Human Rights- Police Powers

Question 1

4 different powers:

Answer 1

Stop + search
Arrest
Detention and questioning
Entry + search of premises

Question 2

Stop + search

Answer 2

s.1, s.2 s.3 PACE (Police and Criminal Evidence Act) + Code A

Power to stop & search = s.1
- Can only be exercised in a public place / place public has access to - not a dwelling (s.1(1)(a))
- Need to have reasonable suspicion before searching that they will find stolen or prohibited articles
Prohibited articles = offensive weapons or articles used in burglary, theft, criminal damage etc.
- 2 stage test for reasonable grounds:
[1] Must have formed a genuine suspicion in their mind (subjective)
[2] Must be reasonable based on facts, information. Can’t be based off personal factors alone (like physical appearance) (objective)
– Gardner v King = radio message of 2 males, 1 female and 1 dog walking around, stopped 1 male, 1 female and 1 dog and searched bag - radio message not enough to give rise to reasonable suspicion
- Must question person before search and if a satisfactory explanation emerges no search should take place. Code A = “no power to stop/detain a person to find grounds for a search”
– Tomlinson v DPP = officer had no reasonable grounds for suspecting man of carrying drugs, prevalence of drugs can’t justify

s.2 = information BEFORE search
- Officer must take reasonable steps to tell person 5 things:
[1] Name + police station
[2] Object of search
[3] Grounds for searching
[4] Right to request a record of search
[5] Officer not in uniform must produce documentary evidence of being a police officer
– Fenelly = prosecution unable to establish that D was told why he’d been stopped, searched and arrested - evidence discarded
– R v Bristol = unlawful stop and search as officer didn’t give his name + station

s.3 = paperwork AFTER search
- Must make a written record right after search unless not practical / exceptional circumstances
- Must include:
[1] Ethnicity
[2] Object of search
[3] Grounds for searching
[4] Date, time and place
[5] Result + identity of constable

Code A = In public place can only search outer garments superficially
Extent of search depends on what they hope to find - knife slipped into pocket, should only look inside pocket

s.117 = Reasonable force
- Floating section - can be used in relation to any police power

s.60 Criminal Justice and Public Order Act = area searches
- Don’t need any grounds for suspecting they’ve got weapons / stolen or prohibited articles
- Search for ‘dangerous instruments’, defined as “blade or sharply pointed”
- 5 safeguards of s.2 still apply
– Osman 1999 = carried out a s.60 without safeguards of s.2 - officers couldn’t be assaulted because didn’t comply with s.2

s.60AA CJPO gives power to remove face coverings only if they think it’s to conceal identity (not for religious reasons)
Using s.60 without reasonable suspicion unsuccessfully challenged as breaching Article 8 in R(Roberts) v Commissioner of Police

Must be inspector+ to authorise s.60. Authority of s.60 lasts 24 hours, can be extended another 24 hours (least a superintendant), should be no longer than is reasonably necessary

Question 3

Arrest

Answer 3

“A person is under arrest when he is not at liberty to go as he pleases” (Spicer v Holt)

1) Arrest with a warrant (not likely to come up)
- Magistrates Court Act (1980)(s1) = if police know identity they lay info before mag who can then issue a warrant
- Offence must be triable on indictment / punishable with imprisonment
- Or suspect’s address not established in order for the summons procedure to be followed

2) Arrest without a warrant
- s.24 PACE (amended by s.110 SOCPA 2005) = 2-stage test:
- 1. Must be suspicion related to a criminal offence
= reasonable grounds to believe - is committing, has committed, or is about to commit an offence OR reasonable grounds the D is guilty
– Castorina v Chief Constable of Surrey = established 2-stage test:
1. Did the PC actually suspect that the arrested person was guilty of the offence? (subjective)
2. Did the PC have reasonable proof of that suspicion? (objective)
– Test confirmed by O’Hara v UK
- 2. Arrest must be necessary:
- s.24(5):
a) name
b) address
c) prevent physicsl injury, loss of / damage to property, unlawful obstruction of the highway
d) protect a child / vulnerable person
e) allow prompt + effective investigation of an offence
f) prevent any prosecution of the offence being hindered by the disappearance of the person

• Code of Practice G = police have to prove arrest is necessary (e.g. ask to come to station as volunteer)

s.28 PACE - is the arrest lawful?
s.28(1) = must signify using clear words the fact that the person is under arrest at time of arrest or as soon as practical
s.28(3) = musy signify using clear words the reason why the person has been arrested
s.28(5) = it’s not always practical to do this at point of arrest but must be complied with as soon as practical (if becomes practical but doesn’t say why at that point it becomes unlawful)
- Don’t need to use any particular language: Alderson v Booth = suggest “I arrest you”, saying “I must ask you to come to the police station” not enough

• Code C PACE = must be cautioned on arrest = “You do not have to say anything but it may harm your defence if you do not mention when questioned something which you will later rely on in court. Anything you do say may be given in evidence”

Power of a citizen to arrest (s.24A (amended by SOCPA 2005)) - can arrest someone:
- In the act of committing an indictable offence
- Anyone they have reasonable grounds for suspecting they’re committing an indictable offence
- Anyone who’s guilty of the offence
- Anyone they reasonably suspect is guilty
- Reasonable conditions:
- Causing physical injury
- Suffering physical injury
- Causing loss / damage to property
- Making off before a constable can assume responsibility
- Same 2 stage test applies + reasonable grounds + not reasonably practical for a constable to make it instead

Question 4

Detention and questioning

Answer 4

Initial procedures:
- After arrest, must take them to police station as soon as practically possible (s.30 PACE)
-May search a person at place of arrest if reasonable grounds to suspect he’s a danger to himself/others or is concealing evidence
–Can seize evidence (s.32 PACE)

Custody Officer:
- Make sure they’re not held unless necessary + responsible for welfare of arrestee
- s.37 PACE = safeguards
– After arrest, brought before custody officer
– who’ll decide if there’s sufficient evidence to charge
– If there is he should be charged then
– If not, should be released on bail / without bail unless continued detention is required to secure, preserve or obtain evidence
– s.38 PACE = allows custody officer to make award of bail

• s.38 PACE = allows police to question a suspect even if there’s sufficient evidence to charge
• Code C + s.37 PACE = once detention authorised, custody officer must begin a custody record which must record reasons for detention

Searches at police station:
[1] General search under s.54
- General search at police station
- Can retain any possessions
- Give detainee record of possessions

[2] Intimate search under s.55
- Search of bodily openings excluding mouth
–> If rank of inspector reasonably grounds for believing the suspect has:
–> Article which could cause injury to suspect / other detained persons
–> Class A drugs which he intends to supply / export
– Must be carried out by medical practitioner of same sex
– Unless not practical to wait, in which a police officer of same sex will

Safeguards:
- s.37 PACE + Code C = on arrival, suspect will be ‘booked in’
- Must tell detainee orally + by written notice 5 rights:
[1] Right to silence
[2] Right to have someone informed of their detention (s.56)
[3] Rights arising under s.65 (intimate samples)
[4] Right to consult a solicitor + fact that independent legal advice is free of charge (s.58)
[5] Right to consult Code C + other codes of practice
- Must be made clear they’re continuing rights - exercised at any point during detention
- Detainee must sign record acknowledging he understands his rights – Code C

1) The Caution
- Code C: Para 10 (minor deviations won’t constitute full breach)
“You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you say may be given in evidence”
- Must be repeated at beginning of interview + each time questioning resumes after a break
- Criminal Justice and Public Order Act s.34 = altered right to silence - before no inference drawn about guilt from silence, now courts can make inferences from silence

2) Right t have someone informed of their detention
- s.56 PACE = right to have someone informed of their detention + station they’re being held at
- If 1st person unavailable can nominate 2 people, after that discretion of custody officer whether to allow further nomination
- If offence indictable, can be delayed up to 36 hours if reasonable grounds to suspect it’ll lead to:
[i] interference with evidence / physical injury
[ii] persons suspected by police being warned
[iii] hinder recovery of proceeds of an offence
- s.57 PACE = vulnerable suspects (17 and under, mentally disabled etc.) must have an appropriate adult with them during questioning - if not confession inadmissible

3) Right to consult a solicitor
- s.58 PACE = right to contact solicitor anytime
- Can be delayed up to 36 hours if:
– Offence indictable
– Police officer of at least superintendent has reasonable grounds for believing legal advice would lead to:
[i] interference with evidence / physical injury
[ii] persons suspected by police being warned
[iii] hinder recovery of proceeds of an offence
– R v Chief Constable of South Wales ex p Merrick = man wanted a solicitor, sol went to see him but was told visiting was restricted from 8:00am - 10:00am – High Court ruled suspect was entitled to see his solicitor “as soon as reasonably practicable”
– Samuel = narrow definition = police need a specific reason and cannot delay legal advice on a hunch - he was refused a solicitor and later confessed - quashed - right to legal advice under s.58 could only be denied if police officer reasonably believed access would hinder police inquiries

4) Fingerprinting + DNA sampling
- s.61 (amended by Criminal Justice Act s.9) allows fingerprinting without consent where they’ve been arrested for a recordable offence and/or not had their fingerprints taken (all but most trivial offences)
- s.63 = non-intimate can be taken without consent
- s.62 = intimate samples only be taken with consent in writing
– Officer of at least Insepctor has to have reasonable grounds to believe sample would prove/disprove suspect’s involvement
– If they refuse without good cause, can harm their case + must be advised about this
- s.65 = person may be identified by intimate samples

• Prev, Criminal Justice and Police Act s.82 (1) allowed retention of intimate samples + DNA in all situations unless person wasn’t a suspect
• S & Marper v UK = ruled retention of DNA for those not convicted violated Article 8
• Protection of Freedoms Act 2012 = data of anyone arrested but not charged / charged but later acquitted can’t be retained (s.63 PACE amended by Protection of Freedoms Act 2012)
• Allows for some time-limited retention of DNA for those charged with qualifying offences (serious offences sexual offences, terrorism or burglary)
• Can be retained for 3 years + extended another 2 years

5) Right to consult Codes of Practice

Time limits on detention:
- s.40 = In every case reviews of detention must take place every 9 hours after 6 hours of detention
- s.41 = can be detained up to 24 hours
- s.42 = superintendant can authorise further detention of up to 36 hours if:
1) Reasonable grounds to believe it’s necessary to secure / preserve evidence
2) Or allow additional time for questioning
3) And investigation is being conducted diligently and expeditiously

• After 36 hours, must be released or charged (s.44)
• s.44 = can apply to magistrate to extend to 96 hours if above conditions are met
• Roberts v Chief Constable of Cheshire = review didn’t take place - ruled unlawful

Code C + E - Treatment of suspect during detention & questioning
Code C - Interviewing & conditions of detention
- Cells adequately heated, cleaned, lit, ventilated
- Contain adequate bedding, access to toilet + washing facilities
- 3 meals offered in 24 hours
- Should be visited every hour, those drunk every 30 mins
- Interview rooms should be well lit, ventilated and heated
- No additional restraints should be used unless absolutely necessary

• Para 9 = if person unresponsive, mentally / physically ill or injured police surgeon must be called or if emergency should be sent to hospital
• Code C = entitled to 8 hours of rest in 24 hours, regular breaks in interview
• Can delay a break if reasonable grounds for believing it would:
  [i] involve a
  – risk of harm to people
  – serious loss of or damage to property
  [ii] unnecessarily delay detainee’s release
  [iii] otherwise prejudice outcome of investigation