Police Powers Notes

Section 1 PACE and the Codes of Practice

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.

What is reasonable suspicion?

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.

Steps to be taken prior to the search – COP A 3.8

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

Steps to be taken after the search

• 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

Where should the search be conducted?

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)

How should a search be conducted?

• 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

Is the arrest lawful?

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

Right not to be held incommunicado – s. 56 PACE, COP C 5.1 and Code C Annex B

• 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

In order to DELAY the right:

• 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).

Right to consult with a solicitor at any time – s.58 PACE,...

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