Topic 9

1. Topic 9 Police powers

2. Introduction to police powers • stop and search • arrest • detention • search at the police station

3. Stop and search The power of the police to stop and search individuals is fundamental to their ability to do their job — namely to prevent and detect crime. The use of this power also necessitates intrusion into the rights of individuals to conduct their lives without interruption. As such, a balance must be struck between allowing the police to carry out their role effectively while simultaneously protecting the rights of individuals.

4. PACE 1984 • The main police powers to stop and search are contained in the Police and Criminal Evidence Act 1984, although other statutes also contain stop and search powers. These include: • the Misuse of Drugs Act 1971 • the Criminal Justice and Public Order Act 1994 • the Terrorism Act 2000

5. Codes of practice To supplement PACE, the Home Office has issued codes of practice which detail the provisions in PACE. These codes of practice are updated as police powers change. They are not part of the statute itself, but breach of these codes may lead to evidence that has been obtained being ruled inadmissible during a subsequent trial.

6. Powers to stop and question The police may question individuals, but those individuals are entirely free to decline to answer unless arrested.

7. Rice v Connolly (1966) A member of the public was considered to be behaving suspiciously in an area where several burglaries had occurred. The police questioned the individual, but he refused to answer. His conviction for obstructing a police officer in the execution of his duty was quashed, and it was confirmed that members of the public are not under any obligation to answer questions.

8. Ricketts v Cox (1982) The police asked an individual questions about an assault. He was hostile and used abusive language. Magistrates decided that he was guilty of obstruction. Thus, there appears to be a thin line between lawfully refusing to answer questions and obstructing the police, based on whether or not the refusal is accompanied by hostility.

9. The recording of stops Following recommendation 61 of the Stephen Lawrence Inquiry report, under PACE Code A, when an officer requests that a person in a public place account for his or her presence, behaviour or possession of anything, a record must be made of this and a copy given to the person questioned. The record must include the date, time, place, reason why the person was questioned, the individual’s definition of his or her ethnicity and the outcome. A record need not be made if the police are asking for general information, looking for witnesses or giving directions.

10. Search A search occurs when the police stop individuals and search either them, their clothes or anything that they are carrying.

11. Section 1 PACE The power to search an individual also comes under s.1 of PACE and is supplemented by Code A. Code A states that powers to stop and search must be used fairly, with respect and without discrimination.

12. Reasonable suspicion An individual can only be stopped and searched if the police have reasonable suspicion that the suspect is in possession of drugs, weapons or stolen property, or things that could be used to commit a crime, an act of terrorism or criminal damage. The suspicion should be based on facts, intelligence, information or behaviour. It cannot be based on personal factors, including act, race, religion, appearance, previous conviction or generalisations, stereotypes or any of these factors in combination.

13. Police power to arrest The power of arrest under PACE has recently been amended by the Serious Organised Crime and Police Act 2005 and a new code. Code G has been issued to give guidance on the exercise of the power of arrest

14. Code G Code G confirms that the right to liberty is a fundamental human right, and since the power of arrest interferes with that right, officers must be fully justified in using it. It states that two tests must be met before an arrest can be said to be lawful: The person must be involved or suspected of involvement or attempted involvement in a crime. (b) There must be reasonable grounds for believing that his or her arrest is necessary.

15. Caution A suspect must be cautioned in the following way: ‘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.’

16. Who can be arrested? • The police are permitted to arrest: • anyone who is about to commit an offence or who is • committing an offence • anyone the officer has reasonable grounds for suspecting • is about to commit an offence • anyone who is reasonably suspected of being guilty of an • offence that the officer has reasonable grounds for • suspecting has been committed

17. Detention Once arrested, the suspect must be taken to the police station as soon as possible. On arrival at the station, he or she will be taken to the custody officer who will assess the strength of the evidence against him or her. On the basis of this, the custody officer will decide whether the suspect can be charged. If charged, the suspect will usually be released on bail.

18. Custody officer The police are not allowed to detain a suspect indefinitely, and the custody officer is required to review the need for detention on a regular basis. The officer will review whether there is enough evidence to charge after the first 6 hours. Further reviews are carried out every 9 hours. Generally, the police can detain suspects for up to 36 hours after their arrival at the station. This may be extended for a further 12 hours by the police, but it must be done by an officer of superintendent rank or above. A further and final extension of up to 96 hours is permitted, but this must be approved by a magistrate.

19. Interview The police usually detain suspects so that they can question them about an offence. Often, they will be aiming to get the suspect to confess, which means that they can bring their investigations to an end relatively quickly and cheaply. The interview must be taped and a record made of it afterwards. The suspect has the right to consult a legal advisor, but this may be delayed for up to 36 hours.

20. Search at the police station On arrival at the police station, the suspect is searched and the custody officer records any property. The police can remove anything that they reasonably believe the individual may use to cause physical injury to himself or herself or to others, to damage property, to interfere with evidence, to assist escape or that is reasonably believed to be evidence (PACE s.54).

21. Non-intimate searches Non-intimate samples may be taken after the suspect has been searched. These can be taken without consent and include fingerprints, oral swabs, saliva, footwear impressions and photographs.

22. Strip search A strip search or search of the mouth may be carried out if necessary to remove an article which a person would not be allowed to keep. This must be done by an officer of the same sex.

23. Intimate searches Under s.55 PACE, if a superintendent or superior officer has reasonable grounds for believing that the suspect may have concealed anything which he or she could use to injure himself or herself or others or may have concealed drugs, then the superintendent or superior officer can authorise a qualified doctor or nurse to carry out a search of the suspect’s bodily orifices.

24. Intimate samples • Under s.62 of PACE, intimate samples, some of which require the suspect’s consent, can be taken. These include: • blood • urine • semen • dental impressions • pubic hair • tissue