Police Powers-Police And Criminal Evidence Act 198
Police powers are contained in the Police And Criminal Evidence Act 1984 (PACE) and the Codes of Practice which are found in s66 of PACE. These powers are amended and added to by a number of other statutes, however PACE remains the starting point when looking at the power of the police to stop, search, arrest, detain, interview and take samples from suspects.
Stop & Search
The power to stop and search individuals on the street is a delicate balancing act between respecting people's civil rights and protection of society. The police's power to stop and search individuals on the street are contained in ** 1-7 of PACE and Code of Practice A. s1 gives the police the right to stop and search people and vehicles in a public place. To exercise this power the officer must have reasonable grounds for suspecting that the person is in po**e**ion of (or the vehicle contains) stolen or prohibited articles. Prohibited articles includes such items as offensive weapons and articles for use in connection with burglary or theft.
These are extremely wide powers, therefore some safeguards have been put in place to protect the rights of the individual. The officer must;
- Give their name and station
- State the reason for the search
This was illustrated by the case of Osman v DPP (1999) In this case the officers failed to give their names or station, the Divisional Court held that this made the search unlawful and therefore Mr Osman could not be guilty of assaulting the police in the execution of their duty, when he resisted the search.
- If a search takes place in public then the police can only request that the suspect removes their outer coat, jacket and gloves.
- The officer must must make a written report of the search as soon as possible after the search has taken place.
This is where an individual is prepared to be searched voluntarily. However, this has now reallly been abolished as the police can only carry out a voluntary search where they have the power to search the person anyway.
Misuse of Drugs Act 1972
This Act allows the police to search for controlled drugs.
Terrorism Act 2000
This gives the police the power to stop & search where there is reasonable suspicion of involvement in terrorism.
Criminal Justice and Public Order Act 1994
s60 gives the police the power to stop and search in anticipation of violence. This however can only happen where it has been authorised by a senior police officer who reasonably believes that serious violence may take place in any locality in his area. This power can only be in place for up to 24 hours, however once authorised by a senior officer the police can stop and search without having reasonable suspicion.
Search of Premises
The police can enter premises without the occupier's permission to make a search if;
- a warrant has been issued by a Magistrate, the warrant must be shown before the search starts R v Longman (1988) In this case the police knew it would be difficult to gain entry to a property where they wished to search for drugs so they sent a undercover policewoman posing as a delivery driver from Interflora to get the occupants to open the door. Once the door was open the police burst in without showing the warrant and without saying they were police officers. The Court of Appeal held that the search was still lawful in such circumstances.
The police can enter premises without a search warrant if the occupier of the premises gives them permission to do so. This consent must be given in writing and if withdrawn at any time the police must stop their search and leave the premises. If the police exceed any of their powers to enter and search premises then any person affected may bring a claim against the police in the civil courts. If the police obtain any evidence as a result of an unlawful search then they may still be able to use it against the defendant in court. The defence can argue that it should be inadmissable under s78 PACE, ultimately it will be for the Judge or Magistrate to decide if the evidence should be used by the prosecution.
Powers of Detention
The Time Limits The general rule is that the police may detain a person for 24 hours. After this the police may detain a suspect for a further 12 hours (making a total of 36 hours) but only with the permission of a senior officer, superintendent or above. For ordinary arrestable offences a suspect must then be charged or released. However, with serious arrestable offences a suspect can be detained for a further period if the poilce apply to the Magistrates' Court. The Magistrates' Court can order the suspect to be detained for a maximun of 96 hours. During a suspect's detention it is the Custody Officer's responsibility to review the suspect's detention on a regular basis, the first review must be not more than 6 hours after the suspect was first detained. Then the custody officer must review their detention at intervals of not more than 9 hours. If at any point the custody officer believes there are no grounds to detain the suspect then s/he is under a duty to release the suspect. Whilst detained the custody officer must keep a record of events that occur, for example, interviews and visits to the cells by police officiers
There are longer time limits with terrorism cases. ** 23-25 of the Terrorism Act 2006 provides that;
- prosecutors can apply for an extension of the detention warrant
- this must be approved by a Magistrate for up to 14 days
- this 14 day period can be extended to a maximum period of detention of 28 day
The Rights of a Detained Person
It is the job of the custody officer to tell the detained person their rights, which include;
- having someone informed that they have been arrested
- being told that independent legal advice is available free of charge
- being able to consult with a solicitor in private
- being allowed to consult the Codes of Practice
The right to have someone informed of their arrest
This is covered by s56 of PACE. The arrested person can have any friend, relative or any other person who they think is likely to take an interest in their welfare informed of their arrest and told where they are being held. Where the person is being held for a serious arrestable offence then a senior police officer can authorise that there be a delay of up to 36 hours in informing the nominated person of their arrest. This can only be done where there are reasonable grounds for believeing that telling the nominated person will lead to;
- interference with the investigation
- harm to evidence
- harm to another person
- the alerting of others involved in the offence
- hindering the recovery of property
Code C of PACE also states that a detained person should be allowed to speak on the telepone for a reasonable time to one person. This, however, is not a right and the police can refuse.
The right to legal advice
A detained person may either contact their own solicitor or they can speak, free of charge, to the duty solicitor. The custody officer must get the suspect to sign to say whether or not they wish to have legal advice. It is possible for a senior officer to authorise a delay in the right to see a solicitor in the case of serious arrestable offences. However this can only happen where there are reasonable grounds to believe that giving access to a solicitor will lead to;
- interference with or harm to evidence
- interference with or harm to any other person
- the alerting of others involved in the offence
- hindering the recovery of property obtained through the offence
The case of R v Samuel (1988) shows that it would only be in rare cases that such a deley was justified and any delay must be based on specific aspects of the case and not on a general assumption that access to a solicitor might lead to the alerting of accomplices. In R v Grant (2005) the Court of Appeal held that illegal conduct by the police would not be tolerated. In this case there had been deliverate interference by the police with the detained suspect's right to a private meeting with his solicitor. This was viewed to be so serious that his coinviction for murder was quashed.
Fingerprints and Body Samples
Whilst in detention the police may take a person's fingerprints and non-intimate body samples (hair & saliva) without the person's consent. If necessaey the police may use reasonable force to take these.
There are however different rules for the taking of intimate body samples, intimate samples are defined as;
- a sample of blood, *****, urine or pubic hair
- a dental impression
- a swab taken from a person's genitals or any other body orifice other than the mouth
These samples can only be taken by a registered medical practicitioner or a nurse