may search a person detained at a police station on the authority of the custody officer

Under s 55 an intimate search can be carried out by a medical doctor or nurse at a police station, a hospital, a registered medical practitioner’s surgery or some other place used for medical purposes on the authority of an officer of at least the rank of inspector if he has reasonable grounds for believing

1. that a person who has been arrested and is in detention may have concealed on him anything which he could use to cause physical injury to himself or others and he might so use while he is in police detention or in the custody of the court ; or

2. that such a person may have a Class A drug concealed on him

Power to seize:

Many of the provisions already mentioned earlier in PACE include a power to seize property:

• S1(6) – seizure after a stop and search prior to arrest

• S8(2) – seizure after execution of a search warrant

• S18(2) – seizure after a search following arrest

• S32(8) and (9)  - seizure after search of a person upon arrest

• S54(3) – seizure after a search of a detained person at a police station

• S55(12) seizure following an intimate search

General power of seizure under S19

• S19 confers a general power of seizure on a police officer who is lawfully on any premises

• It is exercisable where the officer has reasonable grounds for believing

• that the item has been obtained in consequence of the commission of an offence - s19(2); or

• is evidence in relation to an offence which he is investigating or any other offence  - s19(3)

• In either case, seizure is only authorized where it is necessary to prevent the item being concealed, lost, altered or destroyed and in relation to s19(2) also where seizure is necessary to prevent the item being damaged

General safeguards in relation to any power of seizure under PACE:

Property cannot be seized that is subject to legal privilege (this limitation  applies to any power of seizure)

Code of Practice C states that any item seized may only be retained for as long as is necessary in the circumstances. It may be retained for purposes which include: for use as evidence at a trial for an offence; for forensic examination or for other investigation in connection with an offence; or where there are reasonable grounds for believing that it has been stolen or obtained by the commission of an offence, in order to establish its lawful owner.

Detention of suspects s30 PACE

Under s30 PACE, following arrest at a place other than a police station, the person concerned must be taken to a police station as soon as is reasonably practicable, although this can be delayed if his presence elsewhere is necessary for immediate investigation - s30(10)

Custody officer

Once in police detention, a custody officer is responsible for the treatment and wellbeing of the suspect whilst in police detention and deciding whether or not to detain them

Responsibilities of custody officers: S34 and S37

Under 34(2) PACE, if at any time a custody officer—

(a) becomes aware, in relation to any person in police detention, that the grounds for the detention of that person have ceased to apply; and

(b) is not aware of any other grounds on which the continued detention of that person could be justified it shall be the duty of the custody officer, to order his immediate release from custody.

Under s37 PACE, whilst in police detention, a custody officer must ask two questions:

whether there is sufficient evidence to charge the detainee; and,

if not, and if the detainee is not released, whether there are reasonable grounds for believing that detention without charge is necessary to secure or preserve evidence relating to the offence for which the person is under arrest, or to obtain such evidence by questioning – s37(3)

Period of detention:

• A suspect can be detained without being charged for any offence for 24 hours- s41

• That period can be extended in three stages if the offence is an indictable offence –s42-44

• A superintendent can extend detention for up to 12 hours

• A magistrates’ court can then extend detention for up to 36 hours

• A magistrates’ court can then extend detention further for up to another 36 hours, subject to an overall maximum of 96 hours

• At each stage, the superintendent or magistrates’ court must be satisfied that there are reasonable grounds for believing that all the following conditions are satisfied;

• Further detention is necessary to secure or preserve evidence relating to an offence for which the person concerned is under arrest  or to obtain such evidence by questioning him

• The offence is an indictable one; and

• The investigation has been conducted diligently and expeditiously

• The fact that detention is authorized in accordance with the regime does not mean that it should necessarily continue for the whole of the relevant period

• Reviews must be carried out within six hours of detention beginning, and at intervals of not more than nine hours thereafter to determine whether detention remains necessary

Key rights whilst in detention - right to have someone informed of the fact of arrest:

• S56 PACE entitles a suspect to have one friend or relative told, as soon as practicable, that he has been detained at the police station

• In the case of an indictable offence, an inspector can delay the exercise of this right for a maximum of 36 hours if he has reasonable grounds for believing that the notification will lead to evidence being interfered with, people being harmed, other suspects being alerted, the recovery of property obtained as a result of the offence being hindered or the person detained for the indictable offence has benefitted from his criminal conduct and the recovery of the value of the property constituting the benefit will be hindered by the telling the person of the arrest

Key rights whilst in detention - right to consult a solicitor:

• S58 PACE give suspects the right to free and independent legal advice

• A duty solicitor rota operates so that solicitors are ‘on-call’ to attend upon and advise suspects detained at a police station

• The right to legal advice can only be delayed in the case of an indictable offence and on similar grounds to those in s56

• However, to reflect the importance of the right, a decision to delay must be made by at least a superintendent

Key rights whilst in detention - right to silence:

• The right to silence is connected with the presumption of innocence which requires the police to prove guilt rather than the defendant to establish his innocence

• Under s34 Criminal Justice and Public Order Act 1994 a court in criminal proceedings is permitted to draw ‘such inferences as appear to it to be proper’ from the defendant’s failure, in response to police questions or on being charged with an offence, to disclose a fact subsequently relied on in his defence and which he could have been expected to have mentioned when questioned

• The possibility of drawing inferences from silence does not however arise if the accused has not had an opportunity to secure legal advice

Charge or release:

• When the police have sufficient evidence to charge the arrested person, he must be charged or released – s38 PACE

• If the suspect is charged, he must be brought before the next session of the magistrates’ court or released on bail to appear at the magistrates’ court

• As a general rule, there is no power to continue to question about an offence after a person has been charged

Questioning and evidence

• Follow an arrest, police must decide whether to charge a suspect and this decision will usually be made in the light of information gleaned by questioning the suspect.

• The conduct of interviews is heavily regulated by Part V PACE and the Codes of Practice- Codes C, D, E and F

Exclusion of evidence - confessions S76

S76 PACE provides a confession made by an accused person may be given in evidence against him so far as it is relevant and is not excluded by the court exercising powers contained in section 76(2)

S76(2) requires the court to exclude evidence obtained

(a) by oppression of the person who made it;

     or

(b) in consequence of anything said or done which  was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof

If a representation has been made to the court that a confession has been secured in either of these ways, the onus is on the prosecution to establish otherwise

The term ‘oppression’ is defined to include torture, inhumane or degrading treatment or the use or threat of violence (whether or not amounting to torture) – s76(8)

Fulling [1987] QB 426

oppression should be given its ordinary meaning, that is to say the exercise of authority or power in a burdensome, harsh or wrongful manner or giving rise to unjust or cruel treatment

Exclusion of evidence - evidence unfairly obtained: S78

• S78 PACE creates a discretion to exclude any evidence (which would include a confession) whose admission “would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.”

• The fact that evidence has been obtained in breach of the Codes of Practice or in breach of the defendant’s statutory rights will not automatically mean that the evidence will be held to be inadmissible.

• Each case must be decided on its facts

• S78 has been deemed to be compatible with Article 6 ECHR - R v Looseley [2001] UKHL 53

Evidence obtained from suspects by means other than questioning:

Evidence can be gathered from suspects by means other than questioning. PACE confers a range of further powers including powers to

• Search detainees -s54

• Examine detainees to ascertain their identity or whether they have 'any mark that would tend to identify then as a person involved in the commission of an offence - s54A

• Conduct an intimate search of a detainee if there are reasonable grounds for believing that they are concealing such things as sharp objects or certain drugs - s55

• Take fingerprints - s61

• Collect intimate samples (in limited circumstances and subject to the detainee's consent) - s62

Offences under the Police Act 1996:

• Under s89(1) Police Act 1996, a person commits an offence where they assault a police officer in the execution of their duty or a person assisting the officer in the execution of their duty

• Under s89(2) Police Act 1996, a person commits an offence if they resist or willfully obstruct a police officer in the execution of their duty or a person assisting them in the execution of their duty

• The requirement that the officer has to be acting in the execution of their duty has led to a substantial body of case law

3 key terms:

• Assaulting a police officer

• Resisting or willfully obstructing

• Within the execution of their duty

Assaulting a police officer:

• An assault is committed when a person intentionally or recklessly causes another to apprehend immediate unlawful violence to the person

• In practice, the term is often used to refer to the infliction of force by a punch or a kick for example