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’