3B.4.2 Police powers Flashcards
Police powers are most likely to be problematic in relation to which Articles of ECHR?
- The deprivation of liberty under Article 5
- The right to a fair trial under Article 6
What are the two main powers to consider in relation to stop and search?
- s1, s2 Police and Criminal Evidence Act 1984 (PACE)
- S60 Criminal Justice and Public Order Act
s1, s2 Police and Criminal Evidence Act 1984 (PACE)
- Contains the power to stop and search ‘any person or vehicle’. It is an objective assessment requiring a constable to have ‘reasonable grounds for suspecting that they will find stolen or prohibited articles’.
- Reasonable suspicion is not defined in PACE 1984. It ‘can never be supported on the basis of personal factors. It must rely on intelligence or information about, or some specific behaviour by, the person concerned’.
s60 Criminal Justice and Public Order Act
What article is stop and search likely to interfere with?
Article 5 - right to liberty and security
- Stop and search much be exercised lawfully to be permitted under Article 5.
s60 Criminal Justice and Public Order Act
This gives police the right to search people in a defined area during a specific period of time when they believe, with good reason, that:
- Serious violence will take place and it is necessary to use this power to prevent such violence
- A person is carrying a dangerous object or offensive weapon
- An incident involving serious violence has taken place and a dangerous instrument or offensive weapon used in the incident is being carried.
Where is the power of arrest contained
s24 PACE 1984
Section 24 Arrest without warrant: constable
(1) A constable may arrest without a warrant:
(a) anyone who is about to commit an offence;
(b) anyone who is in the act of committing an offence;
(c) anyone whom he or she has reasonable grounds for suspecting to be about to commit an offence;
(d) anyone whom he or she has reasonable grounds for suspecting to be committing an offence.
(2) If a constable has reasonable grounds for suspecting that an offence has been committed, he or she may arrest without a warrant anyone whom he or she has reasonable grounds to suspect of being guilty of it.
(3) If an offence has been committed, a constable may arrest without a warrant:
(a) anyone who is guilty of the offence;
(b) anyone whom he or she has reasonable grounds for suspecting to be guilty of it.
Powers of arrest & delay
A person must be brought ‘promptly’ before the courts. Although ‘promptly’ is not specifically defined.
In the case of Brogan v UK it was said that a delay of more than four days was a violation.
Powers of detention
A person who has been arrested should be charged or released. Detention is possible in certain situations.
- Under s37 PACE 1984, a custody officer decides whether there is sufficient evidence to charge the arrested person. When charged, the person should be released or detained further under s38 PACE 1984.
Section 28 PACE 1984 provides various requirements of a valid arrest. What are they?
- The person being arrested must be told of the fact of his or her arrest (s 28(1)) and of the grounds for his or her arrest (s 28(3)).
- The rule in s28 PACE is a continuation of the decision in Christie v Leachinsky (1947).
- He or she should be cautioned according to CJPOA 1994, s 34.
- Under ss 34-37 CJPOA 1994, the suspect should be told of their right to remain silent and warned as to the inferences which might arise as a result of a silence.
- After arrest the person must be told of his rights including the right to consult privately with a solicitor (s58 PACE 1984).
- If access to a solicitor is denied, this can lead to the case against the defendant being thrown out of court by the judge.
R v Alladice (1988)
The defendant had been denied access to a solicitor during a police interview. He appealed against his conviction, claiming he had given a confession under duress. There had been breaches of the Act and of the Codes of Practice, but they did not in this case render the admission of the confession unfair.
