Police Powers (50) Flashcards
1 - Where are the main police powers contained?
What have critics complained about?
What does it interfere with?
What must be considered?
The main powers of the police to interfere with a citizen’s liberty and carry out their duty are contained in the Police and Criminal Evidence Act 1984 (PACE 1984). Critics complain that police powers infringe on Article 5 of the European Convention on Human Rights, the right to liberty. They have also argued that it interferes with Article 8, the right to respect for privacy and family life. However, this is a limited right and therefore, a person’s liberty can be taken away if they are arrested on reasonable suspicion of committing an offence. In this case, a number of elements must be considered, including the stop and search, the arrest, the premises search, the detention, and the questioning.
2 - What should be asked first? Apply.
What does the PC need to have?
Additionally?
Guidelines? Apply.
What does Code A state? Apply.
Firstly, it should be asked whether the PC exercising the power to stop and search is in an appropriate place. According to Section 1 of the Police and Criminal Evidence Act 1984 (PACE), this a public place which is not a dwelling.
Had reasonable grounds for suspecting that he would find stolen or prohibited articles, such as offensive weapons or articles made or adapted or intended for use in criminal activity, under PACE 1984.
Additionally, under S.23 Misuse of Drugs Act 1971, there is a power to search for controlled drugs.
According to the guidelines in Code A, a reasonable suspicion should be based on objective factors such as information, intelligence, or suspicious behaviour.
Code A, an officer cannot stop a person in order to find grounds for a search; he must question a person before searching and cannot search them if a satisfactory explanation is given.
Code A, the search should be restricted to “superficial examination of outer garments”, including pockets. Search’s extent should depend on what the person is suspected of carrying.
3 - What 5 things should be brought to the suspects attention (act)? Apply.
Cases?
S.2 PACE, PC should have taken reasonable steps to bring to attention five things. He should have informed of his name and the name of his police station, the object of the search, the grounds for searching, and the right of the person to request a record of the search. Also, officers not in uniform must provide documentary evidence of being a police officer.
Fenelley and R v Bristol, failure to tell the person why he is being stopped and searched means that the search is illegal.
4 - What must the police do after a search (act)? Apply.
S.3 PACE, a police officer, having searched a person must make a written record of the search unless this is not practicable and there are exceptional circumstances, in which case it should be soon as soon as practicable thereafter, This record must include: the person’s ethnic origin; the object of the search; the grounds of the search; the date, time, and place; its result; and the constable’s identity.
5 - What section gives a PC wider stop and search powers? When?
What does this allow?
However…?
under PACE, it is required that PC had a reasonable suspicion in order to have stopped and searched Michael, under S.60 Criminal Justice and Public Order Act 1994, an officer has wider stop and search power, in certain specific locations at certain times, provided authorisation has been given by a senior police officer. This allows a uniformed police officer to stop and search people for offensive weapons or ‘dangerous instruments’ regardless of whether he has any grounds for suspecting. However, even if S.60 applied in this case, and there is no indication that it does, S.2 PACE still applies
6 - What happens after a stop and search? Section? Apply.
Force? Apply.
Where is arrest defined?
An officer must clearly state what?
Not practicable?
Code?
Apply.
S.29 PACE, a person who accompanies a Police Officer voluntarily to the police station or at any other place in order to assist with investigations without having been arrested is entitled to leave at will unless placed under arrest, in which case he is informed at once.
S.117 PACE, reasonable force can be used in relation to any police power.
‘arrest’ is defined at common law in Spicer v Holt as when somebody is “not at liberty to go as he pleases”. Under S.28 (1) PACE, an officer must clearly state that the person is under arrest at the time of the arrest and as soon as it is practicable. S.28 (3) states that the officer must clearly provide a reason for the arrest. According to S.28 (5), where this is not practicable, it should be done as soon as it is practicable. Additionally, Code C states that, on arrest, the suspect must be cautioned.
7 - What are the two categories of arrest?
How is this exercised (2 stage test)? Apply.
What about two stage test established by Castorina? Apply.
Code of practice?
two categories of arrest: with a warrant and without a warrant. Arrests with a warrant under the Magistrates Court Act 1980 The power to arrest without a warrant is contained in s.24 PACE (as amended by S.110 Serious Organised Crime and Police Act 2005 (SOCPA 2005). This power is exercised via a two stage process.
Firstly, there must be a suspicion related to a criminal offence. The officer must have reasonable grounds to believe that a person is committing, has committed, or is about to commit an offence, or has reasonable grounds to suspect that the defendant is guilty.
Secondly, it must be questioned as to whether the arrest is necessary. There must be a reason or reasons for an arrest to take place. These are outlined in s.24 (5) PACE. Reasons that are potentially relevant in this case include: (a) to ensure that the name of the person can be ascertained; (b) to ensure that the person’s address can be ascertained; and (e) to allow the prompt and effective investigation of the offence. E is used to obtain evidence by questioning and search of premises, amongst other things.
two stage test established by Castorina v Chief Constable of Surrey and confirmed by O’Hara v UK. The first stage asks whether the officer subjectively suspects that the arrested person was guilty of the offence.
the second stage asks whether, objectively, the officer has reasonable proof of that suspicion.
Code of Practice G, in recognition of the Human Rights Act 1998 and the right to liberty, it is expected that officers will fully justify the power of arrest and prove that it is necessary, as we as considering whether their objectives could be met in alternative ways.
8 - Following arrest can property be searched?
S.18? Apply.
S.19? Apply.
Code B? Apply.
Any property can be searched with consent from the person.
Under S.18 PACE, after an arrest for an indictable offence, officers can search premises occupied or controlled by the suspect if they reasonably believe there is evidence of the particular offence or other offences on the premises.
S.19 PACE, once lawfully on the premises, the police can seize and retain any relevant evidence.
Code B provides that the search should be carried out at a reasonable times with reasonable force used and showing due consideration and courtesy to towards the property and privacy of the occupiers.
9 - S.30?
What should happen when arrived at the police station?
Sufficient?
Code?
Apply.
S.30 PACE, an arrestee, should have been taken to a police station as soon as practicable after the arrest.
S.37 PACE, upon arriving at the police station, brought before the Custody Officer who would have decided whether there was sufficient evidence to charge with the offence. If there was sufficient evidence, would have been charged, and if not would be released on bail (S.38 PACE) or without bail unless continued detention was required to secure preserve evidence or obtain such by questioning him. According to Code C para 3.1, the Custody Officer should inform of his five continuing rights: right to silence, right to have someone informed of his detention (S.56), rights arising under S.65 PACE, right to consult a solicitor and that free independent legal advice is available (S.58), and the right to consult Code C and the other Codes of Practice.
10 - S.40? Apply.
S.41, S.42, S.44? Apply.
Code C? Apply.
Detention has serious implications with regards to Article 5 ECHR.
Under s.40, reviews of detention should take place by the review officer six hours after detention has started then every 9 hours.
Under S.41 PACE, a suspect can be detained for up to 24 hours, however under S.42, an officer of at least the rank of superintendent can authorise further detention of up to a total of 36 hours where there are reasonable grounds for believing that it is necessary to preserve evidence related to the offence, to allow additional time for questioning, and the investigation is being conducted diligently and expeditiously. In order for someone to be detained for longer than 36 hours without being charged or released, a successful application must be made to the magistrates’ court under S.44, in which case the detention can continue up until 96 hours.
Code C, a suspect is entitled to at least 8 hours rest in any 24 hour period and there should be breaks for meals and short refreshment breaks at two hour intervals. However, the interviewer can delay breaks where there are reasonable grounds to believe it would interfere with the investigation, pose a risk to people or property, or unnecessarily delay release.
11 - S.61? Apply.
S.63? Apply.
S.63H? Apply.
S.61 PACE (as amended by the Criminal Justice Act 2003 S.9) allows fingerprinting without consent where a person has been arrested for a recordable offence and has not had their fingerprints taken before. Where this takes place, reasons need to be given and recorded in writing.
S.63 (as amended by the Criminal Justice Act 2003 S.10), non- intimate DNA samples can be taken without consent in similar situations.
Under S.63H PACE (as amended by the Protection of Freedoms Act 2012), the DNA profile of anyone arrested but not charged cannot be retained.
12 - Conclusion?
Defendants rights have been continually breached and could bring a civil action against the police and/or make a complaint to the Independent Police Complaints Commission.
Or not breached no need to makd complaint.
