Police Powers

Question 1

Osman V DPP 1999?

Answer 1

The police failed to give details of their names or the station they were attached to. They search Mr Osman who was charged with assaulting a police officer when he tried to resist the search. The QBD declared the search to be unlawful and Osman was found not guilty of an assault.

Question 2

Michaels V Highbury Corner Magistrates Court 2009?

Answer 2

The case involved a search under the Misuse of Drugs Act 1971. Michaels placed some drugs in his mouth and the police shouted at him not to swallow them, which he did. The police did not give their name and station and the conviction was quashed due to an unlawful search.

Question 3

R V Longman 1988?

Answer 3

The police had a warrant to search the premises for drugs. Knowing that entry would be difficult a non uniformed officer posed as a delivery woman from interflora and got the occupants to open the door where upon the police burst in without identifying themselves or showing the search warrant. The court of appeal held that force or subterfuge could be lawfully used in order to gain entry with a search warrant.

Question 4

Where are the police powers contained?

Answer 4

In the Police and Criminal Evidence Act 1984 (PACE).

Question 5

Where are the Codes of Practice contained?

Answer 5

In Section 66 of PACE, as amended by other acts of parliament.

Question 6

What is the main act which has amended the codes of practice?

Answer 6

Serious Organised Crime and Police Act 2004 (SOCPA).

Question 7

What do the codes of practice provide?

Answer 7

It provides guidelines as to the exercise of certain powers.

Question 8

Can breaches of the codes give rise to legal action?

Answer 8

Breaches of the codes cannot give rise to legal action but if there is a ‘serious and substantial’ breach it could lead to evidence being excluded in trial.

Question 9

What code holds the powers for stop and search?

Answer 9

Code A of PACE.

Question 10

What section of PACE provides the powers of stop and search?

Answer 10

Section 1 to 7 of PACE.

Question 11

What does Section 1 to 7 of PACE give police the right to do?

Answer 11

It gives police the right to stop and search people and vehicles in a ‘public place’.

Question 12

What does ‘public place’ mean?

Answer 12

It means the street but also extends to areas such as pub car parks and even private gardens if the officer has good reasons for believing that the suspect does not live at that address.

Question 13

What must police have in order to carry out a stop and search?

Answer 13

They must have reasonable grounds for suspecting that the person is in possession of or the vehicle contains stolen good or prohibited articles such as offensive weapons or articles used to assist a crime. The Criminal Justice Act 2003 extends the power to cover stop and search for articles intended to be used in causing criminal damage.

Question 14

When making a search what rules apply?

Answer 14

• if a body search takes place in public, embarrassment must be kept to a minimum and only outer clothes may be removed e.g. coat, jacket and gloves. If a police officer wishes to make a more thorough search, this must be carried out of view.
• when making a search the police officer must tell the suspect: their name and station they are attached to, why the search is being made, the grounds for making the search and the officer must make a record of the search at the time of the search or as is soon as practicable afterwards. A copy of the search may be obtained from the Police Station.

Question 15

What must the police have to make a search?

Answer 15

The police must have reasonable suspicion.

Question 16

What does Code A state about reasonable suspicion?

Answer 16

Reasonable suspicion can never be supported on the basis of personal factors alone e.g. a persons colour, age, hairstyle or manner of dress or the fact that he is known to have previous convictions nor may it be founded on the basis of stereotyped images of certain persons or groups as being more likely to be committing offences. There must be an objective reason for stopping and searching. This will normally be from information that the person is carrying a knife for example. Reasonable suspicion can also be triggered by the unusual behaviour of the suspect.

Question 17

When can voluntary searches occur?

Answer 17

The police can only carry out a voluntary search where they have the power to search the person anyway.

Question 18

What are the additional powers of stop and search?

Answer 18

• The Misuse of Drugs Act 1971 allows the police to stop and search if they believe the suspect is in possession of a controlled drug.
• The Criminal Justice and Public Order Act 1994, Section 60 gives the police power to stop and search in anticipation of serious violence in any locality. ‘Reasonable grounds for suspicion’ is not needed but permission must be given from a senior officer. This right can be authorised for a 24 hour period. Also under this act, anyone on the way to a rave may be stopped and redirected. Section 4 authorises road checks where a person has committed a serious offence.
• The Terrorism Act 2000 Section 44 gave the police powers to stop and search where there is reasonable suspicion that the person is involved in terrorism. They had greater powers under this act and the suspect could be asked to remove head gear and shoes. However, this power has recently been suspended by the government.
• the police can use reasonable force when they stop and search but must make every effort to persuade the person to co-operate. They should only use force as a last resort.
• Road checks: where there is a reasonable suspicion that a person who has committed an indictable offence is at large in a particular area. Section 4 of PACE gives permission for road checks to be made in that area. Authorisation of a senior police officer is needed although an officer of lower rank can authorise the road check if it is urgent. A road check allows all vehicles in the particular locality to be stopped.

Question 19

What section of PACE provides the power to search premises?

Answer 19

Code B.

Question 20

When can searches be carried out?

Answer 20

With or without a warrant, any property can be searched if a person consents to it.

Question 21

What section of PACE hold the power to search with a warrant?

Answer 21

Section 8 of PACE.

Question 22

What does Section 8 of PACE give the police the right to do?

Answer 22

This section gives the police the power to apply to a magistrate for a search warrant. The magistrate must be satisfied that the police have reasonable grounds to believe that:

• an indictable offence has been committed and that there is material on the premises which is likely to be of substantial value in the investigation of the offence and that material is likely to be relevant evidence.
• in addition the magistrate should be satisfied that it is not practical to communicate with any person entitled to grant entry or access or that entry will be refused unless a search warrant is produced or that the purpose of the search may be frustrated unless police arriving at the premises can gain immediate entry.

Question 23

What are search warrants designed for?

Answer 23

Search warrants are designed to prevent evidence being removed or destroyed through the need to give warning of an intended search.

Question 24

What guidelines does Code B provide as to the exercise of the power to search premises?

Answer 24

It provides that search of premises should be carried out at a reasonable time using reasonable force and showing consideration and courtesy towards the property and privacy of the occupier. The police are required to enter and search at a reasonable hour unless the purpose of the search would be frustrated by entering at a reasonable hour. The police should identify themselves and show the warrant to any person at the premises. However, the courts have held that the police need not comply precisely with the legal requirements if the circumstance of the case make it wholly inappropriate. For example, the identification of the searcher as a police officer and the production of the warrant need not be carried out on entry but only before the actual search begins.

Question 25

Search without a warrant, Section 17 of PACE?

Answer 25

The police may enter and search premises if it is order to arrest a person named in an arrest warrant or to arrest someone for an offence or to recapture an escaped prisoner. The police must give anybody present in the premises the reason for entry. The police can only enter premises without giving a reason if the circumstances make it impossible, impracticable or undesirable to do so.

Question 26

O’Loughlin V Chief Constable of Essex 1998?

Answer 26

The police forced their way in without explaining that it was in order to arrest O’Loughlin wife for criminal damage. O’Loughlin was able to sue the police for damages as their behaviour made the entry unlawful.

Question 27

Section 18 of PACE?

Answer 27

After a person has been arrested for an indictable offence the police can search premises occupied or controlled by the suspect if they reasonably believe there is evidence of the particular offence or other offences on the premises.

Question 28

Section 32 of PACE?

Answer 28

After a person has been arrested for an indictable offence the police can enter and search the premises where the person was when arrested or where they were just before being arrested if the officer reasonably suspects there is evidence relating to the particular offence on the premises.

Question 29

Section 19 of PACE?

Answer 29

Once lawfully on the premises the police can seize and retain any relevant evidence.

Question 30

What happens where the police exceed their powers for searching premises?

Answer 30

The occupier or any other person affected can sue the police for damages.

Question 31

What code gives the power of arrest?

Answer 31

Code G.

Question 32

What guidelines does Code G provide?

Answer 32

Arrest can be carried out with or without warrant.

Question 33

Arrest with a warrant?

Answer 33

The police must apply to a magistrate for an arrest warrant. The name and details of the offence should be stated and when granted it gives the power to an officer to enter premises to arrest.

Question 34

Section 24 of PACE?

Answer 34

Powers of arrest are under section 24 of PACE as amended by SOCPA. The police can arrest for all offences, there is no longer the distinction between arrestable and non-arrestable offences.

Question 35

What two elements are required for a lawful arrest?

Answer 35

The grounds for making an arrest are that a constable has reasonable grounds to believe that a person is committing, has committed or is about to commit a criminal offence and there are reasonable grounds for believing that the persons arrest is necessary.

Question 36

How is it established if the arrest is necessary?

Answer 36

The Necessity Test.

Question 37

What is the necessity test?

Answer 37

• to enable the name and addressed of the person to be ascertained
• to prevent the person in question from causing physical injury to them self or any other person
• to prevent the loss or damage to property
• to prevent the unlawful obstruction of the highway
• to protect a child or other vulnerable person
• to allow the prompt and effective investigation of crime
• to prevent any prosecution from being hindered by the persons disappearance.

Question 38

O’Hara V UK 2000?

Answer 38

The ECHR case confirmed the two-part test for reasonable suspicion. The officer must have the actual suspicion and there must be reasonable grounds for that suspicion.

Question 39

Section 28 of PACE?

Answer 39

It states that the reason for arrest must be known at the time of the arrest or as soon as is reasonably practicable. This includes the necessity criteria. The arrest may be conducted using any words although there is a standard format available which most police officer use.

Question 40

Taylor V Chief Constable of Thames Valley Police 2004?

Answer 40

It was held that a person only need to be told in simple, non-technical language that they understand. A 10 year old boy threw stones during a demonstration, later at another protest he was identified by a police officer who said ‘I am arresting you on suspicion of violent disorder on April 18th 1998 at Hillgrove Farm’. The Court of Appeal held that the language used was understandable and so there was a lawful arrest.

Question 41

What must the police record at the time of arrest or as soon as possible?

Answer 41

• the nature and circumstances of the offence leading to the arrest
• the reason why the arrest was considered necessary
• they must confirm that a caution was given
• they must also record anything said by the person at the time of the arrest
  All this information will be recorded in the custody record on arrival at the station.

Question 42

Section 117 of PACE?

Answer 42

The police can use reasonable force to make the arrest.

Question 43

Section 32, search on arrest?

Answer 43

Where a person has been arrested the police have a right to search that person for anything that might aid an escape or for evidence relating to the offence. If the search is in public only outer clothing may be removed. Since December 2005 police have been given the power to test for drugs on arrest. Defendants who refuse can be refused bail or fined £2500.

Question 44

Other powers of arrest?

Answer 44

• the police also have power under the common law to arrest for breach of bail conditions and the breach of peace. This occurs even if the behaviour complained of is on private premises.
• the Criminal Justice and Public Order Act 1994 added an extra power of arrest to PACE, now in Section 46A. This gives the police the power to arrest without warrant a person on police bail who fails to return to the police station at the required time.

Question 45

McConnell V Chief Constable of Greater Manchester 1990?

Answer 45

The defendant refused to leave a store when requested by the manager. A police officer then took the defendant outside and he attempted to re-enter the store. He was arrested for conduct whereby a breach of the peace might be caused. The defendant later sued the police arguing the arrest was unlawful because a breach of the peace could not occur on private premises. The Court of Appeal held that it could and that the arrest was lawful.

Question 46

Bibby V Essex Police 2000?

Answer 46

The relevant conditions for such an arrest were laid down by the Court of Appeal here. This case stated that the conduct of the person arrested must be ‘unreasonable’. If the conditions do not exist, a court may declare the arrest to be unlawful.

Question 47

Arrest by private citizens?

Answer 47

SOCPA amended PACE and created a new Section 24 of PACE. This sets out the rights of private citizens to make an arrest. It gives the power to a person other than a police officer to make an arrest without a warrant of anyone who is in the act of committing an indictable offence, or anyone whom he has reasonable grounds for suspecting to be committing an indictable offence. The person must have reasonable grounds for believing an arrest is necessary and that it is impracticable for an officer to make the arrest instead.

Question 48

What code gives the power of detention and questioning?

Answer 48

Code C.

Question 49

Section 30 PACE?

Answer 49

Under Section 30 a person must be brought to the station as soon as is practicable after the arrest. The arrested person will then be bought before a custody officer, who is a police officer who is at least the rank of sergeant and who is separate from the investigating officer. Their role is to ensure that the rights of the suspect are protected and that the rules of PACE are adhered to.

Question 50

How completes the booking in procedure?

Answer 50

The custody officer will complete the booking in procedure. During this procedure the suspect will be given notice of his key rights. The notice must be given orally or in writing, there are four rights.

Question 51

What are the four rights?

Answer 51

• The right to inform someone of their detention, if it is a serious arrestable offence a senior offence can authorise a delay of up to 36 hours. This can only be done if there are ‘reasonable grounds’ for believing that telling the named person will lead to interference with evidence or alerting another who is under suspicion - Section 56 PACE.
• The right to consult a solicitor - Section 58 PACE. Information must be provided about a duty solicitor at this stage, they are provided for free to anyone under arrest, a station must have posters advertising this right prominently displayed. The suspect must also sign the custody record stating whether they want to be given legal advice. This right can be delayed for up to 36 hours if the police believe that consulting a solicitor may lead to interference with other persons involved, harm to property or hinder the recovery of property. A suspect has the right to a private consultation with a solicitor.
• The right to consult the Codes of Practice relating to arrest and detention.
• The right to silence as contained in the caution. The caution should be repeated before the interviews begin. The Criminal Justice and Public Order Act 1994 changed this, it provides that inferences may be drawn from the fact that a defendant has refused to answer police questions.

Question 52

R V Samuel 1988?

Answer 52

This case related to a 24 year old man whose mother had already been informed of his arrest. The police denied access to a solicitor on the grounds that is might lead to other suspects being alerted. This denial could not be justified as someone had already been informed of his arrest and any altering would have already occurred. It was stressed that such denial could only be justified in exceptional circumstances.

Question 53

R V Grant 2005?

Answer 53

The Court of Appeal held that illegal conduct by the police would not be tolerated. There had been deliberate interference by the police with the suspects right to a private meeting with his solicitor. This was seen as so serious that his conviction for murder was quashed. Advice can be given over the telephone by the Criminal Defence Service Direct.

Question 54

Section 57 PACE?

Answer 54

If the detainee is under 18, mentally ill, foreign or has a hearing impairment an ‘appropriate adult’ must be present.

Question 55

R V Aspinall 1999?

Answer 55

The Court of Appeal ruled that a schizophrenic defendant should have an appropriate adult present when being questioned. Even though the suspect appeared to understand the questions, the evidence was deemed inadmissible. However, an interview can begin without a solicitor or an appropriate adult if an officer of the rank of superintendent considers that delay will involve harm to persons or serious loss or damage to property.

Question 56

What are the time limits?

Answer 56

Initially for 24 hours, then between 24 to 36 hours only with permission from a senior officer and only for serious offences. After 36 hours they may be detained for a further 60 hours if the police apply to the magistrates court. The Magistrates Court can order the suspect to be detained for a maximum of 96 hours.

Question 57

Who is in charge of overseeing the suspect?

Answer 57

The custody officer is in charge of overseeing the time limits and accurate records must be kept of the detention. Once a suspect has been arrested and taken to a police station there are strict rules about the length of time they may be held.

Question 58

Section 40 of PACE?

Answer 58

The custody officer must review the detention after 6 hours and after that at 9 hourly intervals, if the custody officer believes there is no reason to detain the suspect further, they must be released.

Question 59

Section 60 of PACE?

Answer 59

Any detained person may be questioned by the police, all interviews must be tape-recorded. The suspect has a right to a solicitor at the interview, however, if the suspect does not ask for one then the interview can begin without one. Also if the matter is urgent or the solicitor is delayed then the questioning can begin. The suspect must be cautioned before each interview.

Question 60

Section 76 of PACE?

Answer 60

This states that the police should not use oppression, torture or threats of violence during the interview process and evidence which is gained in this way should be inadmissible in court.

Question 61

What does the suspect no longer have a right to?

Answer 61

A suspect no longer has a right to silence. If a defendant refuses to speak the judge my inform the jury of this and make a negative reference to it.

Question 62

What must the interview room be?

Answer 62

Well lit, heated and ventilated and the suspect must be given adequate breaks for meals, refreshments and sleep.

Question 63

Section 36 of PACE?

Answer 63

If the custody officer believes that there are no grounds to detain the suspect then they are under a duty to release them. During detention the custody officer must keep a record of events e.g. interviews and visits to the cell by police officers.

Question 64

Section 54 of PACE?

Answer 64

The police may search an arrested person on arrival at the police station and seize any item they believe the suspect might use to cause physical injury to himself or any other person, or to damage property, to interfere with evidence or to assist him to escape, or any item the officer has reasonable grounds for believing may be evidence relating to an offences.

Question 65

Strip searches?

Answer 65

They are defined in Code C as searches ‘involving more than the removal of outer clothing’. The right to these searches is not automatic. They may only be made if it is believed that the defendant is concealing a prohibited article. The searches must not be conducted in front of another who does not need to be present. They may not be made by a member of the opposite sex and the suspect should not be made to remove all of his clothing at the same time.

Question 66

Fingerprints and body samples?

Answer 66

Under Section 63 of PACE while the suspect is detained the police may take fingerprints and non-intimate body searches such as hair and saliva without the persons consent. If necessary the police may use reasonable force to obtain these. Section 61A of PACE as amended by SOCPA 2005 allows the police to take impressions of footwear.

Question 67

An imitate sample?

Answer 67

This is defined by the Criminal Justice and Public Order Act 1994 as ‘a sample of blood, urine, tissue fluid, pubic hair, dental impression or swab from somewhere other than the mouth’. Under Section 55 of PACE a high ranking police officer can authorise an intimate search if it is believed the suspect has an item which can be used to cause harm to either them or another. If it is a drugs related item, the search should be carried out by a doctor or nurse. If it is another type of search it should be carried out by a high-ranking officer.

Question 68

Where are sample of DNA etc kept?

Answer 68

All samples are put on the National Police DNA database. Since July 2010 these samples can only be kept for a specified time. In non-serious offences data will be deleted straight away and in serious offences the DNA will be kept for three years with a possible extension of a further 2 years with court permission. Considering these are cases where the person was not convicted, this mat not be enough to satisfy civil rights campaigners. In 2011 it was reported that one fifth of the 1.1 million DNA profiles on the data base had no linked convictions. The Protection of Freedoms Act 2012 now gives a legal framework as to how long and under what circumstances DNA can be retained.

Question 69

S and Marper V UK 2008?

Answer 69

The ECHR ruled that it was a breach of Article 8 to retain DNA indefinitely if there was no conviction. S was 11 when arrested and later found not guilty of attempted robbery. Marper was charged with harassment of his partner but the case was later discontinued.

Question 70

Evidence and admissibility?

Answer 70

It is essential that police powers are exercised correctly so that the evidence obtained can be use in court i.e. admissible. The courts can refuse to use evidence that has not been properly obtained. The police have wide ranging powers that can be exercised with discretion. There is always the risk of misinterpretation. The powers are essential to keep the public safe. Where there have been errors remedies may be available.

Question 71

When can evidence be excluded from trial?

Answer 71

• Under Section 76 (2 a) PACE confessions may be excluded from a trial if there is evidence of oppression or if there are circumstances which make evidence potentially unreliable, Section 76 (2 b).
• Confession evidence may be excluded at a trial if it was obtained in circumstances which make it unreliable. For example in R V Samuel 1988 and Grant 2005 where failure to provide access to legal advice rendered the confessions inadmissible.
• Section 78 PACE - Any evidence including a confession may be excluded on the grounds that it would adversely affect the fairness of the trial and this includes situations such as not writing up the interviews straight after they had finished as in R V Canale.
• Section 57 of PACE - Vulnerable suspects i.e. those under 18 or mentally ill must have an appropriate adult present with them whilst being questioned and the absence of such a person may make the confession inadmissible in court.

Question 72

What is the Independent Police Complaints Commission?

Answer 72

The IPPC was set up in 2004 to supervise the handling complaints against police and police staff. It replaced the Police Complaints Authority as the government felt that a more independent, accessible and open service was needed and one that people would have more confidence in. The IPPC is overseen by a chair person and 12 commissioners, none of whom must have worked for the police and the commissioners are appointed by the Home Secretary. The IPPC has been involved in some high profile investigations e.g. the shooting of Jean Charles de Menezes who was mistakenly believed to be a suicide bomber.

Question 73

Civil actions against the police?

Answer 73

A person may sue the police and claim damages for injuries and loss sustained. A person can sue the police malicious prosecution, false imprisonment, wrongful arrest, trespass, assault or negligence. Generally the Chief Constable of the relevant police force is sued and the case is usually heard in the High Court. A jury decides the outcome and amount of damages.

Question 74

Goswell V Commissioner of Police for the Metropolis 1998?

Answer 74

The claimant successfully sued the police for false imprisonment and assault.

Question 75

Remedies for a breach of police powers?

Answer 75

• an apology by the police force
• an explanation
• a change in police or procedure
• a recommendation that disciplinary action is taken
• judicial review

Question 76

What decides how a complaint is dealt with?

Answer 76

The type of complaint determines how it is dealt with although in all instances the police are obliged to take steps to obtain and/or preserve evidence which is relevant to the complaint.

Question 77

Who can make a police complaint?

Answer 77

Anyone can make a police complaint, it does not need to come from a ‘victim’ of police misconduct; it might be a witness to an incident. The complaint should be made within one year of the alleged incident and must be against a particular officer, group of officers or civilian staff. A person can either make a compliant or sue through the civil courts.

Question 78

Who oversees the police complaints procedure and what do they do?

Answer 78

The Independent Police Complaints Commission (IPCC). All complaints start with the individual in question or a solicitor or MP on their behalf making a written complaint to the police force in question. If the complaint is made to the IPCC they must forward it to the relevant police force in question.

Question 79

Who considers most police complaints?

Answer 79

Most case complaints are considered and recorded by the Profession Standards Department (PSD) of the police force concerned. The PSD decides whether to record the complaint or not and if they choose not to the complainant has the right to appeal against us.

Question 80

What happens if the PSD decides to deal with the complaint?

Answer 80

If the PSD decides to deal with the complaint on an informal basis under the local or informal resolution procedure the likely outcome is an apology and there is no right to appeal once the local resolution is chosen. If the PSD decides that the complaint is suitable for formal resolution then it will be dealt with through the local investigation procedure. This requires the police to appoint an Investigating officer of the same rank or above as the officer being investigated and they can be from the same force or a different one. The police have discretion to refer a matter to the IPCC and the IPCC can also decide to deal with any particular case if they choose. But sometimes a complaint must be forwarded to the IPCC who may decide to investigate, supervise or manage the complaint. The IPCC was set up in 2004 to supervise the handling complaints against police and police staff. The local police must refer the following incident to the IPCC and the IPCC can investigate these issues even if a complaint has not been made. The IPCC can also refer a case to the CPS if it believes that an officer should be prosecuted.

Question 81

When must the local police refer a complaint to the IPCC?

Answer 81

• death following police contact e.g. custody in
• cases involving serious injury to a member of the public
• fatal road accidents involving a police vehicle
• use of a firearm by an officer on duty
• allegations of aggravated discriminatory behaviour or an assault or a hate crime
• allegations that an officer has committed a serious arrestable offence while on duty
• allegations of corruption