Police Powers Flashcards
Stop and Search: Legal basis
Red
s.1 PACE - wide power to search any person or vehicle for stolen or pohibited articles in a public place.
(or s.23 MDA if drugs)
s. 1 (7) and (8): ‘stolen or prohibited articles’ include:
- any articles acquired from offences of theft of burglary;
- offensive weapons…
HOWEVER - only if s.1 (3) - ‘reasonable grounds for suspecting that he will find stolen or prohibited articles’.
Reasonable grounds for suspicion: COP A 1.1-2.29:
COP A 2.2: subjective and objective test
COP A 2.2B: not on the basis of personal factors
COP A 2.4 - should be linked to accurate and current
intelligence information
COP A 2.6B - may arise from a person’s behaviour
COP A 2.8A - should be based on a range of factors
Stop and Search: how to be carried out?
Red
Searches must be carried out in accordance with
PACE ss.2 and 3 and COP A.
Officer must tell individual:
- that they are being detained for the purpose of a search
- the officer’s name
- the legal search power being exercised (e.g. s.1 PACE or s.23 MDA)
- the purpose of the search and the grounds for the reasonable suspicion
- that he is entitled to a copy of the record of the search.
S.1 (1) PACE - can only exercise search in a PUBLIC PLACE or a place to which the public has access, or to which people have ready access at the time officer proposes the search, but NOT a dwelling.
s. 1 (4) and (5) - can only search a person or vehicle in the GARDEN or YARD of a private dwelling, if the officer has reasonable grounds for believing that:
- the person does not live there; and
- is there without the occupier’s consent.
s.117 PACE - can use reasonable force if no co-operation from person being searched.
COP A, 3.1-3.7
3.1 - with courtesy, consideration and respect
3.2 - must first seek co-operation of the person;
reasonable force is last resort.
3.4 - carry out near to where person/vehicle was first
detained
3.5 - no power to require person to remove any clothing
except outer coat, jacket or gloves - thorough
searches can only be conducted out of public
view and at police van/station.
Must keep records of the search - s.3 PACE
(these will be checked to ensure no unfairness)
NOTE: BREACHES OF COP A COULD LEAD TP ANY EVIDENCE FOUND AS A RESULT OF AN UNLAWFUL SEARCH BEING EXCLUDED AT TRIAL UNDER S.78 PACE
Is an arrest lawful?
Dark Purple
An arrest will be lawful if carried out in compliance with s.28 PACE.
Not lawful unless the person being arrested is:
- informed that he is under arrest (even if obvious)
- told of the grounds for the arrest (even if obvious)
- cautioned in the terms set out in Code C 10.5
“You do not have to say anything. But it may harm your defence is you do not metnion when questioned something which you later rely on in Court. Anything you do say may be given in evidence”.
Failures could be challenged under s.76 PACE.
Detention - procedure on arrival
Blue
s.34 (1) PACE: only an arrested person may be kept in police detention - must be detained in accordance with PACE and COP C.
On arrival, the arrested person will be presented to the ‘CUSTODY OFFICER’ - normally an officer of the rank of Sergeant (a lesser rank than Inspector which lesser than Superintendent).
Custody Officer must follow procedure in s.37 PACE
- is there sufficient evidence to proceed to charge?
- if not, the person must be released, either with or without bail, UNLESS:
- there are reasonable grounds for believing that his detention is necessary to secure or preserve evidence or to obtain such evidence by questioning.
If there are grounds to detain, custody officer will thenL
- authorise the detention
- open a custody record (a written record of the grounds for the detention)
- inform the detainee of the reason for their arrest and detention
- advise the detainee of their rights
- can also arrange for suspect to be searched but may only seize items which could be used to harm himself, others or police property / help escape / interfere with evidence etc.
Rights when in detention
Blue
(1) RIGHT NOT TO BE HELD INCOMMUNICADO
s. 56 PACE and COP C 5.1
- entitled to inform asap a friend, relative or other person likely to take an interest in his welfare.
- but right can be delayed if its exercise will lead to:
> interference with/harm to evidence connected with
an indictable offence;
> interference with/harm to other people;
> alerting other people suspected of committing an
indictable offence but not yet arrested for it; AND/OR
> hinder the recovery of property obtained as a
consequence of the commission of such an offence.
Can ONLY delay the right IF:
- person is in detention for an INDICTABLE offence
- authority is granted in writing by an officer at least the rank of INSPECTOR
- the inspector has REASONABLE GROUNDS to believe the right would lead to any of the consequences above.
RIGHT CAN ONLY BE DELAYED FOR A MAXIMUM OF 36 HOURS AFTER THE ‘RELEVANT TIME’
(the time detainee first arrived at the police station)
If the grounds cease to apply, must ask detainee if he wants to exercise the right asap.
(2) THE RIGHT TO CONSULT PRIVATELY WITH A SOLICITOR AT ANY TIME
s. 58 PACE and COP C 6.1
CAN BE DELAYED ONLY IF:
- Same 4 grounds as above
- Person in detention for indictable offence
- Authorised in writing by officer at least the rank of SUPERINTENDENT
- Superintendent has reasonable grounds for believing those 4 grounds.
CAN ONLY BE DELAYED UP TO 36 HOURS FROM RELEVANT TIME.
Delay hardly ever justified - very serious step - may be justified in delaying access to a named solicitor -
see COP C Annex B NFG B3:
- suspect is capable of misleading that particular solicitor etc.
However, unlikely to justify delay to legal advice generally - DUTY SOLICITOR
COP C 6.4 - CANNOT SAY ANYTHING TO DISSUADE DETAINEE FROM OBTAINING LEGAL ADVICE.
Reviews of detention, time periods etc.
Blue
REVIEWS - s.40 PACE
When person detained but not yet charged, reviews must be carried out by:
- the custody officer
- AND an officer at least rank of INSPECTOR who was not involved with thei nvestigation of the case.
MUST BE SATISFIED THAT THE GROUNDS FOR THE DETENTION STILL EXIST.
- First review - 6 hours after suspect’s detention was AUTHORISED BY THE CUSTODY OFFICER
- Every 9 hours thereafter
- Detainee must be reminded of his right to free legal advice and is given the right to make representations (unless unfit or asleep)
- s.40A - can carry out review by telephone sometimes…
- Failure to carry out reviews at appropriate times will render the subsequent detention unlawful until an event occurs to make it lawful (i.e. the review takes place)
TIME PERIODS
s. 41 PACE - maximum period of detention without charge is 24 hours from ‘relevant time’ (arrival at police station)
- At end of 24 hours, must be charged or released.
s. 42 PACE - can be extended by 12 hours if:
- indictable offence
- authorised by officer at least SUPERINTENDENT, only if
- the grounds for detention still exist
- investigation being conducted diligently and expeditiously
Grounds won’t exist anymore if you’ve already interviewed etc!
s.43/44 PACE - if police want to detain beyond 36 hours, must apply to Mags’ Court for Warrant - can potentially authorise up to maximum of 96 hours (but a second application will jave to be made after first additional 36 hours).
Samples
INTIMATE SAMPLES
s. 65 PACE:
- blood, semen, urine, tissue fluid, public hair
- dental impression
- swab taken from any part of genitals or orifice other than mouth.
Governed by s.62:
- suspect must consent (refusal could be used against them later though - suspect must be warned of this)
- authoirse by Inspector or abive
- Inspector must have reasonable grounds for suspecting the involvement of the person in a RECORDABLE OFFENCE and for believing that the sample might confirm/disrpove that
- authority should be in/confirmed in writing
- consent must be in writing
RECORDABLE offences = those which are recorded on the Police National Computer.
NON-INTIMATE SAMPLES
s. 65 PACE:
- sample of haire other than pubic hair
- sample from a nail or under a nail
- swab taken from any part of a person’s body other than what would be intimate sample
- saliva
- a skin impression
s. 63 PACE - can be taken without consent if:
- suspect arrested for a recordable offence; and
- no such sample has yet been taken, or any which have proved insufficient.
s.117 - reasonable force can be used.
Samples can be retained by the police.
Note for exam
Where something turns on whether or not it is an INDICTABLE offence (e.g. right to withold legal advice), an either-way offence is still an indictable offence.
But make sure to say so to examiner:
‘As this offence is triable either way, it is therefore indictable’
