Police Powers Flashcards
What does the Police and Criminal Evidence Act 1984 (PACE) achieve?
It regulates the use of police powers to investigate crime.
Lindley v Rutter (1981)
Principle: Where a police officer has extended his use of power past his legally permitted powers in relation to his discretion there may be a case for judicial review of the police action in line with the wednesbury principles.
Lindley was arrested for disorderly behaviour whilst drunk and taken to a police station. Placed in a cell, and following a struggle, searched. Two female police officers removed her bra. Purportedly the chief constable had told them to do so (to stop the defendant harming herself). In respect of the struggled D was charged and convicted of assaulting a police officer in the execution of her duty. She appealed. DC held: that the polcie officer had failed to properly exercise her discretion in the present case. No account had been taken of D’s particular circumstances before deciding to remove her bra. At the material time, therefore, the police officer was not acting within the execution of her duty.
What are the wednesbury principles?
Judicial review of a public body where they have exceeded their legal power.
Associated Provincial Picture Houses v Wednesbury Corpn (1984) [The Wednesbury case]
The outcome of this case is not important - It concerned a challenge to a decision by the corporation to attach a condition to a cinema licence whereby children under the age of 15 were not permitted into a cinema on a Sunday. It was argued by the claimant that such a condition was unreasonable and that it was therefore beyond the powers of of the corporation to have imposed it.
The significance of the case lies in the judgement of Lord Greene MR. Stressed supervisory, not appellant.
- The exersize of a discretion must be real and genuine.
- In exercising a discretion, the decision-maker must have regard to the relevant matters and must disregard irrelevant matters
- A discretion must not be exercised for reasons of bad faith or dishonesty.
- a discretion must be exercised for the purpose for which it was intended.
He also added that discretion must be exercised reasonably. If a decision is made in contradiction to any one of those principles, it may be able to be concluded that the decision-maker had acted unreasonably.
R v Chief Constable of sussex, ex p International Trader’s Ferry LTD (1999)
Courts able to review decision of police (or other public bodies). May quash the decision if it was unlawful, and may order police to pay damages.
International traders ferry sought to challenge the chief constable of Sussex’s decisions on the policing of animal rights protesters at a port which had a detrimental impact on their business of exporting livestock. The HOL found that concluded that the police had acted within the scope of their discretion because their manpower and finances were limited.
R v Metrapolitin Police Comr, Ex Parte Blackburn (1968)
The commissioner issued a policy decision NOT to attempt to enforce a provision of the Betting, Gaming and Lotteries ACT 1963. His reasoning being that the state of the law was uncertain and there were limitation in resources as to how much they could ‘keep an eye’ on the gaming clubs. Blackburn sought a mandatory order (which is something handed down as a remedy in judicial review to a lower body, ordering them to do something).
CA held that: the wide discretionary power enjoyed by the police were not beyond the review of the courts. The Mandatory order was not required because the police commissioner said that he would remove the policy decision, however, had this not happened, the courts would have been willing to grand the order on the basis that the police are under a clear duty to enforce the law.
R v Chief Constable of Devon and Cornwall, ex p Central Electricity Generating Board (1982)
Principle: It is not for the courts to interefere with the discretion of the police unless it is unlawful. They can’t instruct the police what to do in general matters which the police ought to be able to deal with.
The CA said that the circumstances of the case made it inappropriate to grant an order of mandamus (mandatory order). Lord Denning MR said that it was ‘of the first importance that the police should decide on their own responsibility what action should be taken in any particular situation’.
Why is the The Police and Criminal Evidence ACT 1984 (PACE) Necessary?
1) The state of the law at the time was unclear and contains many anomalies.
2) The police need to have adequate and clear powers to conduct the fight against crime on our behalf and the public need to have proper safeguards against abuse of such powers if they are to have confidence in the police
3) The measures play an essential part in an overall strategy designed to create more effective policing.
Sections 60 and 66 of the Police and Criminal Evidence ACT 1984 deal with what?
They require the secretary of state to issue codes of practice in connection with the exercise of various powers accorded to the police under PACE. To date, eight such codes have been drafted.
1) (code a) Powers of stop and search
2) (code b)Searching premises and the seizure of propery
3) (code c) Detention, treatment, and questioning of the subjects
4) (code D) Identification Matters
5) (Code E) Tape recording interviews with suspects
6) (Code F) video recording interviews with suspects
7) (Code G) Police Officers statutory powers of arrest
8) detention of terrorist suspects (Code H)
Do section 60 and 66 render a police officer automatically liable?
Breaches of these codes do not in and of themselves render police officers liable to criminal or Civil Proceedings (s 67 (10)). Neither is a breach of code automatically a disciplinary matter as was formerly the case.
Under s 23 (2) of the Misuse of Drugs Act 1971, what is allowed to happen?
A police officer may search any person who he has reasonable grounds to suspect to be in possession of a controlled drug in contravention of the Act.
What does s 23(2) (c) specify?
That a police officer may seize and detain anything which he finds as a consequence of a s 23 search which appears to him to be evidence of an offence under the Act.
S.60 of the Criminal Justice and Public Order Act 1994 is concerned with what?
Powers to stop and search in the anticipation of violence.
Where it is believe that serious violence may take place in the locality, or that persons are carrying dangerous instruments or offensive weapons in the locality, a police officer of the rank of inspector or above may authorise the use of the s.60 search powers during the course of a 24 hour period. These entitle the police to stop and search any pedestrian, any vehicle, the driver of the vehicle or, any of its passengers for offensive weapons or dangerous instruments. There is no need for a police officer to reasonably suspect that an individual is in possession of those weapons or articles. This is subject to s.2 of PACE.
What is s.2 of PACE in relation to s.60 of the Criminal Justice and Public Order Act 1994?
If a police officer, under the provision of s.60 of the Criminal Justice and Public Order Act 1994 carries out a search without conforming to s.2 of the PACE Act 1984 (a requirement for an officer to supply details of their names and station rendered) a s60 search unlawful.
Osman v Southwark Crown Court (1999)
Backs up s.2 of Pace that Officers must state their names. However, because these are codes, this particular incident was rendered lawful, due to the fact that the officers lapels were on display and the search was done in broad daylight.
1) The Police had experienced continuous trouble throughout the previous week from groups of youths carrying weapons into a park.
2) Proper authorisation had duly been given to stop and search members of the public on entering the Park under Section 60(4)(5) of the Criminal Justice and Public Order Act 1994.
3) Officers were openly stopping and searching all members of the public on entering the park.
4) Osman, together with other youths, was about to enter the park.
5) Osman was stopped by Police Constables Connors and Maxwell at the entrance.
6) Police Constable Connors addressed Osman and said, ‘Are you going to the fair as I am entitled to search you for weapons?’
7) Osman, upon hearing this request, remained standing in front of them without responding.
8) The Police Officers, given what was clearly happening to everyone else entering the park, made the not unreasonable assumption that Osman meant to comply with the search.
9) Immediately following this Police Constable Maxwell took hold of Osman’s left arm in order to commence the search, saying, You are going to be searched’.
10) Osman immediately folded his arms tightly across this chest and said, You cannot fucking search me here, take me to a fucking police station’.
11) As a result of this reaction the Police Officers had reason to fear Osman might indeed be carrying a weapon and that they themselves or others might be in danger unless they searched him then and there.
12) Police Constables Maxwell and Connors, therefore, shortly after assisted by other officers, proceeded to free Osman’s arms and attempted to force him to comply with the proposed search.
13) During the subsequent search the officers were assaulted.
14) Police Constables Connors and Maxwell had failed to bring to Osman’s attention their names and the station to which they were attached, but that Police Constable Connors would have given these details later.
1) Osman’s conduct had led the Police Officers to draw a reasonable conclusion that he had consented. They were thus entitled to commence a search and to continue it when he became unwilling to co-operate.
2) Although there had been a breach of section 2(3)(a) of the Police and Criminal Evidence Act 1984 and the Codes, in that the officers had failed to bring to Osman’s attention their names and station, given the officers were clearly local officers policing a local event in broad daylight as expeditiously as possible and because numbers could readily be obtained from the officers’ lapels, the breach was not so serious as to render the search unlawful on that account.”
The requirements of s.2 do not need to be complied with, when?
When a person pursuant to s 60(8A) of the 1994 Act, a police officer asks a person to remove a mask worn to conceal their identiy since such an action does not amount to a ‘search’.
DPP v Avery (2001)
A police officer ask a protestor who he believed was trying to conceal his identity to remove his mask, the man assaulted the police officer after the officer tried to remove his mask. The officer did not state his name and station. Was he in breach? No.
The power to order the removal of face coverings is limited to a specific geographical location for a limited time (24 hours) and is linked to the threat of violence.
(because of the riots and looting in London generally the government intends to empower the police to be able to remove face coverings under any circumstances provided they reasonably believe that they relate to criminal activity)
S 44 and 45 of the Terrorism Act 2000 do what?
They provide a police power for there to be a stop and search that was not conditional on the need for reasonable suspicion. Like the power under s 60 of the 1994 Act, it was exercisable only after an authorisation had been granted by a senior officer. Where an authorisation was granted, it lasted for a period of 28 days.
The lawfulness of an authorisation and subsequent stops and searches was challenged in R (Gillan) v Metropolitan Police Commissioner (2006).
R (Gillan) v Metropolitan Police Commissioner (2006)
Like the DA nd CA case before it, the HL dismissed claims that there had been a violation of rights under arts 5,8,9,10 and 11 of the ECHR. In its judgement, the power to stop and search under s 44 had pursued a legitimate aim, the prevention of act of terrorism and had been subject to appropriate constraints.
Moreover, a stop and search did not amount to a deprivation of liberty within the meaning of art 5(1) of the ECHR, and any intrution on private life was not sufficiently serious to amount to a breach of art 8(1)
It was then taken to the ECtHR (in 2010) and they found that the art 5(1) had been breached, and that art 8 (in regards to privacy) had been breached. Saying that the ‘use of coercive poweres conferred by the legislation to require an individual to submit to a detailed search of his person, his clothing and his personal belongings amounts to a clear interference with the right to respect for private life’.
This then caused the government to change the law.
What is the Terrorism Act 2000 (remedial) Order 2011?
It is an article which treats s44- 47 of the Terrorism Act 2000 as if they were repealed. Further it provides that the 2000 Act is to have effect as if three new sections, ss 47A - 47C, and one new schedule, Sch 6 B, were inserted.
Under 47A, A senior police officer may give an authorisation in relation to a specified area or place if he reasonably suspects tha n act of terrorism will take place, and considers that: the authorisation is neccesary to prevent such an act; and both the specified area or place, and the duration of the authorisation may last for a maximum of 14 days rather than 28.
Bessell v Wilson and Leigh v Cole
In both a search was not described as a neutral act but a ‘degradation’ or ‘indignity’. Accordingly, since a search of a person is prima facie a trespass, it will, unless authorised by either statute or the common law, constitute an unlawful act. The courts have shown themselves willing to uphold the common law rights of personal liberty and personal security where an implied power to search has been claimed.
Secretary of State for the Home Department v GG (2009)
GG was the subject of successive control orders made pursuant to s 1(3) and (4) of the prevention of terrorism Act 2005. Since November 2005, various legal challenges had been brought against the orders. In the most recent, collins J had confirmed that the propriety of the control order. He had, however, excised a provision from the order requiring GG to submit to any search of his person which might be required for the purpose of monitoring his complience with other requirements of the control order. The HS appealed against that ruling. CA held: dismissing the appeal, that it was axiomatic that the common law rights of personal security and personal liberty prevent any official search of an individuals clothing or person without explicit statutory authority. The language of s 1(3) of the 2005 Act was insufficient to authorise the inclusion in a control order of a general requirement to submit to searches of the person. The absence of such a power from the list of specific obligations in s 1(4) was as consistent with deliberate as with accidental omission. Even if the omission of a power of search had been a legislative oversight, it was not the role of the courts to supply what Parliament might have inserted where fundamental liberties were at stake.
S 1(4) of the Terrorism Act 2005
The obligations that may be imposed by a control order made against an individual are any obligations that the Secretary of State or (as the case may be) the court considers necessary for purposes connected with preventing or restricting involvement by that individual in terrorism-related activity.
