Police powers extra flashcards
(12 cards)
(Police powers - Police discretion) Although the powers of the police are wide, they are not unlimited. Their exercise is subject to the supervisory jurisdiction of the courts. Thus where a police officer has exceeded his or her powers, the courts will be prepared to intervene
D was arrested for disorderly behaviour whilst drunk and taken to a police station. She was placed in a cell and, following a struggle, searched. Two women police officers removed her brassiere. They did so in purported compliance with a standing order from the chief constable. This recommended such a course of action so as to prevent a defendant from harming herself. In respect of the struggle D was charged and convicted of assaulting a police officer in the execution of her duty. She appealed.
DC held that the police officer had failed to properly exercise her discretion in the present case. No account had been taken of D’s particular circumstances before deciding to remove her brassiere. At the material time, therefore, the police officer was not acting within the execution of her duty.
Lindley v Rutter (1981)
‘Qué linda!’
(Police powers - Police discretion) Judicial review of police action on the basis of the Wednesbury principles is a possibility.
In this case, where X sought to challenge the chief constable’s decisions on the policing of animal rights protesters at a port which had a detrimental impact on their business of exporting livestock, Lord Slynn observed that
- My Lords, it is clear that, although the duty to keep the peace is that of the chief constable, what he does may be reviewed by the courts; if his act is clearly unlawful it will be quashed and he may be ordered to do something else; he may have to pay damages.
On the facts, the HL concluded that the police were acting within the scope of their discretion. Restricting the days on which the port would be policed was justified given the financial and manpower resource implications of policing the port in the face of large-scale demonstrations.
R v Chief Constable of Sussex, ex p International Trader’s Ferry Ltd (1999)
(Police powers - Police discretion) In addition to considering the lawfulness of police conduct, the courts are also prepared to hear challenges brought against police inactivity. Indeed, there may be circumstances in which a court will compel the police to perform a duty that they owe to the general public.
The Commissioner issued a policy decision to his officers stating that they were not to attempt to enforce a provision of the Betting, Gaming and Lotteries Act 1963. The rationale for this was the uncertain state of the law at the time and the resource implications of keeping gaming clubs under observation. X sought an order of mandamus (now a mandatory order). The DC dismissed the motion. X appealed.
The CA held that the wide discretionary powers enjoyed by the police were not beyond the review of the courts. Mandamus was not necessary in the present case since the Commissioner had given an undertaking to the court that the policy decision would be revoked. However, had this not been the case, the court would have been prepared to grant the order sought on the basis that the police are under a clear legal duty to enforce the law.
R v Metropolitan Police Commissioner, ex p Blackburn (1968)
(Police powers - Police discretion) In this case, the CA took the view that the circumstances of the case made it inappropriate to grant an order of mandamus. Lord Denning MR observed that it was ‘of the first importance that the police should decide on their own responsibility what action should be taken in any particular situation’.
Applying this general principle to the circumstances of the case, Templeman LJ stated that:
- it is for the police and the board to co-operate and decide on and implement the most effective method of dealing with the obstructors. The court cannot tell the police how and when their powers should be exercised, for the court cannot judge the explosiveness of the situation or deal with the individual problems which will arise as a result of the activities of the obstructors.
R v Chief Constable of Devon and Cornwall, ex p Central Electricity Generating Board (1982)
(Police powers - Police powers of stop and search) D was the subject of successive control orders made pursuant to s 1(3) and (4) of the Prevention of Terrorism Act 2005. Since November 2005, various legal challenges had been brought against the orders. In the most recent, Collins J had confirmed the propriety of the control order. He had, however, excised a provision from the order requiring D to submit to any search of his person which might be required for the purpose of monitoring his compliance with the other requirements of the control order. The HS appealed against that ruling.
The CA held, dismissing the appeal, that it was axiomatic that the common law rights of personal security and personal liberty prevent any official search of an individual’s clothing or person without explicit statutory authority. The language of s 1(3) of the 2005 Act was insufficient to authorize the inclusion in a control order of a general requirement to submit to searches of the person. The absence of such a power from the list of specific obligations in s 1(4) was as consistent with deliberate as with accidental omission. Even if the omission of a power of search had been a legislative oversight, it was not the role of the courts to supply what Parliament might have inserted where fundamental liberties were at stake.
Secretary of State for the Home Department v GG (2009)
(Police powers - Arrest - s 24 - Reasonable suspicion) The claimants were the wife and brother of an alleged terrorist. Both were arrested pursuant to s 41 of the 2000 Act. The woman was detained for 41 hours during which she was interviewed. Her brother-in-law was detained for four and a half days during which he also underwent police interviews. Both were eventually released without charge. They brought claims for damages for wrongful arrest and false imprisonment against the Commissioner. The woman’s claim failed because the trial judge ruled that the police had the necessary reasonable suspicion to arrest her. Her brother-in-law’s claim succeeded. The trial judge was not satisfied that five factors identified as justifying the arrest met the ‘reasonable suspicion’ requirement. They were:
- the claimant’s close relationship with his brother,
- the physical proximity of their homes, and the importance of family links in terrorist cases;
- his ability to access his brother’s house;
- the desire to interview the claimant;
- public safety; and
- the preservation of evidence.
The Commissioner appealed arguing, amongst other things, that the arresting officer’s suspicion had been based on two additional factors: that he knew his superiors regarded the respondent as a reasonable suspect; and that he was entitled to infer that his superiors knew more than he did.
The CA held, dismissing the appeal, that the five factors identified by the trial judge did not afford the arresting officer reasonable grounds to suspect that the respondent was a terrorist. Moreover, the proposition that it was sufficient for the arresting officer to infer that his superiors must have had reasonable grounds for suspicion was inconsistent with O’Hara. The respondent’s arrest had therefore been unlawful.
Raissi v Commissioner of Police of the Metropolis (2008)
(Police powers - Arrest - Information to be given on arrest) Two women were arrested and taken to a police station. They were not informed of the reasons for their arrest (suspicion of burglary) until they arrived at the police station. They were detained for five hours and then released without charge. They sued the chief constable for wrongful arrest and false imprisonment. They sought damages for the entire time that they were detained. The trial judge ruled that their arrests were unlawful from the time that they could have been given the reasons for their arrests to the time when they were given the reasons - 10 minutes and 23 minutes, respectively. They were each awarded £200 damages by the jury. They appealed.
The CA held that the trial judge had been right. The effect of telling a person, who was initially arrested without being given the reasons, those reasons at a later time was that the arrest became lawful from that moment. The women had therefore been unlawfully arrested for a matter of minutes rather than hours.
Lewis v Chief Constable of the South Wales Constabulary (1991)
(Police powers - Powers to enter property - Entry under a search warrant) The first claimant was Harry X, who was the manager of Tottenham Hotspur FC. At the material time, he and others were suspected of various criminal offences, including conspiracy to defraud and false accounting, relating to the buying and selling of footballers. A warrant was obtained pursuant to s 8 of PACE to search X’s house and seven other premises. The searches of all the properties were conducted at the same time. X’s wife let police officers into the house. Their arrival was witnessed by reporters from The Sun newspaper. The claimants brought proceedings against the Commissioner. They claimed on various grounds that the search warrant had been obtained unlawfully, and that the entry and search of their house had also been unlawful.
The Admin Ct held, upholding the claims, that the obtaining of a search warrant should never be treated as a formality since it authorizes the invasion of a person’s home. On the facts, the application for the warrant had failed to identify which if any of the conditions set out in s 8(3) was being relied upon. Moreover, there was nothing in the statement made by the police officer who applied for the warrant to show that the defects had been remedied orally before the magistrate. Accordingly, the warrant had been obtained unlawfully. Latham LJ was also of the obiter view that the warrant had been unlawfully executed since, on entry, the police had failed to confirm that it related to the claimant’s house.
Redknapp v Commissioner of Police of the Metropolis (2008)
(Police powers - Powers to enter property - Searching persons under the authority of a search warrant) A warrant to search a public house for drugs and related paraphernalia had been granted by magistrates under the Misuse of Drugs Act 1971. X had sought to leave the premises when he had been prevented from doing so by two police officers. He was handcuffed and subjected to a superficial search and later a strip-search. One of the issues raised by the case was whether the search warrant included the power to stop and search persons who were on the premises at the relevant time. The trial judge had concluded that it did not.
The CA held that on this issue, the trial judges ruling was plainly correct. A power to search persons was not stated on the face of the warrant, and the CA was not prepared to accept that such a power could be implied.
Chief Constable of Thames Valley Police v Hepburn (2002)
(Police powers - Powers to enter property - Searching persons under the authority of a search warrant) Between 7 and 14 police officers entered a house under the authority of a search warrant issued pursuant to s 23 of the Misuse of Drugs Act 1971 and s 15 of PACE. The warrant authorized a search of the premises and any persons found therein. The police searched one room at a time. Once they decided that a particular room was free from drugs, etc, they allowed the occupants of the house to enter that room after they themselves had been searched. X was denied permission to move around the house freely. He resisted being moved from one room to another and eventually became aggressive. He was charged with wilfully obstructing and assaulting a police officer in the execution of his duty contrary to s 89(1) and (2) of the Police Act 1996. Before the justices, a plea of no case to answer was accepted. The DPP appealed.
The DC held, allowing the appeal, that the justices had erred in relying on Hepburn. They had overlooked the ‘crucial distinction’ between the facts of the two cases: that in Hepburn the search warrant had been limited to the premises whereas in the present appeal, it also entitled the police to search any persons found therein.
DPP v Meaden (2003)
(Police powers - Powers to enter property - Entry and search without a search warrant) Mrs X was admitted to hospital under the Mental Health Act 1983 for psychiatric assessment. Following a visit from her husband, she left the hospital without leave being granted under the Act and returned home. Several hours later two uniformed police officers went to the house to take her back to the hospital. Mrs X’s daughter refused to admit them and they therefore forced an entry pursuant to s 17(1)(d) of PACE. The daughter and father then attacked the officers. They were charged with assaulting an officer in the execution of his duty. Both were convicted and their convictions were upheld by the Crown Court. The daughter’s appeal to the DC was dismissed. She therefore appealed to the HL. She argued that the police did not have the power to enter under s 17(1)(d) and that therefore at the material time the officers were not in the execution of their duty.
The HL held, allowing the appeal, that the s 17 power was exercisable where the pursuit was almost contemporaneous with the entry into the premises. Since the officers had merely resorted to the premises where they believed that they might find Mrs D, they had not been pursuing her and therefore they were not within the execution of their duty at the time of the assaults.
D’Soma v DPP (1992)
(Police powers - Assault on or wilful obstruction of a police officer - Wilful obstruction) D’s friend was arrested by the police and placed in the back of a van. D opened the van’s door to inquire of his friend where he was being taken. He was told by an officer that he would be arrested for obstruction if he continued to open the door. D ignored the warning and opened the door once again as the van was about to pull away. He was arrested and charged with a s 51(3) offence.
The DC held, upholding the prosecutor’s appeal against the magistrates’ dismissal of the charge, that the magistrates ought to have asked themselves whether, by opening the van door, D intended to make it more difficult for the police to carry out their duties even though that may not have been his predominant intention. Had they done so, they would have concluded that, on the evidence, D was guilty of the offence.
Lewis v Cox (1985)
