Police Powers

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Why do the police need powers?

  • In 2008-09 the recorded crime figure for England and Wales was 4.7 million
  • Governments figures, but the British Crime Survey that interviews residents face to face estimated there were 10.7 million and others may go unrecorded (Drugs cases because of personal safety)
  • 1 in 4 crimes go unreported
  • Police need power to prevent and detect crime, but it must be balanced as police powers infringe individual liberties
  • The present law radically overhauled the previous law and is now mainly set out in the Police and Criminal Evidence Act 1984 (PACE)
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The History behind PACE

  • The police used to be able to stop and search someone if they felt there was anything suspicious, this is called the "sus" law and led to stereotyping as the police had too much power
  • Over 70 pieces of legislation governed this area and so the law was confusing for police and suspects
  • The Phillips Commission in 1978 reported on this stating that there was a need to find 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'
  • This led to the Police and Criminal Evidence Act 1984
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Miscarriages of Justice- Problems with the old law

  • These involved the IRA - Guildford Four, Birmingham Six and the Maguires and Judith Ward
  • Guildford Four and Birmingham Six:
  • Accused of being bombers
  • The evidence pointed to them being guilty as it showed they had handled nitroglycerine
  • There was three problems with the evidence
  • 1) Notes were taken after the interview
  • 2) They were beaten to confess
  • 3) You can get similar substance from washing up liquid/playing cards
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Miscarriages of Justice- Problems with the old law

  • The case of Stefan Kiszko
  • Lesley Molseed, aged 7, went to the shop and was found ***** and murdered
  • Stefan was decided to be guilty
  • His sample of ***** showed he was infertile
  • The evidence from the girl showed that the ***** of the person who done it was fertile
  • The police hid the evidence and Stefan went down for life

These cases cast doubt on the appeal system as the original appeals were not successful. This led to review. 

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8 Codes of Practice

The Police and Criminal Evidence Act 1984 (law) has 8 codes of practice (guidance) that give detail on these powers. They are:-

  • Code A - Stop and Search
  • Code B - Power to search Premises and take Property
  • Code C - Detention and Questioning Suspects
  • Code D - Identification
  • Code E - Tape Recording Interviews
  • Code F - The Visual Recording of Interviews
  • Code G - Powers of Arrest
  • Code H - Detention, Treatment and Questioning of Terror Suspects (S41, Terrorism Act 2000)
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The Purpose of the Power

  • The purpose of this power is to allow the police to check out their suspicions without having to arrest the suspect
  • They can quickly carry out a search without having to arrest and take the suspect to the police station
  • S1 of PACE gives the police the power to stop and search people and vehicles in a public place (local park, shopping centre)
  • The police officer can only stop and search if he has reasonable grounds for suspecting that the person (or vehicle contains) is in possession of stolen goods or prohibited articles (drugs, offensive weapons, anything used to carry out burglery)
  • Prohibited fireworks were added by the Serious Organised Crime and Police Act 2005
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The powers are very wide so there are strict rules on what they must do:-

1) The police officer must give his name and station,  E.G. Osman v DPP 1999: Charged with assaulting a police officer in the execution of his duty, police officer didn't give his name and station. The court held that the search was unlawful

2) The police officer must give the reason for the search

3) If the search is in public, can only ask for the suspect to remove jacket, coat and gloves - S2(9) PACE 1984

4) The police must make a written report as soon as possible after it

5) The search must take place at/near where the suspect was stopped

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Code A

  • This provides guidance on using stop and search powers
  • "Reasonable suspicion can never be supported on the basis of personal factors alone without reliable supporting intelligence or some specific behaviour by the person concerned"
  • Race, age, appearence or previous conviction cannot be used alone or combined with each other as a reason to search that person
  • Reasonable suspicion has to be based on objective matters (police is told someone is carrying a knife) and must have a written report
  • They can also look if they are told about a specific gang of people such as how they dress in a certain way, or if they're known to carry knives
  • This power can be abused by the police as there is no definition of reasonable suspicion = widely interperated. Also the lack of public awareness of safeguards allows it to be abused
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Other powers to stop and search

Misuse of Drugs Act 1971: Can be stopped and searched for controlled drugs

Terrorism Act 2000: Allows the police to stop and search those people they believe are involved in terrorism, they can ask them to remove shoes and headgear

S60 CJPOa 1994: They can stop and search in anticipation of violence, if the senior officer reasonably believes that violence will take place

S60AA CJPOa 1994: Can ask a person to remove any item if they believe it's being worn to conceal their identity (hood/balaclava)

S4 PACE: Allows road checks to be made in an area, with reasonable suspicion that an indictable offence has been committed (E.G. murder)

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Voluntary Searches

  • Since 2004, Code of Practice A makes it clear that voluntary searches are abolished
  • If a person volunteers to be searched, the police can only search the person if they had power to do so under PACE
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Problems with S+S - Who is being stopped

  • Following PACE, the police do make more stops and searches
  • MacPherson Report found that the Metropolitan Police had 'institutionalised racism' and did lead to the police trying to limit the use of stops and searches
  • Yet certain groups are still more likely to be stopped
  • If you are black you are 8 times more likely to be stopped and searched (Statistics on Race and the Criminal Justice System 2005)
  • In 2000, a report showed that this may be due to the search taking place in an area with a larger black population (Miller, Quinton and Bland 2000)
  • In 2007-08 there were 1,223,860 stops and searches
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Problems with S+S - Human Rights

  • The main problem is balancing the need to investigate crime and interfering with civil liberties
  • One problem is religious clothing
  • However, one of the failed bombers in July 2005 wore a burka so that they would not be detected
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Problems with S+S - Doesn't lead to arrest

  • There was initially the problem that most stops and searches did not lead to an arrest
  • Only about 10-13% will be arrested after a search, so they are searching innocent people
  • However, since the police have used a more targeted approach, stops and searches do end in more arrests as they're not stopping so many people
  • The less stop and searches you do, the more crimes are committed
  • In 1996, Tottenham, they reduced S+S by over 50%
  • They found that burgleries and street robberies went up by 17%
  • The police are now keeping a database which may identify officers who overuse this power (important safeguard)
  • But it's the police putting the data in so this could be abused
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Safeguards for the Individual

  • A police officer must identify himself and must give his reason for the search which protects the individual from random searches (Osman case)
  • Code A states that suspicion can not be based on stereotypes or previous records
  • Voluntary searches had been abolished
  • Has to be a written record of the search - it is open to abuse

There are problems however:

  • Reasonable suspicion is a wide definition
  • Only between 10% and 30% will be arrested
  • Many people don't know their rights
  • Section 60 for CJPOa was brought in to stop riots, however, in recent years it is to deal with street robberies (abusing the power)
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Powers of Arrest - Code G

Police can arrest anyone they reasonably suspect of an offence that is being committed or has been committed or may be committed. New powers were introduced in 2005 and the question is whether these are too wide. The powers are set out in S24 of PACE as amended by S110 of the Serious Organised Crime and Police Act 2005. The offence used to have to be an arrestable offence but now it can be made for any offence.

S24(1) applies to those about to commit an offence and those actually committing the offence (dealing with the future and the present)

S24(2) applies to someone who we believe has committed the offence and suspect they are guilty (dealing with the past)

S24(3) applies to when you know the offence has been committed and they are guilty or you have reasonable grounds to suspect they are guilty (dealing with the past)

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The Important Issues on Arrest

1. There is no need for an offence to be committed

2. Once you're arrested, you must be taken to the police station as soon as possible

3. Only reasonable force can be used to arrest someone

These are very wide powers but there is a necessity test - the officer must have reasonable grounds for believing that the arrest is necessary

1. Needs to arrest to find the persons name and address

2. To prevent the person causing physical injury to himself or others, causing the loss or damage to property, committing an offence against public decency, causing an unlawful obstruction on the highway

3. To protect a child or other vulnerable person

4. To allow the effective investigation of the crime

5. To prevent the prosecution of the offence being hindered by the person disappearing

Problem with 4 and 5: could be open to abuse

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Code G gives guidance for arrest

A lawful arrest requires a person's involvement or suspected involvement or attempted involvement AND reasonable grounds for believing that the person's arrest is necessary. They must also give a caution and if they're not in uniform they must identify themselves. They can use any words they wish as long as it is clear they are arrested and they must use reasonable force:-

Taylor v Chief Constable of Thames Valley Police 2004:-

CA rule: the person must be told in simple non-technical language that they can understand the grounds for their arrest. D is 10 years old. He was at a demonstration and started throwing stones. Theres another protest and hes there again, a policeman identifies him. He says "I'm arresting you on suspicion of violent disorder". CA decided D could understand this and so the arrest was lawful

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Wide Discretion

The police are given a wide discretion as to what action to take when they come into contact with the person:-

  • They will consider the necessity test and whether or not to arrest
  • They can arrest
  • A verbal warning/street bail
  • They can give you a summons (note to attend court)

S46A PACE: police have the power to arrest without a warrant anyone who has been released on police bail but fails to attend the police station. They also retain the common law right to arrest where there has been or is likely to be a breach of the peace. This applies to public areas and private premises. A case for this is McConnell (next card)

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McConnell v Chief Constable of the Greater Manchester Police 1990:-

  • D is in a carpet shop
  • The police take him outside as he refuses to leave
  • He then tries to re-enter
  • He is arrested for breach of the peace
  • He argues "you can't arrest me because a carpet shop is a private premises"

CA held that breach of the peace does apply to private premises

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In Bibby v Chief Constable of Essex Police 2000: The CA summarised the conditions that must apply for an arrest for breach of the peace to take place:-

1. There must be a real and present threat to the peace

2. The threat must be made by the person arrested

3. The persons conduct must interfere with other peoples rights, and a consequence is violence from a third party

4. The conduct of the person arrested must be unreasonable

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The Criminal Justice and Public Order Act 1994: Gives the police the power to arrest for some new offences (aggravated trespass, offence if you prepare or attend a rave, intentional harassment)

Arrest with a warrant - S1 of the Magistrates' Court Act 1980: Police can apply to a magistrate for a warrant to arrest a named person. It needs to be in writing and supported by evidence on oath. It has to be punishable by imprisonment

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Citizen's Arrest

S24A of PACE provides that private citizens can make an arrest only in respect of indictable offences: Summary goes to the magistrate court, triable either way goes to magistrates or crown court, indictable only goes to the crown court. Indictable offences can be theft, robbery, burglary, murder, manslaughter, ABH and GBH

The citizen must have reasonable grounds to believe the arrest is necessary to prevent the person causing physical injury to himself or others, suffering physical injury, causing loss/damage to property or making off before the police can take responsibility

Citizens must only use reasonable force (safeguard)

Once a person is arrested the police can search that person for anything which might be used to help an escape or which might be evidence relating to the offence. If in public can only remove jacket, outer coat and gloves

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Balance achieved between rights of individual & po

1. The new powers, because they allow the police to arrest for any offence (it used to be for an arrestable offence justified by the necessity test which is a very wide test)

2. Only reasonable force can be used (anything up to deadly force can be seen as reasonable). It provides protection for public but in reality it may not be much of a protection

3. If you are from an ethnic minority background you are less likely to be charged after being arrested (seems to suggest that the arrest has taken place because of their race) Ethnic minority monitoring now takes place

4. A major protection for the public is once they're arrested they must be taken to the police station as soon as possible and they must be cautioned

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Powers of Detention - Code C

Once a person is arrested and taken to a police station, Code C deals with the treatment of people in detention. Anyone brought to a police station must be brought before a custody officer as soon as practicable after their arrival at the police station. There he must start a custody record (which notes everything that happens to you at the police station E.G. time and arrival, who visits you, any reviews taken). If at any time the custody officer believes there are no grounds to detain, there is a duty to release.

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Time Limits on Detention

The general rule is that you can be detained for 24 hours which may be extended for another 12 hours with the permission of a senior officer (Superintendent or above). After 36 hours they must be released unless it is an indictable offence - the police must apply to the Magistrates' Court if they want to detain for a longer period (maximum is 96 hours). The detainee does have the right to be legally represented at the hearing to oppose the police application. They are only made in about 1% of cases. During detention the custody officer must make regular reviews which has to be within 6 hours of arriving at the police station, and then at least every 9 hours.

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To summarise:

- Brought to the custody officer

- In 6 hours you will be reviewed

- Then in another 9 hours

- At 24 hours they can release you or extend detention for 12 hours

- If it's not indictable you have to be let out

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Terrorist Cases - Code H

Ss 23-25 of the Terrorism Act 2006:-

- The government wanted to extend detention for 42 days

- They can keep them for 28 days without charge

- Code H deals with terrorists

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Detainee's Rights

The custody officer must tell the detainee of his rights:- 1. They can have someone informed of their arrest 2. To be told of your right to legal advice 3. You're allowed to see the code of practice 4. There must be written notice of your rights under Code C

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Right to have someone informed


You may have a friend, a relative, anyone interested in your welfare informed of your arrest. The person must be told where they're arrested which should be done as soon as practicable

If the offence is indictable, the right to inform someone of your arrest can be delayed for up to 36 hours if a senior officer authorises it. They need reasonable grounds to believe that evidence will be interfered with or the people involved with the crime.

Code C provides that the detainee should also be allowed to speak on the telephone 'for a reasonable time to one person'.

If the detainee is under 17 the police must also contact a person 'responsible for his welfare' and inform them of the arrest

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Right to legal advice

The detainee may contact their own solicitor or use the duty solicitor system which is free for anyone arrested. The Code tries to ensure that detained people are aware of this right because when the custody officer authorises the detention of someone at the police station he must get them to sign the custody record and ask whether they wish to have legal advice. Police stations must have posters 'prominently displayed' advertising the right to free legal advice and the arrested suspect must be told orally and in writing of this right. If it is an indictable offence they can delay this right for 36 hours if a senior officer agrees and you believe that telling the solicitor would lead to interference with evidence or someone being alerted.

An example case: R v Samuel and R v Grant

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R v Samuel 1988

- Only on rare occasions will this delay be justified

- D is a 24 year old man who has been arrested

- His mum has been informed

- They then refuse to let him see a solicitor

- The CA decided that if evidence was to go missing it would be because they told his mum and nothing would be gained

- The conviction was quashed

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R v Grant 2005

- The police deliberately refused the suspect legal advice

- He was charged and convicted of murder

- His conviction was quashed because they didn't let him see a solicitor

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Other rights under Code C

1. The cell must be lit, clean, heated and ventilated

2. You have to be fed two light meals and one main meal in 24 hours

3. You're entitled to drinks at meal times and reasonable times

4. In 24 hours you're entitled to 8 hours continuous rest

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Has the balance been achieved?

1. There is a limit on how long you can be detained for. If its a terrorist offence you can be kept for 28 days

2. You have the right to inform someone, if its an indictable offence they can withhold this for 36 hours

3. Free legal advice, however if its an indictable offence they can withhold this for 36 hours

4. You have the right to consult the code of practice

5. The cell must be adequately lit and heated

6. You're entitled to your food and drink

7. You get a regular review

8. The custody record must be kept (10% aren't accurate)

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Police Interviews - Code E tapes

Any detained person may be questioned by the police but the interview must be tape recorded - this can be audio or video taped. They take two copies, one is a master copy which is sealed and they keep, the other is a working copy and the suspect/usually lawyers will get a copy of that. At the start of the interview the police must start the tape by recording the time and who is present and at the end they must state the time it finishes. The suspect will be cautioned. If conversations take place before the suspect gets to the police station they don't have to speak to the police if you're not in an interview situation. Anything you've said they should ask you again when in an interview. Suspects also have the right to have a solicitor present unless it is a rare occassion as set out in R v Samuel 1988. If the suspect does not ask for a solicitor then the police can conduct the interview without one. If it is an urgent matter or the solicitor is likely to be delayed for some time the police can start before the solicitor arrives.

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Code E tapes (2)

The suspect has the right to medical treatment if needed, or an interpreter. The interview should take place in an interview room which is adequately heated, lit and ventilated. The person being interviewed must be offered a seat (Code C says you cannot be expected to stand). The interviews must break for mealtimes and short refreshments about every two hours. If the suspect is under 17 or is mentally handicapped then there must be an 'appropriate adult' present during all interviews: an additional legal right. The Runciman Commission found that often this does not happen with regards to the mentally handicapped. They suggested that there should be a duty psychiatrist.

An example is R v Aspinall 1999

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R v Aspinall 1999

- D was suffering from schizophrenia

- He should of had an appropriate adult with him

- He was refused an appropriate adult because the police believed he could understand the questions

- CA ruled that the evidence was inadmissable

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Right to silence

Suspects used to have the right to remain silent and nothing could be inferred from this. However, now under the Criminal Justice and Public Order Act 1994 this right has been restricted because they thought that too many suspects who were guilty were being let free.

Ss34-39: inferences can be made from the fact that the suspect has remained silent. A jury or magistrate can legally say that they're silent because they are guilty. This does seem to breach the rule that someone is innocent until proven guilty because the judge can comment on the fact that D has remained silent.

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Protection of suspects in interview

An important safeguard is that statements obtained through oppression canno tbe used as evidence: S76 PACE.

Oppression means torture in human or degrading treatment, or the threat of force. Any confession would not be allowed in court.

R v Paris 1993:

- An interview lasted 13 hours, during that time the police shouted at the suspect what they wanted him to say

- He refused to say what they wanted and denied involvement over 300 times during that interview

- This was oppressive and the evidence was not allowed in court

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Custody record and reviews

The custody officer is also required to keep the custody record and review the suspect. 10% of custody records are falsified (research by Sanders and Bridge). They make sure suspects rights are protected

How are the suspects protected?

1. They're protected from undue influences because they tape the interview

2. They have free access to their solicitors (indictable offence takes 36 hours for access)

3. They have access to an appropriate adult if under 17 or mentally handicapped

4. They have a right to free meals and rest periods

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Breach of the Codes of Practice

Under S76 the evidence will be excluded from court and can also bring an action for the tort of false imprisonment

Need to come to a conclusion whether the rules on detention and interviewing adequately protect the public from abuse but allowed the police to investigate crime

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Searches at the Police Station

The police have no automatic right to search a suspect at the police station but the custody officer has a duty to make a note of everything the suspect has with him when he is brought in and if he thinks a search is necessary to carry out this duty then a non-intimate search may be made. Code C deals with searches 'involving the removal of more than outer clothing' - strip search. They can only take place if it is necessary to remove an article which a person in detention should not be allowed to keep and there is reasonable suspicion that the suspect has such an article concealed on their person. No member of the opposite sex can be present. They should not normally be required to remove all clothing at one time.

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Intimate Searches

A high ranking officer can authorise an intimate search if there is reason to believe the person has with them an item which he could use to cause physical injury to himself or others or that he is in possession of a Class A drug. An intimate search is defined as 'a search which consists of the physical examination of a person's body orifices other than the mouth'.

If it is drug related it must be carried out by a suitably qualified person: it has to be a doctorr or a nurse but it can be someone else if a high ranking officer authorises it

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Is the balance reached?

1. They can carry out strip and intimate searches which is an important power, but there is protection

2. An intimate search can only be carried out if its something likely to cause injury or a Class A drug

3. If its a strip search then no one of the opposite sex can't be present and you can't be fully naked

4. If they breach these rules and find evidence it cannot be used

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These can be taken prior to arrest away from the police station. As they can now be checked using the National Automated Fingerprint Identification System in a matter of minutes. The power can be used if the officer reasonably suspects that the person is committing or attempting to committ an offence, or has committed or attempted to committ an offence, and either the name of the person is unknwon or its doubted whether they gave their real name. At the police station the detainee will be asked for permission to fingerprint but the police can use reasonable force to get this done. Records of fingerprints can be kept on police files even if the suspect is not charged. The balance is achieved as they have wide powers but they need to suspect a crime has been committed and they haven't gave their name/address. They also have to use reasonable force which is protects the suspect

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Non-intimate samples can be taken with consent but the police can use reasonable force to take these E.G. saliva or hair. Intimate samples are defined in PACE as

a) a sample of blood, ***** or any other tissue fluid, urine or pubic hair

b) a dental impression

c) a swab taken from any part of a person's genitals or from a person's body orifice other than the mouth

Only a doctor or nurse can take these and they cannot be taken without consent but refusal could be used against the suspect. The sample may be taken for suspecting involvement in an offence but it can then be checked against other crimes. (Can lead to solving old crimes)

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Is the balance achieved?

1. You can comment on the fact an intimate sample needs consent, force cannot be used. However non-intimate samples can be taken by force. Its important that the police has the power because they need to get DNA

2. If there is a breach of the code of practice the evidence is inadmissable

3. DNA is kept on file. This helps them to investigate future crime, you could argue that this is a breach of human rights

2006: Murder of Sally Bowman:-

The murder was only detected because Mark Dixies DNA was taken for a different reason and was matched with the DNA of the murder. Otherwise they wouldn't have found him

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Thanks so much.... three years later adn I'll definitely use this!

J Drabble

Incredibly thorough revision cards, a lot of detail, well written with excellent evaluation points - a resource I would recommend to my students!

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