Police Powers D,E&F PDF

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Police Powers Lecture Notes...

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Police Powers: D,E&F -

Power Of Arrest  PACE and Code G  No legal definition  “Deprived of his liberty to go where he please”  Christie v Leachinsky (1947): “an arrest is the beginning of imprisonment” (Lord Simmons)

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Two Types of Arrest –  Arrest with a warrant (a legal authority from a judge)  Arrest without a warrant (where the legal authority is conferred by statute or in the case of breach of the peace, under the common law).

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Article 5(1) ECHR –  No one shall be deprived of his liberty save in the following cases – see paragraphs (a) – (f) and in accordance with a procedure prescribed by law.  Para (c) most relevant.

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Article 5(1)(c) ECHR –  Allows liberty to be taken away by the LAWFUL ARREST or detention of person effected for the purpose of bringing him before the competent legal authority …….

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Article 5(2) ECHR –  Everyone who is arrested shall be informed promptly, in a language that he understands of the reasons for his arrest and of any charge against him.

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Arrest by a constable: s24 PACE –  2 elements required:  The power of arrest must have arisen – for this we need the person’s involvement, suspected involvement or attempted involvement in the commission of a criminal offence – s24(1) – (3) PACE; and  Reasonable grounds for believing that the person’s arrest is necessary for one of the listed reasons – s24(4) – (6) PACE.

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S24(1) PACE: offences about to be committed and offences being committed –  anyone who is about to commit an offence;  anyone in the act of committing an offence;  anyone he has reasonable grounds for suspecting to be about to commit an offence;  anyone he has reasonable grounds for suspecting to be committing an offence.

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S24(2): offences which have been committed –  If a constable has reasonable grounds for suspecting that an offence has been committed, he may arrest . . . anyone . . . he has reasonable grounds to suspect of being guilty of it.

Police Powers: D,E&F -

S24(3): offences which have been committed –  If an offence has been committed, a constable may arrest . . .  (a)anyone who is guilty;  (b)anyone whom he has reasonable grounds for suspecting to be guilty . . .

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Important –  Identify whether the offence:  Is about to be committed  Is being committed  Has been committed

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Reasonable grounds for suspicion –  Castorina v CC of Surrey (1988)  The arresting officer must:  actually, honestly suspect the person he arrests; and  have reasonable cause for that suspicion ie facts known would cause an ordinary reasonable person to suspect.  Objective and subjective elements.  O’Hara v Chief Constable of the Royal Ulster Constabulary (1997)  “ ….. a mere instruction to arrest (with nothing more) will not be sufficient to amount to reasonable grounds for suspicion.” Lord Steyn

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S24(4) PACE –  The power of summary arrest is exercisable only if the officer has reasonable grounds for believing that for any of the reasons mentioned in s24(5) it is necessary to arrest the person in question.

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S24(5) PACE: reasons for the necessity of the arrest –  See paras (a) – (f) in lecture notes and statute book.  Reasons explained further in Code G paras 2.4 – 2.9  Para 2.4 – operational decision at discretion of officer

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Arrest: Procedural Requirements –  s28(1) PACE – fact of arrest  s28(3) PACE – ground for arrest  Even if obvious! (s28(2) & (4))  Article 5(2) ECHR

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Exception to s28 PACE requirements –  No reason to give reasons/fact of arrest if it was not reasonably practicable ……by reason of him having escaped from arrest before the information could be given.  But must be told as soon as becomes practicable once restrained.

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Arrest: Language Used –  Clarke v Chief Constable of North Wales Police (2000) “ …..technical or formal words are unnecessary. Although no constable ever admits to saying “You’re nicked for handling this gear” or “I’m having you for twoc-ing this motor”, either will do and, I have no doubt, frequently does.” Lord Justice Sedley  And regarding charge of being “arrested on suspicion of possessing controlled drugs”, Brook LJ suggested it was enough if the person arrested knew in substance the reason why he was arrested.

Police Powers: D,E&F 

Alder v CPS (2013) Off duty police officer arrested someone by telling them they were being “detained” rather than arrested. Held: Sufficient

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The Caution: Code G para 3/ Code C para 10 –  “You do not have to say anything. But it may harm your defence if you do not mention when questioned something you later rely on in court. Anything you do say may be given in evidence.”  Exact words not necessary.  Should be given on arrest unless impracticable or already given prior to arrest.

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Summary RE s24 PACE –  Has a power of arrest arisen under s24 PACE? Choose the appropriate provision from s24(1) – (3) PACE.  Is the arrest necessary (under s24(4) PACE) for 1 of the s24(5) reasons? If so, be specific which one. See Code G for further guidance.  Have the procedural requirements been met? See s28 PACE, Art 5(2) ECHR, the Caution, record of arrest

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Arrest by a citizen: s24A PACE –  Has to be an indictable offence eg one that could be heard in the Crown Court and tried by a jury. (Includes “either way” offences).  No power of arrest for summary only offences.  Will a citizen know?

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s24A(1) PACE: Arrest without a warrant: other persons –  A person other than a constable may arrest:  anyone who is in the act of committing an indictable offence;  anyone he has reasonable grounds for suspecting to be committing an indictable offence.

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s24A(2) PACE: Arrest without a warrant: other persons –  Where an indictable offence has been committed, a person other than a constable may arrest:  (a) anyone who is guilty of the offence;  (b) anyone whom he has reasonable grounds for suspecting to be guilty of it.

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s24A(3) PACE: Necessity –  The power of summary arrest is exercisable only if:  (a) the person making the arrest has reasonable grounds for believing that for any of the reasons mentioned in s24A(4) it is necessary to arrest the person in question; and  (b) it is not reasonably practicable for a constable to make the arrest instead.

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S24A(4) PACE: reasons for the necessity of the arrest –  To prevent the person:  (a) Causing physical injury to himself or another  (b) Suffering physical injury  (c) Causing loss or damage to property  (d) Making off before a constable can assume responsibility for him

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R v Self (1992) –  s24A(2) PACE requires that an indictable offence has actually been committed.  If citizen uses s24A(2) power believing that an indictable offence has been committed, and it in fact it has not, then arrestor not exercising a legal power of arrest  Arrestor could be liable for wrongful arrest; other action by the arrested person.  Arrestor justified in resisting arrest.

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Citizen’s Arrest: Procedural Requirements –  s28(1) PACE – fact of arrest  s28(3) PACE – ground for arrest  Seem to apply still. But s28(2) & (4) do not. So don’t need to be given if obvious.  Can use reasonable force  Hand over to police

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Summary: Citizen’s Arrest –  Is an offence about to be committed? If so – NO POWER OF ARREST.  Is an indictable offence being committed? If so – see s24A(1) PACE  Has an indictable offence already been committed? – If so – see s24A(2)  Is it necessary to arrest for one of the listed reasons? See s24A(3) & (4).  Could a police officer have made the arrest instead? If so – arrest by citizen not necessary (s24A(3))  Have the correct procedures been followed?  What if it turns out there is no indictable offence? See R v Self.

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Other Police Powers –  Detention prior to charge  Search & Seizure  Obstruction & Assault of Police Constable in the Execution of his Duty

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s89 Police Act 1996 –  Obstruction of constable in execution of his duties – s89(2)  Assault of constable in execution of his duties – s89(1)

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s89(2) Police Act 1996: Obstruction –  Any person who resists or wilfully obstructs a constable in the execution of his duty……….  Rice v Connolly (1966)  Whilst every citizen has a moral duty to help the police, it is not a legal duty.  Simply refusing to answer questions does not constitute an obstruction.  Kenlin v Gardiner (1967)  Constable must be acting in execution of his duty for someone to be liable under s89(2).

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Execution of Duty? –  Examples:  PC keeping the peace  PC acting to protect life  PC preventing a crime  PC carrying out an investigation  Coffin v Smith (1980)  deciding whether PC acting in execution of his duties, the court gave wide meaning to action that is within PC’s role as ‘keeper of the peace’.  Donnolly v Jackmen (1970)  Tapping on the shoulder (a technical assault) too trivial to take an officer outside his duty.  Bentley v Brudzinski (1982)  Hand on defendant’s shoulder unnecessary on the facts and took officer outside his duty.

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‘Wilful’ Obstruction –  Must be ‘wilful’ obstruction.  ‘Wilful’ – intentionally does something that makes it more difficult for PC to carry out his duty.  Motive irrelevant  Hills v Ellis (1983)  Wilful when D put his arm on the arm of PC to try and tell him that he was arresting the wrong man.  Lewis v Cox (1985)  Wilful obstruction when Cox kept opening back of a police van to ask where his friend was being taken.

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s89(1) Police Act 1996: Assault –  Any person who assaults a constable in the execution of his duty …….  More serious – physical element.  PC must be acting in “execution of his duty”.  Even if unaware that person is a PC – Forbes (1865)  Defence of self defence may be available.

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Summary –  Become familiar with the original sources.  Read PACE first.  Check Codes of Practice for further guidance.  Any relevant case law.  Apply the law to the facts.  Reach a conclusion/consider consequences of a breach.  Don’t forget to consider Human Rights!...