What is the main legislation for stop and search?
The Police and Criminal Evidence Act 1984 (PACE) which was amended by the Codes of Practice and other relevant legislation
8 Code of practice in PACE
- Code A on stop and search
- Code B powers to search premises and seize property
- Code C dealing with the detention and questioning of suspests
- Code D on the rules for identification procedure
- Code E on the tape recording of interviews with suspects
- Code F on visual recording with sound of interviews
- Code G on the powers of arrest
- Code H on detention, treatment and questioning of those arrested under s41 of the Terrorism Act 2000
Section 1 of PACE sets out..
- that the police have the power to stop and search a person or vehicle in a public place (can even include a garden if the police officer has a good reason for believing that the person does not live at the address) if they have:
- reasonable suspicion that prohibited articles
- stolen goods
- articles made adapted or intended for use in burglary
- criminal damage are in their possession
- (prohibited fireworks were added in the Serious Organised Crime and Police Act 2005)
Other statutes give powers to the police to stop and search
- Misuse of Drugs Act 1971, which gives the power to search for prohibited drugs
- The Terrorism Act 2000 where the police can ask for heargear and shoes to be removed. In addition to the outer coat, jacket and gloves permitted under PACE.
- Section 60 of the Criminal Justice and Public Order Act 1994 - gives power to police to stop and search anyone in an area designated by a senior officer for up to 24hours in anticipation of violence. No need for reasonable suspicion just being in the area is enough
What is reasonable suspicious?
- Code of Practice A sets out guidance for police on reasonable suspicion and states it cannot be based on personal appearance or crime record alone.
- However can be when there is reliable information that members of a group or gang habitually carry knives unlawfully or controlled drugs and wear a distinctive item of clothing
- However these can be taken into account, providing there are other reasons to suspect
What are the rules that must be followed by the police when stopping and searching?
- The police officer must give his/her name, station and the reason for the search
- Only certain clothing may be removed in public (outer court, jacket and gloves)
- If the officer wishes to make a more thorough search the D must be taken out of public view (police van) such as a T-Shirt
- There is no such thing as a 'voluntary search' - there must be a statutory power for any search
- A written report required for every stop and search
Stop and Search FOR individual rights and the need to combat crime is often used as a question
- It's important to be able to ask people to remove items that may conceal their identity or to help them avoid detections as illustrated where a failed London bomber initially avoided detection dressed in a burka
- Searching for prohibited items does prevent some crime - the Tottenham leaflet experiment led to a 50% reduction in stop and search but increases in both burglary and street robbery in the area, illustrating this point
- The fact that the police officer has to identify him - or himself and give a reason for the search protects the individual from random searches illustrated by Osman 1999 (police officer did not give there names or station)
- Code of Practice A setting out what is not reasonable suspicion should protect individuals from harassment because of their appearance or previous record.
- The fact that all searches must have statutory authority and a report must be written protects individuals as each search must be justified
Stop and Search AGAINST individual rights and the need to combat crime is often used as a question
- Reasonable suspicion is still very open ended and easy to justify
- Stop and Search has increased tenfold since 1986 and only 10%-13% of people stopped and then arrested
- Many people do not know their rights which may make the rights ineffective
- Section 60 of the Criminal Justice and Public Order Act tends to be misused to deal with street robbery or other crimes rather than its original purpose of dealing with riots
General information on arrest on the street:
- The powers of the police are set out under Section 24 of the Police and Criminal Evince Act 1984 as amended by the Serious Organised Crime and Police Act (SOCPA) 2005 and the Criminal Justice Act 2003 and the Codes of Practice (Code G)
- Section 24 PACE, as amended by SOCPA 2005, sets out the power to arrest without a wrrant.
- Code G gives guidelines for arrest
The police have the power to arrest a person if:
- a person have the committed an offence (past); or
- is in the act of committing an offence (present); or
- is about to commit an offence (future); or
- there are reasonable grounds for suspecting one of these occurrences (even if no offence is actually been committed)
Other powers of arrest:
- The police may use reasonable force to carry out the arrest
- The power to search the arrested person for anything that may them escape
- Arrest for breach of the peace (common law power) preserved by Section 26 PACE
- Arrest for breaching bail conditions
- arrest with a warrant - Section 8 Magistrates Court Act 1980
- Section 41 Terrorism Act 2000
- There are many other powers of arrest e.g. aggravated trespass under the Criminal Justice and Public Order Act 1994
The necessity tests
- Sets limits on when an officer has the power to arrest
- The officer can only arrest if s/he has reasonable ground for believing that it is necessary to make the arrest for one of the following reasons
The necessity test reasons:
- To enable the name and address of suspect to be ascertained
- To prevent the person causing physical injury to himself or any other person
- suffering physical injury
- if someone is causing loss or damage to property
- if someone is committing an offence against public decency
- if someone is causing an unlawful obstruction of the highway
- to protect a child or vulnerable person
- to allow the promp and effective investigation of the offence from being hindered by the disappearance of the person in question
- The police must tell a person at the time of the arrest or as soon as practicable afterwards, why they are under, arrest the reason for the arrest (no words set but it must be understandable (Taylor v Chief Constable of Thames Valley Police), why the arrest is necessary and give a caution
- They also have to identify themselves if not in uniform to make the arrest lawful
PACE code of Practice G Lawful arrest requires two elements
- a person's involvement or suspected involvement or attempting involvment
- Reasonable ground for beliving that the person arrest is necessary
PACE code of practice G
must inform D of why they have been arrested
Other powers of arrest
- Arrest for breaching police bail
- arrest for breaching the preace
- arrest with warrant
- arrest by private citizen
Arrest for breach police bail
- The criminal Justice and Public Order Act 1994 added an extra power of arrest into PACE -s46A of PACE
- it gives police the right to arrest without a warrant anyone who having been release on police bail fails to attend at the police station at the set time.
Arrest for breach of the peace
- Even applies if the behavior was complained about on private land - McConnell V Chief Constable of the Greater Manchester police (1990).
- The conditions are that:
- there must be a sufficiently real and present threat to the peace
- the threat must come from the person to be arrested
- the conduct of that person must clearly interfere with the rights of others and its natural consequences must be no wholly unreasonable' violence from a third party
- the conduct of the person to be arrested must be unreasonable
Arrest with a warrant
- The police may make an application to a magistrate for a warrant to arrest a named person
- issued under s1 of the Magistrates' court act 1980 which required written information, supported by evidence on oath showing that a person has committed or is suspected of committing an offence.
- A warrant allows the police to enter and search the suspects home for the purpose of making an arrest.
Arrest by private citizen
- The Serious Organised Crime and Police Act 2005 also created a new s24 in PACE.
- Set up the rights of a provate citizens to make an arrest.
- A private citizen can only make an arrest in respect of indictable offence
- Either committee the offence or reasonable grounds for suspecting a person to be committing an indictable offence
- The limitations are that is must appear that it is not reasonably practicable for a constable to make the arrest and must be neccessary to prevent the person;
- Causing physical injury to himself or any other person
- suffering physical injury
- causing loss of or damage to property
- making off before a constable can assume responsibility for him
Police powers to detain a suspect at the police station
- Where a person arrested on suspicion of summary (less serious) offence, then the police can only detain them for a maximum of 24hours
- Where a person has been arrested on suspicion of an indictable (a more serious offence), then the police can detain for a further 12 hours (total of 36) with permission of a senior officer (superintendent or above)
- To detain a person beyond 36 hours for an indictable offence, the police must apply to the Magistrate's Court. The magistrate can order detention up to a maximum total of 96 hours
- In cases where the suspect has been arrested for terrorism offences, the detention may be extended to 14 days by a magistrates
Individual rights during detention
- The right to have a custody officer monitor detention and keep a custody record to ensure the Code of Practice are adhered to.
- The right to have someone informed of the detention. (this can be delayed for up to 36 hours in exceptional circumstances for serious crimes)
- If under the age of 17 or suffering any mental illness or retardation, the right to have a person responsible for their welfare informed of the arrest
- The right to consult the Codes of Practice
- The right to legal advise (which is free), although this is usually limited to telephone advice and being allowed to consult privately with a solicitor
- The right to an interpreter or medical treatment if necessary
- The right to be released after 24 hours (summary); 36hours (indictable); 96hours (authorised by a magistrates); 14 days (terrorism)
- access to medical treatment if required
- to be detained in an adequately heated, cleaned, lit and ventilated cell
- the right to at least 2 light meals and one main meal in any 24 hours plus drinks
- in any period of 24 hours a detainee must be given a continuous period of at least 8 hours rest
The right to legal advice
- It is possible for a senior police officer to authorise a delay to a suspect's right to see a solicitor in the case of an indictable offence for up to 36 hours.
- however only if there is reasonable grounds for:
- believing access to a solicitor will lead to interference with or harm the evidence;
- to other person or the alerting of others involved in the offence;
- hinder the recovery of property obtained through the offence
- The case R V Samual 1988 stressed that it would only be on rare occansions that such a delay was justified and that it must be based on specific aspects of the case.
- all interviews must be taped and a caution given
- there is a right to have legal advise but this may be limited to advice via the phone now it is often confined to a telephone this can be a disadvantage to many suspect
- The presence of an appropriate adult is required in certain circumstances
- The interview room must be heated to a reasonable temperature and breaks and refreshments must be provided.
- The aim of an interview has traditionally been in order to get a confession rather than necessarily to find out the truth.
- The right to silence
- if a suspect is under the age of 17 or is mentally disordered or mentally vulnerable, then there must be an 'appropriate adult' present during all interviews.
- This right is in addition to the right to legal advice.
- R V Aspinall (1999) CofA ruled a man who had sz should have had an appropriate adult present when interviewed by the police even though it seemed he understood the police questions.
Right to silence
- Until the Criminal Justice and Public Order Act was enacted D's could refuse to answer any questions without any adverse conclusion being drawn on their silence
- This was amended as the government saw guilty people going free and the right to silence should be restricted.
- The section allow inferences to be made from the fact that a defendant has refused to answer questions resulting the wording of the caution given to suspect before interviewing.
- This doesn't mean the D can be forced to speak but the judge can comment on the D's failure to mention a crucial matter and this failure can form part of the evidence against him.
- This can be argued it goes against the principle that the prosecution must prove the D guilt.
- A D's silence is not enough for a conviction on its own there must be prosecution evidence as well.
Protection of suspects
- The law gives some protection to suspects on the way in which they should be treated which being detained and questioned.
- Section 76 of PACE states that the court shall not allow statements which have be obtained through oppression to be used as evidence.
- the police have no automatic right to search them
- Strip searches
- Intimate searches
- Defined in Code C as searches 'involving the removal of more than outer clothing'
- It may only take place if it is necessary to remove an article which a person in detention should not be allowed to keep and their is reasonable suspicion that the person might have such an article concealed on their person.
- Must be in a private area when it can only be seen by the people who are needed to be present.
- No member of the opposite sex should be present
- The clothing should not be all removed at once. The top part of the body should be stripped then covered whilst the bottom part is stripped
- A high ranking officer can authorise this if there is reason to believe that the person has with him 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.
- If drug related searches can only be conducted by a suitably qualified person for example a doctor or nurse.
- If it is for other items then it should be carried out by a suitably qualified person but can be by another person if a high ranking police officer authorises it.
Taking of fingerprints at the police station
The police will ask D to agree to this but if they do not consent the police have the right to use reasonable force to take fingerprints.
Taking of fingerprints prior to arrest
- Fingerprints can be take prior to arrest away from a police station as it is now possible to check against the National Automated Fingerprint Identification System in a mtter of minutes.
- The power can only be used where:
- the officer reasonably suspects that the person is committing or attempting to commit an offence or has committed or attempted to commit an offence
- Either the name of the person is unknown to and cannot be readily ascertained by, the officer, or the officer has reasonable grounds for doubting whether the name given by the person is his real name.
- S62 and 63 of PACE
- They dont have to have the persons consent to this but if they do not consent then the police have the right to use reasonable force to take samples.
- blood; semen or other tissue fluid; urine or pubic hair
- dental impressions
- a swab taken from any part of a person's genitals or from a person's body orifice other than the mouth
- can only be taken by doctor or nurse with the permission of the suspect
- only taken when reasonable grounds for suspecting involvement in a particular recordable offence.
- The sample may be then checked against information held on other crimes which can solve old crimes.
Retention of samples
- Untill 2001 fingerprints and samples were only kept where the suspect was found guilt of an offence.
- However criminal Justice and Police Act 2001 inserted s64 into the Police and Criminal Evidence Act 1984 that all samples and fingerprints can be kept even if found not guilty which was challenged in S and Marper v United Kingdom 2008.
Individual rights during searches
- The right not to be automatically searched - searches can only be done in certain circumstances
- The right only to be strip searched if its deemed necessary in order to remove an article which a person should not have
- the right to have the strip search carried out in a private place with a same-sex officer and only half the clothing removed at any one time
- The right for an intimate search only be carried out if authorized by a high ranking officer in order to search for Class A drugs or weapons and to be carried out by a doctor or nurse/
Complaints against the police
- Citizen that believe police have exceeded their powers can complaint to the police authorities these must be recorded.
- The type of complaint determines how it is dealt with, although in all instances, the police are under duty to take steps to obtain and/or preserve evidence which is relevent to the complaint
- minor complaints are dealt with informally and if proved the individual will receive an apology.
- If disciplinary action is thought to be necessary then the complaint should be investigated by the police force concerned or by the Independent Police Complaints Commission
The independent Police Complaints Commission
- set up in April 2004
- handle complaints against police and police staff (community support officers)
- Sets standards for the polcie to follow when dealing with complaints and monitor the way that complaints are dealt with by local police forces.
- It investigates serious issues including:
- any incident involving death or serious injury
- allegations of serious or organised corruption
- allegations against senior officers
- allegations involving racism
- allegations of perverting the course of justice
Who can make a complaint
- Any member of the public who:
- has been a victim of misconduct by a person serving with the police
- was present when the alleged misconduct took place and suffered loss, damage, distress or inconvenience or was put in danger or at risk
- is a friend or relative of the victim of the alleged misconduct or
- has witnessed the alleged misconduct
- It can be made directly to the police station concerned or though the IPCC, any advice organisation such as Citizen Advice Bureau or a Youth Offending Team.
Court action against complaint
- Where the police committed a crime in the unlawful execution of their duties, criminal proceedings are usually for assault and may be commenced by a private prosecutions or as seen above by the state.
- If there is a breach of civil rights, citizens may also be able to take proceedings in the civil courts against the police.
- This can be done under a claim in tort for trespass to property as would be the case if the police entered premises without a search warrant or the permissions.