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Criminal Litigation > SGS 2 - Police Powers > Flashcards

SGS 2 - Police Powers Flashcards

1. identify and apply the ‘stop and search’ powers under s. 1 of the Police and Criminal Evidence Act 1984 (‘PACE’); 2. analyse the use of police powers of arrest; 3. advise a suspect on his rights while in detention at the police station before charge; and 4. advise a suspect on police powers in relation to the taking of samples.

1
Q

What are the 5 steps regarding police powers questions?

A
  1. Legal Authority granting the power?
  2. Criteria to be met?
  3. Is the criteria met on the facts?
  4. How should the exercise of power be carried out?
  5. Conducted correctly on facts of case?
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2
Q

What are the main police powers?

A
  1. Stop & search powers
  2. Powers of arrest
  3. Detention at police station - rights PRE charge
  4. Detention period
  5. Duties of the custody officer
  6. Non-intimate samples
  7. Intimate samples
  8. Lawful police interview
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3
Q

Where is the legal authority granting the STOP AND SEARCH POWERS found?

A
  • S1 PACE
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4
Q

What is the CRITERIA for STOP AND SEARCH powers?

A

· A constable can stop and search a suspect (person or vehicle)
· In a public place
· For stolen or prohibited articles – s1(7) and (8) PACE
· Provided the constable has reasonable grounds for suspecting that he will find stolen or prohibited articles s1(3)

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5
Q

What is the guidance regarding STOP AND SEARCH powers?

A

• STOP: COP A 3.8
• SEARCH: COP A 3.5 & 3.6
Reasonable force - s117 PACE
• REASONABLE GROUNDS - COP A 2.2, 2.4 and 2.6

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6
Q

What is the legal authority for powers of arrest?

A
  • S24 and 28 PACE

- COP G

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7
Q

What is the criteria for arrest?

A
  • COP G.21 -
  • A constable may arrest where he has:
    o COP G 2.1: Reasonable grounds to suspect involvement (suspected/attempted) in a criminal offence
    o Reasonable grounds for believing the arrest is necessary s24(5) PACE
  • S29 PACE - when someone voluntarily attends, he must be told that he is able to leave at free will unless and until he is arrested.
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8
Q

How should the exercise of power of arrest be carried out - what are the relevant statutory provisions? (tab all in same colour and section)

A

· S28(1) and COP G 3.3 – Suspect must be informed that they are under arrest and grounds for arrest
· COP C 10.4 and COP G 3.4 – The arrestee must be cautioned
· COP G NFG 2F – Whether suspect’s voluntary attendance is a practicable alternative for carrying out the interview. If yes, then arrest not necessary. If no, then see notes in statute for what the suspect must be told.
· COP G NFG 2G – When to arrest at a police station (when suspect attends voluntarily)
· COP G NFG 2H – When just for routine checking & samples, arrest not necessary

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9
Q

Can unlawful arrest be corrected later? Which case says so?

A
  • Yes
  • Lewis v Chief Constable of South Wales
  • an arrest which is not lawful by reason of procedural irregularities can subsequently be rendered lawful by correction of the defective part of the arrest procedure
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10
Q

what is the general right of a suspects rights pre charge when they are detained at the police station?

A

They have the right to have someone informed

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11
Q

What is the legal authority for detention at a police station?

A
  • S56(1)

- This can be delayed for up to 36 hours (s56(3)) and Annex B COP C

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12
Q

What is the criteria for delay of detention at a police station?

A
  • What is the criteria for delay? - found in s56(2)
  • Must be an indictable offence
  • Must be authorized by an inspector
  • Inspector has reasonable grounds to believe that telling named person of arrest will lead to one of the consequences in s56(5) or s56(5A) e.g. If theft/drugs to allow for home to be searched without tampering.
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13
Q

How should the exercise of detention at a police station be carried out?

A

· COP C 7A – Delay should be proportionate and last no longer than necessary
· S56(4) and COP C 3.1 – Suspect must be informed of the delay and authorization must be in writing

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14
Q

What is the legal authority for access to legal advice of arrested person?

A

o Right for any arrested person to consult a solicitor privately at any time – s58(1)
o Can be delayed for up to 36 hours s58(5) and Annex B COP C.

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15
Q

What is the criteria for delay of arrested person accessing legal advice?

A

· Must be an indictable offence authorized by a superintendent s58(6)
· The superintendent must have reasonable grounds for delaying s58(8) & (8A)
· COP C Annex B 3: Authority should only be given if the authorizing officer has reasonable grounds to believe that the solicitor will inadvertently or otherwise pass on a message from detainee or act in some other way that will lead to consequences in above sections.

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16
Q

How should the exercise of the power to delay access to legal advice be carried out?

A

· Delay should be proportionate and not last longer than necessary, to a max. 36 hours
· Suspect must be informed of delay and must get authorization in writing s58(2)
· Even if delay is authorized, detainee should be allowed to access another solicitor COP C Annex B 3
· No police officer should intend to dissuade detainee from seeking legal advice COP C 6.4
· Delay is rare COP C Annex B NFG B3

17
Q

What is the legal authority for detention period of arrested person?

A

o Maximum period is 24 hours s41
o Relevant time (detention clock) is the arrival time at police station or 24 hours after arrest – whichever is earlier s41(2)(a) i.e. police station will always be earlier
o Relevant time (review clock) runs from the time detention is authorized, and requires that after no more than 6 hours, there must be a detention review s40(3)
o Detention period can be extended by 12 hours s42

18
Q

How long is the authorised detention period without arrest?

A
  • Max - 24h: s41
  • Relevant time (detention clock) is the arrival time at police station or 24 hours after arrest – whichever is earlier s41(2)(a) i.e. police station will always be earlier
19
Q

What is the criteria for detention period?

A

· Superintendent authorization – must have reasonable grounds to believe:
Š- Necessary to secure/prevent evidence or to obtain a questioning
Š It is an indictable offence
Š- Investigation is being conducted diligently and expeditiously

20
Q

How should the exercise of the power of detention be carried out?

A

· Extension must be granted before expiry of the 24 hours but after the 2nd review s42(4)
· Extend to 36 hours s43 to a maximum of 96 hours s44 – on application by constable to magistrates – where reasonable grounds is justified

21
Q

What is the legal authority for determining whether there is sufficient evidence to charge the person?

A
  • S37
  • If yes, then charge him and consider bail
  • If not, then release him, or authorize detention for further investigation
22
Q

What is the criteria for determining whether there is sufficient evidence to charge the person?

A

· COP C 2.1 – Custody record must be opened & all info recorded as soon as practicable.
· COP C 3.1 – Custody officer must inform the person of his continuing rights as listed.
· COP C 2.1A – Detainee must be brought before custody officer as soon as practicable after their arrival.

23
Q

How should the exercise of power of a custody officer be carried out?

A

· COP C 2.1 and 2.4 – Custody record must be available for inspection by a solicitor
· COP C 3.1 – Custody officer must inform the person of his continuing rights as listed.

24
Q

What is the legal authority of non-intimate samples?

A

o s61 – Fingerprints
o s63 – Non-Intimate sample (s65 – Non-intimate sample definition)
o s64A – Photographs can be taken of any detained person

25
Q

What is the criteria for non-intimate samples?

A

· Fingerprints
9 Appropriate consent needed
9 Without consent using reasonable force s117 if: (1) Recordable offence COP D NFG 4A (2) Hasn’t already had fingerprints taken in the course of investigation
· Non-intimate samples
9 Consent needed
9 Without consent under same circumstances as above s63
9 Say whether this is met on the facts or not.

26
Q

Guidance - how should the exercise of power be carried out, for non-intimate samples?

A

· Officer must inform that fingerprints/sample may be the subject of speculative search

o Fingerprints: s61(7A) and COP D NFG 4B
o Non-intimate sample: s63(8B)

27
Q

What is the legal authority for intimate samples?

A
  • S62
28
Q

What is the criteria for intimate samples?

A

· Inspector must authorize the sample to be taken and
· Appropriate consent must be given
· Inspector must have reasonable grounds for suspecting the involvement of the person in a recordable offence and believing that the sample will confirm or disprove this

29
Q

How should the exercise of power be carried out re getting intimate samples?

A

· Taken only by registered medical practitioner/healthcare professional
· Authorization and consent must be in writing s62(3) & (4)
· COP D 6.3 & NFG 6D – Must be informed that if refuses to consent, it may harm his case at trial

30
Q

Is there a legal authority for lawful police interview?

A
  • No there is not
31
Q

Where is the criteria for lawful police interview found?

A
  • COP C 11.1A - definition
32
Q

Explain how the exercise of power should be carried out for a lawful police interview?

A

· COP C 10.1 – Under caution
· COP C 11.1 – At a police station
· COP C 11.2 – Remind suspect of entitlement to free legal advice
· COP C 11.7 – Accurate record should be made

33
Q

When might a lawful police interview not be exercised correctly on the facts?

A
  • If there is an exclusion of evidence

- S78 and 78

Criminal Litigation (6 decks)

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