Police Powers - Summarised Lecture notes PDF

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Police Powers Special Powers of the Police  Power to detain people  Power to search people/vehicles/objects and places  Power to arrest people  Power to enter property Law on Police Powers  It is an area of law subject to constant amendments  The Criminal Justice Act 2003  The Prevention of T...

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Police Powers Special Powers of the Police  Power to detain people  Power to search people/vehicles/objects and places  Power to arrest people  Power to enter property Law on Police Powers  It is an area of law subject to constant amendments  The Criminal Justice Act 2003  The Prevention of Terrorism Act 2006  The Terrorism Prevention and Investigation Measures Act 2011  Police Reform and Social Responsibility Act 2011  BUT two major statutes:  Police and Criminal Evidence Act 1984 (PACE)  Criminal Justice and Public Order Act 1994 (CJPOA)  This is an area that is increasingly subject to HRA challenges and to a certain extent overlaps with later units in relation to public order. Origins of PACE  The law on police powers has long been an area of uncertainty, it was based on common law principles  Notorious 'sus' law had been abused, leading to the Brixton riots in 1981  The Police and Criminal Evidence Act 1984 followed the report in 1981 of the Royal Commission on Criminal Procedure which was set up following concern over serious miscarriages of justice Aims of PACE  Royal Commission on Criminal Procedure (1981): “the law must achieve a balance between the interests of the community in bringing offenders to justice and the rights and liberties of persons suspected or accused of crime”.  To clarify and codify police powers, extending them where necessary, but also providing clear safeguards for individuals against misuse of the powers by making clear the procedures to be followed and the limits of the powers as well as their extent. Origins of PACE ‘…the present state of the law is unclear and contains many indefensible anomalies’. Leon Brittan Home Secretary (1983 – 1985) The Police and Criminal Evidence Act 1984 (PACE) ‘An Act to make further provision in relation to the powers and duties of the police, persons in police detention, criminal evidence, police discipline and complaints against the police; to provide for arrangements for obtaining the views of the community on policing and for a

rank of deputy chief constable; to amend the law relating to the Police Federations and Police Forces and Police Cadets in Scotland; and for connected purposes.’ PACE Codes of Practice  In addition a series of Codes of Practice have been passed- but they are not legally binding  Breach of these codes could result in disciplinary action against the police involved  Check list at: http://www.homeoffice.gov.uk/police/powers/pace-codes/ Stop and Search  Sections 1 and 2 of PACE allow the police to: stop, detain and search persons and vehicles for stolen or prohibited articles as defined, e.g. offensive weapons, articles for use in burglary, theft, taking a motor vehicle without authority, and obtaining property by deception.  Any person or vehicle, or anything which is in or on a vehicle  Any public space Reasonable grounds for suspecting the finding of listed items (see Section 1)  S1 of the Criminal Justice Act (CJA) 2003 has added offences of criminal damage to the list of prohibited articles, and so includes carrying an article made or adapted or intended for use by him/her in relation to criminal damage.  For example, the carrying of spray paint by aspirant graffiti artists.  Code of Practice on the Exercise of Stop and Search Powers (Code A) seeks to explain and clarify the very wide term reasonable suspicion, e.g. reasonable suspicion can never rest solely on colour, dress or hairstyle.  “This code of practice must be readily available at all police stations for consultation by police officers, police staff, detained persons and members of the public.”  “Powers to stop and search must be used fairly, responsibly, with respect for people being searched and without unlawful discrimination.”  The constable must communicate the object of the search, his grounds for proposing to make it, and his name and police station: ss.2 (2) and (3).  A record in writing must be made at the time, unless it is impracticable to do so: s.3.  Failure to give names and station could make the stop and search unlawful. Mustapha Osman v Southwark Crown Court [1999] C.O.D. 446. - ‘[T]he failure of the officers to supply details of their names and station rendered the search unlawful’. - Lord Justice Sedley - ‘Parliament has recognised that a search of a person is a serious interference with his liberty, and all proper safeguards must be followed.’ - Mr Justice Collins Right to Liberty and Security of Person - European Convention on Human Rights states, Article 5(1) : ‘Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save … in accordance with a procedure prescribed by law.’ Arrest "Consists in the seizure or touching of a person's body with a view to his restraint; words may, however, amount to arrest if, in the circumstances of the case, they are calculated to

bring, and do bring, to a person's notice that he is under compulsion and he thereafter submits to the compulsion."  A constable may arrest any person he has reasonable grounds to suspect is committing, is about to commit, or has committed an offence (Section 24)  The officer must have reasonable grounds for believing that it is necessary to make an arrest for one of the following reasons:  To enable the person’s name and address to be ascertained  To prevent physical injury, loss or damage to property, an offence against public decency or obstruction of a highway  To protect a child or other vulnerable person  To allow the prompt and effective investigation of the offence  To prevent the suspect from disappearing  Arrest is a deprivation of a person's freedom of movement. It consists of the seizure or touching of a person's body with a view to his restraint. Words may be sufficient if they are calculated to bring, and do bring, to a person's attention the fact that he is under restraint and he then submits.  Alderson v Booth [1969] 2 QB 216 illustrates the importance of making clear that someone is under arrest. Instead of saying 'I arrest you', Police Officer Jack Alderson said, 'I shall have to ask you to come to the police station for further tests'.  Court ruled that although the officer had intended to make an arrest, no arrest had occurred in the circumstances. Lord Parker said that the simplest and clearest form of words to use was 'I arrest you'. Common Law Power of Arrest Without Warrant  The one remaining common law power of arrest is unaffected by PACE. This is in relation to a Breach of the Peace.  The Court of Appeal in R v Howell [1982] QB 416 held that the power to arrest is available to a constable and a private citizen where:  A breach of the peace is committed in the presence of the person making the arrest  The arrestor reasonably believes that such a breach will be committed in the immediate future by the person arrested although he has not yet committed any breach  A breach of the peace has been committed and it is reasonably believed that a renewal of it is threatened. Breach of the Peace  R v Howell [1982]: ‘[T]here is a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance.’  Violence, therefore, actual or apprehended, is an essential ingredient of breach of the peace. Loud noise or boisterous behaviour is not, normally by itself, a breach of the peace.

Reasonable Cause to Suspect  In Hussein v Chong Fook Kam [1970] AC 942 Lord Devlin said that suspicion was a state of conjecture or surmise where proof was lacking. It is subjective.  The test of reasonableness is objective, i.e. it cannot depend only on the arrestor's state of mind.  In Castorina v Chief Constable of Surrey (1988): the Court of Appeal held that where an unlawful arrest is alleged two questions must be answered: 1. First, did the arresting officer suspect the person to be guilty (a subjective test), 2. Secondly was there a reasonable cause for suspicion (an objective test). Use of Force to Effect an Arrest  Section 3(1) of the Criminal Law Act 1967 provides that 'a person may use such force as is reasonable in the circumstances in the prevention of crime or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large'.  This applies generally, not only to arrest, and applies to any person and not merely to constables.  In addition, s.117 of the Police and Criminal Evidence Act, which does apply only to constables, allows a constable to use reasonable force, if necessary, in the exercise of powers conferred by the Act, e.g. the powers of arrest conferred. Reasons for Arrest  The common law principle, stated by the House of Lords in Christie v Leachinsky [1947] AC 573, is that a person who is arrested without a warrant must be informed of the true ground of arrest. Otherwise the arrest will be unlawful.  Section 28 incorporates the common law rule of Christie v Leachinsky: no arrest will be lawful unless the person arrested is informed of the ground of arrest at the time of, or as soon as is practicable after, the arrest. Where a person is arrested by a constable this applies even if the ground of arrest is obvious: s.28 (4). Detention for Questioning Before an Arrest  The police, in the execution of their duty to keep the peace, prevent crime and bring criminals to justice, may make reasonable enquiries and ask questions of the public: Rice v Connolly [1966] 2 QB 414; 2 All ER 649.  Rice v Connolly also established that a person is under no legal obligation to answer such questions, and refusal to answer does not in itself constitute the offence of wilful obstruction of a constable in the execution of his duty contrary to s.89 Police Act 1996. Enforcement  A major problem with the Act is that there is no enforcement procedure: breaches of the Code or statute do not in themselves constitute civil or criminal wrongs.  The options open to the suspect who has suffered a breach of the Code are:  to make a complaint, which may lead to disciplinary action against the police, under Police Reform Act 2002  to attempt at the trial to have any evidence obtained as a result of the breach of procedure declared inadmissible under S 76 or 78.

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To try a civil action for false imprisonment or wrongful arrest...