Webcasts Flashcards
(117 cards)
1
Q
What police powers are we concerned with?
A
Stop and search
Arrest
Detention and questioning
Entry, search and seizure
2
Q
Where do the police get their powers from?
A
Statute and common law.
3
Q
What is the main statute that governs police powers?
A
Police and criminal evidence act (PACE) 1984.
4
Q
What is the purpose of PACE?
A
To codify police powers into one document and prevent abuse of police powers.
5
Q
What does PACE 1984 try to strike a balance with?
A
Giving the police enough powers on one hand to do their job (prevent and detect crime) and to protect suspects rights on the other.
6
Q
What are the codes of practice?
A
They’re guidance about PACE 1984, they are not a legal source but they are important.
7
Q
What does s67 of PACE tell us?
A
There is no civil or criminal liability for breaches of the code in itself, so PO cannot be held liable but the breach is admissible for evidence and can be taken into account in court.
8
Q
What are notes for guidance?
A
They are at the end of each code of practice, they are guidance about the codes.
9
Q
Name a common law power that the police have?
A
The power to arrest for breach of the peace.
10
Q
What is the power to stop and search?
A
The powers police have to stop someone in the street and conduct a brief search of their person in order to look for something.
11
Q
What section of PACE 1984 and COP governs the power to stop and search?
A
S1-3 and COP A.
12
Q
What does COP A say?
A
It gives lots of examples of what can and cannot amount to reasonable grounds for suspicion (the grounds for conducting the search itself). And guidance on how and when the power can be exercised.
13
Q
What section of PACE and COP covers the power of arrest?
A
- S24 - sets out when the officers can arrest
- S28 - says the information that has to be given to an arrested person at the time of their arrest
- COP G - gives information about arrest
- common law power to arrest for breach of the peace
14
Q
What is the relevant COP and section of PACE regarding detention and questioning?
A
COP C
S34-51 PACE - dentition and what has to happen to suspects in detention
S53-65 PACE - questioning of suspects and what should happen
15
Q
What section of PACE governs powers of entry, search and seizure and what COP?
A
- s18 - allows PO to enter premises after arrest
- s32 - allows PO to enter premises at the time of arrest
- COP B
16
Q
What is the idea behind stop and search?
A
To confirm or allay suspicions about that particular person and see whether they are concealing items which may relate to an offence.
17
Q
Where are the powers of stop and search contained?
A
S1-3 PACE.
18
Q
What is the relevant COP for stop and search?
A
A - it explains what the power is and how it can be exercised.
19
Q
What does s1 PACE include?
A
- who can be searched
- where it can take place
- what the officers can look for
- the grounds for the stop and search
20
Q
Who can be stopped and where can a search take place according to s1 PACE 1984?
A
Any person or vehicle can be stopped in a public place.
21
Q
What is a public place for the purposes of s1 PACE 1984?
A
A place the public has access to on payment or otherwise (excluding private premises but there is an exception to this).
22
Q
What can the police look for under s1 PACE 1984?
A
- stolen or prohibited items
- a pointed or bladed article
- a firework that contravenes firework regulations
They cannot look for whatever they want. Drugs are not included as they fall under the misuse of drugs acts.
23
Q
What is a stolen item?
A
An item someone is suspected of stealing hidden on their person.
24
Q
What is a prohibited item?
A
S1(7) and (8) goes into more detail. It includes offensive weapons and items that can be used to commit offences (burglary or criminal damage).
25
What is an offensive weapon?
Defined in s1(9), it is an article which has been made or adapted for causing injury (gun).
26
If the article does not satisfy the criteria in s1(9) PACE 1984 can it still be offensive?
Yes if the person carrying it intends to use it to cause injury (if carrying a piece of wood it might be inoffensive but change if the person is carrying it with intent).
27
When can the police carry out a stop and search?
S1 PACE 1984 says they can only carry it out if they have reasonable grounds to suspect they are going to find one of the items that they're allowed to look for under s1.
28
Why do PO need to have reasonable grounds to perform a stop and search?
It's a safeguard to prevent abuse of powers.
29
What amounts to reasonable suspicion for a stop and search?
COP A gives us guidance on this. The golden rule is that the police must have an objective basis for their suspicion (external factors that give rise to the suspicion ie a witness statement).
30
What is contained in s2 PACE 1984?
It puts a duty on officers to take reasonable steps before the stop and search is carried out to give certain information. If PO is not in uniform they must give evidence they are an officer, their name and station. They must also tell the person the object of the search (what they're looking for) and the grounds for the search.
31
Why do PO need to inform what they're looking for before under s2 the search takes place?
To safeguard suspects and ensure they know what is happening and why to prevent abuse of powers.
32
If s1 requirements are met but s2 is not what happens to the arrest?
It can render the search unlawful (Osman v DPP - unlawful as PO did not give name and station).
33
What is s3 PACE 1984 about?
Recording encounters, it requires PO to record an encounter of stop and search unless it's not practicable to do so (riot situation where officers attention is drawn elsewhere).
34
When should a record of a stop and search be made under s3 PACE 1984?
At the time or as soon as possible thereafter.
35
What happens if after a stop and search the PO find what they are looking for or if they don't?
If they do, they're arrested and the record is put onto the custody record at the station. If not the person must be asked if they want a copy of the record, if they do they should be given it or a receipt telling them where they can obtain it.
36
What should a record of a stop and search contain?
- self defined ethnicity
- date, time and place the search took place
- object of the search (what they were looking for)
- grounds for suspicion
No requirement to record name, address and DOB.
37
Why do we have recording requirements?
It's part of the safeguarding for suspects.
38
What comes from Rice v Connolly?
That an individual can decline to answer questions prior to his arrest.
39
Can the police search someone to generate suspicion?
No they must have reasonable suspicion first.
40
What is reasonable suspicion?
Guidance is in COP A. Must rely on intelligence or some specific behaviour of the individual.
41
If you have previous convictions is that enough for the police to stop you?
No.
42
Do the powers of stop and search apply in a garden?
No unless the PO has reasonable grounds to believe the person to be searched is not the occupier of the house and is not there with the occupiers permission.
43
Does a PO have the right to remove clothing under s1?
Only outer clothing (coat, gloves, jacket).
44
What information must be given before conducting a search?
- PO name and station
- object of the search (what he officer believes the person is carrying)
- grounds for the search (why this person is being searched and not someone else)
45
Why is the power of arrest the most important police power?
Because it deprives a person of their liberty.
46
Give a case example for needing to notify a person with the reason for their arrest?
Christie v Leachinsky - an officer must say why they are arresting someone.
47
Where do the powers of arrest come from?
Statute (PACE) and common law (breach of the peace).
48
What are the two different types of arrest under statute?
With a warrant and without (a summary arrest).
49
What is arrest with a warrant?
Where a warrant is issued for a persons arrest, that piece of paper becomes the authority for it.
50
What is an arrest without a warrant governed by?
S24 PACE 1984, this gives the police powers to arrest individuals for any criminal offence.
51
What is s24 PACE 1984 split into?
Two part test:
- have the correct circumstances arisen
- is an arrest necessary (arrest is a discretionary power)
52
What is meant by have the correct circumstances arisen regarding s24 PACE 1984?
A constable can arrest someone:
- who has committed an offence (past)
- who is in the act of committing an offence (present)
- who is about to commit an offence (future)
53
When can an officer carry out an arrest under s24?
When they have reasonable grounds to suspect that the person has, is in the process of, or is about to commit an offence.
54
What can or can't amount to reasonable suspicion for carrying out a lawful arrest?
COP G gives guidance. You need objective grounds based on known facts or information, something outside of the officers mind.
55
Why do the grounds for arrest need to be objective?
To safeguard suspects and to maintain the balancing act surrounding the grounds for arrest as it's an imposition on a persons Liberty. He more imposition, the greater the justification.
56
In s24 PACE 1984 what is meant by is an arrest necessary?
S24(5) includes the necessity test which justifies the PO arrest. Example the PO may think it necessary to know the persons name and address. S24(5)(e) is the catchall.
57
Why have the necessity test for arrest?
It safeguards suspects and highlights the discretionary nature of the power of arrest. It ensures powers of arrest are not used arbitrarily.
58
What else do we need alongside s24 PACE 1984 to make a lawful arrest?
To comply with the requirements in s28 PACE 1984.
59
What does s28 PACE 1984 say?
An arrest is not lawful unless they're told there under arrest and what the grounds for arrest are even if they're obvious. It must be given at the time or as soon as practicable afterwards.
60
What is the key case with regard to w common law power of breach of the peace?
R v Howell - breach of the peace occurs when harm is actually done or about to be done to a person or in his presence to his property, or a person is put in fear of this through assault, affray, a riot etc.
61
When can the police detain a person for the common law power of breach of the peace?
Whilst the fear persists until the potential breach has passed, once passed the person can no longer be detained.
62
Is a common law breach of the peace a criminal offence?
No but you can be arrested and detained for it and taken to the magistrates.
63
What is the key aspect of breach of the peace?
There must be some kind of harm present and it gives rise to a power of arrest.
64
What is the rationale behind PACE in terms of detention and questioning?
To put safeguards in place for suspects as well as protecting the police by ensuring they do things right during the golden period.
65
What is the golden period?
The time between an arrest and the person being charged. What happens during this time can make or break a case. If evidence is obtained unlawfully during this time it may mean the person cannot be prosecuted.
66
What part of PACE deals with detention and questioning?
Part 4 deals with detention and part 5 questioning.
67
What is the relevant COP for detention and questioning?
C.
68
What safeguards did PACE introduce to protect suspects?
- the creation of the custody officer
- giving of rights to persons in the police station
- reviews of detention
- detention time limits
- detention conditions
- the way interviews are conducted
69
What is a custody officer?
S36 PACE 1984 created it (PO must be at least sergeant and must not be involved in offence). They are in charge of the custody suite. They must ensure PACE and COP are complied with.
70
What does s37 PACE say about the duties of the custody officer on arrival of a suspect?
They must do certain things when he arrives:
- test one - determine if here is sufficient evidence to charge a suspect with an offence, if not then...
- test two - if insufficient evidence to charge (common) they either let them go or if the custody officer has reasonable grounds to believe detention is necessary to secure /preserve evidence to obtain evidence by questioning
If detention conditions are satisfied he must make a written record as soon as practicable in the custody report which can be used as evidence.
71
Why is it important to charge a suspect if there is enough evidence to do so?
Once a person is charged they cease to be a suspect and become a defendant, a defendant cannot be questioned.
72
What rights must the custody officer make sure are given to a suspect?
- right to notify someone they have been arrested
- right to free and independent legal advice
- right to consult the COP
The custody officer should inform the suspect of these on arrival, the person then has to sign to say he has been given them.
73
Where is the right to notify someone of where you are?
S56 PACE 1984, it is not necessarily a phone call.
74
Why is the s56 right to notify someone of where you are important?
The person arrested may be a carer or have children they need to collect.
75
Can the right to notify someone of where you are be delayed?
Yes in certain circumstances set out in s56(2) and (5). It's only permitted if someone has been arrested for an indictable offence (criminal, tried at the crown court), must be authorised by. At least inspector.
76
When can an inspector authorise a delay to notify someone where you are?
If they have reasonable grounds to believe that allowing a suspect to notify someone would lead to interference with evidence or harm evidence, tip someone off.
77
What gives someone the right to free, independent legal advice?
S58 PACE 1984, it's important to stress free and independent and not affiliated with the police.
78
Can the right to legal advice be delayed?
Yes, it must be authorised by super interdent or above.
79
How long can a suspect be held without being charged?
24 hours - custody officer
36 hours - senior officer
96 hours - magistrate
80
What happens to detention after you have been charged?
The suspect must be brought before a magistrate as soon as practicable (s40 PACE 1984).
81
What sources give the police the legal power to do things?
Consent, statute and common law.
82
Where do the powers of entry, search and seizure come from?
PACE 1984.
83
What sections of PACE are relevant for entry, search and seizure?
- S8 - allowing search warrants
- S17 - allows officers to enter and search premises for various reasons (save life and limb)
- s18 - allows entry and search after someone has been arrested
- s32 - allows entry at the time of arrest
84
What is the relevant COP for entry, search and seizure?
B - this is guidance about what the powers mean and how they can be exercised.
85
What does s18 PACE allow?
Enter and search any premises occupied or controlled by a person under arrest for an indictable offence if they have reasonable grounds to believe there is evidence relating to that or a similar offence.
86
Do you have to own the premises for entry under s18?
No, you only need to occupy or control them, so he or work.
87
What is meant by reasonable grounds to suspect evidence is in the property?
Some kind of objective or external factor factors.
88
Where is the power of seizure found?
S18(2) PACE 1984 the police need lawful authority to do anything.
89
S18 PACE 1984 tells us the extent of the search, what does that mean?
That which is reasonably required for the purpose of discovering what you're looking for (if looking for TVs you wouldn't be able to pull up floor boards.
90
What offence is entry, search and seizure for?
Indictable offences, so the more serious offences.
91
What minimum ranking officer needs to authorise searches under s18?
Inspector or above and it must be in writing.
92
What needs to be recorded by inspectors when authorising a s18 search?
- the grounds of the search
| - the nature of the evidence that is being sought
93
When is s18 power normally used?
When someone has been arrested and questioned and the police believe there could be evidence related to that or a similar offence in their home or workplace. It can be before someone is taken to the station but this is rare.
94
What does s32 PACE 1984 allow?
The searching of an arrested person and or property.
95
When can a person be searched if they're under arrest and not at a police station?
- S32 PACE 1984 says if the officer has reasonable grounds to believe that the person may present a danger to himself or others
- also allows them to be searched for anything they may use to escape being detained or might be evidence of an offence
96
When can premises be searched under s32?
If the person is under arrest for an indictable offence, they can enter and search any premises the person was in when he was arrested or was in immediately before for evidence relating to that offence, if the PO has reasonable grounds to believe the evidence is there.
97
What is the key difference between s18 and s32?
The timescale (s18 is after the arrest once at get station, s32 is at the time of arrest) and who the premises belong to. S32 you can only search in relation to that offence, s18 can be that offence, similar or connected. No written permission needed for s32.
98
When can s17 search be performed?
To affect an arrest(enter premises to arrest a person and conduct a search when on the premises).
99
Where can you find information on what can be seized?
S19(2)(3) PACE 1984, they can seize any material related to any offence. If they enter for stolen property and find drugs they can seize them.
100
Why do we look at police powers?
They are a branch of the executive and we are dealing with their powers over individuals and is therefore of constitutional significance.
101
What section of the HRA 1998 is important in police powers?
S6 makes it unlawful for a public authority to act in a way which is incompatible with a convention right.
102
When investigating offences what articles must the police have in mind?
Article 5 right to liberty and security
Article 6 right to a fair trial
Article 8 right to privacy
103
If you're suspected of involvement in a criminal offence, which of your individual rights might be infringed?
```
Article 5 (right to liberty)
Article 6 (right to a fair trial)
Article 8 (right to privacy)
```
104
Are you obliged to answer police questions?
No (Rice v Connolly).
105
How valuable is the power of stop and search to the police and are there any drawbacks?
Very useful. Drawbacks occur when the power is overused on particular social groups and leads to a breakdown in the relationship between them and the police.
106
What can the police stop and search?
S1 PACE any person or vehicle.
107
Can stop and search be carried out at a youth club?
Yes if there is ready access and you have implied permission to be there but not if it is a members only club and only members have right of access.
108
Give 2 case examples of where a search became unlawful following failure to disclose identity and station of PO?
Osman v DPP; Bonner v DPP
109
Where does lawful authority for an arrest come from?
A warrant
Statutory powers
Common law powers
110
Where can powers of breach of the peace be exercised?
In public and private premises (McConnell v Cheif Constable of Manchester)
111
Does the reason for an arrest have to be given if the facts are obvious? Authority with case law and statute.
Yes (Christie v Leachinsky; s28(4) PACE 1984).
112
What comes from the case of DPP v Hawkins?
If reason for arrest cannot be given immediately it should be provided as soon as is practicable.
113
What case with regards to arrest emphasises a reasonable suspicion test must be established?
Murray v UK
114
Which part of OACE stresses the custody officers independence?
S36(5)
115
Which section of PACE allows detention for up to 36 hours? And 96?
S42 with authority from superintendent.
| S43 permits magistrates to issue a warrant to further detain for up to 96 hours.
116
Which section of PACE reviews detentions?
S40 says the time limit is 6 hours then every 9.
117
What happens if PO fail to carry out a review in custody?
Roberts v Chief Constable of Cheshire said failure to carry out a review rendered the previous lawful detention unlawful and he was entitled to damages.
