Police Powers and Human Rights

• Law of police powers must be understood within the context of human rights.
• Article 5 ECHR grants individuals the right to liberty, which can only be removed under specific circumstances.
• Interference with liberty is only allowed in situations defined in Article 5, including arrest based on reasonable suspicion of committing an offense.
• Police powers can impact Article 8 ECHR, concerning the right to respect for privacy and family life.

History of Police Powers

• Current laws on police powers originate from the Royal Commission on Criminal Procedure (RCCP), formed after the 1981 Brixton riots.
• The Scarman Report found disproportionate stop and search use against the Afro-Caribbean community in Brixton.
• The RCCP aimed to provide police with powers while respecting the rights of suspects.

Police and Criminal Evidence Act 1984 (PACE)

• PACE contains the main police powers to interfere with a citizen’s liberty while performing their duty.
• PACE governs:
• Stop and search of a person or vehicle
• Arrest
• Entry and search of premises
• Detention and questioning
• Parliament grants these powers, but they must be exercised following strict guidelines within the Act and Codes of Practice.
• There are currently 8 Codes of Practice, each covering a specific area of police powers:
• Code A: Stop and search procedures
• Code B: Search of premises
• Code C: Interviewing and conditions of detention
• Code D: Identification methods
• Code E: Tape recording of interviews
• Code F: Visual recording of interviews
• Code G: Arrest
• Code H: Detention and treatment of terrorist suspects
• The Codes provide the government greater flexibility, as they are easier to update than the Act itself.
• Code C was last updated in 2017.
• Breach of the Codes is relevant when deciding if evidence is admissible.
• Breaching these codes isn't necessarily a criminal offense, and doesn't automatically lead to disciplinary actions or lawsuits.

Powers of the Police to ‘Stop and Search’

• Relevant laws:
• PACE 1984
• Misuse of Drugs Act 1971
• Criminal Justice and Public Order Act 1994
• The power to stop and search is in s.1 PACE 1984, with procedures in s.2 and s.3 PACE and Code A.
• S.1 PACE 1984 contains the general power of the police to stop and search.
• CODE A provides guidance for the use of this power.
• Sections 2 and 3 PACE are relevant to the procedure to follow when exercising this power.
• The power to stop and search extends to any person or vehicle in a place accessible to the public which is not a dwelling.
• A police officer may only search a person or vehicle if they have reasonable grounds to suspect they will find stolen or prohibited articles.
• Stolen articles consist of any items that have been stolen.
• 'Prohibited articles' include offensive weapons, and articles made or adapted for use in burglary, theft, criminal damage, taking a vehicle without consent, or deception.
• Section 23 of the Misuse of Drugs Act 1971 provides the power to search for controlled drugs.
• Constables must have reasonable grounds for suspecting they will find stolen or prohibited articles or controlled drugs.
• Code A paragraph 2.2 outlines a two-part test:
• The officer must genuinely suspect they will find the object.
• The suspicion must be reasonable and based on facts, information, intelligence, or specific behavior.
• Reasonable grounds cannot be supported by personal factors (e.g., physical appearance) or protected characteristics under the Equality Act (age, disability, race, or gender).
• Generalizations or stereotypical images of groups more likely involved in criminal activity do not provide reasonable grounds, nor does a person's previous convictions.
• Reasonable suspicion cannot be based on a person’s physical appearance, personal factors alone, generalisations, stereotypical images, or previous convictions.
• Reasonable suspicion should be based on a range of objective factors such as information, intelligence, or specific behaviour.
• In Gardner v. King, a radio message about males, a female, and a dog was insufficient for reasonable suspicion.
• S.1 grants the power to stop and search, not to stop and question.
• Code of Practice A states there is no power to stop or detain a person to find grounds for a search.
• The police must question a person before searching, and if a satisfactory explanation arises, no search should occur.
• The legality of stopping someone depends on whether there were grounds for reasonable suspicion before the stop.
• In Tomlinson v DPP (1992), walking aimlessly in an area known for drugs is not enough to justify detention and search.
• The prevalence of drugs in an area cannot justify the detention and search of an individual.
• Fred, recently released from prison for robbery, is stopped and searched by an officer who knows him is generally not enough for reasonable suspicion without other factors
• Wilma, a member of an animal rights group, spotted wearing the group's baseball cap coming out of Tesco after a crime at an animal centre is potentially enough for reasonable suspicion depending on the timing, proximity, and other evidence.
• Ben, lurking in the shadows waiting for his girlfriend in a high-burglary area, is not enough for reasonable suspicion without more specific intelligence or evidence.
• Searching a man in a yellow shirt based on a report of an assailant in a red shirt, combined with the man's prior convictions, is not enough for reasonable suspicion, as the shirt color is exculpatory.
• Stopping and searching Jackson because he is a Rastafarian and the officer dislikes the group is not enough for reasonable suspicion due to it being based on prejudice.
• Stopping and searching two men in dark coats because they fit the general description of burglary suspects is not enough for reasonable suspicion, as it's a vague description.

Procedural Requirements

• S.2 and s.3 PACE outline the procedures to follow before, during, and after a search.
• Before searching, s.2 requires the officer to inform the person of:
• Their name and police station
• The object of the search
• The grounds for searching
• The right to request a record of the search
• An officer not in uniform must produce documentary evidence of being a police officer.
• It is necessary for transparency, accountability, and to ensure the person understands their rights.
• In Fenelley (1989), evidence was excluded because the defendant was not told why he was stopped, searched, and arrested.
• R v. Bristol (2007) ruled that failure to provide necessary information would render a stop and search unlawful.
• After the search, s.3 PACE requires a written record unless impracticable with exceptional circumstances.
• The record must include: the person’s ethnic origin, object of search, grounds, date, time, place, result, and officer's identity.
• The purpose of the record is to supervise and monitor the use of these powers by senior officers.
• Code A sets out principles for using stop and search powers.
• There is no power to require a person to remove any clothing in public other than an outer coat, jacket, or gloves.
• Searches in public must be restricted to superficial examination of outer garments.
• Pockets, collars, socks, and shoes may be searched with the officer’s hand, and they may search a person’s hair, subject to rules on removal of headgear.
• The extent of the search depends on what is suspected of being carried.
• A more thorough search requires an officer of the same sex out of public view.
• S.117 PACE allows police to use reasonable force when executing ANY power.
• S.117 is a floating section applicable to any police power.

Additional Powers to Stop and Search

• S.60 Criminal Justice and Public Order Act 1994 applies to specific locations at certain times with authorisation from a senior officer.
• Instances where these can be used including large events, protests, or areas with high crime rates.
• S.60 allows a uniformed officer to stop and search pedestrians, vehicles, drivers, and passengers for offensive weapons or dangerous instruments without suspicion.
• Instruments with a blade or sharply pointed are considered dangerous instruments.
• Safeguards under S.2 of PACE still apply to s.60 stop and searches.
• In Osman (1999), failure to comply with S.2 when searching under S.60 meant the officer was not assaulted in the execution of their duty when the defendant resisted the search.
• An officer of inspector rank or above can authorise this power if they reasonably believe serious violence may occur or has occurred where an offensive weapon was used.
• Officers can search people for a weapon if it is suspected that knives/offensive weapons are being carried without good reason.
• An officer of superintendent rank must be informed of the use of the power as soon as practicable.
• Authority applies to any place in the locality for up to 24 hours and can be extended by an officer of at least superintendent rank if crimes of violence have occurred in the area.
• The period authorized should be no longer than reasonably necessary to prevent incidents of serious violence.
• The authorising officer determines what reasonably amounts to a locality, taking into account factors such as the nature and venue of the anticipated incident, the numbers of people, their access to surrounding areas and the anticipated level of violence.
• He should not set a wider area that he believes necessary for the purpose of preventing the anticipated violence.
• S.60AA CJPO gives powers to require the removal of face coverings if the officer believes it is being worn mainly to conceal identity.
• The use of s.60 searches without reasonable suspicion was unsuccessfully challenged as breaching Article 8 ECHR in R (Roberts) v Commissioner of the Police of the Metropolis (2015).
• Peter, of African-Caribbean descent, was stopped and searched because he "looked like the kind of person who would be up to no good" is not enough for reasonable suspicion due to it being based on prejudice.
• Holly, witnesses placing a charity t-shirt in her backpack could possibly be stopped and searched.
• Rollo, seen fingering a silver debit card, is stopped and searched due to it being thought of as a knife, is not enough for reasonable suspicion due to it being based on prejudice.
• Rollo was later told he was being arrested to establish his identity.

Approach to Answering Police Powers Problem Questions

• A three-step process can be used: IDA (Identify, Describe, Apply).
• Identify: Determine the police power involved (e.g., stop and search, arrest).
• Describe: Explain the law related to the power using cases and acts.
• Apply: Apply the law to the facts of the problem, providing specific advice on how the law applies to the case.
• Harvey, a young businessman of African-Caribbean appearance, arrested due to stereotypes is unlawful due to it being based on prejudice.

Powers of the Police to Make an Arrest

• The police cannot generally detain a person to question them without arrest.
• S.29 PACE allows a person voluntarily assisting with investigations to leave at will unless arrested.
• A suspect can only be forced to remain in police custody through formal arrest procedures.
• Arrest is defined at common law as when a person is not at liberty to go as they please (Spicer v. Holt).
• Several arrest powers exist under PACE, and common law allows arrest for 'breach of the peace.'

Arrest Under PACE

• Arrest can be made with or without a warrant.

Arrest with a Warrant (Rare)

• Under the Magistrates Court Act 1980 S.1, the police lay information before a magistrate if they know the individual's identity.
• This may result in an arrest warrant, potentially endorsed for bail.
• Warrants may only be issued if the offence is triable on indictment or punishable with imprisonment, or if the suspect's address is not sufficiently established.

Arrest without a Warrant

• S.24 PACE (as amended by s.110 of SOCPA 2005) contains a wide power of arrest.
• There is a two-stage process:
• Suspicion related to a criminal offence.
• The arrest must be necessary based on specific reasons.
• An officer can arrest without a warrant if they have reasonable grounds to believe a person is committing, has committed, or is about to commit an offence or has reasonable grounds to suspect the defendant is guilty.
• Even if stage 1 is met, the power can only be used if one or more specific reasons are in place, as outlined in s.24(5) PACE:
• To ascertain the person's name or address.
• To prevent the person causing physical injury to themselves or others, loss or damage to property, an offense against public decency, or an unlawful obstruction of the highway.
• To protect a child or vulnerable person from the suspect.
• To allow prompt and effective investigation of the offence.
• To prevent any prosecution for the offence being hindered by the disappearance of the person in question.
• Code of Practice G governs the power of arrest.
• The power of arrest should be fully justified, with the police proving necessity.
• Police officers should consider whether their objectives could be met in any other way.
• Castorina v Chief Constable of Surrey established a two-stage test:
• Did the PC actually suspect that the arrested person was guilty of the offence? (subjective element)
• Did the PC have reasonable proof of that suspicion? (objective element)
• O’Hara v. UK (2000) confirmed the two-part test for reasonable suspicion: actual suspicion (subjective) and reasonable grounds for that suspicion (objective).
• Wood v DPP established that physically restraining a person without arresting them constitutes assault even if an arrest might be justified.

Procedural Requirements

• S.28 PACE outlines procedural elements required for a valid arrest.
• Failure to comply may render the arrest unlawful.
• S.28(1) requires an officer to clearly state the fact that the person is under arrest at the time of arrest or as soon as practicable.
• S.28(3) requires the police officer to clearly state the reason for the arrest.
• S.28(5) states it must be complied with as soon as is practicable.
• Reasonable detail must be given so that the arrestee will be in a position to give a convincing denial and be released from detention speedily.
• Code C PACE says the suspect must be cautioned on arrest: ‘ You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.’
• If the defendant is not informed of the arrest when practicable, the arrest becomes unlawful from that point on.
• Alderson v Booth established that there is no fixed form of words for a valid arrest, but "I must ask you to come to the police station" was not sufficient, suggesting "I arrest you" as a simple and unambiguous form.

Power of a Citizen to Arrest

• S.24A (as amended by SOCPA 2005) contains the power for a citizen's arrest.
• It applies to 'indictable' offenses, including crimes triable either way.
• It requires the same two-stage process as police arrest, with the addition that the power can only be used where there are reasonable grounds for believing it is necessary AND it is not reasonably practicable for a constable to make it instead.
• An ordinary citizen can arrest anyone in the act of committing an indictable offence; or anyone who they have reasonable grounds for suspecting that they are committing an indictable offence.
• Where the indictable offence has been committed an ordinary citizen may arrest: anyone who is guilty of the offence; anyone they reasonably suspect of being guilty.
• The reasonable conditions are: (a) causing physical injury to himself or any ot