POLICE POWERS Flashcards
Legislation:
Pertaining to Search, Seizure, and
Detainment Pre-Arrest.
(DETENTION PRE-ARREST)
Misuse of Drugs Act 1971
POWERS OF DETENTION PRE-ARREST
S. 23 - powers to detain an individual
S. 23(2) If a constable has reasonable grounds to suspect that any person is in possession of a controlled drug in contravention of any relevant act, he may:
a) search that person, and detain him for the purpose of searching him;
b) search any vehicle/vessel in which the constable suspects that the drug may be found, and for that purpose require the person in control of the vehicles or vessel to stop it;
c) seize and detain, for the purposes of proceedings under this Act, anything found in the course of the search which appears to the constable to be evidence of an offence under this act.
Criminal Procedure (Scotland) Act 1995:
POWERS OF DETENTION PRE-ARREST
S.14 - Detention and questioning at Police Station.
S.14(1) Where a constable has reasonable grounds for suspecting that a person has committed or is committing an offence punishable by imprisonment, the constable may, for the purpose of facilitating the carrying out of investigations—
a) into the offence, and
b) as to whether Criminal Proceedings should be instigated against the person, —
DETAIN THAT PERSON and take him as quickly as is reasonably practicable to a police station or other premises and may thereafter for that purpose take him to any other place and, subject to the following provisions of this section, the detention may continue at the police station or, as the case may be, the other premises or place.
S.14(2) Detention shall not exceed 12 hours.
S.14A (2)- CONTINUED DETENTION PAST 12 HOUR RULE -“Before the expiry of the period of 12 hours mentioned in section 14(2), a custody review officer may, authorize that period to be extended in relation to the detained person by a further period of 12 hours.” (totalling 24 hours)
S.15 (1)(b) RIGHT OF PERSONS ARRESTED OR DETAINED TO HAVE INTIMATION SENT TO ANOTHER PERSON = is being detained under section 14 of this Act and has been taken to a police station or other premises or place, shall be entitled to have intimation of his detention and of the police station or other premises or place sent to a person reasonably named by him, with no more delay than is so necessary.
S.15A (2) RIGHTS OF SUSPECTS TO HAVE ACCESS TO A SOLICITOR = The suspect has the right to have intimation sent to a solicitor of any or all of the following—
(a) the fact of the suspect’s—
(i) detention,
(ii) attendance at the police station or other premises or place, or
(iii) arrest,
S. 15A (3) -THE SUSPECT ALSO HAS THE RIGHT TO A PRIVATE CONSULTATION WITH SAID SOLICITOR—
(a) before any questioning of the suspect by a constable begins, and
(b) at any other time during such questioning.
LEGISLATION:
Give 3 Examples of Statutory Powers of Arrest Without a Warrant:
POWERS OF ARREST WITHOUT A WARRANT
1) The Civic Government (Scotland) Act 1982:
S. 59 Powers of Arrest and Apprehension: S.1 A constable may, where it is necessary in the interests of justice to do so, arrest without a warrant a person whom he finds committing an offence to which this section applies or a person who is delivered into his custody in pursuance of subsection 3.
CASE: Keegan v Friel (1999)
2) The Road Traffic Act 1988: S.5, A constable may arrest a person without warrant if—
a) as a result of a breath test he has REASONABLE CAUSE TO SUSPECT that the proportion of alcohol in that person’s breath or blood exceeds the prescribed limit, OR
b) that person has failed to provide a specimen of breath for a breath test when required to do so in pursuance of this section and the constable has reasonable cause to suspect that he has alcohol in his body.
CASE: Macleod v Shaw 1981
3) The Terrorism Act 2000:
S.40 - Defines interpretation of who is a Terrorist.
S.41(1) - A constable may arrest without a warrant a person whom he REASONABLY SUSPECTS TO BE A TERRORIST.
CASE: Fox, Campbell and Hartley v UK (1990) ‘reasonableness’ test for suspicion of Terrorism.
THE TERRORISM ACT 2000 WAS FOUND TO HAVE SECTIONS INCOMPATIBLE WITH THE ECHR.
LIST THE SECTIONS AND THE CASE THAT EXPOSED THIS:
Sections of Terrorism Act that are repealed:
S. 44-47 ‘Power to Stop and Search’
(Concerns Police Powers and Deprivation of Liberty- both stopped and searched, alleging deprivation of liberties, used test from Guzzardi) (Case was heard domestically and then sent on to the ECHR)
CASE: GILLAN AND QUINTON v United Kingdom (2006) = the European Court of Human Rights found that there had been a violation of article 8 (private and family life) of the Convention on the grounds that the powers of authorization and confirmation as well as the powers of stop and search under sections 44 to 47 of the Terrorism Act 2000. Therefore, current stop and search powers no longer have effect.
EXPLAIN THE SIGNIFICANCE OF ARTICLE 5(SUBSECTIONS 1-5) OF THE ECHR:
Everyone has the right to liberty and security of person.
No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority of reasonable suspicion of having committed and offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts, or vagrants;
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
2 - Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and the charge against him.
3 - Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this article shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
4 - Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
5 - Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation.
Define the Relevant Sections of:
THE HUMAN RIGHTS ACT (1998)
(ALL OF THE CONVENTION RIGHTS EXIST UNDER ARTICLE 1 )
S. 1 - The Convention Rights (the rights given under the ECHR; sometimes balanced against each other, i.e., 8 v 10).
S. 2 - Interpretation of Convention Rights = This section requires the UK courts to have regard to pronouncements of the European Court of Human Rights, European Commission of Human Rights and the Committee of Ministers.
Explain What the Following CASE Established:
Guzzardi v Italy 1980 - The Guzzardi Test
In relation to Article 5 of the ECHR - The right to liberty.
(POLICE POWERS, DEPRIVATIONS OF LIBERTY)
Held, A deprivation of liberty. (Always try to display the conditions set out in this case when dealing with deprivation of liberty cases)
GUZZARDI TEST =
When determining a deprivation of liberty, one must take account of a whole range of criteria such as type, duration, effects, and manner of implementation in question.
-The difference between deprivation of and restriction upon liberty is nonetheless merely one of degree or intensity, and not one of substance or nature. (classifying as one or the other is often difficult- but it must be done)
What did the following CASEs establish:
JJ (2007)
AND
E (2007)
JJ = an 18 hour curfew was held to be a deprivation of liberty as regards Art. 5 of the convention. (Taking into account the Guzzardi test)
E = a 12 hour curfew held not a deprivation of liberty under Art. 5 of the Convention (taking into account the Guzzardi test).
What did the following CASE establish:
Chalmers v HMA 1954
(Police Powers resulting in Dep. of Liberty or Security Prior to Arrest)
@ Common Law - ‘no person can be lawfully detained except after a charge has been made against him’ (OLD LAW - Statutes Overrule)
RATIO = Arrested Person Must be Charged as Soon as Possible After Arrest.
What did the following CASE establish:
Wither v Reid (1979)
Concerns the situation where a Cop mistakenly tells the apprehended they are being ‘ARRESTED’ instead of ‘DETAINED’.
Police constable must be explicit in construing which statute they are apprehending someone under. The Police should know the law.
RATIO1: law must be clearly construed to the person being taken into custody,
RATIO2: Action for arrest will not lead to lawful detention.
What did the following CASE establish at Common Law:
Wilson v Roberson (1986)
The police have powers to detain a suspect when the constable in charge has REASONABLE GROUNDS and RELEVANT SUSPICION.
Held, They did have reasonable grounds, suspects were out late at a night club - detention justified on reasonable grounds.
What did the following CASE establish at Common Law:
Peggie v Clark (1868)
RATIO = arrest without a warrant may be made at common law in special circumstances where the police have ‘REASONABLE GROUNDS’ to make an arrest.
Reasonable Grounds cases rely very much on the facts of each individual case.
What did the following CASE establish at Common Law:
Mclean v Jessop 1989
ARREST WITHOUT A WARRANT AT COMMON LAW - MISTAKEN BELIEF
Concerns officer who saw two men running out after a Break & Enter - pursued 2 men, caught one, struck him with a baton. Turned out to be the neighbour who was chasing the culprit.
HELD, Mistaken Belief but on REASONABLE GROUNDS. Not an unlawful detainment.
Nicol v Lowe 1989 - In relation to the Civic Government (Scotland) Act 1982.
Statutory Powers of Arrest
Example of a S.59 arrest of a suspect
Keegan v Friel 1999 - In relation to the Civic Government (Scotland) Act 1982.
S. 59 (1) extends to being caught in the act of committing a crime but also extends to the immediate steps taken to get away.
S. 59 deprivation includes suspects being apprehended during commission or fleeing the scene (the get away).
What did the following CASE establish:
O’Hara v Chief Constable of the Royal Ulster Constabulary (1997)
GROUNDS/POWERS OF ARREST
- both an objective and subjective limit to the test used by arresting officers
- he can include information given to him in an intelligence report
THE TEST STIPULATES THAT IT DOES NOT MATTER THAT THE ARRESTING OFFICER THOUGHT HE WAS ACTING REASONABLY AT THE TIME; THE QUESTION IS WHETHER A REASONABLE PERSON WOULD BE OF THAT OPINION, HAVING REGARD TO THE INFORMATION WHICH WAS IN THE MIND OF THE ARRESTING OFFICER.
