02 Police Powers - SGS 2 PDF

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Police Powers Ranks of police officer (starting with the most junior)      

Constable Sergeant Inspector Chief Inspector Superintendent Chief superintendent

All of these may be ‘detective’ (part of Criminal Investigation Department) + follow the same ranking  PC = police constable  DC = detective constable PACE 1984 + Codes of Practice 

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COP = framework for operation of PACE + bind police officers + are admissible in evidence + must be accounted for by courts o There are currently 8 COP (A-H) o Breaches of COP may result in evidence being ruled inadmissible, where challenges made under s 76 PACE (challenging admissibility of confession evidence) + s 78 PACE (challenging prosecution evidence) Notes for Guidance (NFG) = guidance as to how COP should be followed

Police Powers When advising on police powers, apply mnemonic: 1. 2. 3. 4.

Power identified Authority – legal authority granting power Criteria to be met to carrying out power Exercise – how and has the power been exercised correctly?

Reasonable Grounds  Many of the powers in PACE require an officer to have reasonable grounds  This means that he is able to say why he believes it is necessary to do what he is about to do  Reasonable grounds nearly always require an objective test and analysis of the facts of the case

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Stop and search  Allows the police to prevent crime and gather evidence … for stolen or prohibited articles 

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Authority = s 1 PACE: may search any person or vehicle for stolen or prohibited articles or fireworks o Stolen articles acquired as a result of offences of theft or burglary o Prohibited articles (s 1(7), (8)) = offensive weapons or articles made, adapted or intended for use in connection with offences under Theft Act 1968 or Criminal Damage Act 1971 Criteria – o Officer at least rank of constable o In public place; and  Public place  Place to which public has access  In private garden + person does not live there + not there with occupier’s consent (s 1(4), (5) PACE) o Constable / other officer has reasonable grounds for suspecting that he will find stolen / prohibited articles (s 1(3) PACE)  COP A 2.2 – two-part test:  Officer must have genuine suspicion  Must be an objective basis for that suspicion, based on facts, information and/or intelligence about (the behaviour of) the person concerned  COP A 2.2B – race, religion, age, appearance or previous convictions cannot be used alone or in combination as the reason for search    

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COP A 2.6 – grounds may arise where reliable information that members of a gang habitually carry knives/weapons/controlled drugs and wear distinctive clothing / means of identification to indicate their membership COP A 2.6B – RS may arise from behaviour, e.g. on street at night trying to hide something COP A 2.4 – RS should normally be linked to accurate and current intelligence / information, e.g. describing an article stolen recently / suspected offender COP A 2.8A – Searches more likely to be effective, legitimate and secure public confidence where reasonable suspicion based on a range of factors

Exercise – all searches to be carried out in accordance with PACE s 2 + COP A 3.8-3.11 => o Officer conducting search must tell individual (COP A 3.8(a)-(e)):  They are being detained for purpose of search  Officer’s name + name of police station to which attached, save where COP A 3.8(b) applies –  Terrorism  Reasonable belief that giving name might put them in danger  The legal search power being exercised (s 1 PACE or s 23 MDA)  Purpose of the search +the grounds for reasonable suspicion; and  That he is entitled to a copy of the record of the search o How?  With courtesy, consideration and respect for the person (COP A 3.1; NFG 4)  Co-operation must be sought, even if person initially objects, + reasonable force only as last resort if necessary to conduct search / detail person or vehicle (COP A 3.2)  Power to use reasonable force where PACE confers a power that does not require consent under s 117 PACE

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Search carried out at or near place where person / vehicle first detained (COP A 3.4) Except where search carried out under s 60 CJPOA, no power to require removal of clothing in public other than outer coat, jacket or gloves (COP A 3.5)  Officer can search pockets of outer clothing, and feel around inside of collars, socks and shoes; although removal of shoes should be done in the police van  More thorough search must be conducted in police van / at police station by person of same sex (s 2(9) PACE; COP A 3.6)

o Recording the search per s 3 PACE + COP A 4.1-4.20 and NFG 15-22B o Records of searches are required to be kept and he results are subsequently checked to try to ensure that there has been no unfairness towards any specific individuals or groups … for controlled drugs  

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Authority = s 23(2) Misuse of Drugs Act 1971 (MDA) = may detain and search any person / vehicle for controlled drugs Criteria o Constable or higher o Reasonable grounds to suspect in possession of a controlled drug (s 23(2)) Exercise as above

… other powers  

S 60 Criminal Justice and Public Order Act 1994 Terrorism Prevention and Investigation Measures Act 2011

Human Rights  Power to stop and search may raise issues under Article 8 (right to respect for private and family life)  Article 5 – right to liberty and security of the European Convention on Human Rights  If PACE/COP are breached, the search may be unlawful  The breach may lead to evidence found being subsequently excluded at trial o As long as the form of short-term detention is carried out in a way that ‘is in order to secure the fulfilment of any obligation that is prescribed by law’ then Article 5(1) will not be engaged and such ‘stop and search’ powers will be proportionate  Exceptions = public interest in the prevention of crime outweighs the interference with the citizen’s rights brough about with short-term stop and search  Procedure in PACE and COP meets the basic criteria of fairness, openness and workability, specifying the grounds for the stop and search requiring proper documentation

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Power of arrest without warrant 

Authority – s 24 PACE; provisions of Article 5 of the Convention also apply

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Criteria – o Constable or higher o Reasonable grounds to suspect that a person has committed, is committing or is about to commit an offence (s 24(1) PACE) AND o Reasonable grounds to believe it is necessary to arrest the person (s 24(4)) because of one of the reasons listed in s 24(5) PACE (detailed in COP G 2.9): a) To enable the name of the person to be ascertained b) Correspondingly as regards address c) To prevent the person in question: i. Causing physical injury to himself / another ii. Suffering physical injury iii. Causing loss / damage to property iv. Committing an offence against public decency v. Causing an unlawful obstruction of the highway d) To protect a child / other vulnerable person e) To allow the prompt and effective investigation of the offence or of the conduct of the person in question; or f) To prevent any prosecution for the offence from being hindered by the disappearance of the person in question

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Exercise – o Arrest not lawful unless the person being arrested is (s 28 PACE):  Informed that he is under arrest; and  Told of the grounds for his arrest o Caution must also be given at time of arrest (COP C 10.4), unless impracticable due to suspect’s condition / behaviour:  ‘You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.’ (COP C 10.5) o Police may use reasonable force to effect an arrest (s 117 PACE) o Person must be taken to police station ASAP o Where arrest unlawful / no caution = defence may challenge admissibility of prosecution evidence (s 76 / s 78 PACE) o Where arrest not lawful by reason of procedural irregularity, it can be rendered lawful by correction of defective part of arrest procedure

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Person may voluntarily attend police station and be entitled to leave at will unless placed under arrest (s 29(a) PACE) + informed that he is under arrest (s 29(b) PACE) o Arrest only where necessary under s 24(5) PACE + constable or higher + reasonable grounds to suspect (see above) o Arrest should not be carried out where voluntary attendance is a practicable alternative for the purposes of carrying out the interview (COP G NFG 2F) o Arrest should only, subsequent to arrangements being made for voluntary attendance, be made where voluntary attendance is no longer a practicable alternative or where suspect leaves before the end of the interview (COP G NFG 2G) o Arrest not permitted solely to take samples, fingerprints etc., unless there are grounds to believe that checking prints etc. will provide evidence of involvement

At the police station       

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See custody officer who authorises continued detention Informed of rights, reason for arrest etc. Non-intimate samples See appropriate healthcare professional (where appropriate) Speak to legal representative (if requested) Interviewed, with legal representative present After interview: o Released under investigation / police bail; or o Charged +  Released on police bail to later appear at Magistrates’ court  Remanded in police custody to appear at Magistrates’ court on the following day

Custody officer + Detention  

Custody officer = at least sergeant (s 36 PACE) The procedure that should be followed by the custody officer upon arrival at the police station of the detainee is governed by s37 PACE and COP C 2, 3 and 4

Procedure 

CO – Decide whether sufficient evidence to proceed to charge the detainee (s 37(1) PACE) o If yes, consider bail (s 38) o If not, must be released unless:  Reasonable grounds for believing detention necessary to:  Secure / preserve evidence; or  Obtain such evidence by questioning (s 37(2)) If no charge, but grounds to detain, CO must…

Exercise PACE – if there are reasonable grounds to detain, the custody officer will then:  

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Authorise detention of suspect Open custody record – recording all information required under COP C (COP C 2.1), which may be viewed as soon as practicable by legal representative (COP C 2.4) o Requirement to inform reason for arrest o Circumstances of arrest o Why arrest necessary o Comments made by arrested person Inform detainee of reason for arrest Inform detainee of reason for detention; and Advise the detainee of rights

It is essential, as the legal representative attending the police station, to view this record as it should contain everything that has happened to, been said to or been said by the detainee. Cop C 2.4 – right of a LR to consult his client’s custody record as soon as practicable after his arrival at the police station and at any time while his client is still detained. COP C – just because it is in custody record, doesn’t mean it has been done properly The custody officer is responsible for the welfare of each detainee. In addition to his responsibilities under s37 PACE, he has a number of additional duties which he must fulfil.     

Conduct risk assessment procedure for each detainee (COP C 3.6-3.8) Make special arrangements, if necessary, for detainees who may be physically or mentally incapacitated (COP C 3.12-3.20) Arrange for interpreters to be present, where appropriate (COP C 3.12) Deal with detainee’s property (COP C 4) Contact healthcare professionals, if needed (COP C 9)

The role of the custody officer is vital

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Custody officers are well aware that if there are any procedural flaws in the detention process, the result might be the subsequent exclusion of evidence and ultimately, it is they who can be held accountable. Reviews of detention 

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Review of detention must be carried out during the detention of a suspect (s40 PACE) Review officer responsible for determining if still necessary to detail suspect (COP C 15.1) o Consider whether the grounds for the detention, as authorised by the custody officer under s. 37, still exist Review officer at least rank of inspector, NOT connected with investigation + NOT custody officer (s 40(1)(b)) Reviews of detention must be carried out periodically during detention of a suspect (s 40(3) PACE): o First review – ≤ 6 hours after detention authorised by CO o Subsequently – every 9 hours Reviews may be postponed under s 40(4) where: o Not practicable; or o Detainee being interviewed; or o No review officer readily available Postponement => review must take place ASA practicable after latest time for review (s 40(5)) Detainee must be reminded of right to free legal advice + to make representations (s40(12)), unless unfit to make representations / asleep at time of review Review officer must be satisfied detention still necessary (COP C 15.1) = do grounds for detention under s 37 still exist?

Limits on period of detention 

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S 41 PACE – max period of custody before being charged is 24 hours from the ‘relevant time’ o ‘Relevant time’ begins the moment the suspect arrives at police station (s 41(2)(a)(i)) o Relevant time indicated on custody record Before 24-hour period expires, suspect must either be charged or released

Power to extend beyond 24 hours

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Authority – s 42 PACE = may be extended for a further 12 hours Takes the maximum period of detention in the police station to 36 hours calculated from the relevant time

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Criteria – (S42 specifies that for detention to be extended) o Officer of at least rank superintendent must authorise o Superintendent or above has reasonable grounds for believing detention is necessary to secure / preserve evidence / obtain evidence by questioning o Offence indictable o Investigation being conducted diligently and expeditiously

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Exercise o Authorisation must be given before expiry of initial 24 hours, but after second review (s 42(4)) o Grounds for extension must be explained to suspect and noted in custody record (s 42(5)) o Suspect and/or solicitor allowed to make representations (s 42(6))

Power to detain beyond 36 hours  

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Must apply to magistrates’ court for warrant of further detention (s 43, 44 PACE) Warrant may authorised continued detention for: o First application – 36 hours o Second application – 24 hours Criteria – (same as under s42, 43 and 44) o Magistrates’ court satisfied reasonable grounds for believing further detention necessary to secure / preserve evidence / obtain evidence by questioning o Offence indictable o Investigation being conducted diligently and expeditiously

Samples 

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Evidential sample = used to strengthen police case by means of forensic identification connecting the suspect to the offence o COP D relating to identification is therefore supplemental COP to refer to here The extent of the powers of the police to take samples depends upon the reason for the sample and whether the type of sample is classed as intimate or non-intimate

Intimate samples 

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Authority under s 62(1) – s 65 PACE defines intimate samples as: o Blood, urine, tissue fluid, pubic hair o Dental impression; or o Swab taken from any part of a person’s genitals (including pubic hair) or from a person’s body orifice other than the mouth Criteria – s 62 PACE: o Suspect must be warned that failure to consent can be given in evidence at court (s 62(10)) o Suspect must consent (s 62(1)(b)) in writing (s 62(4)), and therefore the sample may not be taken by use of reasonable force under s 117 o Officer of at least rank of inspector (s 62(1)(a)) must authorise it (confirmed) in writing (s 62(3)) o Inspector must have reasonable grounds for  Suspecting involvement of person in recordable offence (s 62(2)(a)); and  Recordable offence = offence carrying sentence of imprisonment + some other offences (COP D NFG 4A)  Believing that the sample will confirm or disprove his involvement Exercise – (s62 states before a suspect is asked to provide an intimate sample) o Consent + authorisation both obtained in writing o Suspect must be informed of reason for sample + authorisation + legal authority o Suspect warned that if he refuses without good cause, his refusal may harm his case if it comes to trial; and o Suspect told that sample might be subject to a speculative search o Grounds, authorisation + consent noted in custody record o Medical practitioner to take sample (Forensic Medical Examiner)

Non-intimate samples 

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Authority – S 63(2A) gives authority, where non-intimate as defined in s 65: o Hair other than pubic hair o Nail / under nail o Swab from any part of body other than where intimate o Saliva o Skin impression Criteria – s 63(2A)-(2C): may be taken without suspect’s consent provided: o Detained for recordable offence (2B); and o No such sample yet taken / any such sample proved inadequate (2C) Exercise – o S 117 allows for use of reasonable force if necessary o COP D 6.8 => suspect must be informed:  Of the reason for the sample  Of the power + authority  That his sample and information derived from it may be subject to a speculative search; and  That his sample and information derived may be retained

Power to take fingerprints  

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Authority – s 61(3) PACE (finger); s 61A (footwear impression) Criteria – s 61, without consent where: o Arrested for recordable offence (s 61(3)(a)) + prints not already taken in course of investigation (s 61(3)(b)); or o Charged with recordable offence + prints not already taken I course of investigation Exercise – before fingerprinting, suspect must be informed: o Reason for taking fingerprints o Power and authority o That fingerprints may be subject of speculative search against other fingerprints; and o Fingerprints may be retained in accordance with Annex F

Speculative searches  

S 63A PACE – forensic information obtained during an investigation may be compared to DNA material held on the database Suspect must be informed of power, but once samples taken, cannot refuse consent to speculative search

Photographs  

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Routinely taken after arrest, with fingerprints + mouth swab Photos governed by s 64A PACE

Suspect’s rights 

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COP C 3.1 – when a person at police station under arrest, custody officer must tell person about following continuing rights which may be exercised at any stage during custody: o Right to have someone informed of arrest (s 56 PACE) o Right to consult privately with solicitor + free independent legal advice available (s 58 PACE) o Right to consult the Codes of Practice Custody record to record these rights + response by suspect PACE allows for the police to delay a suspect from exercising these rights in certain limited circumstances

Power to delay right to have someone informed of arrest

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Authority – s 56(1) PACE Criteria – s 56: o Indictable offence (s 56(2)) => [Offence] is indictable if it is an either way offence. o Authority to delay exercise of right granted in writing by at least inspector (s 56(2)) – APPLY o Inspector has reasonable grounds to believe that exercise of right will lead to (s 56(5)): a) Interference with / harm to evidence or interference with / harm to others; b) Alerting of other people suspected of committing an indictable offence but not yet arrested; (accomplice? – APPLY) or c) H...