#4819 - Police Powers - Criminal Litigation

Section 1(2) PACE permits a constable to search any person or vehicle for stolen or prohibited articles/fireworks.

• NB: it doesn't cover drugs/firearms but does cover any offensive weapons/articles made for use in connections with the Theft Act or the Criminal Damage Act.

The power to stop and search under s.1 is subject to officer having ‘reasonable grounds’ for suspecting he will find stolen or prohibited articles.

• COP A 1.1 to 2.29 lay down the principles governing stop and search.

• NOTE: COP A 2.2-2.5:

  • COP 2.2 – reasonable grounds for suspicion depend on the circumstances of each case: there must be an OBJECTIVE BASIS based on facts.

    • It CANNOT be based on the basis of personal factors or on generalisations of certain groups of people.

  • COP 2.3 – may arise from a person’s behaviour (e.g. person on street at night trying to hide something)

  • COP 2.4 – should normally be linked to intelligence/information – such as information describing an article being carried/a suspected offender…

  • COP 2.5 – searches are more likely to be legitimate if they are based on a range of factors.

Prior to the search the officer must give the following information:

• That the person has been detained for purpose of a search;

• The officer’s name;

• The legal search power under which the search is being conducted;

• The purpose of the search;

• The grounds for reasonable suspicion;

• Their right to a copy of the search record

• Make a record containing specified information (COP 4.3-4.10) of the search at the time

• Immediately give a copy to the person who was searched

NB: breaches of Code A could mean evidence found as a result of an unlawful search being excluded at trial – s.78 PACE

S.1(1) PACE only allows the exercise of stop and search powers in a public place or place to which the public have access.

• In a garden – only allowed if that person doesn't live there and is not there with occupier’s consent – s.1(4) & s.1(9)

• COP A 3.1 – with courtesy, consideration, and respect for the person concerned. Take steps to minimise embarrassment

• COP A 3.2 – try to seek co-operation of the person in every case. Reasonable force used as a last resort if necessary to conduct the search

• COP A 3.3 – to length of time the person/vehicle may be detained must be reasonable and kept to a minimum

• COP A 3.4 – The search must be carried out at/near place person first detained

• COP A 3.5 – There is NO POWER to ask a person to remove any clothing in public OTHER THAN an outer coat, jacket or gloves

• COP A 3.6 – Where a more thorough search is required, it must be conducted out of public view.

2) Arrests

Compliance with s.28 PACE is essential:

• Inform the person they are under arrest

• Caution the person unless they were cautioned immediately prior to their arrest

• Inform the person of the grounds for their arrest

  • NB: this doesn't have to be in a technical way (i.e. “you’re nicked for suspicion of theft” is fine)

• Code G Para 3 (not in statute) – use the following terms: “you do not have to say anything, but it may harm your defence if you do not mention when question something you later rely on in court. Anything you say may be given in evidence”

If a police officer fails to do this, it is an unlawful arrest. However, it may be remedied later (if necessary, at the police station) where the arrest becomes lawful.

3) At the Police Station

On arrival at the station, the arrested person will be presented to the custody officer (“CO”). Under COP 1.9 a custody officer may be a police officer or a designated custody officer.

The procedure that must be followed is governed by s.37 PACE:

• s.37(1)(b): the CO will determine whether or not there is sufficient evidence to proceed to charge.

• s.37(2): there are reasonable grounds for believing detention is necessary to secure/preserve evidence or to obtain evidence by questioning.

If there are grounds to detain, the CO will then:

• Authorise detention of the suspect

• Open a custody record containing the grounds for detention

• Inform the detainee of the reason for their arrest

• Inform the detainee of the reason for their detention

• Advise the detainee of their rights

a) The rights of a detained person whilst in custody

• The arrested person has a right to have someone notified that they have been arrested and are being detained:

• COP C Annex B – this right can be delayed if the exercise of the right will lead to:

  • Interference with evidence

  • Harm to other people

  • Altering other suspects

  • Hinder recovery of property obtained in the commission of an offence

• The person must be in detention for an indictable offence (i.e. one that may be tried in a Crown Court)

• Authority given by rank of Inspector or higher

• The inspector has reasonable grounds to believe one of the above consequences will occur

The right can ONLY BE DELAYED for as long as the grounds exist and for not more than 36hours after the relevant time (i.e. when the detainee arrived at the station).

• This includes consulting with a solicitor either in person or on the phone/writing.

The right to legal advice can only be delayed under s.58(8) PACE:

• Indictable offence (i.e. tried at Crown Court)

• Rank of superintendent authorises

• There are reasonable grounds to believe the above COP C Annex B consequences.

The right can ONLY BE DELAYED for as long as the grounds exist and for not more than 36hours after the relevant time (i.e. when the detainee arrived at the station).

In practice, this will hardly ever occur as it is a fundamental human right.

• One situation where it may be justified is delaying access to a NAMED SOLICITOR if the grounds above can be satisfied. Again, this is relatively rare and the detainee will still have the right to speak to an unnamed solicitor.

COP C 6.4 – no police officer should do or say anything with the intention of dissuading a detainee from obtaining legal advice.

b) Reviews of detention

This is governed by PACE s.40:

• Reviews of detention must be carried out during the detention of a suspect. The review officer must be satisfied that the grounds for detention still exist.

• All reviews must be carried out by BOTH a custody officer AND an officer of inspector rank (at least) who is not involved with the investigation of the case.

• FIRST REVIEW: not more than 6 hours after the detention was authorised by the custody officer.

• NEXT REVIEWS: periodically every 9 hours thereafter

c) Length of detention without charge

s.41 PACE -the maximum period that a suspect can be held before being charged is 24hours from the “relevant time”.

• The relevant time begins at the moment the suspect ARRIVES as the police station.

• Once the 24hours is up, the suspect must either be charged OR released.

s.42 PACE allows an extension for a maximum of 12 more hours (i.e. up to 36 HOURS) on these conditions:

• Indictable offence

• Superintendent (at least) authorises

• Grounds for detention still exist

• Investigation is being conducted diligently and expeditiously

s.43-44 PACE allows for an extension beyond 36hrs on application to the magistrates’ court for a Warrant of Further Detention.

• This can be awarded up to a maximum of 96hours.

4) Samples

These are necessary to obtain/preserve evidence – detainee MUST be detained for a recordable offence.

Defined in s.65 PACE as blood, urine, tissue fluid, hair or a swab (other than from mouth).

s.62 governs when the police are entitled to take intimate samples:

• The suspect MUST CONSENT in writing

• Inspector (at least) must authorise in writing

• There must be reasonable...