Introduction to Policing and Police Powers [2nd ed] 9781843146643, 1843146649, 9781859417058, 1859417051

Table of contents :
Content: BOOK COVER --
TITLE --
COPYRIGHT --
CONTENTS --
1 THE DEVELOPMENT AND FOUNDATIONS OF MODERN POLICING --
2 POLICE POWERS OF STOP AND SEARCH --
3 POLICE POWERS OF ARREST --
4 POLICE POWERS OF ENTRY AND SEARCH OF PREMISES, AND SEIZURE OF EVIDENCE --
5 POLICE POWERS OF DETENTION --
6 THE QUESTIONING AND GENERAL TREATMENT OF DETAINED PERSONS --
7 POLICING BY CIVILIANS --
8 POLICING AND THE HUMAN RIGHTS ACT 1998 --
9 POLICE POWERS IN THE FUTURE? --
APPENDICES --
Index.

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Leonard Jason-Lloyd 2nd Edition

An Introduction to Policing and Police Powers

GAVENDISHpublishing

• www.cavendishpublishing.com

AN IN TRO D U CTIO N TO POLICING AND POLICE POW ERS S e c o n d E d itio n

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AN IN TRO DUCTIO N TO POLICING AND POLICE POW ERS Second Edition

Leonard Jason-Lloyd Visiting Lecturer in Criminal Justice, Department of Criminology, University of Leicester

London •Sydney • Portland, Oregon

Second edition first published in Great Britain 2005 by Cavendish Publishing Limited, The Glass House, Wharton Street, London WC1X 9PX, UK. Telephone: + 4 4 (0)20 278 8000 Facsimile: +44(0)20 278 8080 Email: [email protected] Website: www.cavendishpublishing.com Published in the United States by Cavendish Publishing c / o International Specialized Book Services, 5824 NE Hassalo Street, Portland, Oregon 97213-3644, USA Published in Australia by Cavendish Publishing (Australia) Pty Ltd 45 Beach Street, Coogee, NSW 2034, Australia Telephone: +61 (2)9664 0909 Facsimile: +61 (2)9664 5420 © Jason-Lloyd, L First edition Second edition

2005 2000 2005

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, scanning or otherwise, without the prior permission in writing of Cavendish Publishing Limited, or as expressly permitted by law or under the terms agreed with the appropriate reprographic rights organisation. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Cavendish Publishing Limited, at the address above. You must not circulate this book in any other binding or cover and you must impose the same condition on any inquirer.

British Library Cataloguing in Publication Data Jason-Lloyd, Leonard, 1945Introduction to policing and police powers - 2nd ed 1 Police - Great Britain 2 Police power - Great Britain 1 Title 345.4T 052 ISBN 1-85941-705-1 ISBN 978-1-859-41705-8 Printed and bound in Great Britain

PREFACE In recent years, general interest in the study of policing and the application of police powers has increased substantially. As far as academ ic activity is concerned, the study of police pow ers and certain aspects of the nature of policing have form ed part of constitutional law courses for m any years and, more latterly, as a major com ponent in the study o f civil liberties. The m ost recent d evelopm ent has been their inclusion w ithin crim inal justice studies. This book has been written with the new com er in mind, including those with little or no legal know ledge who need to understand policing and police powers as part of wider study. It is not intended to provide an exhaustive treatise on this subject since this service is provided for in other works which are cited in the appropriate footnotes and constitute recom m ended further reading on particular topics. This publication is therefore focused on the key issues affecting the exercise of police pow ers which are most likely to be of interest to students as well as practitioners. This publication is therefore designed for com plete beginners as well as those with some know ledge of policing and police pow ers in an endeavour to help bring them as close to degree level on the subject as they are able to reach. It is also intended that this book will be of use to practitioners, w hether in the legal profession or otherwise, who need a quick but com prehensive grasp of som e of the most im portant aspects of this subject. The principal aim of this w ork is to make this study as accessible as possible to a wide range of students and practitioners, and to act as a stepping-stone to further indepth study, particularly to higher degree level. A further aim is to provide an updated textbook on the m ost w idely used police pow ers w hich has becom e necessary in view of extensive changes in the law since the m id-1990s, as well as those that occurred in this early part of the 21st century. In order to facilitate a better understanding of the subject and the way that it has evolved, the relevant statu tory and other provisions have been reproduced at the ap p rop riate stag e s w here th eir w o rd in g is self-exp lan ato ry , as w ell as case law applicable to the points in question. H ow ever, it is not intended to subm erge the reader in too many cases, rather than cite the m ost important and relevant case law applicable to the key areas of the subject. Charts and diagram s have also been included in order to facilitate better understanding of the more com plex issues arising from the subject. My thanks go to Jon Lloyd, M anaging Editor at Cavendish Publishing for his help and encouragem ent. Special thanks are extended to my wife, Usha, for her unfailing patience and support which is always most prom inently displayed whenever I embark upon any m ajor project. I have endeavoured to state the law as at 1 February 2005. C row n cop yrigh t is reprod uced w ith the p erm ission of the C o n tro ller o f H er M ajesty's Stationery Office. Leonard Jason-Lloyd April 2005

CONTENTS Preface Table o f Cases Table o f Legislation Introduction 1

T H E D E V E L O P M E N T A N D FO U N D A T IO N S O F M O D E R N P O L IC IN G

INTRODUCTION A BRIEF HISTORICAL OVERVIEW THE STRUCTURE O F POLICING IN ENGLAND AND WALES THE CONSTITUTION AL A N D GEN ERAL LEGAL STATUS O F THE POLICE THE 'EXTEN DED POLICE FAMILY' COM PLAINTS AGAINST TH E POLICE 2

3

4

5

6

v ix xiii xxi 1

1 2 3 8 17 18

P O L IC E P O W E R S O F S T O P A N D S E A R C H

27

INTRODUCTION THE POLICE AND CRIM INAL EVIDENCE ACT 1984 ('PACE') THE CODES O F PRACTICE SEARCH PROCEDURE SEARCHING OF PERSONS VEHICLES FURTHER SEARCH PROCEDURES MORE RECENT POW ERS TO STOP AND SEARCH VEHICLES A ND PEDESTRIAN S SOM E MISCELLANEOUS POW ERS OF STOP AND SEARCH

27 27 29 36 36 40 41 47 56

P O L IC E P O W E R S O F A R R E S T

61

DEFINITION OF 'A RREST' ARREST PROCEDURE POW ERS UNDER THE CRIME AND DISORDER A CT 1998 POW ERS UNDER THE ANTI-SOCIAL BEHAVIOUR ACT 2003 'AN Y PERSON ' ARREST POW ERS POLICE POW ERS TO ISSUE FIXED PENALTIES UNDER TH E CRIM INAL JUSTICE AND POLICE ACT 2001

61 77 87 89 91

P O L IC E P O W E R S O F E N T R Y A N D S E A R C H O F P R E M IS E S , A N D S EIZ U R E O F E V ID E N C E

92 95

INTRODUCTION ENTRY AND SEARCH BY WARRANT ENTRY AND SEARCH W ITH OUT W ARRANT POLICE POW ERS OF SEIZURE SPECIFIC POW ERS O F SEIZURE UNDER OTHER STATUTES

95 96 111 122 127

P O L IC E P O W E R S O F D E T E N T IO N

129

INTRODUCTION DESIGNATED POLICE STATIONS THE CUSTODY OFFICER THE FIRST STAGES AT THE POLICE STATION SEARCHES AND EXAMINATION TO ASCERTAIN IDENTITY DETENTION WITHOUT CHARGE SAFEGUARDS REGARDING VULNERABLE PERSONS THE CHARGING O F SUSPECTS AND SUBSEQUENT DETENTION CAUTIONING CON DITION AL CAUTIONS

129 129 129 131 139 141 150 155 161 162

T H E Q U E S T IO N IN G A N D G E N E R A L T R E A T M E N T O F D ET A IN ED P E R S O N S

165

INTRODUCTION GEN ERAL CONDITIONS OF DETENTION THE TREATM ENT OF DETAINED PERSONS THE GENERAL CON DUCT O F POLICE INTERVIEWS VIDEO RECORDING OF INTERVIEWS CONFESSIONS

165 165 166 170 181 183

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An Introduction to Policing and Police Pow ers

ID EN TIFIC A TIO N P R O C ED U R ES TA KIN G FO R EN SIC SA M P L ES FR O M SU SPEC TS IN D EPEN D EN T C U STO D Y V ISITO RS 7

8

9

186 201 207

P O L IC IN G B Y C IV IL IA N S

209

IN TRO D U CTIO N C IV ILIA N S GIVEN POLICE PO W ERS

209 211

P O L IC IN G A N D T H E H U M A N R IG H T S A C T 1 9 9 8

231

IN TRO D U C TIO N T H E H U M A N RIG H TS A C T 1998 H U M A N RIG H TS U N D ER TH E CO N V EN TIO N

231 231 232

P O L IC E P O W E R S IN T H E F U T U R E ?

241

A P P E N D IC E S

247

Index

261

TABLE OF CASES A ddison v C hief Constable of West M idlands Police [2004] 1 W LR 2 9 ............................................158 A lbert v Lavin [1982] AC 546; [1981] 1 All ER 628 ...................................................................................... 75 Alderson v Booth [1969] 2 All ER 271 .............................................................................................................. 79 Andronicou and Constantinou v Cyprus (1997) 25 EHRR 491 ...................................................233, 234 Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223; [1947] 2 All ER 680 ....................................................................83 Attorney General for New South Wales v Perpetual Trustee Co Ltd [1955] 1 All ER 846; [1955] AC 457 .................................................................................................................. 10 Bentley v Brudzinski (1982) Cr App R 2 1 7 ...................................................................................................... 44 Black v DPP (1995) unreported, Case No CO 877-95 ..................................................................................32 Bonzi v Switzerland [1978] 12 D & R 185 ...................................................................................................... 237 Brazil v Chief Constable of Surrey [1983] 3 All ER 537; [1983]Crim LR 483 ..................................... 137 Bucher v DPP [2003] EWHC 580 (Admin) .................................................................................................... 136 C hief C onstable of Cleveland Police v M cGrogan [2002] EW CA Civ 86; [2002] 1 FLR 707 .............................................................................................. 7 5 ,1 4 3 Christie v Leachinsky [1947] AC 573; [1947] 1 All ER 567 .................................................................77, 89 Clarke v Chief Constable of North Wales Police (2000) The Independent, 22 May .................................................................................................................... 77 Cockcroft v Sm ith (1705) 2 Salk 642 .....................................................................................................................71 Collins v W ilcock [1984] 3 All ER 374 ................................................................................................................44 Cow an v M etropolitan Police Com m issioner [2000] 1 A ll ER 504 ...................................................... 123 Cum m ing v Chief Constable of Northum bria Police [2003] EW CA Civ 1844 ..................................83 D v DPP (1998) The Times, 7 A ugust ............................................................................................................. 190 D'Souza v DPP [1992] 4 All ER 545 .................................................................................................................. 112 Dhesi v C hief Constable of the West M idlands Police (2000) The Times, 9 M a y ............................. 78 DPP v Avery (2001) 165 JP 789 ............................................................................................................................. 49 DPP v Cornish (1997) The Times, 27 January, QBD ..................................................................................186 DPP v Kitching (1989) 154 JP 293

...................................................................................................................... 92

DPP v L and S (1998) unreported, Case No C O /3 6 8 2 /9 8 .........................................................................85 DPP v M eaden [2003] EWHC 3005 (Admin) ................................................................................................ I l l DPP v M orris (1990) unreported, 8 October, D C ......................................................................................... 151 DPP v M orrison (2003) CLR 727 .........................................................................................................................58 DPP v Peacock [1989] Crim LR 372 .................................................................................................................... 86 Donnelly v Jackm an [1970] 1 W LR 562 ............................................................................................................. 44 Edwards v DPP (1993) 97 Cr App R 3 0 1 ........................................................................................................... 77 Evans v Hughes (1972) 136 JP 725; [1972] 3 All ER 412 ............................................................................. 34 Fisher v Oldham Corp [1930] 2 KB 364; [1930] All ER 9 6 ...........................................................................10 Fox, Cam pbell and Hartley v UK (1990) 13 EHRR 1 5 7 ................................................................................78 Gapper v Chief Constable of Avon and Som erset [1998] 4 All ER 248 ................................................. 92 Govell v UK (Application No 2 7237/95) [1999] EHRLR 1 0 1 .................................................................... 18 H and M v DPP [1997] Crim LR 653 ................................................................................................................152 Hague v Deputy Governor of Parkhurst Prison See R v Deputy Governor of Parkhurst Prison ex p Hague; Weldon v Home Office—

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An Introduction to Policing and Police Powers

H arris v Sheffield United Football Club Ltd [1987] 2 A ll ER 838 ...........................................................11 Hellewell v C hief Constable of D erbyshire [1995] 4 All ER 473 ...........................................................201 Hewitson v C hief C onstable of Dorset Police [2003] EW HC 3296 ........................................................82 Hobson and Others v C hief Constable of the Cheshire Constabulary (2004) 168 JP 111 ................................................................................................. 116 H olgate-M oham m ed v Duke [1984] 1 All ER 1054, H L ......................................................................83, 84 Hough v C hief Constable of the Staffordshire Constabulary [2001] EW CA Civ 39 ...........................................................................................................................................83 H oughton v C hief Constable of Greater M anchester (1987) 84 Cr App R 319, CA .............................................................................................................................34 Huvig v France (1990) 12 EHRR 528 ...............................................................................................................238 Jarrett v Chief Constable of the West M idlands Police [2003] EWCA Civ 397 ........................................................................................................................................ 85 Kenlin v Gardiner [1967] 2 QB 510; [1966] 3 All ER 9 3 1 ............................................................................ 44 Khan v UK (2000) 31 EHRR 45; [2000] Crim LR 684 ..........................................................................19, 238 Kirkham v Chief Constable of Greater M anchester Police [1990] 3 All ER 246, CA ....................................................................................................................................166 Kirkup v DPP [2003] EWHC 2354 ....................................................................................................................133 Kruslin v France (1990) 12 EHRR 547 .............................................................................................................238 Lamb v DPP [1990] Crim LR 5 8 ...........................................................................................................................75 Li Shu-Ling v R [1989] AC 270 ...........................................................................................................................183 Lodwick v Saunders [1985] 1 All ER 577 ........................................................................................................40 M cCann v UK (1995) 21 EHRR 97 ..........................................................................................................233, 234 M cFeeley v UK (1980) 3 EHRR 161 ................................................................................................................. 235 McLeod v Com m issioner of Police for the M etropolis [1994] 4 All ER 553 ........................................76 McLeod v UK (1999) 27 EHRR 493 .................................................................................................76, 237, 238 M epstead v DPP [1996] Crim LR 1 1 1 ................................................................................................................. 44 M oss v M cLachlan (1985) 149 JP 1 6 7 .......................................................................................................... 4 1 ,7 6 N icholas v DPP [1987] Crim LR 474 ................................................................................................................. 74 O 'H ara v Chief Constable of the RUC [1997] AC 286 .......................................................................... 32, 83 Osm an v DPP (1999) 163 JP 725 .......................................................................................................................... 50 Palm er v Bugler (1988) The Times, 28 N o v e m b e r........................................................................................96 Palmer v R [1971] AC 814 ....................................................................................................................................234 Parry v DPP (1998) unreported, Case No C O /2 2 9 4 /9 8 .......................................................................... 190 R (on the Application of Gillan and Another) v Com m issioner of Police of the M etropolis and the Secretary of State for the Home Departm ent (2003) The Times, 5 N ovem ber ........................................................................54 R (on the Application of Laporte) v Chief Constable of the Gloucestershire Constabulary [2004] EW CA Civ 1639 .......................................................................... 76 R (on the Application of M (A Child)) v Com m issioner of the Police of the M etropolis [2002] Crim LR 2 1 5 ............................................................................... 133 R (on the Application of Marper) v Chief Constable of South Yorkshire [2004] U K H L39 .............................................................................................................205

Table of Cases

xi

R (on the A pplication of S) v Chief Constable of South Yorkshire [2004] U KH L 39 ..............................................................................................................205 R (Rottman) v M etropolitan Police Com m issioner and the Secretary of State for the Home Office ]2002] 2 All ER 865, HL ........................................................................... 114 R v A lladice (1988) 87 Cr A pp R 380; [1988] Crim LR 608 .......................................................................147 R v Aspinall [1999] 2 Cr App R 1 1 5 ....................................................................................................151,153 R v Badham [1987] Crim LR 202 ......................................................................................................... 82,114 R v Bailey (1995) The Times, 26 January, CA ................................................................................................ 185 R v Barry (1991) 95 Cr App R 384, CA ................................................................................................. 184 R v Beckford [1991] Crim LR 9 1 8 .........................................................................................................................82 R v Bristol Crow n Court ex p Bristol Press and Picture A gency Ltd [1987] Crim LR 329 .....................................................................................................100 R v Brosch [1988] Crim LR 743 ..............................................................................................................................69 R v Central Crim inal Court ex p Francis and Francis [1989] AC 346; [1988] 1 All ER 677 .................................................................................................................. 98 R v Chesterfield Justices ex p Bramley [2000] 1 All ER 411; [1999] 2 W LR 409 ..............9 8 ,1 1 0 ,1 2 5 R v Chief C onstable of Avon and Som erset ex p Robinson [1989] 1 W LR 793; [1989] 2 All ER 1 5 ............................................................................................................134 R v Chief C onstable of Lancashire ex p Parker and M agrath [1993] Crim LR 204; [1993] 2 All ER 56 ....................................................................................................... 108 R v Chief C onstable of N orthum bria ex p Thom pson [2001] EW CA Civ 3 2 1 .................................. 134 R v Chief C onstable of Sussex ex p International Trader's Ferry Ltd [1997] 2 All ER 65 ............................................................................................................11 R v Com m issioner of Police for the M etropolis ex p Blackburn (No 1) [1968] 2 QB 118 ...................................................................................................10,11 R v Com m issioner of Police for the Metropolis ex p Blackburn (No 3) [1973] 1 All ER 324 .................................................................................................. 11 R v Com m issioner of Police for the M etropolis ex p Free Tibet Cam paign and O thers (2000) unreported, Case No C 0 /1 2 9 /2 0 0 0 ............................................... 11 R v Custom s and Excise Com m issioners ex pPopely [1999] STC 1016, Div C t ................................. 98 R v Davison [1988] Crim LR 442 ..................................................................................................................... 184 R v Deenik [1992] Crim LR 578 ......................................................................................................................... 191 R v Deputy Governor of Parkhurst Prison ex p Hague; Weldon v Home Office [1992] 1 AC 58; [1991] 3 WLR 340 .................................................................. 165 R v Everett [1988] Crim LR 826 ......................................................................................................................... 186 R v Fennelley [1989] Crim LR 142 ....................................................................................... 23, 56, 7 8 ,8 5 ,1 8 3 R v Forbes [2001] 2 W LR 1 ...................................................................................................................................191 R v Franklin (1994) The Times, 16 June, C A .................................................................................................. 177 R v Fulling (1987) 85 Cr App R 1 3 6 .................................................................................................................. 183 R v Grieve (1996) unreported, 1 August, C A ................................................................................................ 184 R v Guildhall M agistrates' Court ex p Primlaks Holdings Co [1989] 2 WLR 841 ...........................98 R v Gum m erson and Steadm an [1999] Crim LR 680 ................................................................................190 R v Ham (1995) unreported, Case No 9 5 / 2 0 2 0 / W 3 .................................................................................. 186 R v Hersey [1997] Crim LR 281 ......................................................................................................................... 190 R v Howeii [1982] QB 416; [1981] 3 Ail ER 383 ..................................................................................... 74, 75 R v Hutton [1998] Crim LR 74 ............................................................................................................................190 R v Jasper (1994) unreported, Case No 9 3 /6 0 4 3 /X 5 .................................................................................. 184 R v Jones and Nelson (1999) The Times, 21 April .......................................................................................194 R v Kelbie [1996J Crim LR 802 ..............................................................................................................................75 R v Khan [1995] QB 27; [1994] 4 All ER 426 .................................................................................................. 238 R v Lamont [1989] Crim LR 813, C A ................................................................................................................ 185

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R v Lew is (1995) unreported, 7 November, C A .......................................................................................... 185 R v Linehan (1999) unreported, Case No 751 /9 9 , Q B D .......................................................................... 109 R v Longm an [1988] Crim LR 534 ....................................................................................................................109 R v M (2000) unreported, Case No 9 9 /4 2 5 9 / X 4 ,12 June, C A ...............................................................185 R v M cCarthy [1996] Crim LR 8 1 8 ......................................................................................................................85 R v Marrin [2002] EWCA Crim 251 ................................................................................................................. 190 R v M ason [1987] 3 All ER 48 ............................................................................................................................. 185 R v M iller [1991] Crim LR 311 ...........................................................................................................................194 R v Morse and Others [1991] Crim LR 1 9 5 ....................................................................................................150 R v Paris, Abdullahi and M iller (1993) 97 Cr App R 99, CA ................................................................. 184 R v Peacock [1973] Crim LR 639, C A ................................................................................................................. 34 R v Reading Justices ex p South West Meats Ltd [1992] Crim LR 672 .....................................107,110 R v Ryan [1992] Crim LR 187 ............................................................................................................................. 195 R v Samuel (1987) 87 Cr App R 232 ....................................................................................................... 146,147 R v Secretary of State for the Home Departm ent ex p Northum bria Police Authority [1988] All ER 556 ...........................................................................13 R v Self [1992] 1 W LR 657; [1992] 3 All ER 746 .............................................................................................70 R v Silcott, Braithwaite and Raghip (1991) The Times, 9 December, C A .......................................... 186 R v Singleton [1995] Crim LR 236 ......................................................................................................................99 R v Slough Justices ex p Stirling [1987] Crim LR 576 ............................................................................... 148 R v South Western M agistrates' Court and M etropolitan Police Com m issioner ex p Cofie (1996) 61 JP 69, Q B D ......................................................................................107 R v Tiplady (Gary) [1995] Crim LR 6 5 1 ........................................................................................................... 191 R v Tottenham Justices ex p L (A Minor) (1985) The Times, 11 N o v e m b e r......................................195 R v Vernon [1988] Crim LR 445 ........................................................................................................................ 134 R v Weeks [1995] Crim LR 5 2 .............................................................................................................................184 Rice v Connollcy [1966] 2 QB 414 ............................................................................................................... 3 2 ,4 4 Ricketts v Cox (1982) 74 Cr App R 298; [1982] Crim LR 184 ................................................................... 44 Ridge v Baldwin [1964] AC 40 ............................................................................................................................. 12 Rixon and Others v Chief Constable of Kent (2000) The Times, 11 April .............................. 133,177 Roberts v Chief Constable of Cheshire [1999] 1 W LR 662 ......................................................................144 Roques v M etropolitan Police Com m issioner (1997) 23 Legal A c t io n ...............................................133 Sam uels v Com m issioner of Police for the Metropolis (1999) unreported, Case No CCRTF 9 8 /0 4 1 0 /2 , CA ............................................................................ 32 Selm ouni v France (2000) 29 EHRR 403 ........................................................................................................ 235 Sim pson v Chief Constable of South Yorkshire Police (1991) The Times, 7 March ............................................................................................................................... 84 Sm ith (Peter John)v DPP [2001] Crim LR 735 .............................................................................................114 Steel v UK (1998) 28 EHRR 603 ........................................................................................................................ 237 Stew art v UK (1984) 38 DR 162 ........................................................................................................................ 234 Taylor (A Child Proceeding by his M other & Litigation Friend CM Taylor) v Chief Constable of Tham es Valley [2004] EWCA Civ 858 ................................................................. 78 Thom as v Sawkins [1935] 2 KB 249; [1935] All ER 655 ...............................................................................75 Williamson v Chief Constable of West M idlands Police [2004] 1 W LR 14 ......................................158 Wilson v Chief Constable of Lancashire Constabulary (2000) Daily Telegraph, 5 Decem ber .............................................................................................................78

TABLE OF LEG ISLA TIO N ST A TU T E S Access to Justice Act 1999— P tV ........................................................................86 Anti-social Behaviour Act 2003 .................................................88-90, 93, 9 4 ,1 2 1 ,2 1 1 P t l .............................................................121,122 Pt 4 ................................................................. 90,91 s 3 0 ........................................................................ 214 ss 30(4), 3 2 ( 2 ) ................................................... 213 ss 43(1), 8 7 ( 2 ) ................................................... 212 Anti-terrorism, Crime and Security Act 2001 ................................... 101,103 s 90(1) ................................................................. 139 s 9 2 ........................................................................ 197 s 9 4 ..........................................................47, 5 1 ,1 2 7 s 94(3) ................................................................... 52 Aviation (Offences) Act 2003 ............................. 66 Aviation Security Act 1982 ..................................66 s 1 3 ................................................................. 95, 111 ss 21C(1), 21D(1) ...............................................66 Bail Act 1976 ...................................................62,159 s 6 .......................................................................... 159 s 7(3) ................................................................... 143 Bankers' Books Evidence Act 1879 .................101 Betting, Gaming and Lotteries Act 1963 .......................................... 122 Biological Weapons Act 1974 ........................... 122 British Transport Commission A ct 1949— ss 5 5 ,5 6 ................................................................. 93 Children Act 1989 ............................................... 150 Children and Young Persons A ct 1933— s 7(3) ..........................................................215,225 Children and Young Persons Act 1969 ............................................ 62 s 23(1) ................................................................. 112 Civil Aviation Act 1982 ........................................ 66 s 39(1) ................................................................... 66 Communications Act 2003— s 127(2) ................................................................. 93 Companies Act 1985 .............................................44 Confiscation of Alcohol (Young Persons) A ct 1997 ................ 127,128 s i ................................................................ 214, 225 Courts Act 2003— s 6 ...............................................................................8

Crime and Disorder Act 1998 ................................... s i .................................... ss 1 4 , 1 5 ..................................... s 1 6 .............................................. s 2 5 .............................................. s 25(1) ....................................... s 32(1 ) ( a ) ................................... s 3 6 .............................................. s 5 6 .............................................. s 6 5 .............................................. s 6 6 ..............................................

. .67, 88, 89, 200 ......................... 59 ......................... 87 .................. 87, 88 ......................... 47 ......................... 49 ......................... 67 ................ 64, 233 ..............158,159 ..............131,163 ....................... 163

Crim e (Sentences) Act 1997— Sched 1 ..................................... ....................... 143 Criminal Appeal Act 1995

.......................... 20

Criminal Attempts Act 1981— ss 1(4), 2 .................................. ......................... 68 Criminal Damage Act 1971— s l ( l ) ............................... ......................... 94 Criminal Justice Act 1925 ......... ................... 64 s 3 6 .................................. ...................64 Criminal Justice Act 1967— s 9 1 ..............................................

............. 92 ,9 3

Criminal Justice Act 1987 ...... ................... 44 s 2(4) ......................................... ......................... 95 Criminal Justice Act 1988 ......... ........... 66,155 s 1 3 9 ............................................ ......................... 34 s 139(1) ..................................... ......................... 66 s 139 A ....................................... ....................... 118 s 139A (l), (2) ......................... ...................66 s1 3 9 B ............................. ................. 118 s 1 5 2 ................................ ................. 245 Criminal Justice Act 2003 ....... .24, 2 8 ,2 0 6 ,2 2 6 Pt 3 ................................ ................. 162 s 1(2) ............................... ..............3 4 ,3 5 s 2 .................................... ................. 107 s 3(2), ( 3 ) .......................... ................... 65 s 3(4) .............................. ...................66 s 4 .................................... ............. 81, 84 s 5 .................................... ................. 206 s 6 .................................... ................. 144 s 8 .................................... ................. 136 s 1 0 .................................. ................. 204 s 2 2 .................................. ................. 162 s 22(3) ............................. ................. 163 ss 23, 24 ........................... ................. 162 s 2 5 .................................. ................. 163 s 2 8 .................................. ................. 155 ss 29, 30 ........................... ................. 156 ss 226, 228 ........................ ................. 112 s 281(1), ( 2 ) ...................... ...................90 Sched 1 ........................... ................. 219 Sched 2 ........................... .......... 155,159

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Criminal Justice and Court Services Act 2000— s 5 7 .........................................................................206 Criminal Justice and Police Act 2001 ........................... 1 2 ,5 9 , 62, 67, 68, 8 8 ,9 2 -9 4 , 1 2 2 ,1 2 3 ,1 2 5 , 128, 242 P t l ...................................................... 9 3 ,2 1 2 ,2 2 4 Pt 2 ..............................................................125,219 Pt 4 .........................................................................12 s 1(1), ( 2 ) ............................................................... 93 ss 1 2 - 1 6 ................................................................128 s 1 2 .........................................................93, 214, 225 s 12(4) .................................................................... 67 s 4 2 ........................................................................... 59 s 4 6 ...........................................................................67 ss 48, 49 ..................................................................88 ss 50-66 ............................................9 8 ,1 0 1 ,1 0 3 , 1 0 8 .1 1 0 .1 2 5 s 5 6 ......................................................................... 219 s 7 5 ......................................................................... 149 s 7 6 ..........................................................................181 s 7 7 ........................................................................... 29 S 9 3 ........................................................................... 14 Sched 1 .............................................9 8 ,1 0 1 ,1 0 3 , 108.1 1 0 .1 2 5 Sched 2 .............................................9 8 ,1 0 1 ,1 0 3 , 108.1 1 0 .1 2 5 Criminal Justice and Public Order A ct 1994 ..............47, 62, 67, 74, 127, 201 Pt III .....................................................................171 s 25 ................................................................ 158,159 s 2 7 ......................................................................... 157 s 3 6 .....................................................168, 169,218 s 36(1 ) ( c ) ............................................................. 218 s 3 7 ................................................................168,169 s 3 7 ( l ) ( c ) ............................................................. 218 s 5 6 ........................................................................... 62 s 58(2) ..................................................................202 s 59 ................................................................138,202 s 59(2) .................................................................... 83 s 6 0 ...................................................3 3 ,4 7 -5 4 ,2 3 7 s 60(4) .................................................................... 48 s 60(4A), (5) .........................................................49 s 60(6) .................................................................. 127 s 60(8) .................................................................... 50 s 60 A A .................................................... 3 3 ,3 8 ,4 7 , 4 8 ,5 1 ,5 2 ,1 2 7 s 60 A A (2) ............................................................. 49 s 60AA(7) ...................................................... 5 0 ,6 7 ss 61, 62, 64(4) .................................................. 127 ss 65,7 1 ........................................................... 5 8 ,5 9 s 7 6 ......................................................................... 112 s 8 1 ........................................................................... 52 ss 136 ,1 3 7 ............................................................. 86

ss 139,140 ............................................................. 87 s 1 4 1 ...........................................................................6 ss 166, 167 ............................................................. 67 Sched 3 ................................................................157 Criminal Justice (International Co-operation) Act 1990 ................................122 Criminal Law Act 1967— s 3 ...................................................................62, 234 s 3 ( 1 ) ....................................................... 7 0 ,7 1 ,7 9 , 109, 227 s 5(2) ...................................................................... 93 Criminal Law Act 1977— ss 6 - 8 , 1 0 ..............................................................112 Criminal Procedure and Investigations Act 1996 ...................... 140,200 Crossbows Act 1987— s 4 ............................................................................. 46 Custom s and Excise M anagem ent Act 1979 .................................... 64 s 1 7 0 .........................................................................64 Domestic Violence, Crime and Victims A ct 2004 ............................... 28, 86 s 1 0 ....................................................... 66, 226, 227 Drug Trafficking Act 1994 ................................ 155 P tII .......................................................................126 Environmental Protection Act 1990— s 8 7 ........................................................................... 94 Explosives Act 1875— s 7 3 ........................................................................... 98 s 8 0 ........................................................................... 93 Financial Services Act 1986 .............................. 122 Fire and Rescue Services Act 2004— s 4 9 ........................................................................... 93 Firearms Act 1968 .................................................. 65 s 1 9 ........................................................................... 65 s 4 7 .................................................................... 2 8 ,4 6 Fireworks Act 2003— s 1 1 ........................................................................... 94 s 1 5 ........................................................................... 93 Football Offences Act 1 9 9 1 .................................. 67 Football Spectators Act 1989 .............................. 67 s 1 4 J .........................................................................67 s 2 1 A .................................................................... 229 ss 21B, 21C ...........................................................67 Greater London Authority A ct 1999 ........................................... 11 ss 3 1 0 - 2 5 ..................................................................7 Sched 27 ........................................................... 1 ,1 2

Table of Legislation

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Highway Act 1835— s 7 1 .........................................................................226

s 23(3) ....................................... 9 5 ,1 0 9 ,1 1 8 s 2 3 (4 )(a )...............................................................32

Human Rights Act 1998 ................... 1 ,1 9 ,2 8 ,2 9 , 1 2 0 -22,141, 2 3 1 -3 3 ,2 3 9 , 241 Sched 1 ................................................................232

Obscene Publications A ct 1959 ...................................................... 6 5 ,9 6 s 2 .............................................................................65

Immigration Act 1971 .................................130,178 s 2 8 D (4 )..................................................................97

Offensive Weapons Act 1996 ........... 35,47, 111, 1 16-18,127 ss 1 , 4 ....................................................................117

Immigration and Asylum Act 1999— s 142(3) .......................................................130,178

Official Secrets Act 1911— s 9(2) ......................................................................98

Imprisonment (Temporary Provisions) Act 1980— s 6 ........................................................................... 143

Official Secrets Act 1989 ...................................... 66 s 8(1), (4), ( 5 ) ............................................... 66, 67

Knives Act 1997 .................................................... 116 s 8 .......................................................................4 7,5 1

Performing Animals (Regulation) Act 1925— s 2 ...........................................................................I l l

Licensing Act 1872— s 1 2 ........................................................................... 93 Licensing Act 1902— s i ............................................................................. 92 Licensing Act 1964— ss 169A, 169C(2) ............................................... 93 ss 169E, 169F ...................................................... 93 Licensing Act 2003 ..................................................67 s 143(1) ..................................................................67 s 149(4) ..................................................................93 s 1 5 5 .......................................................................128 M agistrates' Courts Act 1980— ss 1 , 1 3 .................................................................... 85 s 3 3 ........................................................................... 63 s 1 1 7 .........................................................................86 s 1 2 8 .......................................................................143 Mental Health Act 1983 .........................62,151 s 1 3 5 ...................................................................... 130 s 136 ........................................................... 130,143, 153,167 M etropolitan Police Act 1829 ................................ 2 M etropolitan Police Act 1839— s 6 6 ........................................................................... 27 Mineral Workings (Offshore Installations) Act 1971— s i ............................................................................. 96 M isuse of Drugs Act 1971 .................. 3 2 ,5 5 ,6 5 , 12 2 ,1 3 7 ,1 6 7 , 168, 206 s 5(2) ...................................................................... 65 s 2 3 ..................................................... 2 8 ,4 6 , 55, 56 s 23(1) ................................................ 9 5,105,111 s 23(2) .................................................................... 55

Official Secrets Act 1920 ...................................... 64

Police Act 1964 ............................ 4 ,1 0 ,1 2 ,1 3 ss 4, 5 , 4 1 ............................................................... 13 Police Act 1976 ........................................................ 18 Police Act 1996 .............................3 -6 ,9 -1 2 , 18,67 s 8 ...........................................................................223 ss 2 3 ,2 4 ................................................................... 6 s 3 2 .............................................................................3 s 36A ...................................................................... 12 s 3 9 ........................................................................... 11 s 4 0 .............................................................................5 s 4 2 ...........................................................................12 s 8 8 .............................................................................9 s 89(1) ............................................................2 4 ,6 7 s 89(2) ............................................................2 4 ,2 5 s 9 6 .............................................................................7 s 9 8 .............................................................................6 Sched 4 .................................................................... 1 Police Act 1997 .......................................................... 6 Pt I .............................................................................6 P tII .......................................................................... 6 Pt III ....................................................................238 ss 34A, 79 A .............................................................6 Police and Criminal Evidence A ct 1984 . . . .11,18, 2 3 ,2 7 -3 0 , 33, 36, 4 1 ,4 6 , 47, 49, 53, 55, 56, 62, 63, 71, 74, 7 5 ,7 9 ,8 5 ,9 5 ,9 6 , 9 9 -1 0 1 ,1 0 4 , 111, 115, 121,122, 1 2 4 ,125,131, 1 4 2 ,1 4 3 ,1 5 0 , 201,211, 217, 221, 222, 235, 238, 245 Pts I -V II I ...............................................................27 P tII ...................................................................... 238 P tV ........................................................................ 29 P tV I ...................................................................... 29 P tlX ...................................................................... 18

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Police and Criminal Evidence Act 1984 (contd)— s i ................................... .............29, 30, 33-35, 40,42-44,46, 47,49, 50, 53, 59,123,127, 245 S 1(1) ............................. ............................... 35 S 1(6) ............................... ............................... 42 s 1(8) ............................... ............................... 35 s 2 ................................... .................. 36, 50, 235 s 2(1), ( 2 ) ........................ ............................... 36 s 2 (2 )(b )......................... ................................. 49 s 2(3) ............................... ...........................37, 49 s 2(4) ............................... ................................. 37 s 2(6) ............................... ................................. 40 s 2 (9 )(a ) ........................... ................................. 37 s 2(9)(b) ........................... ................................. 40 s 3 ...................................... .......................... 36, 50 s 3(1)—(5), (7 ) .................. ................................. 42 s 3(8), ( 9 ) ........................ ...........................40, 42 s 4 ...................................... .................. 28, 40, 216 s 8 ................................... .................. 95-97,123, 124,217,245 s 8(1) ................................................................ 110 s 8(2) ............................... ...................... 125,217 s 9 ...................................... ............................... 101 s 9(1) ............................... ............................... 217 s 1 0 ................................... ................97,101,105 s 10(1) ............................. ................................. 97 s 10(2) ............................. .......................... 97, 98 s 1 1 ................................... ............... 98,101,105 ss 11(1), 12 .................... ................................. 99 s 1 4 ................................... ............. 100,101,105 s 1 5 ................................. ................104-06,109, 217,245 s 15(1)—( 6 ) ...................... ............................... 106 s 1 5 (2 )(c) ........................ ................................. 110 s 15(6)(a)(iii), (iv ) ......... ............................... 107 s 15(6)(b) ........................ ........................ 107,110 s 15(7), ( 8 ) ...................... ............................... 107 s 1 6 ................................. ................104,106-09, 217,245 s 16(1) ............................. ............................... 107 s 16(2), (2A) .................. ...................... 107,219 s l 6 ( 2 B ) ........................... ............................... 107 s 16(3)—(7) ...................... ............................... 108 s 16(8) ..................................................... 109,110 s 16(9) ..................................................... 110, 120 s l6 (9 )(b ) ........................ ................................. 110 s 16(10) ........................... ............... 110, 111, 120 s 16(11), (12) ................. ................................. Ill s 1 7 ................................. . . . .41, 74, 82, 95, 96, 111-17,122, 215 s 17(l)(ca), (cb), (d) ........................ 112,113 s l7 (l)(e ),(2 ) ................................................... 113 s 17(6) ............................ ..................76,113,114

s 18 ..........................................82, 95,109, 111, 114-17,122-24, 136, 218 s 18(2) .......................................................... 123 s 1 9 ....................................... 122,124,125, 218 s 19(1), ( 2 ) .................. ................................. 123 s 19(2)(a), (b) ............. ................................... 125 s 19(6) .......................... ..................126, 217, 218 s 2 0 ........................................................... 217, 218 s 2 1 ........................................................... 124,218 s 21(1)—( 5 ) .................. ...........................217-19 s 21(6)—(8) .............................................. 217, 218 s 2 2 ...................................................124, 217,218 s 2 3 ...................................................................... 96 s 2 4 ............................... ...........................63,117, 227, 243-45 s 24(1)—(3) ......................................................... 63 s 24(1 )(b ) .............................................. 63, 64, 67 s 24(2) .......................... ........... 51, 52, 63, 64, 68 s 24(3) .......................... ..................................... 68 s 24(4)—(7) ................................................... 63, 68 s 24(4) .......................... ............................... 68, 69 s 24(4)(a), (b), (5) . . . . ..................................... 69 s 24(5)(b), (6), (7) ............................... 69, 70 s 2 4 A ............................ .......................... 244,245 s 2 5 ............................... ............... 50, 63, 72-74, 81, 86, 92, 245 s 25(3) .......................... ............................... 73, 74 s 25(3)(d), (4) ............. ..................................... 74 s 25(5) .......................... ............................... 73, 74 s 26(1) .......................... ..................................... 92 s 2 7 ................................. ............. 62,195-97,200 s 27(1) .......................... .............................62, 220 s 27(3) .......................... ..................................... 62 s 2 8 ................................. ..................................... 77 s 28(3) .......................... ........................ 77, 78, 86 s 28(4), ( 5 ) ......................................................... 77 s 2 9 ................................................................ 79, 80 s 3 0 ..............................................................84,129 s 30(1) .......................... ..................................... 81 s 30(1 )(b ) ......................................................... 235 s 30(3)-(6) ......................................................... 81 s 30(7) .......................... ............................... 74, 81 s 30(8)—(11) ................. ..................................... 81 ss 30A -30C ................. ..................................... 84 s 3 0 D ............................ .............................84,141 s 3 1 ................................. ...................... 82, 84, 218 s 3 2 ............................... ............... 82, 83, 87, 95, 111,115-17, 122,123,136 s 32(3), ( 4 ) ......................................................... 83 s 34(1) .......................... ................................... 130 s 34(2)-(5) .............................................. 130,131 s 3 5 ................................. .............................81,129 s 3 6 ................................. ................................... 245 s 36(3), (4), (7 ) ............. ................................... 129

Table of Legislation

Police and Criminal Evidence Act 1984 (contd)— s 36(8) ........................................................... 130 s 36(9), ( 1 0 )................................................... 129 s 3 7 ..................................................................131 s 37(7) ........................................................... 155 s 3 7(7)(a)....................................................... 156 s 37 A ............................................................. 155 s 37B ............................................................. 156 ss 37C, 3 7 D .................................................. 159 s 3 8 ................................................156,157,206 s 38(l)(b)(ii) ................................................. 158 s 3 9 ..................................................................245 s 39(1) ........................................................... 130 s 39(2) ................................................... 130,218 s 39(3) ........................................................... 218 s 39(6) ........................................................... 130 s 4 0 ..................................................................143 s 40A(1), (2) ................................................. 144 s 4 1 ..................................................................142 s 4 2 ..................................................................145 s 42(1) ........................................................... 154 s 4 3 ................................................ 145,147,148 s 43(7) ........................................................... 148 s 44 ......................................................... 145,149 s 4 6 ..........................................................160,161 s 4 6 A ..............................................................141 s 5 4 .........................................123,136,137, 220 s 54(6C), (9) .................................................220 s 54A ..................................... 139-41,198,220 s 54A (1)......................................................... 139 s 54A (6)......................................................... 140 s 5 5 ................................. 123,137-39, 221, 245 s 5 5 A ............................................................. 245 s 5 6 ................................................ 145,146,154 s 5 8 ..........................................133,145-48,154 s 6 0 ........................................................... 29,177 s 6 0 A ....................................................... 29,181 s 61 ............................ 195,196, 221, 245 s 61(7A)(a) ................................................... 221 s 6 2 ..................................................................202 s 62(1 A ) ......................................................... 205 s 62(7A)(a) ................................................... 221 s 62(10) ......................................................... 205 s 6 3 ................................................. 202, 204, 221 s 63A ................................... 195,202,205,245 s 63A (4)......................................................... 221 s 63A (7)........................................................... 62 s 63B ..................................................... 206,245 s 63C .....................................................206,207 s 6 4 ................................................. 195, 202, 245 s 64(1A )......................................................... 205 s 6 4 A ................................... 197,198,221,245 s 64A(4)-(6) ................................................. 198 s 6 5 ......................................................... 202, 245 s 6 6 ........................................................... 29,245 s 6 7 ....................................................................29

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s 7 6 ....................................................................23 s 76(2) ........................................................... 186 s7 6 (2 )(a )....................................................... 183 s 76(2)(b)...............................................183,184 s 76(8) ........................................................... 184 s 7 7 ..................................................................185 s 77(3) ...................................................185,186 s 78 ............................................23,84,85,123, 133,134,183-85 s 82(1) ........................................................... 183 s 1 0 6 ................................................................... 7 s 1 0 7 ..............................................103,105,147 s 1 1 6 .................................................... 63, 71, 72 s 117 .............................................41,49,71,79, 109,114,137,140, 166,196,197, 204 s 169(1) ...........................................................97 Sched 1 ............................... 101,104,105,107, 123,124, 217, 245 Sched 1 A .................................... 51,52,63-66, 68, 91, 227 Schcd 2 .....................................................62,92 Sched 5 .....................................................63,72 Sched 6 ........................................................... 92 Sched 14 .........................................................97 Police and Magistrates' Courts Act 1994 .............................................18 Pt I ......................................................................4 Police Reform Act 2002 ...................5,10,17,19, 62,94,107,178, 209-12, 223, 227, 230, 245 Pt 2 ..................................................................19 Pt 4 ................................................... 17, 209, 211 s 1 ......................................................................12 s 2 ......................................................................11 s 3 ......................................................................14 ss 4, 5 ................................................................. 5 ss 6, 7 ................................................................13 ss 9 , 1 2 ............................................................. 19 s 3 3 ....................................................................12 s 3 5 ....................................................................17 s 3 8 ...................................................46, 212, 220 s 38(1) ...................................................211,220 s 38(3) ........................................................... 219 s 38(4) ........................................................... 211 s 38(7)—( 9 ) .....................................................212 s 3 9 ................................................................. 220 s 4 0 ................................................................. 222 ss 40(7), (8), 41 .............................................223 s 46(1) ...................................................226,229 s 46(2), ( 3 ) .....................................................226 s 4 6(3 )(c).......................................................227 s 4 8 ..............................................................68,91 s 4 9 ....................................................................41 s 5 0 ...................................................59, 213,225 s 50(2) ........................................................... 213

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Police Reform Act 2002 (contd)— s 5 1 ............................................................6 ,1 1 , 207 s 59 ..........................................................59, 60,2 1 5 s 6 0 ................................................................ 60,2 1 5 s 7 5 ...........................................................................89 s 8 2 ........................................................................... 15 s 8 3 ............................................................................. 1 s 8 4 ........................................................................... 14 ss 8 8 ,8 9 ,9 2 ............................................................. 6 s 1 0 4 ........................................................................ 67 Sched 3 ...........................................................1 9 ,2 0 Sched 4 ....................................... 17, 209, 211-22, 225-28 Sched 5 .............................. 17, 209, 2 1 1 ,2 2 4 -2 7

Regulation of Investigatory Powers Act 2000 .............................................239

Powers of Criminal Courts (Sentencing) Act 2000— s 9 1 .........................................................................112

Road Traffic Regulation Act 1984— s 9 9 .............................................................. 215,225

Prevention of Crime Act 1953 ............................65 s i ............................................................................. 34 s 1(1) ...................................................................... 65 Prevention of Offences Act 1851— s 1 1 ...........................................................................92 Prevention of Terrorism (Additional Powers) Act 1996 ...................................................1 01,102 s i ............................................................................. 52 Prevention of Terrorism (Temporary Provisions) Act 1989 ............................................................. 101 ss 13 A, 1 3 B ...........................................................52 Prison Act 1952 ...................................................... 62 Prisoners (Return to Custody) Act 1995 ...........................................113 Private Security Industry Act 2001 ...........................................223 s 25(1) .................................................................... 96 Proceeds of Crime Act 2002 .............................. 126 Pt 2 ...................................................................... 146 Protection of Children Act 1978 ....................... 65 s i ............................................................................. 65 Protection from H arassm ent Act 1997 .............................67, 243 s 2 ............................................................................. 67 Public Order Act 1936 ........................................... 62 s i ...................................................................62,112 s 7(3) ...................................................................... 62 Public Order Act 1986 ..............................62,66, 74 s 3 ............................................................................. 62 s 4 ........................................................................... 112 s 5 ............................................................................. 93 s 1 9 ...........................................................................66 Public Stores Act 1875— s 6 ............................................................................. 46

Road Traffic Act 1988 ........................ 66,170,201 s 4(7) ......................................................................95 s 6 .............................................................................45 s 6(6) ......................................................................95 ss 3 5 ,3 7 ...............................................................216 s 67(3) ........................................................ 216,225 s 103(1 ) ( b ) .............................................................66 s 163 ................................................. 4 0 ,4 1 ,5 2 ,5 8 , 59,112, 216 s 163(2) ............................................................... 226 s 1 6 9 ........................................................................ 44 ss 170(l)(a), (4), 1 7 4 .......................................... 66

Sexual Offences Act 1956— s 4 1 ...........................................................................92 Sexual Offences Act 1985 .................................... 66 s i .............................................................................66 Sexual Offences Act 2003 ........................68,159 ss 66, 67, 69-71 ....................................................68 s 1 4 0 ........................................................................ 65 Sched 6 ........................................................ 158 Sched 7 ......................................................6 5 ,9 2 Special Constables Act 1 8 3 1 ................................16 Sporting Events (Control of Alcohol, etc) Act 1985 ......................................62 s 7 .............................................................................46 Terrorism Act 2000 ....................4 7 ,5 6 ,5 7 ,6 2 ,9 5 , 1 0 1 ,1 1 1 ,1 2 3 ,1 2 7 , 1 3 0 ,1 8 1 ,1 8 2 ss 3 3 -3 6 ................................................................. 57 s 3 6 ........................................................................ 216 s 3 7 .........................................................................101 s 41 .....................................6 3 ,1 4 3 ,1 4 7 ,1 4 9 ,1 8 2 s 4 2 ......................................................................... 101 s 4 3 .............................................................30, 3 1 ,5 4 s 43(1) ....................................................................31 ss 4 4 -4 7 ...................................48, 52-54, 56, 217 s 4 4 ...................................................................33, 54 s 44(1) ....................................................................38 s 44(1 )(a), (d) ............................................ 217 s 44(2) ....................................................................38 ss 44(2)(b), 4 5 ( 2 ) ........................................217 s 45(3) ......................................................3 7 ,3 8 ,5 3 s 9 7 ...........................................................................56 s 114 ...........................................................54, 63, 79 Schcd 5 ................................................ 5 8 ,1 0 1 -0 5 , 1 0 7 ,1 2 7 ,2 1 7 Sched 7 ................................................ 56, 57,147, 1 7 8 ,1 8 2 ,2 2 9

Table of Legislation

Terrorism Act 2000 (contd)— Sched 8 ...................................1 3 3 ,1 4 3 ,1 4 4 ,1 4 9 Sched 14 .............................................................178 Theatres Act 1968— s 15(3) ..................................................................I l l Theft Act 1968 ......................................6 5 ,1 2 2 ,2 0 6 s i .............................................................................94 ss 12(1), 2 5 ( 1 ) ......................................................65 s 2 6 .......................................................................... 95 Theft Act 1978 .......................................................... 65 s 3 .............................................................. 65, 9 1 ,9 2 s 3(4) ...................................................................... 91

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Police (Amendment) Regulations 2004 (SI 2 0 04/3216)— reg 2 ...........................................................................9 Police (Conduct) Regulations 2004 (SI 2 004/645)— Sched 1 ...........................................................2 1 ,2 2 Police Reform Act 2002 (Com m encem ent No 10) Order 2004 (SI 2 0 0 4 /3 3 3 8 ).......................... 213

E U R O P E A N L E G ISL A T IO N Vagrancy Act 1824— s 6 .............................................................................92 Wildlife and Countryside Act 1 9 8 1 ......................................65 s 1(1), ( 2 ) ...............................................................65 s 1(5) ......................................................................66 s 6 .............................................................................65 ss 9 , 13(l)(a), (2), 1 4 .......................................... 66 Sched 1 ................................................................. 65 Wireless Telegraphy Act 1949 ........................... 65 s 14(1) ....................................................................65 Youth Justice and Criminal Evidence Act 1999— Pt I .......................................................................... 99

STA TU TO R Y IN ST R U M E N T S Independent Police Com plaints Com m ission (Transitional Provisions) Order 2004 (SI 2 0 0 4 / 6 7 1 ) .............................. 19 M isuse of Drugs Regulations 2001 (SI 2 0 0 1 /3 9 9 8 )........................................ 168 Sched 1 ............................................................... 168 Sched 2 ............................................................... 168 Sched 3 ............................................................... 168 Sched 4 ................................................................168 Sched 5 ............................................................... 168 Penalties for Disorderly Behaviour (Am endm ent of M inim um Age) Order 2004 (SI 2 0 0 4 /3 1 6 6 )................................ 93, 212

European Convention on the Protection of Human Rights and Fundamental F re e d o m s..................................................163, 231, 232, 236, 237 A rt 2 ............................................................. 232-34 Art 2(2) ...................................................... 233,234 Art 2(2)(a)-(c) ................................................. 233 Art 3 ...........................................................2 35 ,2 3 7 A rt 5 .............................................................. 61, 76, 141, 235-37 Art 5(l)(b ), (c) ................................................. 237 Art 5(2) ..................................................................78 Art 6 ...........................................................237,238 Art 6(3) ............................................................... 133 Art 6(3)(b), (c) ................................................. 237 A r t 8 ............................................................... 19,76, 235, 237-39 Art 8(1) ............................................................... 205 Arts 1 0 , 1 1 .............................................................76 Art 13 ...........................................................19,238 Art 14 ..................................................................205 European Convention on the Protection of Human Rights and Fundamental Freedoms Protocol N o 6 ............................... 233 European Convention on the Protection of Human Rights and Fundamental Freedoms Protocol No 1 1 .............................232

IN TR O D U C TIO N One of the m ain reasons w hy so much interest has been generated in the study of police powers in modern times is that increasing num bers of the wider populace are beginn ing to question the exercise of such authority. Indeed, som e go further and actually challenge the legitim acy of such powers and the way they are exercised. This was done in a particularly violent m anner during the 1980s when it becam e evident through a spate of serious disorder in this country that certain sections of the public were seriously questioning the m anner and form in which som e police pow ers were being em ployed. But concerns regarding policing in general have not, by any means, been confined to public protest alone. For instance, in 1978, the Royal Com m ission on C rim inal P roced ure1 w as convened to exam ine the exercise of police pow ers with particular reference to the investigation of crim e and the rights of suspects. This body consisted of 15 mem bers, who included its chairm an Sir Cyril Philips and also a judge, two police officers, a Q ueen's C ounsel, a stipendiary m agistrate, a defence lawyer, several lay m agistrates as well as other lay persons.2 Three years later, the Com m ission published its findings which not only concerned the subject of police powers but also addressed the issue of an independent system for conducting crim inal prosecutions. In short, the form er resulted in the passing of the Police and Crim inal Evidence Act 1984 and the latter resulted in the Prosecution of Offences A ct 1985 being enacted which, inter alia, led to the institution of the Crow n Prosecution Service. In response largely to concerns regarding a spate of m iscarriage of justice cases in p re v io u s y e a rs, a n o th e r R oyal C o m m issio n w as in s titu te d . In 1991, u n d e r the leadership of Lord Runcim an, the Royal C om m ission on Crim inal Justice3 began to exam ine this issue as well as address wider concerns regarding the effectiveness of the crim inal justice system in convicting the guilty and acquitting the innocent. Its findings were reported two years later and a num ber of the Com m ission's recommendations were later enacted in the Crim inal Justice and Public O rder Act 1994 and the Criminal P rocedure and Investigation s A ct 1996. H ow ever, these are certain ly not the only statutes w hich have affected police pow ers since then. For exam ple, in 1996, tw o further Acts were passed which significantly affected the police service. The first was the Prevention of Terrorism (Additional Powers) Act 1996 (see Chapters 2 and 4) and the second w as the O ffensive Weapons Act 1996 (see Chapter 4). In 1997, the Knives Act was passed, and this was followed later in the sam e year by the passing o f the C o n fisca tio n of A lcoh o l (Young P erso n s) A ct 1997 (see C h ap ter 4). T h e p o w ers available to the police have been further augm ented by a num ber of provisions under the Crim e and Disorder Act 1998 (see Chapter 3), as well as six statutes passed since the year 2000, namely: the Terrorism Act 2000, the Crim inal Justice and Police Act 2001, the Anti-terrorism , Crim e and Security A ct 2001, the Police Reform Act 2002, certain parts of the Anti-social Behaviour A ct 2003 and the Crim inal Justice A ct 2003. All this is indicative of the rate at w hich police pow ers have been am ended and increased in recent years. It is partly because of this flood of enactm ents, together with a build-up o f re le v a n t c a se -la w , th a t th e p u b lic a tio n o f th is b o o k h a s b e e n n e c e s s ita te d . Concurrent with all these legislative changes, the Codes of Practice that accompany the

1 2 3

Otherwise known as the Philips Royal Commission. Zander, M, The Police and Criminal Evidence Act 1984 (4th edn, London: Sweet and Maxwell, 2003). Cm 2263 (London: HMSO, 1993).

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Police and Crim inal Evidence Act 1984 have been revised m any times and this trend will undoubtedly continue. H owever, the effects of the H um an Rights Act 1998 on police powers have been very significant. This is likely to continue as the exercise of virtually all police powers may fall potentially within the m echanisms of this statute. It sh o u ld b e m e n tio n e d th a t w h ilst the re le v a n t R o y a l C o m m iss io n s h av e endeavoured to address w ider and longer-term concerns regarding policing in this country, specific incidents have also been the subject of judicial inquiries into the police such as that conducted by Lord Scarm an in the early 1980s in respect of the Brixton disorders. In addition, other enquiries and investigations have been com m issioned a risin g from con cern s stem m ing from a nu m b er o f o th er issu es, for exam p le, an investigation by the Avon and Som erset Police during the m id-1980s into the conduct o f the G reater M anchester Police d uring a d em onstration outsid e the M anchester U n iv e r s ity S tu d e n ts U n io n . A ls o , in 1 9 7 9 , S ir D a v id M c N e e , w h o w as th e n Com m issioner of the M etropolitan Police, com m issioned a study of his force by the Policy Studies Institute with particular reference to com m unity relations.4 W hilst m any of these inquiries and investigations have im pacted m ainly on internal rules governing police conduct, som e have m otivated law reform to a certain extent. A fairly recent exam ple is the M acpherson Report published in 1999 regarding the m urder of Stephen Lawrence which, inter alia, led to the Law Com m ission proposing reform of the double jeopard y rule w hich, under the C rim inal Justice A ct 2003, enables certain crim inal cases to be retried as a result of significant new evidence becom ing available. The m ost significant law reform as far as substantive police powers are concerned was the Police and Crim inal Evidence Act 1984, w hich accounts for the bulk o f this book. As mentioned above, this was primarily the result of recom m endations made by the Royal C om m ission on Crim inal Procedure, necessitated by on going concerns reg ard ing certain p olice po w ers and the w ay they w ere exercised . M uch o f this criticism ultim ately stem m ed from the lack of codification of such pow ers and the generally outdated mode in which they existed: Before 1 January 1986, when the Police and Criminal Evidence Act 1984 came into effect, the law governing police pow ers for the investigation of crim e was unclear and antiquated. It had developed piecemeal since the establishment of professional police forces in the 19th century. Parliam ent had added fitfully to the few comm on law principles but there was no clear statement of police powers. This varied and scant law was supplemented by: (a) rules of guidance as to the admissibility of confessions provided by the Lord Chief Justice (the Judges' Rules); (b) national administrative guidance in the form of Home Office Circulars (notably that attached to the Judges' Rules); and (c) local administrative guidance in the shape of standing orders issued within each police force. The result was patchy legal obligations and powers for the police and local variations in powers (eg some police forces had wide stop and search powers whereas others were tied to a few narrow national powers). New and heavier pressures on the police and

4

Emsley, C, The English Police: A Political and Social History (2nd edn, London: Longman, 1996).

In trodu ction

xxiii

more critical public opinion demanded that the powers of the police be placed on a modern statutory footing.'’

On analysis perhaps a fundam ental cause of this state of affairs was that the modern police service at that time was, to a significant extent, based on certain laws, practices and procedures that were often rooted in the largely Victorian origins of this law enforcem ent body. During a debate on this issue during the 1980s, one media com m entator referred to the police service as 'The Bow Street Runners with cars and radios', w hich possibly encapsulates this argum ent in those few words. How did the modern police service develop? W hat is the current structure of the police service in modern times? W hat is the general legal and constitutional status of a police officer? These questions will be addressed in the following chapter.

5

Lidstone, K and Palmer, C, Bevan and Lidstone's The Investigation of Crime: A Guide to Police Powers (2nd edn, London: Butterworths, 1996).

C H A PT ER 1 T H E D EV EL O P M EN T A N D FO U N D A TIO N S OF M O D ER N PO LIC IN G INTRODUCTION I (name) ... of (place) ... do solemnly and sincerely declare and affirm that I will well and truly serve the Queen in the office of constable, with fairness, integrity, diligence and impartiality, upholding fundamental human rights and according equal rcspect to all people; and that I will, to the best of my power, cause the peace to be kept and preserved and prevent all offences against people and property; and that w'hile I continue to hold the said office 1 will, to the best of my skill and knowledge, discharge all the duties thereof faithfully according to law.

T h e abo v e co n stitu te s the solem n d ec la ra tio n or o ath taken by all th o se new ly appointed to the office of constable within England and Wales, in accordance w ith the w ording under Sched 4 to the Police A ct 1996.1 This is declared during a ceremony know n as the 'attestation', which takes place before a justice of the peace.2 On analysis, this oath provides an interesting indication as to the constitutional status of a police officer in m odern times and, in essence, describes the m anner in which police powers should be exercised. Compared with many policing system s abroad, the system in England and Wales has a num ber of sim ilarities and distinctions. Perhaps two of the greatest distinctions are based upon the main principle of policing in this country and the basic structure of o u r p o lic e s e r v ic e . W ith reg ard to th e fo rm er, p o lic in g in th is c o u n try is s till fun d am entally based upon the principle or con cept o f 'p olicin g by con sen t'. This means that the police service functions in society with the consent of the majority. This has great advantages com pared w ith m any foreign policing system s, w hich do not enjoy this concept to the extent that it is still evident here. A m ong other things, this ensures a greater level of public co-operation with the police and has also enabled our police to avoid being fully and perm anently equipped with firearms throughout the 20th century and, so far, into the present millennium. A lthough in recent years they have been equipped with a greater range of protective weaponry, such as extendable batons and CS gas spray, these are not intended to be lethal in their effects if used correctly and, so far, we have avoided a perm anent para-m ilitary police force in this country.

1 2

The wording of the original Sched 4 to the Police Act 1996 has been amended by s 83 of the Police Reform Act 2002 in order to make it more compatible with the Human Rights Act 1998. Newly appointed constables in the Metropolitan Police previously took the attestation before either the Commissioner or an Assistant Commissioner who, technically at least, are also justices of the peace. This practice discontinued as a result of Sched 27, para 83 of the Greater London Authority Act 1999, which provides that all constables in England and Wales will be attested before magistrates. It is this statute w'hich contains the measures under which the relatively new' Metropolitan Police Authority has been instituted.

2

A n In tro d u ctio n to Policing an d Police P o w ers

A further distinction betw een foreign policing and our ow n dom estic system is that this function in England and W ales is currently divided betw een 43 individual p o lice fo rce s, w h ereas p o licin g ab ro ad , in clu d in g E u ro p e, is o fte n u n d er m ore centralised control. In other words, w e do not have a national police service, but a netw ork of individual police forces, responsible for policing specified counties, areas or cities. D uring tim es o f em ergency, these forces may be co-ordinated through a centralised m utual aid procedure, but such occasions are infrequent, one of the most well known in recent times being the m iners' dispute during the winter of 1984-85, where police officers from m any parts of the country were sent to key m ining areas to reinforce the local police presence there.

A BRIEF HISTORICAL OVERVIEW The general concept of policing in this country is certainly not new ; in fact, various form s of law enforcem ent w hich w ere in the nature of policing existed since early Saxon times. Even the term 'constable' originated as far back as the N orm an era. C on stables w ere also ev id ent d uring the reign of the Tudors and Stuarts but, follow ing a period of apparent decline in the role of such constables, growing concerns during the Georgian period regarding increasing crim e and disorder led, ultimately, to the form ation of the fam ous Bow Street Runners. A fragm ented system o f policing gradually evolved in other parts of London but, in 1785, the London and W estm inster Police Bill was introduced, designed to form a co-ordinated policing system for the capital. This w as defeated due to fierce opposition and poor m anagem ent of the Bill in its passage through Parliam ent, although a m ore lim ited version w as successfully passed seven years later.3 However, crim e and fears of public disorder continued to rise and, eventually, Sir Robert Peel introduced his famous Bill, which w as enacted on 19 June 1829 as the M etropolitan Police Act and, subsequently, the M etropolitan Police was born. The pream ble to this landm ark statute reads as follows: Whereas offences against property have, of late, increased in and near the Metropolis, and the local establishments of nightly police have been found inadequate to the prevention and detection of crime, by reason of the frequent unfitness of the individuals employed, the insufficiency of their number, the limited sphere of their authority and their want of connection and co-operation with each other. And, whereas it is expedient to substitute a new and more efficient system of police in lieu of such establishments of nightly watch and nightly police, within the limits hereinafter mentioned, and to constitute an office of police which, acting under the immediate authority of one of His Majesty's Principal Secretaries of State, shall direct and control the whole of such new system of police within those limits. Be it therefore enacted, etc ...

This signalled the form ation of the first m odern-style professional policing system in this country and, by 1856, all o f England and W ales w as covered by a netw ork of police forces. It rem ains a popular belief that the main driving force behind the 1829 A ct w as the a p p a llin g c rim e ra te , p a rtic u la rly in L o n d o n . A lth o u g h th is w as u n d o u b te d ly a m a jo r facto r, th ere w as a lso a n o th e r issu e w h ich w as e q u a l in

3

Emsley, C, The English Police: A Political and Social History (2nd cdn, London: Longman, 1996).

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importance, nam ely the increase in the level of public disorder that had escalated in the 18th and early 19th centuries: The prevention of crime was stressed as the first duty of the new Metropolitan Police constables and the whole system of beat patrols ... was ostensibly designed with this in mind. But the uniform, the discipline and the organisation of the new force suggest that Peel had imported into London many of the policing practices developed in Ireland to deal with civil disorder.4

W hilst the m ilitary were used to quell rioting in London and other big cities, there w ere serio u s tactical and p o litical d isad v an tag es in using arm ed troops for this purpose. First, long delays were often experienced in transporting troops from their barracks to the scene of public disorder; subsequently, the situation was well out of hand by the time they arrived. Secondly, the only form s of w eaponry available to them were potentially lethal, nam ely bullets or bayonets, the use of which often had drastic consequences in term s of fatal or serious injuries. In contrast, the new police were frequ ently able to resolve both problem s by m ainly using w ooden tru ncheons to control riots and, by being deployed throughout London on regular 24 hour patrols, w ere able to disperse m any unruly gatherings before they escalated into full scale disorder. Although in their early days the new police were often regarded with disdain and suspicion by both general populace and even som e in authority, they quickly gained the respect still found am ongst the majority of the public today A lthough some assert that this effect is waning, the policing system in this country is still characterised by the concept of policing by consent, w hich to a certain extent rem ains the envy of policing system s in m any other parts of the world.

THE STRUCTURE OF POLICING IN ENGLAND AND WALES As mentioned above, there are currently 43 police forces in England and Wales. This excludes those with special jurisdiction, such as the British Transport Police and the M inistry of Defence Police, who operate in various parts of the country. The 43 police areas include the two forces in London, nam ely the M etropolitan Police and the City of London Police. These two London forces warrant separate coverage as distinct from those outside the capital, and these will be discussed below. At this stage, it should be noted that the chief officers o f police for both the London forces are com m issioners rather than chief constables; it is the latter who head police forces outside the capital. Since 1964, the H ome Secretary has had the power to am algam ate police forces and this power now exists under s 32 of the Police Act 1996, where such a move can be made on grounds of efficiency and effectiveness. Prior to enacting the 1996 Act, the Conservative G overnm ent announced plans to im plem ent such action, although, to date, this has not occurred. Although the fragm entation of police forces throughout this country lends itself to the notion that policing in England and Wales is not under centralised control, recent developm ents in the structure of our police service indicates an increasing m ovem ent towards this end, which will now be discussed.

4

Ibid.

4

A n In tro d u ctio n to Policing an d Police P o w ers

In 1962, the Report of the Royal Com m ission on the Police5 rejected the concept of a national police force under direct central governm ent control and, in response to its report, the Police A ct 1964 w as passed , w hich enshrined the p rinciple legal rules governing the organisation of the police service up until the m id-1990s. An important consequence o f this legislation is that policing in this country is governed by three points of power, namely: the H ome Secretary, w ho represents central governm ent and is resp o n sib le for the ov erall su p e rv isio n o f the p olice serv ice, as w ell as bein g answ erable to P arliam ent regarding the service's function; local police authorities, responsible for the overall m aintenance of police forces w ithin their jurisdiction and ensuring local accountability; and chief officers of police, responsible prim arily for m akin g op eratio n al d ecisions, as w ell as the rou tine m an agem en t of their forces. However, it is the subject of debate as to w hether there is now an equal balance of pow er within this tripartite structure.

The police authorities T h e b a la n c e o f p o w e r re g a rd in g p o lic in g in E n g lan d and W ales w as ch an g ed controversially through Pt I of the Police and M agistrates' Courts Act 1994, which was later consolidated into the Police Act 1996, and these provisions, am ong other things, g en erally en d eavou r to m ake the p olice service fun ction un der a m ore 'b u sin ess m anagem ent' regim e.6 They have also created new style police authorities, in contrast to those which existed earlier. Previously, police authorities outside London consisted of tw o-thirds local councillors and one-third local m agistrates. These bodies varied considerably in size - at the extrem e ends, from between six to over 40 m em bers in total, although the proportion of m agistrates and councillors w as alw ays the same. The Governm ent W hite Paper, entitled Police Reform - A Police Service fo r the 21st Century, contained, inter alia, proposals that police authorities should b e set to a prescribed n u m b er o f 16 m em bers. T h is w as not itse lf a con tro v ersial m easu re, sin ce som e authorities were regarded as too sm all, whereas, in contrast, others had becom e too large and unwieldy. The m ain controversy w as that these bodies should consist of eight local councillors, three m agistrates and five persons appointed by the H om e Secretary, w ho would also appoint the chairperson, w ho, in turn, would have the casting vote where necessary. These proposals were severely criticised, both within a n d o u ts id e P a r lia m e n t, o n the g ro u n d s th a t th is w o u ld h a v e g iv e n c e n tra l governm ent a significant increase in pow er over local police forces.7 In the end, the G overnm ent m odified its original proposals, w hich included allow ing each police authority to elect its own chairperson and increasing the size o f each authority to 17 m em bers, of w hich nine are local councillors, three are local m agistrates and five are independent m em bers appointed from a shortlist com piled by the H ome Secretary. There is provision under the Police A ct 1996 for the H om e Secretary to increase the size of police auth orities w here approp riate, but the outcom e m ust result in such bod ies reaching odd nu m bers and the proportion o f cou n cillo rs, m agistrates and

5 6 7

Cmnd 1728 (London: HMSO, 1962). Molan, M, Constitutional Law: The Machinery of Government (London: Old Bailey, 1997). See Jason-Lloyd, L, 'W ho should have power to police the police?' (1993) The Times, 24 August; and also 'Changes in the police service' (1994) LXVII(2) Police Journal 105, April-June.

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independent m em bers approved by the H om e Secretary rem aining unchanged. Other asp ects o f th ese refo rm s in clu d ed the tra n sfo rm a tio n o f p o lice a u th o ritie s into corporate bodies which, in turn, must have regard to any objectives determ ined by the Home Secretary, as well as to form ulate annual local policing plans and com ply with these accordingly in order to m eet perform ance targets. Also, they must publish an annual report, w hich includes the extent to w hich the local policing plan has been com plied w ith, as w ell as subm it reports on relevan t police m atters to the H om e Secretary as required by him. U n d er s 40 of the Police A ct 1996, the H om e S ecretary m ay d irect any police authority to take rem edial action if the inspectorate of constabulary report that its police force is not efficient or effective. Sections 4 and 5 of the Police Reform Act 2002 extend these provisions to include situations where the inspectorate of constabulary m akes a routine or a special inspection and concludes that all or part of a police force is, o r is lik ely to be, in e fficien t or in e ffe ctiv e . R em ed ial actio n m ay in clu d e the requirem ent to subm it an action plan to the H om e Secretary in conjunction w ith the relevant chief police officer. M any functions of the police authorities rem ain as they did prior to the Police A ct 1996, w hich include the overall duty to secure the m aintenance of an effective and efficient police force by, am ong other things, acting as its paym aster in terms of local expenditure and controlling the police budget. Police authorities are also responsible for appointing chief constables, deputy chief constables and assistant chief constables (the latter two in consultation with the chief constable),8 and may suspend or require any of them to resign or retire, although these decisions can be vetoed by the Home Secretary, w ho can also require a police authority to suspend, retire or require the resignation of a chief officer of police on his own initiative. The pow er of the Home Secretary's veto w as last used in 1990 and resulted in a dispute with the Derbyshire Police A uthority over the appointm ent of the then-chief con stable for D erbyshire, which lasted for several months. However, in 2004, there was a dispute between the Home Secretary and the Hum berside Police Authority regarding the H ome Secretary's requirem ent for them to suspend the then-chief constable, which initially they refused to do. U nder the Police Reform A ct 2002, police authorities of their ow n volition may suspend chief constables who are, or are likely to be called upon, to retire or resign on grounds of efficiency The H ome Secretary must approve this decision and may require a police authority to initiate such action. These suspension rules will also apply to the C o m m issio n e r and D ep u ty C o m m issio n e r o f P o lice o f the M e tro p o lis. S im ila r provisions exist regarding the other Association of C hief Police Officers (ACPO) ranks, nam ely assistant com m issioners, deputy assistant com m issioners and com m anders in London, and deputy chief constables and assistant chief constables outside the capital, the difference being that the H om e Secretary does not have the pow er to require a police authority to exercise its pow er of suspension in such cases. P o lice a u th o ritie s m ay also e m p lo y c iv ilia n s ta ff to a s s is t the p o lic e fo rce maintained by it and to enable the authority to discharge its functions, although such

8

Or the equivalent ranks in London.

6

A n In tro d u ctio n to Policing an d Police P o w ers

em ployees are under the direction and control o f the ch ief constable. It should be noted that under the new police com plaints system , civilian em ployees w ithin the p o lice serv ice fall w ith in the ju risd ictio n o f the In d ep en d en t P olice C o m p lain ts Com m ission. This will include designated civilians w ho have been given certain police powers under the concept of the 'extended police fam ily' (see Chapter 7). Section 51 of the Police Reform Act 2002 places a duty on police authorities to make arrangem ents for the independent inspection of custody suites at police stations as well as reporting on the way that detainees are dealt with. Finally, s 92 of the Police Reform Act 2002 places a duty on police authorities to produce three-year strategy plans in addition to their existing annual plans, in order to form ulate m edium and long-term strategies.

Other moves towards centralised control The Police Act 1997 (not to be confused with the Police Act 1996) contains a num ber of provisions w hich have im plications for the police service as well as the exercise of certain pow ers regarding surveillance. As far as the structure of the police service is concerned, Pt I of the 1997 Act has placed the N ational Crim inal Intelligence Service (NCIS) on a statutory footing. This organisation is staffed by police and HM Custom s and Excise officers, as well as persons from the security services and has, since 1992, b een involved w ith collatin g and analysing inform ation and other in telligence in respect of m atters such as international drug trafficking and money laundering, as well as other specialist crim es, including kidnap, extortion and counterfeit currency. Part II o f the A ct m akes prov ision for the form atio n o f a N ational C rim e Squad (N C S), designed to deal w ith serious crime. Both these bodies, under the 1997 Act, will have implications in more than one police area. Sections 88 and 89 of the Police Reform Act 2002 inserted new ss 34A and 79A into the Police Act 1997, regarding the regulation of the N CIS and N CS within the context of their governance and adm inistration as well as conditions of service within these bodies. The Serious Organised Crim e and Police Bill 2004 proposes to replace these two bodies with a Serious Organised Crim e Agency that many describe as this country's version of the FBI. U nder ss 23 and 24 of the Police A ct 1996, chief constables have the pow er to collaborate with other police forces or provide m utual aid where additional officers or other assistan ce m ay be provided. T he collabo ratio n un der s 23 includes sharing reso u rces su ch as p rem ises, train in g facilitie s, tech n ical su p p o rt and sp ecialised services. An exam ple of the latter includes the use of police helicopters. With regard to s 24, as mentioned above in the introduction to this chapter, the last tim e m utual aid w as used on any mass scale was during the w inter o f 1984-85, during the series of strikes by the coal mining industry. As a consequence, police officers from m any parts of England and Wales were sent to areas where large scale picketing w as taking place. Som e observers reported that seeing so m any different police forces represented in one place gave the impression of a national police force, although this venture only lasted for the duration of one winter. Parallel provisions also exist under s 98 of the Police Act 1996 (previously enacted under s 141 of the Crim inal Justice and Public O rder Act 1994), w hereby chief officers of police m ay request assistance from any UK police force, which includes providing additional constables. There is also provision for the H ome Secretary to act on his own volition, presum ably in times of emergency, where he may direct a police force within another part of the UK to provide such assistance. In other words, police officers from N orthern Ireland can be called upon to reinforce

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the police in any part of England, Wales or Scotland, or police in Scotland can be asked to provide mutual aid to any police force in England and Wales or to N orthern Ireland, and the police in England and Wales can be called upon to provide assistance to the p o lice in N orth ern Ireland or to any force in S co tlan d . O ne h op es that such an interchange may never be necessary, in view of the prospective turm oil that would necessitate such action. M ention should also be m ade regarding the A ssociation of C hief Police Officers (A CPO), w hich is the representative body of all police chiefs and has existed since 1948. This organisation constitutes a powerful pressure group, capable of influencing central governm ent to a significant extent on a variety of matters affecting policing in this country. It is this body which, am ong other things, facilitates co-operation between police forces where necessary. Another organisation in relation to police chiefs is the Chief Police O fficers' Staff Association.

Policing in London It should be noted that the police authority in respect of the City of London Police is the C om m on C ouncil of the C ity o f London, although sep arate and quite unique arran g em en ts o n ce existed reg ard in g the M etro p o litan P olice. In Ju ly 2000, the M etropolitan Police A uthority w as instituted and this was the first time that such an auth o rity existed w ithin the M etro p o lis o f L ondon . For m any years, the issu e of accountability of the M etropolitan Police had been severely criticised by a num ber of com mentators. The H om e Secretary had previously constituted the police authority for the M etropolis, w hich has the largest police force in the UK (approxim ately 35,000 police officers). A lthough there was provision originally under s 106 of the Police and Crim inal Evidence A ct 1984 and, more recently, under s 96 of the Police Act 1996 for consultations betw een the police and local consultative groups, there had never been an actual police authority for the M etropolis of London com pared with those that exist in other parts of England and Wales. Therefore, under s 106 of the 1984 A ct and then s 96 of the 1996 Act, special provision was made whereby the H om e Secretary issued guidance to the M etropolitan Police Com m issioner in respect of obtaining the views of the com m unity on policing the capital. Sections 310-325 of the Greater London Authority Act 1999 now institute a police authority for the M etropolis of London. However, in April 1995, a body was formed called the M etropolitan Police Com m ittee. This originally consisted o f 12 m em bers ap p o in ted by the H om e S e cre ta ry to a d v ise and a ssist the M etro p o litan P olice Com m issioner in m aintaining an efficient and effective police service, and this body was used to prepare for the institution of the M etropolitan Police A uthority in July 2 0 0 0 . T h e C o m m itte e c o m p ile d r e g u la r a n n u a l r e p o r ts an d w as u n d e r th e chairm anship of Sir John Quinton. The institution of the M etropolitan Police Authority is inextricably linked with the G reater London A uthority, since the relatively new police authority consists of 23 mem bers, 12 of which are selected by the M ayor of London and are m em bers of the G reater London A ssem bly, inclu ding the D epu ty M ayor. The M etropolitan Police Authority may select its own chairperson from am ong its own m em bers and this does not discount the Deputy M ayor of London. Other mem bers of the new police authority include seven independent persons and four m agistrates. The independent faction includes one person appointed directly by the H ome Secretary and, up until recently,

8

A n In tro d u ctio n to Policing an d Police P o w ers

the four m ag istrates w ere appointed by the G reater L ondon M ag istrates' C ou rts Authority. This has been changed as a result of s 6 o f the C ourts A ct 2003, w hich abolished m agistrates' courts com m ittees, including the Greater London M agistrates' Courts Authority. This change is due to the Lord Chancellor taking over responsibility for the m agistrates' courts. In effect, the pow ers and duties of this police authority are alm ost identical to those which function outside the M etropolitan Police area. These include publishing annual reports, consultations with local com m unities and setting objectives. The introduction of the M etropolitan Police Authority has autom atically resulted in abolishing the post of the Receiver, w hose functions are now, to a large extent, p e rfo rm e d by the new p o lic e a u th o rity , e sp e c ia lly m a tte rs re g a rd in g fin a n c e , responsibility for w hich falls upon the Treasurer. The new body also plays a role in recom m ending to the H om e Secretary the appointm ent of future com m issioners, as well as their deputies, assistant com m issioners, deputy assistant com m issioners and com m anders. However, w hilst a sim ilar selection procedure may be used to appoint the Com m issioner, as in the police authorities outside London regarding their chief constables, this will be m odified to take into account the need to protect the national interest and the international obligations of the M etropolitan Police Service, and not just its local remit. This is a particularly sensitive issue which has constituted one of the prim ary objections in the past to having a police authority for the M etropolis (see the coverage of the role of the Home Secretary below). The Metropolitan Police Authority is expected to account for its actions w hen sum m oned before the G reater London A ssem bly in much the sam e way as do representatives of police authorities outside London w hen under scrutiny by their respective local authorities. See A ppendix 1, w hich depicts the basic structure of the M etropolitan Police Service.

THE CONSTITUTIONAL AND GENERAL LEGAL STATUS OF THE POLICE Historically, m any constitutional lawyers have expressed varying opinions regarding the legal status of police officers. N otw ithstanding the recent reform s of the police service m entioned above, there is com m on agreem ent that p olice officers are not se rv a n ts o f c e n tra l g o v e rn m e n t, b u t are o ffic e rs o f the C row n o r o f the S ta te . In te re s tin g ly , w h ils t th e p o lic e s e r v ic e is p a rt o f th e e x e c u tiv e a s p e c t o f o u r constitutional fram ew ork, it also has a significant measure of independence from it. As mentioned in other parts of this chapter, chief officers of police are not subject to direct orders from any person or body in relation to operational m atters although, ultimately, they are an sw erable to their p olice au th o rities and the H om e Secretary for their actions. The general legal status of the police which is of prime interest to certain sections of the populace is their liability for wrongful acts in the course of their duty. In view of the w ide d u ties and re sp o n sib ilitie s in cu m ben t upon the av erag e p o lice officer, inevitably, things will go wrong from time to time. There is, of course, the com plaints p ro ced u re in d ealin g w ith g riev an ces ag ain st p o lice action s (see the end o f this chapter) and, also, the police are not im m une from crim inal prosecutions in extrem e circum stances, but to what extent are individual police officers liable for civil wrongs (torts) such as negligence, trespass and false im prisonm ent? U nder the com m on law, a

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police officer w as personally liable for his or her w rongful or unlaw ful acts although, prior to the Police A ct 1996, it w as left to police authorities as to w hether they w ere prepared to pay an o fficer's dam ages and legal costs. U nd er s 88 (as am ended) of the 1996 A ct, ch ief co n sta b le s are no w v ica rio u sly liab le fo r torts and o th er un law fu l con d u ct com m itted by their police officers in the cou rse o f their d uties. C osts and d am ages incurred as a result or claim s settled out o f cou rt are paid from the local police bud get, provided the police authority gives its approval in the case of the latter. W h e th e r the c h ie f co n sta b le h as b e e n su ed o r n o t, the p o lic e au th o rity m ay pay dam ages or costs aw arded against a police officer w ithin that force. It is im portan t to m ention that police officers are not essentially em ployees, but h olders o f a pu blic office d eterm ined principally by statute. T hey can be dism issed o n ly u n d e r reg u latio n s w h ich d eal w ith b re ach e s o f d iscip lin e , su ch as m isu se o f authority, neglect of duty, racist behaviour, insubord ination and other transgressions w h ic h b rin g the p o lic e s e rv ic e in to d is re p u te (see a lso th e en d o f th is c h a p te r). H o w e v e r, p o lic e o ffic e r s a re c e r ta in ly n o t s u b je c t to u n lim ite d p r iv ile g e s an d im m unities, as illustrated in the follow ing com m entary: Indeed, legislation restricts the freedom of a police officer in a w ay in w hich no employer could by a contract of employment. Thus, police officers are not allowed to be members of a trade union or of any association which seeks to control or influence the pay or conditions of service of any police force; instead, there are Police Federations for England and Wales and for Scotland, which represent police officers in all matters of welfare and efficiency, other than questions of promotion affecting individuals, and with lim ited p ow ers in relation to discipline. Police regu lations im pose a g reat m any restrictions upon the private life of serving police officers, including one of constitutional importance, namely that a police officer 'shall, at all times, abstain from any activity which is likely to interfere with the impartial discharge of his duties or which is likely to give rise to the impression amongst members of the public that it may so interfere; and, in particular, [he] shall not take any active part in politics'.9

This is reinforced by para 2 o f the Police (A m endm ent) R egu lations 2004, w hich states: A member of a police force shall at all times abstain from any activity which is likely to interfere with the impartial discharge of his duties or which is likely to give rise to the impression amongst members of the public that it m ay so interfere. A m em ber of a police force shall in particular (a) not take any active part in politics; (b) not belong to any organisation specified or described in a determination of the Secretary of State.

O th er o b lig atio n s are in cu m b en t upon p o lice o fficers ap art from the abo v e d uties. These include restrictions on w here they m ay live and being obliged to report for duty w ith little or no p rior n otice u n der urgent circum stances. A n off-d u ty police officer m ay ev en be expected to place him o r h erself o n d uty im m ed iately in the ev en t of b ein g con fro n ted w ith a p articu larly serio u s situ atio n w h ich m ay d em an d in stan t p o lic e in te r v e n t io n . In e s s e n c e , a p o lic e o f fic e r is a lw a y s o n d u ty , h e n c e th e requirem ent that they carry their w arrant cards at all tim es. T his brings us to the w ell

9

Bradley, A and Ewing, K, Constitutional and Administrative law (12th edn, London: Longman, 1997).

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An Introduction to Policing and Police Powers

w o rn d e fin itio n o f a p o lic e o ffic e r w h o is d esc rib ed a s a c itiz e n in u n ifo rm a n d /o r the h o ld e r o f a w a rran t ca rd , w h o h a s b e e n g iv e n a d d itio n a l p o w e rs in th e e x e c u tio n o f h is o r h e r d u ty (th e w o rd s in ita lics a re m in e a n d a p p ly to n o n -u n ifo rm e d o ffice rs). Is th is n o w a n a c cu ra te d e fin itio n , in v ie w o f th e su b s ta n tia l in c re a se s in p o lice p o w e rs sin ce it w a s firs t fo r m u la te d ? C a n th e a v e r a g e p o lic e o ffic e r b e re g a rd e d a s a n o rd in a ry citiz e n , e v e n w h e n off-d u ty, in v ie w o f the o b se rv a tio n s m a d e a b o v e?

C h ie f co n sta b le s W ith th e e x c e p tio n o f th e tw o L o n d o n fo r c e s , w h ic h w e re d is c u s s e d a b o v e , c h ie f o ffic e rs o f p o lic e in the re m a in in g 41 p o lic e a re a s in E n g lan d and W ales a re k n o w n as c h i e f c o n s t a b l e s . T h e u n iq u e c o n s t i t u t i o n a l s t a t u s o f c h i e f c o n s t a b l e s h a s b e e n d esc rib ed a s fo llo w s: A chief constable is nobody's servant, but an independent officer, upon whom powers and d u tie s are d ir e c tly co n fe rre d by law fo r the b e n e fit o f the p o p u la c e . H is constitutional status remains anomalous and puzzling, even after the re-organisation of the police system implemented by the Police Act 1964. It is still not clear w hether anyone is entitled to give him instructions as to the perform ance of any of his duties,10 or to what extent the Home Secretary is answerable for decisions taken by chief constables outside the M etropolis.11 T h e P o lice A ct 1996 re asse rts th a t c h ie f c o n sta b le s a re re sp o n sib le fo r th e d irectio n and co n tro l o f th e ir re s p e ctiv e p o lic e fo rces. H o w e v e r, w h e n m a k in g o p e ra tio n a l an d o th e r d e c isio n s , h e o r s h e m u s t h a v e re g a rd to the lo cal p o lic in g p la n m e n tio n e d ab o v e. In R v C o m m issio n er o f P o lice f o r th e M etro p olis ex p B la ckb u rn (1 9 6 8 ), a t 135, L o rd D e n n in g M R g a v e th e fo llo w in g g u id a n c e re g a rd in g th e le g a l sta tu s o f c h ie f o ffic e rs o f p o lice: The office of Com missioner of Police within the M etropolis dates back to 1829, when Sir Robert Peel introduced his disciplined force. The com m issioner was a justice of the p eace sp e cia lly ap p o in ted to a d m in iste r the p o lice fo rce in the M etro p o lis. H is constitutional status has never been defined either by statute or by the courts. It was considered by the Royal Commission on the Police in their report (Cmnd 1728). I have no hesitation, however, in holding that, like every constable in the land, he should be, and is, independent of the executive. He is not subject to the orders of the Secretary of State, save that, under the Police Act 1964, the Secretary of State can call on him to give a re p o rt, o r to re tire in the in te re sts o f efficien cy . 1 h o ld it to be the d u ty o f the Com missioner of Police, as it is of every chief constable, to enforce the law of the land. He m ust take steps so to post his m en that crim es m ay be detected and that honest citizens may go about their affairs in peace. He must decide whether or not suspected persons are to be prosecuted and, if need be, bring the prosecution or see that it is brought but, in all these things, he is not the servant of anyone, save of the law itself. No M inister of the Crown can tell him that he must or must not keep observation on this place or that; or that he must or must not prosecute this man or that one. Nor can any police authority tell him so. The responsibility for law enforcement lies on him. He is answ erable to the law and to the law alone. That appears sufficiently from Fisher v Oldham Corporation (1930) and the Privy Council case of Attorney General fo r Nezv South Wales v Perpetual Trustee Co Ltd (1955).

10 11

This statement is increasingly open to question in view of recent reforms of the police service, especially those under the Police Reform Act 2002. de Smith, S and Brazier, R, Constitutional and Administrative Law (7th edn, London: Penguin, 1994).

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In the light of m any reform s of the police service since this case w as decided, does this guidance have the sam e relevance at the present time? C h ief constables have the responsibility for appointing, prom oting and, where necessary, disciplining (including dism issing) all officers below the rank of assistant chief constable. The appointm ent of special constables and other police auxiliaries, as well as police cadets, also falls within the responsibility of chief constables under the Police A ct 1996, w hich also requires that they subm it annual reports to the H om e Secretary and their police authority, as well as any additional reports as requested by either, including the subm ission of crim inal statistics to the H om e Secretary. Although there are now fairly exhaustive m echanism s in place regarding the accountability of chief constables, the fact rem ains that no one can give such a person direct orders in term s o f o p eratio nal m atters. E ven the ju d iciary h av e show n great relu ctance in in te rfe rin g w ith the d e c isio n s o f p o lice c h ie fs , p a rtic u la rly w ith reg ard to the deploym ent of m anpow er and resources,12 although the judges have warned that the exercise of police discretion is reviewable in the courts.13 This w as dem onstrated in R v Comm issioner o f Police fo r the M etropolis ex p Free Tibet Campaign and Others (2000), where it was held that the M etropolitan Police had acted unlaw fully by, inter alia, rem oving banners and using vans to block peaceful protestors from the view of the visiting Chinese President during an official visit to London. Under s 2 of the Police Reform Act 2002, the H ome Secretary may issue and revise codes of practice regarding the discharge of any functions by chief officers of police. A draft o f this docum ent m ust be form ulated in conjunction w ith the Central Police Training and D evelopm ent Authority, w ho in turn m ust consult with certain other bodies such as the Association of Police Authorities and the Association of Chief Police Officers; the codes of practice must then be laid before Parliament. It should be noted that there are sim ilar provisions under s 39 of the Police Act 1996 with regard to codes of practice for police authorities; also, the H ome Secretary has a duty to issue other codes of practice regarding the policing of this country. These include provisions under s 51 of the Police Reform Act 2002 where he is under a duty to issue and revise codes of practice in respect o f independent custody visitors w ho inspect custody suites at police stations. However, the most volum inous codes of practice are those applicable to the o p e ra tio n o f the P o lice and C rim in a l E v id e n ce A ct 1984, w h ich w ill be mentioned at many stages throughout this book.

The Home Secretary and the police As mentioned above, a new Metropolitan Police Authority was instituted in July 2000 under the Greater London A uthority Act 1999. Until this tim e, the H om e Secretary retained his role as the police authority for the M etropolis o f London, assisted by the

12 See Harris v Sheffield United Football Club Ltd (1987), where Neill LJ stated: 'I see the force of the argument that the court must be very slow before it interferes in any way with a decision of a chief constable about the disposition of his forces.' See also R v Chief Constable of Sussex ex p International Trader's Ferry Ltd (1997). 13 See R i> Com m issioner of Police fo r the M etropolis ex p Blackburn (No 1) (1968) and R v Commissioner of Police fo r the Metropolis ex p Blackburn (No 3) (1973).

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tran sitio n al M etrop o litan P olice C om m ittee. E ven though the new au th o rity has com m enced its duties, the H om e Secretary is still in a position to exert som e influence regarding the policing of the capital. This includes having the ultimate say regarding the appointm ent of new com m issioners. It w as noted above that the M etropolitan P olice A uthority is, in essence, very sim ilar to the police au th orities elsew here in England and Wales. There is one important exception to this statem ent and this relates to the fact that the M etropolitan Police Service plays an im portant role in m atters which go beyond merely policing the capital. As mentioned earlier, the M etropolitan Police perform national as well as international functions, which are of a very sensitive nature, both politically and otherwise. This has constituted a powerful argum ent in the p a st ag ain st it h av in g its ow n p o lic e au th ority . In o rd er to en su re the e ffectiv e perform ance of its national and international policing functions, para 104 of Sched 27 to the Greater London Authority A ct 1999 provides that if the H om e Secretary is not satisfied with the standard of perform ance of the M etropolitan Police in its national and international functions, then he may direct the M etropolitan Police Authority to take su ch m easu res as m ay be sp ecified in that d irection . The d efin ition o f such functions under these provisions includes the personal protection of VIPs, as well as their property, national security, counter-terrorism or 'the provision of services for any other national or international purpose'. N otw ithstanding the overall effects of these changes, the Home Secretary is still the most singularly prom inent figure in respect of the policing of this country. Under the Police Act 1996 (as am ended), which has preserved many of the pow ers held by him under the Police Act 1964, the H om e Secretary m ay determ ine policing objectives in all areas, having made prior consultations with the relevant police authorities and their police chiefs. This may also include him requiring police authorities to set perform ance targets in order to achieve this end. However, under s 1 of the Police Reform Act 2002, w hich inserts a new s 36A into the Police Act 1996, the H ome Secretary is under a duty to prepare an annual N ational P olicing Plan. T h is m u st inclu d e a w ide range of policing objectives such as perform ance targets, making regulations under the 1996 Act and the C rim inal Justice and Police A ct 2001 regarding police training, as w ell as issuing various codes of practice and dealing with com plaints and misconduct. Under s 42 of the 1996 Act (as am ended by s 33 of the Police Reform A ct 2002), the H ome Secretary m ay require a police authority to suspend and dism iss a chief constable following an inquiry and, if representations are made by that officer, a hearing must be convened by the H om e Secretary. See Ridge v Baldwin (1964), where the principle of the righ t to a fair h earin g w as exten d ed to a fo rm er ch ief co n stab le , w ho had b een dismissed from his post by a borough police authority, and that com m ittee had not initially given him the opportunity to present his case in defence. The right to make representations to a police authority where that body dism isses a chief constable is also provided for under the 1996 Act. O ther provisions under the 1996 A ct include the H ome Secretary's pow er to order inquiries into specific incidents (the Scarm an Report on the Brixton riots, for exam ple), the ap p ointm en t o f insp ectors o f con stabu lary in order to assess the efficien cy of individual forces, the m aking of regulations regarding the adm inistration of the police service as a whole, including matters affecting national pay and conditions, as well as issuing H ome Office circulars for the guidance of the police service. U nder Pt 4 of the C rim inal Justice and Police A ct 2001, the H om e Secretary has been given extensive p ow ers to reg u late p olice training. A m ong other things, he has the p ow er to set objectives and perform ance targets for the Central Police Training and Developm ent

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Authority, w hich has the overall responsibility for providing and prom oting police training in this country. The H om e Secretary m ay also give sp ecific and gen eral directions to the authority in the perform ance of its functions. In R v Secretary o f State fo r the H om e Department ex p Northumbria Police Authority (1988), police authorities in several areas, including N orthum bria, sought to challenge the H om e Secretary's actions regarding the issue of certain riot control equipm ent. Follow ing the inner city riots in 1981, it had been apparent that the police could no lo n g e r e ffe c tiv e ly c o n tro l s e rio u s d is tu r b a n c e s u s in g th e ir e x is tin g s ta n d a rd equipm ent, w hich w as largely confined to truncheons and long shields, especially w h en d e a lin g w ith rio te rs th ro w in g m is s ile s , in c lu d in g fire b o m b s. T h is w as acknowledged in the Scarm an Report, and it was recom m ended that the police should be issued w ith stand -off weaponry, such as C S gas and plastic bullets. The police authorities m entioned above objected to such d evices being issued to their police officers and refused to authorise their purchase. The H om e Secretary then issued a circular to all chief constables, advising them of the availability of such equipm ent on perm an en t loan, in the ev en t o f their p olice au th o rities refu sing to auth o rise the pu rchase of CS gas and plastic bullets. The C ou rt of A ppeal held that the H om e Secretary had acted lawfully on two grounds. First, under ss 4 and 5 of the Police Act 1964, pow ers to effect the supply of equipm en t to the p olice w ere vested in chief constables and police authorities. However, under s 41, the H ome Secretary also had pow ers to supply central or com m on services to the police service as a whole. It was held that the H om e S ecretary had law fu lly exercised th is pow er, as riot con trol equipm en t fell w ithin this d efinition. Secondly, it w as held that, in acting in this manner, the H ome Secretary had correctly exercised the prerogative power to keep the Q ueen's peace, which was unaffected by the 1964 Act. With regard to the present powers of the H ome Secretary to regulate the standard of equipm ent used by the police, s 6 of the Police Reform Act 2002 enables the Home Secretary to make regulations so that all police forces in England and Wales will use certain equipm ent approved by him, and in the w ay prescribed. The reason for this power is to ensure that whenever police forces are deployed on mutual aid, they will all be using the sam e or sim ilar equipm ent. Exam ples will include vehicles, IT system s, batons, incapacitant sprays, head gear or protective clothing.14 Before m aking such regulations, the H om e Secretary is under a duty to consult w ith the representative bod ies o f ch ief officers o f police and police au th orities. In order to create greater rationalisation betw een police forces, especially when engaged in joint operations, s 7 o f the P olice R eform A ct 2002 m akes prov ision for the H om e S ecretary to m ake regulations regarding police procedures and practices. H ow ever, the con su ltation process required before such regulations m ay be m ade is m uch w ider than those pertaining to the regulation of police equipm ent.

Her Majesty's Inspectorate of Constabulary With regard to all police forces in England and Wales, m any decisions of any Home Secretary and, indeed, chief police officers, are likely to be influenced by the findings of Her M ajesty's Inspectorate of Constabulary, a body first instituted in 1856, which

14 Police Reform Act 2002 'Explanatory Notes' (The Stationery Office, 2002).

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inspects the efficiency and effectiveness of all police forces. The Inspectorate currently consists of inspectors of constabulary, who are m ainly form er chief police officers, plus a chief inspector of constabulary, who, am ong other things, are responsible for laying an an n u al rep o rt on the In sp e c to ra te 's w o rk b e fo re P a rlia m en t. H er M a je sty 's inspectors of constabulary are appointed by the Q ueen, on the recom m endation of the H ome Secretary, and are empowered to inspect all police forces in England and Wales, including the M etropolitan Police w hich, up until fairly recently, were exem pt from their scrutiny. Som e inspectors are non-p olice officers w ith relevan t m anagem ent experience. This is a relatively new innovation that started in 1993. U nder s 93 of the Crim inal Justice and Police Act 2001, inspectors of constabulary may be required to inspect the Central Police Training and Developm ent A uthority on the instructions of the H om e Secretary. T h eir insp ectio n p ow ers also inclu de the N ational C rim in al In te llig e n c e S e rv ic e and the N a tio n a l C rim e Sq u ad as w ell as any p o lice force m aintained for any police area. In addition to routine inspections of all these bodies, under s 3 of the Police Reform A ct 2002, the inspectorate may be specifically required by the H om e Secretary to inspect any such body in whole or part. The scope of the Inspectorate has been further enhanced by s 84 of the 2002 Act, which enables the H om e Secretary 's pow er to approve the ap p ointm en t of assistan t com m issioners, deputy assistant com m issoners, com m anders, deputy chief constables and assistant chief constables to be delegated to the chief inspector of constabulary. H owever, it should be noted that Her M ajesty's chief inspector of constabulary will reach such decisions in accordance with a special panel.

General operational policing in England and Wales All recruits to the police service are initially attested as constables (including part time voluntary police officers in the special constabulary, who are discussed below). This is the rank in w hich all police m en and wom en m ust begin, regardless of educational attainm ent or other qualities which may result in prom otion during their service. This con stitu tes one o f the m any features o f the p olice service in E ngland and W ales, distinct from the armed forces, where there is an officer class to which suitable new entrants may im m ediately enter. As a consequence, all senior officers within the police service, including those who head such forces, have progressed through all the ranks, starting w ith the rank o f constable. The first M etropolitan Police Com m issioner to h a v e rise n th ro u g h all the ra n k s w as S ir Jo s e p h S im p s o n , w h o to o k o ffic e as Com m issioner in 1958. This is now the norm al route for all police chiefs throughout England and W ales. H ow ever, there is a fast-stream prom otion schem e fo r police officers w ho dem onstrate exceptional abilities after joining. This, am ong other things, involves attendance at the Police Staff College, w here prom ising police officers are taught advanced m anagem ent practices, as well as learning senior com m and skills. All new recruits m ust satisfactorily com plete their initial tw o-year probationary period as constables, which provides all police officers with an essential introduction to police duties (see Appendix 2, which depicts the overall rank structure within the police service in England and Wales). Certain aspects of the police rank structure were re fo rm e d a ro u n d th e e a r ly 1 9 9 0 s as a r e s u lt o f th e S h e e h y R e p o r t ,15 w h ic h

15 Sheehy Commission, Inquiry into Police Responsibilities and Rewards, Cm 2280 (London: HMSO, 1993).

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e n d e av o u re d , in ter a lia , to stre am lin e the m an ag em en t o f the p o lice serv ice by rem oving som e of the more senior ranks. In the end, the ranks of chief superintendent and deputy chief constable were rem oved, although som e existing holders of those ranks were allowed to keep them. Eventually, it was intended that these posts would cease to exist, as well as deputy assistant com m issioners in London. However, all these substantive ranks have now been restored. The general requirem ents for entry into the police service are contingent upon good health, character, edu cation and appearance. Entry is no longer confined to British nationality, certain Com m onw ealth citizens and citizens of the Irish Republic. Section 82 of the Police Reform A ct 2002 now enables the police to be recruited from any nationality, although subject to regulations regarding such matters as com petency in written and spoken English and residential qualification in the UK. Efforts are being made in an endeavour to make the police service more representative of the overall population in this country by focusing m ore recruitm ent on the ethnic com munity, which is still generally under-represented within this service. The training of recruits initially requires about five m onths' full time attendance at one of the police training centres, located in regions throughout the country. Training rem ains a prevalent feature throughout the two-year probationary period, which takes the form of practical street exp erience under varying degrees of su p erv ision, but interspersed w ith classroom instruction. In terms of specialist opportunities, the police service possibly has no parallel. A constable having satisfactorily com pleted his or her probationary period is given the opportunity to either continue w orking in uniform at a local police station (divisional or sub-divisional level) or to enter any of a range of specialist areas immediately or at some other stage in their career. These include the Crim inal Investigation Departm ent, traffic division, the mounted police, the drugs squad, com m unications, the vice squad, dog handlers, Special Branch, VIP protection, the National Crim e Squad, the National Crim inal Intelligence Service, internal investigations, public order control, training, youth and com m unity w ork and m any m ore. H owever, m any prefer to rem ain as uniformed officers in the basic com m and units of local police divisions, believing that policing at this level can provide all the variety and opportunities that specialist w ork can bring. There is considerable m erit in this assertion, since police w ork is equally dependent upon both specialist, as well as 'routine', police duties. The com m and structure of each police force varies from area to area, although there are certain characteristics that all forces have in com m on. The headquarters and local com m and structure of a typical provincial police force is depicted in basic form in A p p end ix 3, w hereas the m ore com p lex o rg an isatio n o f the M e tro p o litan P olice Service is represented in A ppendix 1. W h atev er ran k a p o lice o fficer h o ld s, the nu m erou s statu te s cov erin g p olice powers refer to all police officers as holders of the office of 'constable', unless specific ranks are stipulated for certain procedural purposes. The fundam ental tenet that all police officers hold the office of constable also applies to voluntary, part tim e police officers, w ho are m em bers of the special constabulary, which will be discussed in the next section.

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The special constabulary Fairly extensive coverage of this aspect of the police service will be made here, since it is a relatively understudied subject16 and, it is subm itted, w arrants discussion here. The special constabulary is a very old institution which, in its original form, pre-dates the form ation of the M etropolitan Police in 1829 by over 150 years. Although the early ju stices of the peace and lords o f the m an or w ere expected to appoint officers to enforce the law, they frequently neglected this duty and, in 1673, a statute was passed, which enabled two m agistrates to appoint special constables within their respective districts. However, it w as the Special Constables A ct 1831 which placed this force on the general footing upon which the m odem special constabulary is now based. Since then, the 'specials', as they are com m only termed, have achieved notable places within the history of the m od ern police service. For exam ple, in 1848, the largest single enro lm en t o f special con stables occurred in response to fears o f serio u s d isord er arising from the Chartist m ovem ent. This resulted in no fewer than 170,000 specials b ein g deployed in central London. The anticipated trouble w as averted, since the num ber of specials outnum bered the protestors by over three to one. It w as during both World Wars that the specials particularly excelled and often formed the bulwark of operational policing throughout many parts of the country. However, they were also involved in other high profile roles during certain events between the war years. From 1919 to 1926 they assisted in m aintaining order during a series of m ajor industrial disputes, including the G eneral Strike, and during the early 1930s they w ere used e x te n s iv e ly d u rin g a s e rie s o f d e m o n s tra tio n s in L o n d o n re s u ltin g from m ass unem ploym ent.17 In more modern tim es, the special constabulary is an auxiliary force within the police service, w hich consists of men and w om en w ho serve as part tim e, unpaid police officers who w ork in a voluntary capacity. Specials receive no paym ent for their services,18 although they receive lim ited out of pocket expenses, such as travel and m e al a llo w a n c e s , to g e th e r w ith a b o o t o r sh o e a llo w a n c e . T h e y a lso re c e iv e reim bursem ent for any loss o f earnings, for exam ple, where they attend court. Their police w ork is confined to w hatever spare time they can devote to this end. This often in v o lv e s a s ig n ific a n t s a c r ific e in c e r ta in c a se s , s in c e m an y h a v e d em a n d in g com m itm ents elsewhere but, in any event, they are generally expected to perform at least 16 hours' voluntary duty per month. It is important to note that specials have full police powers, the sam e as regular police officers, but with one variation. W hereas mem bers of the regular police service m ay exercise their pow ers anywhere in this country, specials are restricted to the use of police pow ers w ithin their respective police areas and within those police areas w hich im m ediately border on to their own. The exception to this general rule are specials in

16 There are some exceptions. These include Gill, M and Mawby, R, A Special Constable: A Study of the Police Reserve (Aldershot: Avebury, 1990); and also Barron, T, 'The Special Constable's Manual' (London: Police Review, 1997). 17 The Metropolitan Special Constabulary: An Illustrated History from 1831 to Today (London: New Scotland Yard, 1981). 18 In previous years some police forces have introduced limited payment schemes for their specials, but these appear to have had little impact on recruitment and retention. Such schemes have therefore been abandoned.

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the City of London, who may exercise their police powers in the M etropolitan Police area as well as the counties w hich border onto the G reater London boundaries. In addition, if specials are seconded to a different police area under mutual aid, they will have full police pow ers w ithin that area. With som e variations, specials are basically equipped with the sam e uniform as regular full time police officers, as well as certain protective clothing and equipm ent. The latter are necessary, because specials, as well as regular police officers, often face the sam e risks when on duty. A grade structure exists within the special constabulary for those given additional resp o n sib ility for its m an agem en t. T h is p laces graded officers w ithin the special constabulary in authority above specials without or with lower grades. Som e specials join the regular force having initially served in a voluntary capacity and feel that they w ish to m ake a full tim e career w ithin the police service. In this respect, a person jo in in g the special con stab u lary acquires an excellen t introd u ction to operational policing. As mentioned above, special constables, as well as regular police officers, are appointed by chief officers of police, and it is im portant to note that s 35 of the Police Reform A ct 2002 places special constables within the jurisdiction of the Independent Police Com plaints Com m ission. In more recent years, there has been a significant drop in the num ber of special constables compared with about 30 or 40 years ago when their num bers were much higher. Although in some areas they exist in fairly large num bers, this is not reflected generally, and in som e parts of the country the ratio of specials in relation to regular police officers is quite low. Despite recruitment cam paigns at local and national level, the main difficulty appears to be the retention of those who do join. There are many reasons for the relatively large number of resignations from the special constabulary ev ery year,19 inclu d ing the fact that som e jo in the reg u lar force. M eanw hile, the Governm ent is com mitted to a number of initiatives designed to increase the overall strength of the special constabulary and to improve its overall effectiveness.

THE 'EXTENDED POLICE FAMILY' A major change in the structure of policing in England and Wales has recently been effected through Part 4, Chapter 1, and Scheds 4 and 5 to the Police Reform Act 2002. These prov isions have created the con cep t o f the 'exten ded police fam ily' that is designed to give certain civilians a selected range of police pow ers. The 2002 Act creates five main classes of civilians w ho can be conferred with these powers, nam ely com m unity support officers, investigating officers, detention officers, escort officers and accredited civilians. This new and controversial schem e is discussed in Chapter 7 under the heading 'Civilians given police powers'.

19

For a discussion on a suggested scheme that, inter alia, could improve recruitment and retention rates in the special constabulary, see Jason-Llovd, L, 'Police reform - a better wav?' (2003) 167 JP 805.

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A n Introduction to Policing and Police Pow ers

COMPLAINTS AGAINST THE POLICE Introduction The foregoing coverage has endeavoured to provide an insight into the foundations of the modern police service. The following chapters will provide an introductory guide to the key issues affecting the exercise of police powers that should assist in giving a broad picture of the increasingly complex nature of policing in this country. Inevitably, a book of this nature tends to present the subject in a rather sanitised manner, with little reference to the stark realities of the overall environment in which such powers are exercised, both from the public, as well as the police, standpoint. However high the standards of the police service may be, there m ust be appropriate m echanism s of accountability at all levels in order to maintain credibility. The latter is most important, for it is upon this that the concept of policing by consent depends. One of the ways in which any modern police service in a democratic society can preserve public support is by having a fair and efficient police complaints system.

The development of the complaints system P rio r to the e n a ctm e n t o f the P o lice and C rim in a l E v id en ce A ct 1984, w hich significantly reformed this process, the police complaints system in this country had becom e the subject of increasing criticism. The earlier system inspired little public confidence because, inter alia, the complaints procedure was the same regardless of whether a complaint was serious or trivial, and this often wasted the time of senior police officers where the matter could be dealt with less formally. In addition, there w ere d oubts abou t the ind ep en d en ce of the body resp onsib le for inv estigating complaints enacted under the Police Act 1976, namely, the Police Complaints Board, esp ecially in view of reports that in v estigatin g officers had som etim es tried to persuade complainants to withdraw their allegations.20 Therefore, Pt IX of the Police and Criminal Evidence Act 1984, headed 'police complaints and discipline', contained measures which constituted an overhaul of the earlier system. One of its principal reforms was the forming of the Police Complaints Authority, which replaced the Police Complaints Board. In response to calls for further reform s, the provisions of the 1984 Act were replaced initially by the relevant measures under the Police and Magistrates' Courts Act 1994, but were subsequently recast under the Police A ct 1996, together w ith accompanying regulations. In April 1999, that new system of police complaints and discipline was put into force, but since then there has been increasing pressure from numerous sources to reform the complaints system even further. Among other things, this was based on the belief that the Police Complaints Authority was not sufficiently independent of the police and that the system did not reflect the impartiality expected of it. Furtherm ore, in Govell v UK (Application No 27237/95), it was held that the

20 Zander, M, The Police and Criminal Evidence Act 1984 (4th edn, London: Sweet & Maxwell, 2003).

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police com plaints system did not provide an adequate rem edy for the purposes of Art 13 of the European Convention on H um an Rights;21 and in Khan v UK (2000) 31 EH R R 45, it w as held that the P olice C om plaints A uthority w as not a sufficiently in d ep en d en t b o d y and this led to a v io la tio n o f A rts 13 and 8 o f the E u rop ean Convention. A further m ajor influence in changing the police com plaints system was the findings of the Stephen Lawrence Inquiry. All this has now led to the form ation of the Independent Police Com plaints Com m ission (the IPCC) under Pt 2 and Sched 3 to the P o lice R efo rm A ct 2002. T h e p ro v isio n s o f the 2002 A ct are a u g m en ted by regulations and various sources of guidance. The IPCC has been in operation since 1 A pril 2004, and an overview of this new body, as well as the new system of police com plaints generally, will now be given.

The new police complaints system There are several mechanism s within the structure and functions of the IPCC that are designed to increase public confidence in the new system. U nder the Police Reform Act, there m ust be at least 10 m em bers of the IPCC plus a chairperson. The chairperson is appointed by the Queen and the other com m issioners are appointed by the Home Secretary, but none o f them should be appointed if at any tim e they have held the office of constable or have been a m em ber of the N ational Crim inal Intelligence Service or the N ational Crim e Squad. The independence of the IPCC is further reinforced by the provisions under s 9 of the Police Reform A ct 2002 w hich, inter alia, states that it 'shall be a body corporate' and it 'shall not be regarded as the servant or agent of the Crown or enjoy any status, privilege or im m unity of the Crown, and the Com m ission's property shall not be regarded as property of, or property held on b eh alf of, the Crow n'. In other words, it is a free-standing public body that is independent of the Government. It should be mentioned that com plaints against the police regarding incidents that occurred prior to 1 A pril 2004 will be dealt with by the IPCC in accordance with the earlier system. This provision has been made by the Independent Police Com plaints Com m ission (Transitional Provisions) Order 2004. T he scope of persons w ho are su bject to the new system is m uch w id er than previously. At one tim e it w as only regular police officers w ho w ere subject to the com plaints process. Now, however, it includes m any more classes of persons within the p olice service. T hese inclu d e not only regular p olice officers b u t also special constables and civilian employees. The latter will also include civilians who are part of the extended police family, nam ely com m unity support officers, investigating officers, detention officers and escort officers. (Separate arrangem ents exist for dealing with com plaints against accredited civilians.) The scope o f com plaints in this context does not include general m atters of discontent such as the w ay that police resources are allocated and the deploym ent of patrols in certain areas. Com plaints m ust relate to specific conduct by police officers. U nder s 12 of the Police Reform Act, the persons w ho m ay make a com plaint are the victims, witnesses and those w ho are adversely affected by the alleged police m isconduct. The latter includes persons who have been

21

Article 13 is the 'Right to an Effective Remedy'. Although this Article is not one of those included under the Human Rights Act 1998, the UK courts are obliged to take case law into account that has arisen from Convention jurisprudence.

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A n In tro d u ctio n to Policing an d Police P o w ers

placed in danger or have suffered loss or been caused distress or inconvenience. If the com p lain t is again st a p olice officer above the rank of ch ief su p erin ten d en t, that officer's police authority should record it, otherw ise the chief officer of police should record the com plaint if it involves an officer below that rank. The com plainant should receive a copy of the com plaint and an appeal may be made to the IPCC in the event of a refusal to record it. If a com plaint is sent direct to the IPCC, this will be transferred to the police with the consent of the com plainant, although this will be done anyway if it is considered to be in the public interest. Serious com plaints such as those involving d e a th , s e r io u s in ju ry , s e r io u s s e x u a l o ffe n c e s , s e r io u s ra c e , s e x o r r e lig io u s discrim ination, serious corruption and any serious arrestable offence m ust be referred by the police to the IPCC, otherwise they have a discretion to refer cases. In certain instances, the IPCC may 'call-in' a specific case that requires the police to refer it for their consideration. Schedule 3, para 8 to the Police Reform A ct 2002 preserves the earlier practice of resolving less serious com plaints through a relatively inform al procedure. U nder the previous system , this w as called 'inform al resolution', but under the new regime, it is nam ed 'local resolution'. The com plainant m ust consent to this procedure and may appeal if it is n o t follow ed . Incid ents that have often proved approp riate for this procedure include a general lack of politeness that m ay be resolved through a simple apology, or other informal m ethods such as the officer providing an explanation for his or her conduct. However, the IPCC m ust decide how a com plaint will be dealt with in more serious cases w hich, in turn, may be referred back to the police for investigation. The new rules enable the police to conduct investigations w ithout the supervision of the IPCC or this m ay be done un der its supervision. The latter con stitutes a new procedure under the com plaints system whereby the IPCC may actually m anage or direct an investigation. This is another change com pared with the earlier system that is intended to en g en d er greater p u blic con fid en ce in the w ay in w hich com p lain ts against the police are dealt with. It is submitted that this may have been modelled on the way that the Crim inal Cases Review Com m ission review alleged miscarriages of justice under the Criminal Appeal Act 1995. This enables them in certain cases to adopt a 'hands on' approach in which the police are under their direct supervision rather than being allowed to deal with the investigation at their own discretion, although the la tte r m ay s till a p p ly w h e re a p p r o p r ia te . A lte r n a tiv e ly , th e y m ay c o n d u c t investigations using their own staff, which is also a procedure som etim es used by the Crim inal Cases Review Com mission. O ne of the key changes in the new system is that com plainants will have greater involvem ent in this process com pared with the earlier regime. These include the IPCC having to take into account the com plainant's views as to w hether an investigation should be m anaged or conducted using in-hou se staff. C om plainan ts w ill also be entitled to regular progress reports and to notification of decisions taken, as well as h av ing access to sev eral rou tes of appeal at d ifferent stages in the in v estigatio n , including the outcome. In addition, com plainants are perm itted to be present during d isciplinary hearing s and m ay be accom p anied by up to three friend s. H ow ever, com plainants do not have any right to legal representation. W hether the police or the IPCC have investigated the com plaint, on its com pletion the relevant body must decide whether to forward the m atter to the Director of Public Prosecutions in order to consider any crim inal charges. If the m atter is not referred to the D PP or the d ecisio n is taken n o t to p ro se cu te , co n sid era tio n m u st be giv en

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regarding any disciplinary action. In certain circum stances, the IPCC may direct that a disciplinary hearing is conducted in public.

The Police Appeals Tribunal As a result of a com plaint, a police officer may be subject to dismissal from the force, be required to resign or be reduced in rank. These (and other sanctions) may also apply in consequence of other m isconduct where this is identified by a person within th e p o lic e s e r v ic e o r w h e re th e o f f ic e r 's p e rfo rm a n c e o f h is o r h e r d u tie s is unsatisfactory. A police officer may ultim ately appeal against any of the three specific sanctions listed above to the new Police Appeals Tribunal, which replaces the earlier system whereby police officers could appeal to the H ome Secretary. This body has a slightly different com position depending upon w hether the appellant is a senior officer or n o t. T h e co m m o n g ro u n d is th a t th e re m u st a lw a y s b e a le g a lly q u a lifie d chairperson, a m em ber of a police authority and a form er or serving chief officer from another police force. On the conclusion of the proceedings, the Police Appeals Tribunal w ill either uphold the original decision or make an order w hich is less severe than the original decision. The C ode of C onduct under Sched 1 to the Police (Conduct) Regulations 2004, w hich cam e into force on 1 A pril 2004, sets out the stand ard s expected o f police officers, which, if not reached, can lead to disciplinary action being taken, w hether or not a com plaint is involved. All police officers are subject to the regulations, regardless of rank, and they now also apply to special constables. The regulations not only state the p ro ced u res in v o lv ed in cases o f m isco n d u ct, they also co n tain the C o d e o f Conduct, w hich is reproduced as follows: SCHEDULE 1 Code of Conduct Honesty and integrity 1

It is of paramount importance that the public has faith in the honesty and integrity of police officers. Officers should therefore be open and truthful in their dealings, avoid being improperly beholden to any person or institution and discharge their duties with integrity.

Fairness and impartiality 2

Police officers have a particular responsibility to act with fairness and impartiality in all their dealings with the public and their colleagues.

Politeness and tolerance 3

Officers should treat members of the public and colleagues with courtesy and respect, avoiding abusive or deriding attitudes or behaviour. In particular, officers m ust avoid: favouritism of an individual or group; all form s of harassm ent, victim isation or unreasonable discrim ination; and overbearing conduct to a colleague, particularly to one junior in rank or service.

Use of force and abuse of authority 4

Officers must never knowingly use more force than is reasonable, nor should they abuse their authority.

Performance of duties 5

Officers should be conscientious and diligent in the performance of their duties. Officers should attend work promptly when rostered for duty. If absent through sickness or injury, they should avoid activities likely to retard their return to duty.

An Introduction to Policing and Police Powers

22

Law ful orders 6

The police service is a disciplined body. Unless there is good and sufficient cause to do otherwise, officers must obey all lawful orders and abide by the provisions of Police Regulations. Officers should support their colleagues in the execution of their lawful duties and oppose any improper behaviour, reporting it where appropriate.

Confidentiality 7

Inform ation w hich com es into the possession of the police should be treated as co n fid en tial. It should n ot be used for p ersonal b en efit and nor should it be divulged to other parties, except in the proper course of police duty. Sim ilarly, o ffic e rs sh ou ld re sp e ct as c o n fid e n tia l, in fo rm a tio n ab o u t fo rce p o lic y and operations, unless authorised to disclose it in the course of their duties.

Crim inal offences 8

O fficers m ust report any proceedings for a crim inal offence taken against them. Conviction of a crim inal offence or the adm inistration of a caution may, of itself, result in further action being taken.

Property 9

O fficers m u st exercise reaso nab le care to prevent loss or d am age to p rop erty (excluding their own personal property, but including police property).

Sobriety 10

W hilst on duty, officers must be sober. Officers should not consume alcohol when on duty, unless specifically authorised to do so or it becom es necessary for the proper discharge of police duty.

Appearance 11

Unless on duties which dictate otherwise, officers should always be well turned out, clean and tidy whilst on duty in uniform or in plain clothes.

G eneral conduct 12

W hether on or off duty, police officers should not behave in a way which is likely to bring discredit upon the police service.

Notes (a) The primary duties of those who hold the office of constable are the protection of life and property, the p reserv atio n o f the Q u e e n 's p eace and the p rev en tion and detection of criminal offences. To fulfil these duties, they are granted extraordinary pow ers; the public and the police service therefore have the right to expect the highest standards of conduct from them. (b) This Code sets out the principles which guide police officers' conduct. It does not seek to restrict officers' discretion; rather, it aims to define the parameters of conduct within which that discretion should be exercised. However, it is important to note that any breach of the principles in this Code may result in action being taken by the organisation, which, in serious cases, could involve dismissal. (c) Police behaviour, whether on or off duty, affects public confidence in the police service. Any conduct which brings or is likely to bring discredit to the police sendee may be the subject of sanction. Accordingly, any allegation of conduct which could, if proved, bring or be likely to bring d iscredit to the police service should be investigated in order to establish whether or not a breach of the Code has occurred and whether formal disciplinary action is appropriate. No investigation is required w here the conduct, if proved, would not bring or would not be likely to bring, discredit to the police service.

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Other forms of redress 'Probably the strongest m eans of enforcem ent of good conduct by the police is the exclu sion o f im p rop erly obtain ed ev id ence un der ss 76 and 78 o f the P olice and C rim in a l E v id e n ce A ct 1 9 8 4 .' 22 A p art from th is p o te n t s a n ctio n (d iscu sse d in subsequent chapters), there are other ways in which m isconduct by the police may be dealt with. In the more extrem e cases where, for instance, property m ay have been damaged unnecessarily by officers during a search or where excessive or unnecessary force w as used in the exercise of their pow ers, a crim inal prosecution could ensue, especially where the dam age or any injury was severe or, in the latter instance, even fatal. With regard to fatalities, it is m andatory for a coroner to em panel a jury for an inquest where a person has died as a result of injuries inflicted by the police or where a person has died in police custody. In m ore recent years, a sm all num ber of police officers have faced hom icide charges arising from such proceedings. However, such cases are com paratively rare. In situations where non-fatal harm is inflicted, it is more com m o n for c iv il a ctio n to b e taken a g a in st the p o lice . W h ilst b re a c h e s o f the provisions of the Police and Crim inal Evidence A ct or the Codes of Practice do not necessarily give rise to crim inal or civil liability, a breach may be relevant in other actions and taken into account by the courts. A fairly com m on civil action taken against the police is the tort of trespass to the p e r s o n , th e tw o m a in fo rm s o f w h ic h a re an a s s a u lt an d b a tte r y , a n d fa ls e im prisonm ent. An assault and battery constitutes the unlaw ful application o f force against another person, no matter how slight. Therefore, no injury need be inflicted, although the case w ill attract greater dam ages if personal injury resulted from the conduct in question. The court will also take into account any actions by the claimant which may have contributed to the incident. An assault and battery would apply in instances where excessive force was used by the police in exercising their powers or where a person w as unlawfully searched or detained, even if very little restraint was applied against that person. False im prisonm ent will apply in cases where a person has been unlawfully deprived of his or her liberty, even if this was for a short time. This does not only m ean unlaw ful detention in a police station, but will apply if a p erso n w as u n law fu lly d etain ed else w h e re . A lth o u g h there is no sin g le to rt o f w rongful arrest or d etention, this conduct usually falls under the heading of false im prisonm ent and, if any m easure of force was used, an assault and battery as well. The police m ay also be subject to an action un der trespass to land w here, for instance, they have entered property w ithout law ful authority. If dam age has been done to the property or anything in it, then they could also be liable for an action under trespass to goods. O ther civil actions m ay include negligence and m alicious prosecution. However, m any cases are settled out of court - a com m on feature of the civil law process.

22 Cape, E and Luqmani, J, Defending Suspects at Police Stations: The Practitioners' Guide to Advice ana Representation (3rd edn, London: Legal Action Group, 1999). See also R v Fennelley (1989).

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An Introduction to Policing and Police Powers

Before departing from the issue of police misconduct, it is submitted that a very candid and realistic view of this subject can be found in the following extract from a comparatively little-known publication:23 In its various ugly forms, violence is all too prevalent a part of the hurly burly of the police o fficer's daily life in som e areas. M any assaults take place. Every day, police officers are injured in London. All these incid ents are hurtful and unpleasant and, occasionally, some arc very serious indeed, leading to grave incapacity and, tragically, even to death. Rightly, there is always public concern about these assaults; much is said, and many new initiatives are proposed, in the quest to reduce the level of violence in our society though, alas, progress seems painfully slow to those of us who have to face it daily. And when things go badly awry, on an individual or on a Force basis, and police are accused of assault or brutality, the spotlight rightly falls on us. Out of even relatively sim ple cases, great debates arise. Accusation and counter-accusation abound. The actions of individual officers are probed again and again. Explanations, though they be true or false, are hoisted up to the light and penetrated and shaken, sometimes with scant regard to the fact that, at the tim e, the officer had not the facility of this fine hindsight and was obliged to judge things in an instant, to react immediately. But that is the way of police life, of course, and it is proper and right that there should be careful public invigilation of our use of force. And the more so since, on a number of occasions, we have been found wanting; incidents ranging from careless over-reaction and burly excess to d elib erate and w icked assau lt have been lev elled , and p ro v ed , again st individual officers. All the more important, then, that we should develop our ability to remain calm and restrained, and to apply force economically and humanely. You should regard it as a matter of personal pride to be able to arrest a violent offender, quell a breach of the peace or deal expeditiously w ith a disturbed or drunken m an quietly, skilfully and with the minimum of fuss. Your training has just that in view and it is important that police officers should develop the expertise and maintain their physical fitness to do these things w ell. Your experience w ill show you that, as your skills improve, so your confidence grows and the chances of your receiving an injury diminish ... You sh o u ld striv e to e x h ib it those a ttitu d e s, w h a te v e r the p ressu res and the p ro v o cation . T he m ore o ften you succeed in d o in g this, the greater w ill be you r resolution when next faced w ith violence, and the more im pressive your exam ple to other officers.

It may be appropriate at this point to mention briefly some specific offences which can be committed against the police. Two of the most well known are those of assault and obstructing police under s 89(1) and (2) of the Police Act 1996. Assault on police under sub-s (1) is triable summarily and is usually confined to cases which fall within the am bit of a com m on assau lt, although it has been know n for the prosecution to dow ngrade rather more serious cases to this level. As w ill be seen in succeeding chapters, it is essential that the police officer in question is acting in the execution of his or her duty for this offence to be committed, and this offence extends to persons who are assisting police officers. The maximum sentence on conviction for assault on police is 51 w eeks'24 imprisonment a n d /o r a fine not exceeding £5,000. The offence under

23 24

Metropolitan Police, The Principles o f Policing and Guidance fo r Professional Behaviour (London: Metropolitan Police, 1985). This apparently odd figure is the new maxim um sentence imposed for shorter custodial sentences under the Criminal Justice Act 2003.

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sub-s (2) of w ilfully obstructing police includes resisting a constable in the execution of his or her duty. W hilst resisting may involve such acts as tearing away from a police officer's hold, obstructing police may not alw ays necessitate physical contact. It has been held that any act w hich m akes it more difficult for the police to perform their duty can am ount to obstruction. This in clu des providing d eliberately m islead ing information and warning persons com m itting offences of approaching police officers. Persons assisting the police also fall w ithin the am bit o f these offences, w hich are triable sum m arily and punishable by a m axim um of 51 w eeks' im prisonm ent a n d /o r a fine not exceeding £1,000.

C H A PT ER 2 PO LIC E PO W ER S O F STO P A N D SEA R CH

INTRODUCTION The pow ers of the police to stop and search, particularly in public, has been the subject of particular scrutiny in recent years. The excessive and arbitrary use of such powers w as held to have been a m ajor con trib u to ry factor to the u n d erlyin g resentm ent, notably betw een younger people and the police, w hich led to the inner city riots in 1981. It is im portant to note that this chapter will exam ine the law and procedures governing stops and searches by the police w ho have not, at that stage, made an arrest. Police pow ers to search either persons or prem ises, once an arrest has been effected, will be discussed in Chapters 4 and 5. The Royal Com m ission on Crim inal Procedure,1 as part of its remit, exam ined the then-existing laws governing police pow ers of stop and search. These largely consisted of a patchw ork of local Acts of Parliam ent, which lacked any standard procedures or uniform application nationally: The Philips Royal Commission identified two main defects in the existing law. First, police powers to stop and search varied from one part of the country to another. In London, for instance, the police could use the powers under s 66 of the Metropolitan Police Act 1839 to stop and search for stolen goods and similar local powers existed in Birmingham, Manchester, Liverpool and Rochdale, but equivalent powers did not exist in most other parts of the country. Secondly, existing powers were either inadequate or, at best, uncertain and required clarification or redefinition.2

As a result, the Royal Com m ission recom m ended that uniform pow ers of stop and search should be given to the police throughout England and W ales, although the Governm ent rejected the idea of a single or general pow er covering every eventuality. In consequence, a major reform of police powers of stop and search, as well as other powers, was enacted under the Police and Crim inal Evidence Act 1984.

THE POLICE AND CRIMINAL EVIDENCE ACT 1984 ('PACE') This statute (com m only know n as PACE) constituted the greatest single reform of police pow ers, certainly during the 20th century, to the extent that the bulk of police powers are either contained or consolidated within this statute. The m ain elem ents of PACE are: pow ers to stop and search (Pt I); powers of entry, search and seizure (Pt II); arrest (Pt III); detention (Pt IV); questioning and treatment o f persons by police (Pt V); Codes of Practice - general (Pt VI); docum entary evidence in crim inal proceedings (Pt VII); and evidence in crim inal proceedings - general (Pt VIII), together with general police m atters and m iscellaneous provisions. This is follow ed by several schedules

1 2

Philips Royal Commission. Zander, M, The Police and Criminal Evidence Act 1984 (4th edn, London: Sweet & Maxwell, 2003).

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ranging from detailed procedures in seeking evidence, the listing of certain arrestable o ffen ces, and v ario u s tech n ical am en d m en ts to o th er statu tes. Sin ce its origin al enactm ent, a num ber of provisions under PACE have been subject to am endm ent by other statutes, as well as clarification resulting from judicial decisions. These will be explained at the appropriate stages in this book, which will cover the relevant aspects of this Act. PACE took alm ost tw o years to be passed . C ertain clau ses in the P olice and Crim inal Evidence Bill attracted fierce opposition, both within and outside Parliam ent, and its passage was further delayed by the general election in M ay 1983. Although enacted in O ctober 1984, m ost of PACE did not com e into effect until 1986, such was the extent of preparation needed for the operation of its new provisions. As far as the police service itself was concerned, all police officers had to be retrained under the new provisions and procedures of PACE, in time for its implementation. As m entioned above, statutes affecting police pow ers refer to police officers in general as constables. This is because all police officers hold the office of constable, whether they be a police constable, chief constable or special constable, as well as the relevant ranks betw een them. The exception to this rule is where certain ranks are stipu lated for specific procedures. For exam ple, under s 4 of PACE, only a police superintendent or above may authorise road blocks (see later in this chapter for further coverage of this topic). It m ust be stressed that w hilst the bulk o f police pow ers are enshrined under PACE, not all of them are. A num ber of statutes have been enacted before and after PACE which affect police pow ers that have not been included under its provisions. However, m any of them are linked to certain procedures under PACE and, in effect, w ork through it, the com m on link being the Codes of Practice (see below). These affect, for exam ple, the p ow er to stop and search for controlled drugs under s 23 of the M isuse of Drugs Act 1971 and the pow er to stop and search for firearms under s 47 of the Firearm s Act 1968. Although these specific powers to stop and search are contained w ithin those statu tes and not PACE, these p ow ers are still subject to the various safeguards under the Codes of Practice. This will be discussed in more detail later in this ch ap ter (see also A p p end ix 4, w hich illu strates som e of the p rin cip al police powers, both under PACE and other statutes, as well as the com m on law). A m ajor d evelopm ent regarding the structure o f PACE occurred in M ay 2002, when it was announced that the H om e Office and the Cabinet Office would conduct a joint review of this statute. The aim of this review was to stream line certain procedures and make the operation of PACE m ore appropriate for policing in the 21st century. In N o v em b er 2002 the Jo in t R eview m ad e a n u m ber o f reco m m en d ation s that had implications for the Codes of Practice that cam e into force in April 2003, followed by Codes of Practice that cam e into force in A ugust 2004 (see below ). The latest codes have taken into account the continuing developm ent of the H um an Rights A ct 1998 (see Chapter 8), as well as several changes to PACE that have been m ade under the Crim inal Justice Act 2003. Other legislation has also been enacted recently, nam ely the Domestic Violence, Crim e and Victims A ct 2004, and som e of the changes brought by this have been incorporated within this book at the relevant stages.

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29

THE CODES OF PRACTICE It h as alread y b een noted th at PACE is acco m p an ied by the C o d es o f P ra ctice, mentioned above under Pt VI (more specifically, under ss 66 and 67 (as am ended), as well as ss 60 and 60A under Pt V). The Codes of Practice exist as a separate publication and are d esign ed to a ssist in the in terp retatio n and c larificatio n of the relev an t provisions of PACE, in addition to providing essential guidance to those w ho use its powers. For this reason, they will be referred to extensively throughout m ost of this book. The Codes of Practice have also been subject to m any changes. The first edition took effect on 1 January 1986 and the second on 1 April 1991 but, since then, further changes have necessitated the publication of more editions, particularly the Codes affecting pow ers of stop and search. One of the more recent editions was published in 1999 and consisted o f the follow ing five Codes under a single consolidated booklet: (A) Code of Practice for the exercise by police officers of statutory pow ers of stop and search (this took effect from 1 March 1999); (B) Code of Practice for the searching of prem ises by police officers and the seizure of property found by police officers on persons or prem ises; (C) Code of Practice for the detention, treatment and questioning of persons by police officers; (D) Code of Practice for the identification of persons by police officers; and (E) Code of Practice on tape recording of interviews with suspects (the la st fo u r C o d es to o k e ffe ct on 10 A pril 1995). C o d es o f P ractice w ere then published in 2003,3 but certain parts of these codes w ere then am ended in August 2004. It is anticipated that revised cod es m ay be drafted by the sum m er o f 2005, reflecting the ongoing review of police powers. Certain police pow ers and duties are enshrined only in the Codes of Practice and do not appear in PACE. The prim e exam ples are Codes E and F. Code E, which makes provision for the tape recording of interview s, is m erely m entioned under s 60 of PACE. The video taping o f interview s, however, has only recently been introduced into PACE under s 60A and the provisions governing these procedures fall under Code of Practice F. The w ay in w hich the Codes of Practice are now produced has been substantially changed. Initially, reform s were effected through s 77 of the Crim inal Justice and Police A ct 2001, but more recently s 11 of the Crim inal Justice A ct 2003 has streamlined this process further by reducing the extent of consultation prior to any changes. O ne of several reasons for the frequent updating of the codes in recent years is the increasing effect of the Hum an Rights A ct 1998 on policing in this country (see Chapter 8).

Powers of stop and search under PACE U nder s 1 of PACE, if a constable has reasonable grounds for suspecting that stolen or prohibited articles are being carried, that police officer may stop, detain and search persons or vehicles (including anything or anyone in the vehicle or anything on it), and seize such item s if found (see A ppendix 5). This power may be exercised in any public place. It should be noted that if persons within a vehicle are searched, there

3

Home Office, Police and Criminal Evidence Act 1984 (s 60(l)(a) and s 66(1)): Codes of Practice A -E (revised edn, London: The Stationery Office, 2003).

30

An Introduction to Policing and Police Powers

must be reasonable grounds for suspecting that they are personally carrying such items in order to justify searching them. The above paragraph provides a general statement of s 1. We now have to examine the following points, namely: what constitutes 'reasonable grounds for suspecting', what is the definition of stolen or prohibited articles and what is a public place?

R easonable grounds for suspecting (or reasonable suspicion) The term 'reasonable grounds for suspecting' is mentioned in PACE under a number of provisions and not just s 1, but this statute does not define its meaning. Therefore, we have to examine a variety of sources in order to ascertain both its definition and how it should be applied. To begin with, the question of reasonable suspicion is tested objectively, meaning: '... facts and circumstances which would lead an impartial third party to form the belief or suspicion in question.'4 One of the main complaints from particularly young people in the areas affected by the inner city riots of 1981, especially those from the ethnic community, was that the police had arbitrarily or randomly exercised their stop and search powers simply by virtue of the fact that those persons were on the street. In some cases, the police were alleged to have made statements that they merely had a feeling that those suspects were generally 'up to no good'. The latter constitutes a purely subjective approach to suspicion, which is forbidden under PACE and the Codes of Practice. Guidance as to what constitutes the objective test of suspicion is given in Code A, in paras 2.2-2.11 (searches requiring reasonable grounds fo r suspicion),5 which state: 2.2 Reasonable grounds for suspicion depend on the circumstances in each case. There must be an objective basis for that suspicion based on facts, information, a n d /o r intelligence which are relevant to the likelihood of finding an article of a certain kind or, in the case o f search es under section 43 o f the Terrorism A ct 2000, to the lik e lih o o d that the p erson is a te rro rist. R e aso n ab le su sp icio n can n ev er be su p p o rted on the basis o f person al facto rs alone w ith o u t reliab le su p p orting intelligence or information or som e specific behaviour by the person concerned. For example, a person's race, age, appearance, or the fact that the person is known to have a previous conviction, cannot be used alone or in com bination with each other as the reason for searching that person. Reasonable suspicion cannot be based on generalisations or stereotypical images of certain groups or categories of people as more likely to be involved in criminal activity. 2.3 R e a so n a b le s u sp ic io n can so m e tim e s e x ist w ith o u t s p e c ific in fo rm a tio n or intelligence and on the basis of som e level of generalisation stem m ing from the behaviour of a person. For exam ple, if an officer encounters som eone on the street at

4 5

C lark, D, Bevan and Lidstone's The Investigation o f Crim e: A G uide to the Lazv o f Crim inal Investigation (3rd edn, London: Butterworths, 2004). The upshot of these provisions is that, norm ally, the police cannot ju stify stopping and searching a person just because of his or her appearance. However, the situation may be different where the police receive reliable information or intelligence that a group or gang habitually and unlawfully carries knives, weapons or controlled drugs, and membership of it is denoted by the wearing of distinctive clothing or other means of identification. This may still constitute an objective ground for suspecting that a person wearing such identification may be carrying such items unlawfully (see Code 2.6).

Chapter 2: Police Powers of Stop and Search

night who is obviously trying to hide something, the officer may (depending on the other surrounding circumstances) base such suspicion on the fact that this kind of behaviour is often linked to stolen or prohibited articles being carried. Similarly, for the purposes of section 43 of the Terrorism Act 2000, suspicion that a person is a terrorist may arise from the person's behaviour at or near a location which has been identified as a potential target for terrorists. 2.4 However, reasonable suspicion should normally be linked to accurate and current intelligence or information, such as information describing an article being carried, a suspected offender, or a person who has been seen carrying a type of article known to have been stolen recently from premises in the area. Searches based on accuratc and current intelligence or inform ation are more likely to be effective. Targeting searches in a particular area at specified crime problems increases their effectiveness and minimises inconvenience to law-abiding members of the public. It also helps in justifying the use of searches both to those w ho are searched and to the general public. This does not however prevent stop and search powers being exercised in other locations where such pow ers m ay be exercised and reasonable suspicion exists. 2.5 Searches are more likely to be effective, legitim ate, and secure public confidence when reasonable suspicion is based on a range of factors. The overall use of these powers is more likely to be effective when up to date and accurate intelligence or inform ation is com m unicated to officers and they are w ell-inform ed about local crime patterns. 2.6 Where there is reliable information or intelligence that members of a group or gang habitually carry knives unlaw fully or w eapons or controlled drugs, and w ear a d istin ctiv e item of clo th in g or oth er m ean s o f id en tificatio n to in d icate their membership of the group or gang, that distinctive item of clothing or other means of identification m ay provide reasonable grounds to stop and search a person [see Note 9]. 2.7 A police officer may have reasonable grounds to suspect that a person is in innocent possession of a stolen or prohibited article or other item for w hich he or she is empowered to search. In that case the officer may stop and search the person even though there would be no power of arrest. 2.8 U nder section 43(1) of the Terrorism A ct 2000 a constable m ay stop and search a person whom the officer reasonably suspects to be a terrorist to discover whether the person is in possession of anything w hich may constitute evidence that the person is a terrorist. These searches may only be carried out by an officer of the sam e sex as the person searched. 2.9 An o fficer w ho has reaso n ab le gro u nd s for su sp icion m ay d etain the person concerned in order to carry out a search. Before carrying out a search the officer m ay ask questions about the p erson's behaviour or presence in circum stances w hich gave rise to the suspicion. As a result o f question in g the detained person, the reasonable grounds for suspicion necessary to detain that person may be confirmed or, b e cau se o f a sa tisfa cto ry e x p la n a tio n , b e e lim in ated [see N o tes 2 and 3]. Q uestioning m ay also reveal reasonable grounds to suspect the possession of a d ifferen t kind o f u n law fu l article from that o rig in ally su sp ected . R easo n ab le grou nd s fo r su sp icio n , how ever, can n ot be p ro v id ed retro sp ectiv ely by such questioning during a person's detention or by refusal to answer any questions put.

31

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2.10 If, as a result of questioning before a search, or other circumstances which come to the attention of the officer, there ceases to be reasonable grounds for suspecting that an article is being carried of a kind for which there is a power to stop and search, no search may take place [sec Note 3]. In the absence of any other lawful power to detain, the person is free to leave at will and must be so informed. 2.11 There is no power to stop or detain a person in order to find grounds for a search. Police officers have many encounters with members of the public which do not involve detaining people against their will. If reasonable grounds for suspicion emerge during such an encounter, the officer may search the person even though no grounds existed when the encounter began. In an officer is detaining someone for the purpose of a search, he or she should inform the person as soon as detention begins.

The issu e o f reason ab le su sp icio n has been su bject to ju d icial in terp retatio n in a num ber of cases, which include the following. In Black v DPP (1995), the police entered prem ises belonging to the defendant's brother in accordance w ith a search warrant under the M isuse of Drugs Act 1971. W hile the search w as in progress, the defendant arrived, carrying a bag and was suspected by the police of attending the prem ises in order to buy or sell drugs. The police wished to search the defendant and asked him to enter the prem ises for this purpose, but he becam e aggressive, threw the bag down and then attem pted to leave the prem ises. He w as charged and later convicted of obstruction under s 23(4)(a) of the 1971 Act. The Divisional Court held that a person m erely arriving at the address of a know n drug dealer did not am ount to conduct w hich con stituted reasonable ground s for su sp ecting that person o f p o ssessing a controlled drug and that the defendant's behaviour after he w as detained could not retrospectively provide such grounds. The defendant's conviction was quashed. In Sam uels v Com m issioner o f Police fo r the M etropolis (1999), S sued the police for dam ages under w hat m ay generally be term ed unlaw ful detention. Earlier, he had been acquitted of the charge of assault on police. S w as stopped by a police officer w hilst w alking hom e and w as asked w here he w as going. S did n o t venture any significant inform ation and stated that he had the right to go where he wanted. He then continued his journey but, w hen he w as nearly hom e, the police officer stated that he wished to search S, because he suspected him of being in possession of a prohibited article. The officer later gave evidence that he thought S m ay have been carrying a screw driver and his manner of walking was suspicious. It w as ruled by the trial judge that the stop and search of S w as based on reasonable grounds. The Court of Appeal, how ever, had to con sid er w hether that suspicion w as reasonable. In allow ing the appeal, the court held that if the police officer did not have the prerequisite reasonable suspicion before he approached S, then the conduct of S im m ediately afterwards could not transform an unreasonable suspicion into one which was reasonable. The issue of reasonable suspicion was also considered in O ’Hara v C hief Constable o f the RUC (1997), although this w as in the context of police powers of arrest and is therefore discussed in Chapter 3. It is im portant to note that a police officer does not have the pow er to stop a person again st th eir w ill in ord er to estab lish any ground s for su sp icion ; neith er m ay a person's refusal to answer questions constitute reasonable suspicion. In Rice v Connolly (1966), it was held that citizens are under no general legal duty to answ er questions put to them by the police. However, such refusal may reinforce a police officer's existing

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suspicion, but this m ay not singularly justify stopping and detaining a person. The essence of reasonable suspicion, within the context of PACE, is that there must be a tangible and positive condition present to justify the use of police pow ers of stop and search under s 1. U nder other legislation, nam ely s 60 of the Crim inal Justice and Public Order Act 1994 (as amended) and s 44 of the Terrorism A ct 2000, a num ber of stop and search p o w ers h av e b e e n co n fe rre d up on the p o lice w h ich do n o t req u ire re a so n a b le s u sp ic io n as a p re re q u is ite fo r th e se p o w e rs to be e x e rc ise d . T h e se im p o rta n t d ev elo p m en ts w ill b e d iscu ssed later in this chapter, to g eth er w ith m ore recent provisions under s 60AA of the Crim inal Justice and Public Order A ct 1994. A nother im p ortan t term used frequ en tly in PACE is 'reaso n ab le grou nd s for believing'. W hat is the difference between reasonable grounds to believe and reasonable grounds to suspect? First, a m uch higher criteria is set w hen the exercise of certain police powers require reasonable belief, rather than suspicion. This is because m any of the pow ers requiring reasonable belief generally im pose a greater restriction on the liberty of those against whom they are being used. Belief is therefore much closer to certainty than suspicion: If, therefore, there are 10 steps from mere suspicion to a state of certainty, or an acceptance that something is true, then reasonable suspicion may be as low as step two or three, whilst reasonable belief may be as high as step nine.6

Secondly, it has been propounded that m any of the pow ers under PACE that require re a s o n a b le b e lie f are o fte n e x e rc ise d fo llo w in g d e c is io n s m ad e as a re s u lt o f consultation and reflection, whereas many pow ers requiring reasonable suspicion are often made in street situations, requiring quick, if not instant, decisions.7

Stolen and prohibited articles The d efin ition o f stolen articles not only in clu d es p rop erty actu ally stolen by the suspect, but also property being dishonestly handled by him or her. In effect, any property dishonestly obtained falls within the scope of s 1, w hether or not obtained in this country.8 Prohibited articles fall under two m ain categories, nam ely offensive weapons as well as certain other dangerous instrum ents, and articles for use in theft, cheat or criminal damage. The definition of offensive weapons is best explained by referring to the three main classes of articles w hich fall under this heading. First, there are item s which are made specifically for the purpose of inflicting physical harm , such as bayonets and knuckledusters. Secondly, there are w eapons w hich have been adapted in order to cause injury, where an ordinary object has been transform ed into som ething capable of achieving this purpose. Exam ples include a broom handle w ith a nail or spike driven through it or a metal com b being sharpened at one end to produce a razor-sharp edge. Finally, there is the third category of offensive w eapons, w hich are neither made nor adapted, but are sim ply intended to be used to cause injury. Such item s are ordinary

6 7 8

Op cit, Clark, fn 4. Op cit, Clark, fn 4. Op cit, Clark, fn 4.

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objects, which are intended to cause physical harm, even though they have not had their substance or form altered. Exam ples include bunches of keys, belts and w alking sticks.9 In summary, offensive w eapons may either be made, adapted or may fall into neither category but m ay be intended to be used as a weapon. H av in g an o ffe n siv e w eap o n in a p u b lic p lace, w ith o u t law fu l au th o rity or reasonable excuse, is an offence under s 1 of the Prevention of Crim e A ct 1953. The m eaning of 'public place' is defined below, but the interpretation of the terms 'law ful authority' and 'reasonable excuse' will now be discussed. Law ful authority sim ply includes certain classes of persons who are allowed to carry w hat would otherwise be regarded as offensive w eapons, bu t for their professional duty. This inclu des the carrying of axes by firefighters and batons by police officers. The defence of reasonable excuse covers a variety of situations where the circum stances under which a person c a r r ie s an o ffe n s iv e w e a p o n n e g a te s a n y in te n tio n to c a u s e h a rm . S in c e the introduction of s 1 of the Prevention of Crim e A ct 1953, there has been a considerable build up of case law in an endeavour to clarify w hat constitutes 'reasonable excuse'. These cases indicate that the courts interpret this term very narrowly in order to, inter alia, deter citizens taking the law into their ow n hands. For exam ple, in Houghton v C hief Constable o f Greater M anchester (1987), it w as held that carrying a police truncheon only to authenticate a police uniform being worn on the w ay to or from a fancy dress party fell w ithin the definition of reasonable excuse. However, in R v Peacock (1973), the court warned that where a w eapon w as being carried for self-defence purposes, generally, only those fearing im m ediate attack would be able to rely on the defence of reasonable excuse. This obviates those w ho carry offensive w eapons in response to a general or w idespread fear of being attacked, such as people carrying knives while w alking the streets, because of a high number of muggings in their neighbourhood, or taxi d riv e rs c a rry in g co sh e s in th eir cab s, b e ca u se o f co lle a g u e s b e in g ro bb ed . However, in Evans v Hughes (1972), it was held that the carrying of a weapon a w'eek after an attack could constitute a reasonable excuse.10 The above provisions have been augmented by s 139 of the Crim inal Justice Act 1988, which created the offence of having articles with blades or sharp points in public places w ithout lawful authority or reasonable excuse. In effect, this extended the law regarding possession of offensive w eapons, although it does not apply to folding pocket knives with a blade less than three inches in length when exposed. Blades and sharp points prohibited under s 139 are also included under the heading of prohibited articles for the purposes of s 1 of PACE. The second m eaning o f the term 'prohibited articles' applies to articles m ade, adapted to be used or intended to be used in burglary, theft, taking a m otor vehicle w ith o u t co n se n t, o b ta in in g p ro p erty by d ec e p tio n , or d estro y in g o r d am ag in g property. These have included a variety of objects such as housebreaking im plem ents, jem m ies, screw drivers and skeleton keys, although it has also included less obvious item s such as gloves, adhesive tape (to muffle the sound of breaking glass) and credit cards (to open locks as w ell as to com m it offences of deception). The inclusion of objects used to destroy or dam age property is a more recent addition through s 1(2) of

9 Jason-Lloyd, L, 'The Offensive Weapons Act 1996 - an overview' (1996) 160 JP 931. 10 Ibid.

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the C rim inal Justice A ct 2003 that am ended s 1(8) of PACE accordingly. A lthough crim inal dam age covers a wide variety of vandalism, one of the m ain purposes behind this recent inclusion is to com bat graffiti.

Definition of 'public place' U nder s 1(1) of PACE, police pow ers of stop and search may be exercised as follows: (a) in any place to which, at the time when he proposes to exercise the power, the public or any section of the public has access, on payment or otherwise, as of right or by virtue of express or implied permission; or (b) in any other place to which people have ready access at the time when he proposes to exercise the power, but which is not a dwelling.

The above gen erally inclu d es the streets, parks and garage fo recou rts, as w ell as museum s, cinem as, superm arkets, football grounds and public houses. It has also been subscribed that any open ground or fenced land with an open gate, or even a building w hich is not a d w ellin g , w ith an un lo cked , un atten ded door, can fall un der the description of a public place. In effect, these are places w here ready access can be gained rather than right of access although, ultimately, it is for the courts to decide in such cases.11 However, this does not include schools and universities.12 It was largely because of the exclusion of schools from the ambit of public places that the Offensive W eapons A ct 1996 w as enacted, in order to give the police pow ers to search such places and persons in them for offensive weapons and knives (see the coverage of the 1996 Act in Chapter 4). It has been generally mentioned above that police stop and search powers under s 1 of PACE m ay not be exercised in a dwelling. This includes persons or vehicles in any garden, yard, land or building which constitutes a dwelling, unless the police have reasonable cause to believe13 that the person or individual in charge of the vehicle does not reside there, and that the resident has not given his or her express or im plied perm ission for the person or the vehicle to be there; in other words, being or driving there w ithout the resident's consent. This is designed to prevent suspects random ly fleeing into a p erso n 's resid ence or d rivin g into a garden or yard b elon ging to a residence, in order to avoid being searched.

Definition of a 'vehicle' Som e obvious, and even am using, definitions have arisen as to w hat constitutes a vehicle for the purposes of police stop and search powers. The most well known are motor vehicles such as cars, vans, lorries, coaches, buses and motorcycles. As a result of case law, 'vehicles' have also included aircraft, hovercraft, ships, boats, rafts, trams, bicycles, horse-drawn carts, handcarts and trailers. The definition has even included

11

Levenson, H, Fairweather, F and Cape, E, Police Poivers: A Practitioner's Guide (London: Legal Action Group, 1996). 12 Zander, M, The Police and Criminal Evidence Act 1984 (4th edn, London: Sweet & Maxwell, 2003). 13 See the discussion above regarding the difference between reasonable suspicion and reasonable belief.

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peram bu lato rs and an em pty po u ltry shed draw n by a tracto r!14 In essen ce, it is assumed that a vehicle would be known when one saw it.

SEARCH PROCEDURE The conduct of a search under PACE is governed by ss 2 and 3, as well as paras 2, 3 and 4 of C ode A. As far as persons are concerned, the first step is to stop that person or the vehicle in which he or she is being carried. The second stage is to detain him or her. It does not always follow that a search is then made because, according to para 2.9 of Code A already mentioned earlier: An officer who has reasonable grounds for suspicion may detain the person concerned in order to carry out a search. Before carrying out a search the officer may ask questions about the person's behaviour or presence in circumstances which gave rise to the suspicion. As a result of questioning the detained person, the reasonable grounds for suspicion necessary to detain that person may be confirmed or, because of a satisfactory explanation, be eliminated [see Notes 2 and 3J. Questioning may also reveal reasonable grounds to suspect the possession of a different kind of unlawful article from that originally suspected. Reasonable grounds for suspicion, however, cannot be provided retrospectively by such questioning during a person's detention or by refusal to answer any questions put.

In other words, if the suspect has been stopped and detained, the procedure may be aborted at any stage if it subsequently com es to light that a search is unnecessary. U nder para 2.9 of the Code, this will often occur as a result of satisfactory answ ers being given as to the suspect's conduct, which gave rise to the police officer's initial suspicion. However, it goes on to warn that reasonable grounds for suspicion cannot be retrospectively provided by such questioning or refusal to answer any questions at all. The pow er to abort the procedure where a search becom es unnecessary is to be found under s 2(1) of PACE and the duty to inform the suspect accordingly exists under para 2.10 o f Code A mentioned earlier, as follows (see also A ppendix 5): If, as a result of questioning before a search, or other circumstances which come to the attention of the officer, there cease to be reasonable grounds for suspecting that an article is being carried of a kind for which there is a power to stop and search, no search may take place [see Note 3]. In the absence of any other lawful power to detain, the person is free to leave at will and must be so informed.

SEARCHING OF PERSONS Follow ing the stopping and subsequent detention of a person on foot or in a vehicle, if the police officer still contem plates a search, then, under s 2(2) of PACE, it is the duty of that officer to do the following: (1) if the p o lice o fficer is n ot in u n ifo rm , he or she m u st p rod u ce d o cu m en tary evidence (usually a warrant card), confirm ing their status as a police officer; or

14

Op cit, Clark, fn 4.

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(2) even if the police officer is in uniform (which must be the case if a moving vehicle is stopped), that officer must then state the following to the suspect (s 2(3)): (a) the police o fficer's nam e and station to which attached (in cases linked to terrorism, for personal safety reasons, the police officer does not have to give his or her name, but their number instead); (b) the object of the proposed search; (c) the grounds for making the search; (d) that the person is entitled to a record of the search if applied for within a year following the incident. However, para 4.2 of Code A stipulates that if a record is made at the time, this must be given immediately to the suspect. Under s 2(4), the requirem ent to m ake a record on the spot may be w aived in the c irc u m sta n c e s m e n tio n e d b elo w u n d e r 'th e co m p le tio n o f th e sea rch procedure'. Any search which then follow s must be conducted strictly in accordance with the provisions under s 2(9)(a) of PACE and para 3 of Code A, augmented by Annex A to Code C. Under s 2(9)(a), a suspect must not be required to remove any clothing in public other than an outer coat, jacket or gloves.15 Paragraph 3 of the Code gives essential guidance as follows: 3.1 All stops and searches must be carried out with courtesy, consideration and respect for the person concerned. This has a significant impact on public confidence in the police. Every reasonable effort must be made to minimise the embarrassment that a person being searched may experience [see Note 4). 3.2 The co-operation of the person to be searched must be sought in every case, even if the person initially objects to the search. A forcible search may be made only if it has been established that the person is unwilling to co-operate or resists. Reasonable force may be used as a last resort if necessary to conduct a search or to detain a person or vehicle for the purposes of a search. 3.3 T h e le n g th o f tim e for w h ich a p erso n or v e h icle m ay be d etain ed m u st be reasonable and kept to a m inim um . W here the exercise of the pow er requires reasonable suspicion, the thoroughness and extent of a search must depend on what is suspected of being carried, and by whom. If the suspicion relates to a particular article w hich is seen to be slipped into a person's pocket, then, in the absence of other grounds for suspicion or an opportunity for the article to be moved elsewhere, the search must be confined to that pocket. In the case of a small article which can readily be concealed, such as a drug, and which might be concealed anywhere on the p erson, a m ore extensive search may be necessary. In the case of searches m en tioned in p arag rap h 2.1(b ), (c), and (d ), w hich do n o t requ ire reaso nable grounds for suspicion, officers may make any reasonable search to look for items for which they arc empowered to search [see N ote 5]. 3.4 The search must be carried out at or near the place where the person or vehicle was first detained [see Note 6].

15

However, Note for G uidance 7 under Code A states: '... A lthough there is no pow er to require a person to do so, there is nothing to prevent an officer from asking a person to voluntarily remove more than an outer coat, jacket or gloves (and headgear or footwear under section 45(3) of the Terrorism Act 2000) in public.'

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3.5 There is no power to require a person to remove any clothing in public other than an outer coat, jacket or gloves except under section 45(3) of the Terrorism Act 2000 (which em powers a constable conducting a search under section 44(1) or 44(2) of that Act to require a person to remove headgear and footwear in public) and under section 60AA of the Criminal Justice and Public Order Act 1994 (which empowers a constable to require a person to rem ove any item worn to conceal identity) [see N otes 4 and 6]. A search in p u blic o f a p e rso n 's clo thing w hich has n o t been rem oved m ust be restricted to a superficial exam ination of outer garm ents. This does not, how ever, prevent an o fficer from placing his or her hand insid e the pockets of the outer clothing, or feeling round the inside of collars, socks and shoes if this is reasonably necessary in the circum stances to look for the object of the search or to remove and examine any item reasonably suspected to be the object of the search. For the sam e reasons, subject to the restrictions on the rem oval of headgear, a person's hair may also be searched in public [see paras 3.1 and 3.3]. 3.6 Where on reasonable grounds it is considered necessary to conduct a more thorough search (eg by requiring a person to take off a T-shirt), this must be done out of public view', for example, in a police van unless paragraph 3.7 applies, or police station if there is one nearby [see N ote 6]. Any search involving the removal of more than an o uter coat, jack et, glov es, h ead gear or footw ear, or any other item con cealin g identity, may only be made by an officer of the same sex as the person searched and may not be made in the presence of anyone of the opposite sex unless the person searched specifically requests it [see Notes 4 ,7 and 8[. 3.7 Searches involving exposure of intimate parts of the body must not be conducted as a routine extension of a less thorough search, simply because nothing is found in the course of the initial search. Searches involving exposure of intim ate parts of the body may be carried out only at a nearby police station or other nearby location w'hich is out of pu blic view' (but not a police vehicle). These search es m ust be conducted in accordance with paragraph 11 of Annex A to Code C cxcept that an intim ate search mentioned in paragraph 11(f) of Annex A to Code C may not be authorised or carried out under any stop and search pow'ers. The other provisions of Code C do not apply to the conduct and recording of searches of persons detained at police stations in the exercise of stop and search powers [see Note 7],

Strip sea rch e s Under para 10 of Annex A to Code C, the justifications for making strip searches are as follows: 10

A strip search may take place only if it is considered necessary to remove an article which a detainee w'ould not be allowed to keep, and the officer reasonably considers that the detainee might have concealed such an article. Strip searches shall not be routinely carried out where there is no reason to consider that articles have been concealed.

Where a strip search is necessary and involves the exposure of intimate parts of the body, the following rules under para 11 of Annex A to Code C will apply: 11

When strip searches are conducted: (a) a police officer carrying out a strip search m ust be the sam e sex as the detainee;

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(b) the search shall take place in an area w here the detainee cannot be seen by anyone who does not need to be present, nor by a member of the opposite sex e x ce p t an a p p ro p ria te ad u lt w ho has b een sp e cific a lly req u ested by the detainee; [See Chapter 6 for the definition of 'appropriate adult'.] (c) except in cases of urgency, where there is a risk of serious harm to the detainee or to others, whenever a strip search involves exposure of intimate body parts, there must be at least two people present other than the detainee, and if the sea rch is o f a ju v e n ile or a m e n ta lly d iso rd ere d or o th e rw ise m e n ta lly vulnerable person, one of the people must be the appropriate adult. Except in urgent cases as above, a search of a juvenile may take place in the absence of the appropriate adult only if the juvenile signifies in the presence of the appropriate adult that they do not want the adult to be present during the search and the adult agrees. A record shall be made of the juvenile's decision and signed by the ap p rop riate ad u lt. The p resen ce o f m ore than tw o p eop le, o th er than an a p p r o p r ia te a d u lt, s h a ll be p e rm itte d o n ly in the m o st e x c e p tio n a l circumstances; (d) the search sh all be con d u cted w ith p ro p er reg ard to the sen sitiv ity and vulnerability of the detainee in these circumstances and every reasonable effort shall be made to secure the person's co-operation and minimise embarrassment. Detainees w ho are searched should not normally be required to have all their clothes removed at the same time, eg a person should be allow'ed to remove clothing above the waist and redress before removing further clothing; (e) if necessary, to assist the search, the detainee may be required to hold their arms in the air or to stand with their legs apart and to bend forward, so a visual exam in ation m ay be m ade of the gen ital and anal areas provided that no physical contact is m ade with any body orifice; (f)

if articles are found, the detainee shall be asked to hand them over. If articles are found within any body orifice other than the mouth, and the person refuses to hand them over, their removal would constitute an intimate search, which must be carried out as in Part A;

(g) a strip search shall be condu cted as quickly as possible, and the d etainee allowed to dress as soon as the procedure is complete.

Where a strip search is carried out, a record shall be made which must include the reason for it, those present during the search and any result accruing from it.

In tim a te sea rch e s It should be emphasised that a strip search is distinct from an intimate search, the latter being more intrusive, since it involves the searching and exam ination of the body orifices except the mouth. Intimate searches can only take place at a police station or in medical premises following an arrest and where certain items may be concealed in a p erso n 's bod y; therefore, this su bject is covered in C hap ter 5. T he above rules regarding strip searches also apply to persons who have been detained by the police following an arrest and are also applicable to Chapter 5.

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V E H IC L E S

Moving vehicles U nder s 2(9)(b), only a police officer in uniform m ay stop a m oving vehicle. With regard to m otor vehicles, this, inter alia, has a practical application, since a plain clothes o ffic e r w o u ld be in d is tin g u is h a b le fro m any o th e r c itiz e n and d riv e rs o f su ch conveyances would be unlikely to stop. Section 2(9)(b), however, does not prevent a vehicle being searched by a non-uniformed police officer once it has already stopped or is parked unattended. There is a general pow er for uniformed police officers to stop m otor vehicles under s 163 of the Road Traffic A ct 1988 and, once a vehicle has been stopped, the pow ers of s 1 of PACE can then be applied. It should be noted that if reasonable suspicion is focused on som ething w hich the vehicle may be carrying, the pow er to search should be confined to the vehicle and anything in or on it. This should not extend to anyone in the vehicle, unless they are reasonably suspected of carrying s to le n o r p ro h ib ite d a rtic le s th e m se lv e s. T h is b e in g the c a se , the sam e search procedures mentioned above will apply as they do to persons who are not in vehicles. W hether or not just the vehicle is searched, the person in charge of the vehicle (usually the driver) should also be given the sam e information as persons w ho are about to be searched namely, the officer's nam e and station, the grounds and object of the search and the availability of a record of the search if applied for within a year, or an on the spot record (su bject to the excep tio n s m en tioned below ). A part from the ov erall requirem ent under C od e A that any search should be con du cted w ith reasonable expedition (para 3.3), it w as held in Lodwick v Saunders (1985) that a police officer is entitled to detain a vehicle for a reasonable time in order to carry out the necessary procedures, so as to make an arrest if the vehicle is suspected of being stolen.

Unattended vehicles Unattended vehicles may be searched but, since the person in charge of it will not be present, it is, of course, not possible for the police to convey to that person the nam e of the officer conducting the search, his or her station to which attached and the grounds and object of the search. In such circum stances, s 2(6) of PACE states that, if possible, a notice should be left inside or on the vehicle, in w hich the officer should identify him or herself and the station to which attached and inform ation that the vehicle has been search ed . T here should also be m en tion that an ap p lication for com p en satio n in respect of any dam age caused by the search may be made and to where it should be directed, and that the person in charge of the vehicle is entitled to a record of the search (s 3(8) and (9) of PACE and para 4.9 of C ode A). U nder para 4.10 of C ode A, the vehicle must, if practicable, be left secure.

Road blocks For a num ber of years, the police have had pow ers under both the com m on law and statute to stop vehicles, including the use o f road blocks. The most frequently used is s 163 of the Road Traffic Act 1988, which gives a constable in uniform the pow er to stop any vehicle for a variety of reasons, although this is often confined to road traffic m atters, such as the need to check on driving d ocum ents or the v eh icle's general roadworthiness. More specifically, s 4 of PACE enables the police to conduct such a

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p roced u re in ord er to carry out road ch eck s u sing the p o w er u n d er s 163 if the following conditions exist: where a serious arrestable offence is reasonably believed to have been or is likely to be com mitted and there are reasonable grounds for suspecting that the culprit is or will be in the area (the definition of a serious arrestable offence can b e foun d in C h a p te r 3); w h ere th ere are re aso n ab le g ro u n d s fo r b e lie v in g that w itn esses to a serio u s a rrestab le o ffen ce are lik ely to be traced ; and w here it is reasonably suspected that a person unlaw fully at large is or about to be in the area. The authorisation of road checks must be made in writing by a police officer of at least the rank of superintendent and such authority lasts for up to seven days, but can be renewed, where appropriate, although not for periods exceeding seven days. Every written authorisation shall specify the nam e of the officer giving it, the purpose of the road check and the locality in which the vehicles are to be stopped. In an emergency, a police officer below that rank may m ake such an authorisation, but is under a duty to make a written record of the time at which it is given and to inform an officer of at least the rank of superintendent that it has been given as soon as is practicable. That officer may then either continue or discontinue the road check. Persons in charge of vehicles stopped in the course of road checks are entitled to a w ritten statem ent of the purpose of the check. Section 49 of the Police Reform Act 2002 has amended s 163 of the Road Traffic Act 1988, and now confers a pow er of arrest on the police regarding those w ho com m it the offence of failing to stop a vehicle (whether in the course of a road block or for other purposes). Section 49 has also amended s 17 of PACE so that the police m ay enter and search p rem ises w ithou t w arrant in ord er to arrest a p erson for this offence (see Chapter 4). The police also have pow ers under the com m on law to stop vehicles. In Moss v M cLachlan (1985), it w as held that the police had acted law fully in setting up road blo ck s and turning vehicles away, in ord er to p rev ent a breach o f the p eace (see Chapter 3). This case was decided in the wake of the miners' strike during the winter of 1984-85, where the police stopped pickets travelling to a colliery w hose purpose w as to reinforce the strength o f pickets already there. Such places were often the scenes o f violent confrontations betw een the police and strikin g m iners and, therefore, a breach of the peace w as apprehended.

FURTHER SEARCH PROCEDURES The use of force Section 117 of PACE states: Where any provision of this Act: (a) confers a power on a constable; and (b) does not provide that the power may only be exercised with the consent of some person, other than a police officer, the officer may use reasonable force, if necessary, in the exercise of the power.

This means that, if necessary, a person may be forcibly searched, although the degree of force used must always be reasonable in all the circumstances. Section 117 applies to all coercive powers under PACE, including the power to make arrests (see Chapter 3).

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The issue of what constitutes reasonable force is decided on its ow n m erits, although som e guidance has been derived from a build-up of case law discussed in Chapters 1 and 8.

The completion of the search procedure A ny stolen or prohibited article found in the course of a search under s 1 may be seized (s 1(6)) and an arrest usually follows (see Chapter 3). In any event, under s 3(1), the police officer must make a written record of the search, unless it is impracticable to do so. The latter will include instances where a large num ber of persons have been searched in a short space of tim e, such as at a m ajor sporting event. This may also apply in situations involving public disorder or where the officer has been called away u rgen tly (para 4.1 o f C od e A ). W h erev er p o ssib le, the record should be w ritten contem poraneously with the incident, and given im m ediately to the suspect (para 4.2); if this is not practicable, the record should be com pleted as soon as possible afterwards (s 3(2) of PACE and para 4.1). U nder s 3(3), the police officer m ust include the suspect's nam e in the record if known, but there is no com pulsion for his or her nam e to be given and, therefore, the su sp ect m ust not be d etained for this pu rpose. Failure to obtain the nam e of the suspect must be substituted by a description of him or her (s 3(4)) and, under s 3(5), a description of any vehicle searched m ust also be included. Paragraphs 4.2-4.4 of Code A state that a suspect's date of birth should also be sought in addition to his or her nam e and that the following inform ation m ust also be recorded, even if som e of the details are not forthcoming: a description of the suspect if the nam e is w ithheld; a note o f the p erso n 's self-d efin ed ethnic o rigin; the reg istration nu m ber o f any vehicle searched; the grounds (or authorisation) and purpose of the search; the date, time and place of the search; the results of the search; any injury or dam age to property resulting from it; and, finally, the police officer's identity and duty station, except in cases linked to terrorism, where, usually, the officer's warrant num ber is recorded instead of his or her nam e. This m ay include other circu m stan ces w here police officers reasonably believe that recording nam es m ight endanger them selves (para 4.4 of Code A). U nder s 3(7)—(9) of PACE, any person searched or the ow ner or person in charge of any vehicle searched may obtain a copy of any record made w ithin 12 months of the in cid en t. H ow ever, as m en tio n ed abo v e, p aras 4.1 and 4.2 o f C o d e A state that w herever possible, a record should be made at the time and given im m ediately to the suspect. If a person is stopped where initially there was reasonable suspicion, but as a result of questioning is not searched, para 4.7 of Code A requires the police to make a record of the incident.

Informal police procedures Up until 1 April 2003, the police were not strictly bound to resort to their substantive pow ers of stop and search in every instance. The following notes for guidance under the ea r lie r C o d e A m ad e it v ery c le a r th a t le ss fo rm al p o lic e p ro c e d u re s w ere perm issible at that time, but subject to certain safeguards: ID Nothing in this Code affects: (b) the ability of an officer to search a person in the street with his consent where no search power exists. In these circumstances, an officer should always make it

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clear that he is seeking the consent of the person concerned to the search being carried out by telling the person that he need not consent and that, without his consent, he will not be searched. IE If an officer acts in an im proper manner, this w ill invalidate a voluntary search. Juveniles, people suffering from a mental handicap or mental disorder and others w ho appear not to be capable of giving an informed consent should not be subject to a voluntary search.

There were some misgivings regarding the use of voluntary or consensual searches by the police. It had been pointed out, inter alia, that a person who provided such consent was not covered by the procedural safeguards that applied in the case of searches under s 1 of PACE. There were also some suggestions that even where a substantive pow er to search did exist, the police would still try and obtain the consent of the s u s p e c t in o rd e r to a v o id 'th e p ro c e d u ra l b u rd en s o f a s ta tu to ry s e a r c h ', notwithstanding the Note for Guidance under Note lD (b) stated above.16 This has now changed as a result of para 1.5 of the new Code A, which states as follows: An officer must not search a person, even with his or her consent, where no power to search is applicable. Even where a person is prepared to submit to a search voluntarily, the person must not be searched unless the necessary legal power exists, and the search must be in accordance with the relevant power and the provisions of this Code. The only exception, w here an officer does not require a specific power, applies to searches of persons entering sports grounds or other premises carried out with their consent given as a condition of entry.

Voluntary or consensual searches have therefore been com pletely banned, except where a person consents to a search as a condition of entry to premises such as places where certain sporting events are held. It is still quite common for the police to speak to or even question people on a general basis in the course of everyday patrol duties, and this can sometimes even be used as an informal and subtle means to confirm or repudiate any form of suspicion, rather than resort to the more authoritarian use of substantive powers. This is made clear by para 1 under the Notes for Guidance in Code A, which states: This Code does not affect the ability of an officer to speak to or question a person in the ordinary course of the officer's duties without detaining the person or exercising any elem ent of com pulsion. It is not the purpose of the code to prohibit such encounters between the police and the com munity with the co-operation of the person concerned and neither does it affect the principle that all citizens have a duty to help police officers to prevent crim e and discover offenders. This is a civic rather than a legal duty; but when a police officer is trying to discover whether, or by whom, an offence has been committed he or she may question any person from whom useful information might be obtained, subject to the restrictions imposed by Code C. A person's unwillingness to reply does not alter this entitlement, but in the absence of a pow'er to arrest, or to detain in order to search, the person is free to leave at will and cannot be compelled to remain with the officer.17

16 Op cit, Clark, fn 4. 17 The following provisions under para 2.11 of Code A should be borne in mind regarding informal encounters with the police: 'There is no pow'er to stop or detain a person in order to find grounds for a search. Police officers have many encounters with members of the public which do not involve detaining people against their will. If reasonable grounds for suspicion emerge during such an encounter, the officer may search the person, even though no grounds existed when the encounter began. If an officer is detaining someone for the purpose of a search, he or she should inform the person as soon as detention begins.'

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As mentioned above, under the section dealing with reasonable suspicion, there is no general legal duty for citizens to answer questions put to them by the police.18 This was held in Rice v Connolly (1966), where two police officers approached a man in the street and asked him questions regarding his m ovem ents that night. He gave an incom plete answer and walked away. His conviction for wilfully obstructing police w as quashed, on the grounds that w hilst there w as a moral obligation to assist the police, he was under no legal obligation to answ er their questions. This is in contrast to Ricketts v Cox (1982), where, in a sim ilar scenario, the suspect was asked questions by the police, but he responded with hostility and abuse instead of passive silence, and his conviction for wilfully obstructing police was subsequently upheld. A num ber of cases have been decided w hich confirm that unless the police have a specific power to detain a person (such as under s 1 of PACE or where they have made an arrest), they will be acting outside the scope of their pow ers if they restrict a person's liberty. In Kenlin v Gardiner (1 9 6 7 ), a y o u th in co m p a n y w ith a n o th e r atte m p te d to ru n aw ay w h en b e in g questioned by the police He was restrained and a police officer was assaulted in the ensuing scuffle. Both youths were convicted of assault on police, but their convictions w ere quashed, on the grounds that the police had unlaw fully detained the youth; therefore, the police officer was not acting in the course of his duty. In Collins v Wilcock (1984), a woman police officer spoke to another female in the street who was suspected of soliciting for prostitution. The suspect walked away when questioned and the police officer took her by the arm in order to com pel her to remain. The female scratched the police officer's arm and w as charged with assault on a police officer. H er conviction was quashed, on the grounds that the police officer did not have the pow er to forcibly detain the suspect in order to answ er questions and that, in scratching the officer's arm , she w as using reasonable force to free herself from w hat am ounted to false imprisonment. Also, in Bentley v Brudzinski (1982), it was held to have been unlawful where a police officer stated 'just a m inute' whilst placing his hand on the person's shoulder at the sam e time. Both this case and Collins v Wilcock illustrate the fact that where a police officer touches a person in such a manner as to indicate that officer's intention to delay or detain that person, such action will be unlaw ful.19 However, the courts have been prepared to exclude trivial interference with a person's liberty from the am bit of these cases, as in D onnelly v Jackm an (1970), where it was held that the p olice m ay take reasonable step s to attract a p e rso n 's atten tion , for in stan ce, by tapping them on the shoulder. Also, in M epstead v DPP (1996), it was held that a police officer w as not acting unlawfully by briefly holding a person's arm in order to draw his attention to another police officer, who w as talking to him to try to calm him down. This constituted the police officer acting within the execution of his duty, even though he w as not m aking an arrest at the time.

18 There are some specific provisions that impose a legal duty to answers questions, for instance, the requirement under s 169 of the Road Traffic Act 1988, where there is a legal duty for a person to provide their name and address, and also under the Criminal Justice Act 198?, where there is the requirement for answers to be given during certain investigations into serious fraud, as well as similar provisions under the Companies Act 1985. 19 Stone, R, Entry, Search and Seizure: A Guide to Civil and Criminal Powers of Entry (3rd edn, London: Sweet & Maxwell, 1997).

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P o lice /p u b lic e n co u n te rs T h e d is tin c tio n b e tw e e n th e v a rio u s e n c o u n te r s th a t th e p o lic e m a y h a v e w ith the p u b lic h a s b e e n so m e w h a t b lu rre d b y th e in tro d u c tio n o f p a ra s 4 .1 1 -4 .2 0 20 o f C o d e A e n title d 'R e c o rd in g o f e n c o u n te rs n o t g o v e rn e d b y s ta tu to ry p o w e rs ', w h ic h state: 4.11 It is up to individual forces to decide when they implement paragraphs 4.12 to 4.20 of this Code. However, there must be full implementation across every force prior to 1 April 2005. Consequently, if an officer requests a person in a public place to account for themselves prior to 1 April 2005 and in an area where the force has not at that time implemented these provisions, no record will be completed. 4.12W hen an officer requests a person in a public place to account for them selves, ie their actions, behaviour, presence in an area or possession of anything, a record of the encounter must be completed at the time and a copy given to the person who has been questioned. The record m ust identify the nam e of the officer who has made the stop and conducted the encounter. This does not apply under the exceptional circumstances outlined in paragraph 4.1 of this Code. 4.13This requirem ent does not apply to general conversations such as when giving directions to a place, or when seeking witnesses. It also does not include occasions on which an officer is seeking general information or questioning people to establish background to incidents which have required officers to intervene to keep the peace or resolve a dispute. 4.14 W hen stopping a person in a vehicle, a separate record need not be completed when an H O /R T /1 form, a Vehicle Defect Rectification Schem e Notice, or an Endorsable Fixed Penalty ticket is issued. It also does not apply when a specimen of breath is required under section 6 of the Road Traffic Act 1988. 4.15 Officers must inform the person of their entitlem ent to a copy of a record of the encounter. 4.16The provisions of 4.4 of this Code apply equally when the encounters described in 4.12 and 4.13 are recorded. 4.17The following information must be included in the record: (i)

the date, time and place of the encounter;

(ii) if the person is in a vehicle, the registration number; (iii) the reason why the officer questioned the person; [see Note 18] (iv) a note of the person's self-defined ethnic background; [see Note 19] (v) the outcome of the encounter. 4.18There is no power to require the person questioned to provide personal details. If a person refuses to give their self-defined ethnic background, a form must still be com pleted, w'hich includes a description of the person's ethnic background [see Note 19],

20

See Jason -Llovd, L, 'P o lice and C rim inal Evidence Act 1984 - C ode A: som e proposed changes' (2002) 166 JP 542.

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4.19A record of an en coun ter m ust alw ays be m ade w hen a person requests it, regardless of whether the officer considers that the criteria set out in 4.12 have been met. If the form was requested when the officer does not believe the criteria were met, this should be recorded on the form. 4.20A11 references to officers in this section include police staff design ated as Community Support Officers under section 38 of the Police Reform Act 2002.

A s lig h tly d iffe re n tly w o rd ed v e rsio n o f the ab o v e w as o rig in a lly in clu d e d in paras 4.11-4.18 under Code A, w hich took effect on 1 A pril 2003. Those provisions were piloted by a limited num ber of police forces until August 2004 when the latest C odes cam e into force. The m ain reason for piloting these latest provisions is that during the consultation process in 2002, serious concerns were expressed regarding, in ter alia, the in creased b u re a u cra cy th is w ould cau se the p o lice serv ice. T h ese additions to Code A w ere m otivated by the Report of the Inquiry into the M atters A risin g from the D eath o f S tep h en L aw rence (1999) (R ecom m en d atio n 61). The a rran g em en ts reg ard in g the reco rd in g o f p o lic e /p u b lic en co u n ters u n d er paras 4 .1 1 -4 .2 0 w ill c le a rly fall w ith in m an y o c c u rre n c e s in v o lv in g th e p o lic e (and com m unity support officers as in Chapter 7) stopping, but not searching persons in p u b lic p lace s. It is n o t su rp ris in g th a t th ere w as c o n sid e ra b le critic ism o f th is r e q u ir e m e n t d u rin g th e c o n s u lta t io n p r o c e s s th a t p r e c e d e d its p r o v is io n a l introduction. On the other hand, the circum stances under w hich such encounters may occur could fall within the scope of the exem ptions to this requirement, such as large num bers of persons involved, especially within a public order setting.

Other stop and search powers Section 1 of PACE is by no m eans the only stop and search pow er available to the p o lic e , a lth o u g h it is the m o st w id e ly u sed . A n u m b e r o f sta tu to ry p ro v isio n s conferring such pow ers on the police for other purposes existed before PACE and some have been enacted since 1984. The form er include s 6 of the Public Stores Act 1875, w hich em pow ers a con stable to stop , detain and search any vessel, boat or vehicle where, inter alia, there is reason to suspect that any of Her M ajesty's stores may be found w hich have been stolen or unlawfully obtained; also, s 23 of the M isuse of Drugs A ct 1971 em pow ers the police to search a person and any vessel or vehicle where he or she suspects that a person is in possession of a controlled drug; s 47 of the Firearms Act 1968 has also been preserved by PACE. This pow er enables the police to stop and search persons or vehicles where they have reasonable cause to suspect that a firearm is being carried in a public place or elsewhere, with the intention to com mit certain unlawful acts. Statutory stop and search pow ers conferred on the police since PACE include s 7 of the Sporting Events (Control of Alcohol, etc) Act 1985, which em powers the police to search certain vehicles for alcohol en route to or from football matches; also, s 4 of the C rossb ow s A ct 1987 en ables the p olice to search p erso n s o r v eh icles reasonab ly suspected of unlawfully carrying crossbows or parts of such devices, although there is an age restriction in such cases, w here the suspect must be under 17 years of age.

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M O R E R E C E N T P O W E R S T O S T O P A N D S E A R C H V E H IC L E S A N D P E D E S T R IA N S D uring and since the 1990s, a num ber of other stop and search pow ers have been conferred upon the police in response to increasing concerns regarding public safety. T hese are to be found under the C rim inal Ju stice and Public O rder A ct 1994, the Terrorism A ct 2000 and also the Offensive Weapons A ct 1996, although the latter will be cov ered in C h a p te r 4, sin ce the stop and search p o w ers in this in stan ce are contingent upon entry into school premises.

Sections 60 and 60AA of the Criminal Justice and Public Order Act 1994 - an overview The provisions of s 60 of the Crim inal Justice and Public O rder Act 1994, as originally enacted, have since been amended by s 8 of the Knives Act 1997, s 25 of the Crim e and Disorder Act 1998 and expanded into a new s 60AA of the Crim inal Justice and Public Order Act 1994, which was an am endm ent created by s 94 of the Anti-terrorism , Crime and S ecu rity A ct 2001. T he o v erall p u rp ose o f s 60 o f the 1994 A ct is to p rev ent incidents of serious violence by providing the police with additional stop and search powers, over and above those which exist under s 1 of PACE (see A ppendix 6). The new s 60AA of the 1994 A ct is intended to prevent and deal with a range of offences that constitute a threat to public safety, particularly those where face coverings and possibly other item s are used to disguise the identities of persons engaged in violent protests.

Section 60 of the Criminal Justice and Public Order Act 1994 Since the enactm ent of PACE, the police had com plained that the s 1 requirem ent of reasonable suspicion that persons wrere carrying dangerous articles, such as offensive w eapons and knives, constituted a serious im pedim ent in preventing violent crime. This w as a particular problem where large num bers of potential suspects w ere in a particular locality and reasonable suspicion could be attributed to som e, but not all, of them, hi response to this difficulty, s 60 of the Crim inal Justice and Public O rder Act 1994 (as am ended) enables police inspectors or above to make a written authorisation enabling uniformed police officers to exercise stop and search pow ers in places within their police area where incidents of serious violence are anticipated or where potential troublemakers are passing through. However, inspectors m ust inform a police officer of at least the rank o f superintendent that such an authorisation has been m ade by them as soon as is practicable. These authorisations must be based on reasonable belief that such action is necessary to prevent serious violence, or that persons are carrying dangerous instrum ents or offensive weapons in any part of that police area without good reason. The authorisation should specify the grounds on which it is given, the locality where these powers may be exercised and the timescale during which these pow ers may be used. The preconditions regarding such authorisations are echoed in paras 2.12-2.14 of Code A, although paras 11-13 under the N otes for Guidance state that authorising officers should also observe the following:

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11

A u thorisations un der section 60 require a reasonable b elief on the part o f the authorising officer. This must have an objective basis, for example: intelligence or relev an t in fo rm atio n such as a h isto ry o f an tag o n ism and v io len ce betw een particular groups, previous incidents of violence at, or connected with, particular events or locations; a significant increase in knife-point robberies in a limited area; reports that individuals are regularly carrying weapons in a particular locality; or in the case o f section 60A A p rev io u s incid ents o f crim es being com m itted w hile wearing face coverings to conceal identity.

12

It is for the authorising officer to determ ine the period of time during w hich the powers mentioned in paragraph 2.1(b) and (c) may be exercised. The officer should set the m inim um period he or she considers necessary to deal w ith the risk of violence, the carrying of knives or offensive weapons, or terrorism. A direction to extend the period authorised under the powers mentioned in paragraph 2.1(b) may be g iv e n o n ly o n c e . T h e r e a fte r fu r th e r u se o f th e p o w e rs re q u ire s a new auth orisation. There is no provision to extend an auth orisation o f the pow ers m e n tio n e d in p a ra g ra p h 2 .1 (c ); fu r th e r u se o f th e p o w e rs re q u ire s a new authorisation.

13

It is for the authorising officer to determine the geographical area in which the use o f the powers is to be authorised. In doing so the officer may w ish to take into account factors such as the nature and venue of the anticipated incident, the number of people who may be in the immediate area of any possible incident, their access to surrounding areas and the anticipated level of violence. The officer should not set a geographical area which is w ider than that he or she believes necessary for the purpose of preventing anticipated violence, the carrying of knives or offensive w eap ons, acts o f terrorism or, in the case o f section 60A A , the p rev en tion of com m ission o f offences. It is p articu larly im p o rtan t to ensure that con stab les exercising such pow ers are fully aw are of w'here they m ay be used. If the area specified is smaller than the whole force area, the officer giving the authorisation should specify either the streets which form the boundary of the area or a divisional boundary within the force area. If the power is to be used in response to a threat or in cid e n t th at stra d d le s p o lice fo rce areas, an o ffice r from each of the forces concerned will need to give an authorisation.

It will be observed that the above guidance also refers to terrorism. The application of this aspect of Code A to the prevention of acts of terrorism will be covered below under ss 44-47 of the Terrorism Act 2000. The maximum period that an authorisation under s 60 may be in force is 24 hours, although this may be extended by up to a further 24 hours, but only by a police officer of at least the rank of superintendent. This m ay be done only once, since a new authorisation has to be made if further use of these powers is necessary. When an authorisation is in force, it confers wide powers of stop and search upon uniformed police officers in those locations specified in it. Under s 60(4) of the 1994 Act, those powers enable uniformed police officers at the scene to do the following: (a) stop any ped estrian and search him or any thing carried by him for offensiv e weapons or dangerous instruments; or (b) stop any vehicle and search the vehicle, its driver and any passenger for offensive weapons or dangerous instruments.

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T h ey also h av e pow ers: (a) to requ ire any p erso n to rem ov e any item w h ich the con stab le reaso n ably b eliev es that p erson is w earin g w h o lly or m ain ly for the p u rp ose o f co n cealin g h is identity; (b) to seize an y item w h ich the con stab le reaso n ab ly b e lie v e s any p erso n in ten d s to w ear w'holly o r m ain ly for that p u rp ose. T h e p o w ers to requ ire th e rem ov al o f d isgu ises and to seize th em u n d er the last tw o p ro v ision s ab o v e n o w exist u n d er s 60A A (2) o f the 1994 A ct. P rio r to this ch an g e, these p o w e rs e x is te d u n d e r s 6 0 (4 A ), w h ic h w a s in s e r te d b y s 2 5 (1 ) o f th e C r im e an d D isord er A ct 1998, in o rd er to ov erco m e the p ro b lem o f p eo p le w h o w e a r m ask s to avoid bein g id entified w h en carry in g ou t v io len t offences. It is im p o rtan t to note that there is n o p o w e r fo r the p o lice to search for su ch item s, alth o u g h th ey can be seized in th e co u rse o f o th er search p o w e rs b e in g exercised at the tim e .21 L ik ew ise, offen siv e w e ap o n s and d an gerou s in stru m en ts m ay also be seized , alth o u g h , o f cou rse, th ere is the exp ress p o w e r for the p o lice to search for su ch item s. H ow ever, it is s 60(5) that p rov id es the m o st con tro v ersial asp ect o f these p o w ers: (5) A constable may, in the exercise of those pow ers, stop any person or vehicle and make any search he thinks fit, whether or not he has any grounds fo r suspecting that the person or vehicle is carrying weapons or articles o f that kind [emphasis added]. A t first sight, the ab o v e p rov isio n s w o u ld seem to co n fer alm o st u n fettered stop and s e a r c h p o w e r s u p o n th e p o lic e w ith in th e tim e s a n d lo c a tio n s s p e c ifie d in an au th o risatio n . T h is b e g s th e fo llo w in g q u estio n s: d o es th is m e an th at the p o lice can effe ct ra n d o m search es?; are th ere lim its as to th e e x te n t o f a search in v iew o f the w o r d s '. . . a n d m a k e a n y s e a r c h h e th in k s f i t '? ; c a n th e s e p o w e r s b e e x e r c is e d an y w h e re , sin ce n o m en tio n is m ad e o f th e ir re strictio n to p u b lic p la ce s?; d o es the p o w e r to re q u ire th e re m o v a l o f fa ce c o v e rin g s e x te n d to th o se w e a rin g th e m for relig iou s p u rp o ses?; and , sin ce there are no exp ress p o w ers to d etain for the p u rp o ses o f a search o r to u se force if necessary, as in ss 1 and 117 o f PA C E respectively, can p e rso n s sim p ly w a lk or d riv e a w a y w h e n s to p p e d ? 22 T h e a n sw e rs to th e first fo u r

21

22

In DPP v Avery (2001), a dem onstration w as in progress within a locality covered by an authorisation under s 60. A police officer at the scene asked the defendant to remove a mask which he believed w as being worn to conceal her identity. This w as not complied with, so the police officer attem pted to remove it but w as struck by the defendant. She w as subsequently charged with assaulting a police officer in the execution of his duty. At the sum m ary trial, magistrates acquitted tne defendant on the grounds that the officer w as not acting in the course of his duty. They accepted the argum ent that the powers under the then-s 60(4A) of the Crim inal Justice and Public O rder Act 1994 had to conform to the procedures under s 2(2)(b) and (3) of PACE. These include the requirement for the police officer to state his or her nam e and statio n , as well as the reason s for the request. The p ro secu to r appealed successfully to the Divisional Court, which held that the pow er under the then-s 60(4A) did not give rise to a search, therefore it w as not necessary to comply with the PACE procedures. No reason had to be given for the requirement to remove the mask as 'A request to a person to rem ove a mask is self-explanatory'. A num ber of com m entators have remarked that it would be advisable for the police to give some explanation where possible, as this generally falls in line w ith the requirem ents of the exercise of other police pow ers. H ow ever, it is submitted that the facts of this case clearly show that the pow er exercised by the police officer was a pow er of seizure rather than a search power. For a useful discussion on m ost of these issues, see Card, R and Ward, R, The Criminal Justice and Public Order Act 1994 (Bristol: Jordans, 1994).

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questions can be found in several parts of Code A, w hich state that such searches must conform to the sam e general procedures as those applicable to ss 1, 2 and 3 of PACE. These include the requirem ent for police officers to state their nam e (except in terrorist investigations and other instances where it would be dangerous to do so), their station, the legal pow er justifying the search and the purpose of it (para 3.8); that, regardless of the pow er being exercised, stops and searches must be exercised in a fair, responsible m anner with respect for those being searched and w ithout unlaw ful discrim ination (Note for Guidance 1); searches in public m ust be restricted to a superficial exam ination of outer clothing and that there is no pow er to require the rem oval of any clothing in public, other than an outer coat, jacket or gloves (para 3.5); if there m ay be religious sensitivities w here a person is asked to rem ove a face covering (such as a M uslim w om an wearing a face covering for religious purposes), the item should be rem oved away from public view and, where practicable, in the presence of an officer of the same sex and out of sight of anyone of the opposite sex (Note for Guidance 4). N early all of the above guidance applies to all searches, including those under ss 1, 2 and 3 of PACE, as well as those applicable to s 60 of the 1994 A ct and (subject to certain m odifications) searches to prevent acts of terrorism, w hich will be discussed below. The im portance of correct stop and search procedures being com plied with by the police is show n in the following case. In Osman v DPP (1999), a fair was being held in a public park and two police officers, acting under a s 60 authorisation, asked the defendant if he w as going to attend the fair and, if so, they were going to search him for weapons. N one of the officers stated their nam es or stations and then proceeded to take the defendant by the arms. He responded by swearing and then dem anded to be taken to the police station in order to be searched. Fearing that he m ay have had a w e a p o n , th e p o lice o ffic e rs co n tin u e d to s ea rch him and w ere a ssa u lte d . T h e d efen d an t's conviction for assault on police w as quashed on the grounds that the search was unlawful by virtue of the officers' failure to com ply with the correct search procedure. They were therefore not acting in the course of their duty. With regard to detaining for the purposes of a search, it has been subscribed that to stop for the purposes o f a search should also mean to detain as well. Also, failure to remain for the purposes of a search could am ount to the offence of obstructing police in the execution of their duty and further resistance, resulting in the use of unlaw ful force against them, could lead to a charge of assault on police.2-5 There is also a specific offence under s 60(8) of failing to stop when required to do so for a constable in the e x e rc is e o f th e s e p o w e rs . T h is c o u ld a lso be c o n s tr u e d as fa ilin g to re m a in ; furthermore, it is an offence under s 60AA(7) to fail to rem ove an item (a face covering for instance) w hen required to do so by a police officer. The m axim um penalty on sum m ary conviction for these offences is 51 w eeks' im prisonm ent a n d /o r a level 3 fine on the standard scale (currently £1,000). Oddly, w hilst failure to rem ove a m ask or other item constitutes an arrestable offence (see Chapter 3 as to the m eaning of this term), there is no specific arrest power attached to failing to stop for the police. It is submitted that in such circum stances, the police m ay resort to their pow ers under s 25 of PACE w here appropriate ('general arrest con d itions', w hich are discussed in C hapter 3), or arrest the suspect for the

23

Ibid.

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offence of obstructing police or for any other matters that may emerge in the course of the incident for which there may be an arrest power. As a result of an am endm ent to the original s 60 by s 8 of the Knives A ct 1997, all persons searched (w hether pedestrians or those in vehicles) and drivers of vehicles stopped are entitled to a written statem ent covering the incident if applied for within 12 months of its occurrence. Previously, only drivers of vehicles and pedestrians fell within the am bit of these provisions. However, paras 4.1 and 4.2 of Code A state that whenever a police officer carries out a search which is subject to that code, a record of the incident m ust be made at the time, unless this is wholly impracticable. W here such exceptional circum stances exist, a record m ust be com pleted as soon as practicable afterwards. W hilst every reasonable effort should be made to obtain the information necessary for a record to be com pleted, it is acknowledged that this may not always be possible. W here a record is made at the time of the incident, the suspect m ust be given a copy immediately.

Section 60AA of the Criminal Justice and Public Order Act 1994 Section 94 of the Anti-terrorism , Crim e and Security A ct 2001 inserted a new s 60AA into the Crim inal Justice and Public O rder A ct 1994 w hich runs parallel to s 60. As described above, s 60 m akes provision for a police inspector or above to authorise the stopping and searching o f pedestrians a n d /o r vehicles in specified locations within their police area. The duration of such authorisations must not exceed 24 hours, and the stop and search pow ers m ust be conducted by police officers in uniform . The broad criteria for such action is the reasonable belief on the part of an inspector or a b o v e th a t e ith e r in c id e n ts o f s e rio u s v io le n c e m ay o ccu r, o r th a t d a n g e ro u s instrum ents or offensive weapons are being carried within his or her police area. The im portant point to be em phasised here is that uniform ed police officers exercising these pow ers under s 60 may also require a person to rem ove any item w hich they reasonably believe is being w orn w holly or mainly for the purpose of concealing that person's identity; they may also seize item s reasonably believed to be intended to be worn wholly or mainly for that purpose (see Appendix 6). Failure to remove such an item constitutes an arrestable offence under s 24(2) and Sched 1A to PACE. The pow er to require the removal of disguises has been extended into a new s 60AA of the Crim inal Justice and Public Order Act 1994 by s 94 of the Anti-terrorism , Crim e and Security Act 2001. This provides a further criteria justifying the requirem ent for a person to remove any item which is reasonably believed to be w orn w holly or partly for the p u rp o ses o f con ce alin g th at p e rso n 's identity. T h is is p o ssib le w here an inspector or above reasonably believes: (a) that activities may take place in any locality in his police area that are likely (if they take place) to involve the commission of offences, and (b) that it is expedient, in ord er to prevent or control the activities, to give an authorisation...

The duration of such authorisations must not exceed 24 hours initially, and these may apply to any locality within the respective police area. Section 94 then goes on to make virtually identical provisions to those under s 60 regarding the procedures for making such authorisations, as well as those applicable to extending their tim e limit. Also, in parallel w ith s 60, failure by a person to rem ove a d isgu ise w orn by them w hen

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dem anded by a uniform ed police officer is an offence. This is also pu nishable on sum m ary conviction by a m axim um of 51 w eeks' im prisonm ent a n d /o r a fine not exceeding level 3 on the standard scale (currently £1,000). Section 94(3) of the 2001 Act has included this offence within the range of arrestable offences which are to be found under s 24(2) and Sched 1A to PACE. In contrast to s 60, there is no specific power under s 60AA to stop vehicles. However, it has been stated that the general power to stop vehicles under s 163 of the Road Traffic Act 1988 could be used in view of the fact that uniformed police officers will be acting under an authorisation.24 It should also be noted that the new pow er under s 60A A does not extend to searching for such items, although this does not m ean that they cannot be seized if found in the course of lawful searches conducted under other powers. It appears that the original s 60 provisions regarding d isgu ises w ere directed m ainly tow ards persons w ho w ore m asks and other face coverings. Section 60A A seem s to go much further as indicated by the follow ing statement: The expression 'item' is very wide and would clearly include balaclavas, scarves and crash helmets. It is not specifically restricted to face coverings and w'ould appear to extend to anything that could be worn w'holly or mainly for the purpose of concealing identity (eg where offenders sw'ap clothing after an offence). Although the purpose of the legislation is primarily to ensure that people are not allowed to commit offences anonymously in situations of public disorder, it is unclear whether other methods that hinder identification - such as face paint - would be caught by this new pow'er as it may be difficult to show that such materials amounted to 'an item' which is capable of being seized.25

Sections 44-47 of the Terrorism Act 2000 (power to stop and search) T h e g e n e sis o f the c u rre n t p ro v isio n s u n d e r ss 4 4 - 4 7 o f the 2000 A ct is ra th e r com plicated. Section 81 of the Crim inal Justice and Public Order A ct 1994 created new police pow ers to stop and search vehicles and persons in order to prevent acts of te rro ris m . T h e s e w ere in s e r te d in to the P re v e n tio n o f T e rro rism (T e m p o ra ry Provisions) A ct 1989 under a new s 13A. The new pow ers applied to vehicles and their occupants as well as pedestrians. Section 1 of the Prevention of Terrorism (Additional Pow ers) A ct 1996 expanded the provisions under s 81 by, inter alia, am ending s 13A and creating a new s 13B under the 1989 Act. As a result, s 13A applied to stop and s ea rch p o w e rs re la tin g to v e h ic le s and th e ir o c c u p a n ts, and s 13B ap p lied to pedestrians only. These powers are now contained under ss 4 4 -4 7 of the Terrorism Act 2000. These provisions share a num ber of features in com m on with s 60 of the 1994 A ct, a lth o u g h th e re are also som e m ark ed d iffe re n c e s, s in ce th e a n ti-te rro ris t p ro v is io n s are m ore w id e -ra n g in g a n d , s u b s e q u e n tly , m ore a c c o u n ta b le (see Appendix 7). The exercise o f stop and search pow ers under ss 4 4 -4 7 is con tin gent upon an authorisation being m ade by a police officer of at least the rank of assistan t chief

24 25

Sampson, F, Blackstone's Police Manual. Volume 4. General Police Duties (Oxford: OUP, 2005). Ibid.

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constable (outside London) or by a com m ander or above (in London) (see Appendix 2). An authorisation, not exceeding 28 days, may be issued if it appears that this action is expedient in order to prevent acts of terrorism , and this m ay be given orally or in w riting, althou g h oral au th o risation s m u st be con firm ed in w riting as soon as is reasonably practicable. The authorisation should stipulate the place or locality where the stop and search p o w ers m ay b e exercised , w h ich m u st be w ith in the sen io r officer's police area. T h e re a re , h o w e v e r, c e r ta in a d d itio n a l p ro c e d u re s th a t m u st be fo llo w e d . W henever an authorisation has been made, the H ome Secretary must be informed. He may then allow the authorisation to continue for its full duration (but not exceeding 28 days) or substitute a shorter period or cancel it at any time. If the H ome Secretary does n o t c o n firm the a u th o r is a tio n w ith in 48 h o u rs o f it b e in g m a d e , th en it w ill autom atically cease to have effect. A uthorisations can be renewed where necessary for a further 28 days by an officer o f at least the rank o f assistan t ch ief con stable or commander. The effects of the above authorisations are that they confer on uniform ed police officers the pow er to stop and search vehicles and persons in them and pedestrians, as well as anything carried by them, for articles that could be used in the com m ission, preparation or instigation of acts o f terrorism. In com m on with the powers under s 60 of the 1994 Act, the police may conduct such searches w ithout having any prerequisite reasonable suspicion. However, the Codes of Practice have also ameliorated the effects of w hat would otherw ise be alm ost unfettered police pow ers to stop and search by largely applying the sam e general constraints on the exercise o f these pow ers as in s 60. These include N otes for G uidance 12 and 13 (m inim um periods of tim e and geographical areas to be set by authorising officers), Note for G uidance 1 (objective and non-prejudicial grounds for stopping and searching) and para 3.8 (uniform ed police officers to identify them selves, their station and the object and grounds for the search to be given). Since these powers are related to terrorist investigations, note that the officers are only required to give their warrant numbers, for instance, rather than their nam es. H owever, unlike the pow ers under s 60, these pow ers under ss 4 4 -4 7 enable uniformed police officers in public to remove headgear and footwear as well as outer coat, jacket and gloves. Removal of footwear and headgear in public does not apply to s 60 and is expressly excluded from the am bit of s 1 of PACE. One of the reasons w hy the removal of headgear in public is excluded from PACE is that certain relig iou s groups w ould find this very offensiv e, su ch as Sik hs bein g required to remove their turbans. In recognition of this, Note for Guidance 8 states: Where there may be religious sensitivities about asking someone to remove headgear using a power under s 45(3) of the Terrorism Act 2000, the police officer should offer to carry out the search out of public view (for example, in a police van or police station if there is one nearby).

Drivers of vehicles and also pedestrians stopped under these powers are entitled to a written statem ent covering the incident, provided any application is made within 12 months of its occurrence. However, the police are now under a duty to com ply with paras 4.1 and 4.2 o f C od e A, w hich stip u late that, w h erev er p ossible, records of searches should be made on the spot and given im m ediately to the persons searched. Anyone w ho fails to stop for the police when required under ss 44-47, or w ho wilfully o bstructs them in the exercise o f such p ow ers, com m its a su m m ary offence. The m axim um p enalty for each offence is 51 w eek s' im prisonm ent a n d /o r a fine not

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ex ce e d in g le v e l 5 on the stan d ard scale (cu rre n tly £ 5 ,0 0 0 ). N o te the sig n ifica n t difference in the maxim um penalties betw een failing to stop under s 60 powers and those under ss 4 4-47.26 As a conclusion to the discussion on ss 44 -4 7 of the 2000 Act as well as s 60 of the 1994 Act, the following caveat under Code A has been made by para 1.4 regarding the usage of these and other search powers: The primary purpose of stop and search powers is to enable officers to allay or confirm suspicions about individuals without exercising their powers of arrest. Officers may be required to justify the use or authorisation of such powers, in relation both to individual searches and the overall pattern of their activity in this regard, to their supervisory officers or in court. Any misuse of the powers is likely to be harmful to policing and lead to mistrust of the police. Officers must also be able to explain their actions to the member of the public searched. The misuse of these powers can lead to disciplinary action.

This advice was echoed in R (on the Application o f Gillan and A nother v Comm issioner o f Police o f the M etropolis and the Secretary o f State fo r the H om e Department (2003), where it was stated obiter that: 'It behoves the police to take particular care to ensure that these pow ers are not used arbitrarily or against any particular group of people.' In this case the police used their pow ers under s 44 of the Terrorism A ct 2000 to search protestors at an arms fair in London. This action w as challenged by w ay of judicial review, but the judges ruled that this power had been used lawfully and this was proportionate to the risk of terrorism. They also held that in response to a general threat of terrorism on a substantial scale, a stop and search authorisation under s 44 could cover the whole of a police area. An appeal to the Court of Appeal was largely unsuccessful, although the cou rt sev erely criticised the lack o f p olice train in g in the exercise o f this pow er. However, leave has been given for this case to be heard by the House o f Lords.

Section 43 of the Terrorism Act 2000 (search of persons) The police pow er to stop and search persons under s 43 of the 2000 A ct is a more directly applied pow er com pared w ith those under ss 4 4 -4 7 w hich have a broader application. Section 43 provides that a constable may stop and search a person whom he or she reasonably suspects to be a terrorist, in order to discover if that person is in possession of anything that may be evidence of their being a terrorist. This possibly m ay apply to private property as well as public places, although there should be some o ther legal b asis for the p olice to be on p rivate p rop erty in order to con d u ct the search.27 These searches m ust be carried out by an officer of the sam e sex as the person w ho is s ea rch ed , w ho m ay seiz e and re ta in a n y th in g re a so n a b ly su sp e cte d to constitute evidence that the suspect is a terrorist. Section 43 is augm ented by s 116 of the Terrorism A ct 2000 w hich, inter alia, provides that a constable may stop a person by stopping a vehicle (except an aircraft in flight!). Failure to stop a vehicle is an offence punishable by a maxim um of 51 w eeks' im prisonm ent a n d /o r a level 5 fine. Section 114 of the 2000 A ct provides that reasonable force may be used in the exercise of any of these powers.

26

For further discussion on this point, see Jason-Lloyd, L, 'Some recent changes in police powers and their effect on road users' (1997) 2 Road Traffic Indicator 1, 27 May. 27 Walker, C, Blackstone's Guide to the Anti-Terrorism Legislation (Oxford: OUP, 2002).

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Powers to stop and search for drugs As mentioned above, in the introduction to PACE and the section entitled 'O ther stop and search pow ers', a num ber of pre-existing police powers to stop and search were preserv ed by PACE. T h is in clu d es s 23 o f the M isu se o f D ru gs A ct 1971, w hich provides the pow er for the police to stop, detain and search for controlled drugs. It should be emphasised that this pow er is concerned with controlled drugs and not just drugs in general. Therefore, what is a controlled drug? These are substances listed u n d er the M isu se o f D rugs A ct, w hich are eith er ad d ictiv e o r otherw ise socially harm ful when m isused. M ost of them have m edicinal properties and, when prescribed and used properly for that purpose, are designed to be therapeutic. However, when used for the wrong purpose, they can have the opposite effect. The M isuse of Drugs A ct 1971 specifically lists about 300 nam ed substances (together with m any chemical variations) which are classed as controlled drugs and places each substance under one of three classes. Class A controlled drugs are the m ost harm ful w hen m isused and these include heroin, cocaine, 'ecstasy', m ethadone, LSD, pethidine and dipipanone. Class B controlled drugs are less harm ful com pared with those under Class A, but are still subject to strict legal controls to prevent m isuse. This class includes substances such as am phetam ine, codeine and methylphenobarbitone. Class C controlled drugs include mild sedatives w hich, although less potentially harm ful than C lass A or B drugs, can have addictive qualities. These include diazepam (once marketed under the w ell-k n o w n brand nam e o f 'v a liu m '), n itraze p am (m o g ad o n ), tem azep am , and chlordiazepoxide (librium ). A num ber o f anabolic steroids are also included under Class C, as well as cannabis and cannabis resin that were downgraded from Class B in January 2004.28 Section 23(2) of the M isuse of Drugs Act provides that where a police officer has reasonable grou nd s to su sp ect than any person is un law fu lly in p o ssession o f a controlled drug, that officer may: (a) search that person and detain him for the purpose of searching him; (b) search any vehicle or vessel in which the constable suspects that the drug m ay be found and, for that purpose, require the person in control to stop it; (c) seize and detain, for the purpose of proceedings under the Act, anything found in the course of the search which appears to the constable to be evidence of an offence under the Act. The search should be conducted in accordance with the relevant rules and guidance under Code A, including the officer giving his or her nam e and police station, as well as stating the grounds and object of the search. If the officer is not in uniform, then he or she should produce som e identification. These rules are reinforced by N ote for Guidance 6 of Code A, which makes the following provisions: A person may be detained under a stop and search power at a place other than where the person was first detained, only if that place, be it a police station or elsewhere, is nearby. Such a place should be located within a reasonable travelling distance using

28

For fu rth er d iscu ssion, see Jason -L lo y d , L, D ru g s , A ddiction and the Law (9th edn, Cambridgeshire: ELM, 2004).

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whatever mode of travel (on foot or by car) is appropriate. This applies to all searches under stop and search powers, whether or not they involve the removal of clothing or exposure of intimate parts of the body (see paragraphs 3.6 and 3.7) or take place in or out of public view. It means, for example, that a search under the stop and search power in section 23 of the Misuse of Drugs Act 1971 which involves the compulsory removal of more than a person's outer coat, jacket or gloves cannot be carried out unless a place which is both nearby the place they were first detained and out of view, is available. If a search involves exposure of intimate parts of the body and a police station is not nearby, particular care must be taken to ensure that the location is suitable in that it enables the search to be conducted in accordance with the requirements of paragraph 11 of Annex A to Code C.

This illustrates, am ong other things, the com m on link between certain stop and search pow ers enacted before (and after) PACE.

General points It is im portant to note that if any of the procedures under any pow ers of stop and search are not conducted properly, then the relevant stop and search could be rendered unlaw ful (see R v Fennelley (1989), which is discussed in Chapter 3). Also, the police are not by any m eans totally reliant upon the stop and search pow ers covered in this chapter in order to detect crime. A variety of other search powers are available to the police once an arrest has been made, as well as certain other powers conferred on them under anti-terrorist legislation.

SOME M ISCELLANEOUS POWERS OF STOP AND SEARCH The pow ers of stop and search discussed above are am ong those m ost w idely known and used within this sphere. A num ber of other pow ers exist, which m ay not be so well known but are significant constituents w'ithin the battery of powers held by the police. Som e exam ples of these pow ers are as follows.

Powers to search unaccompanied goods The Terrorism A ct 2000 (as amended) includes a num ber of additional police powers o f stop and search as w ell as those d iscu ssed abov e u n d er ss 4 3 -4 7 o f that A ct. S ch ed u le 7, p aras 9 -1 2 to the 2000 A ct en ab le the p o lice (and o th ers) to search unaccompanied goods in order to determ ine w hether they are or have been involved in the com m ission, preparation or instigation of terrorist acts. Under these provisions, a p o lice officer, im m ig ratio n o fficer or cu stom s and excise o fficer (classed as an 'exam ining officer' under the Act)29 may search any goods, such as baggage or stores, for instance, which have arrived in or are about to leave England, Scotland, Wales or N orthern Ireland on any ship or vehicle. They m ay also search goods w hich have

29

Under s 97 of the Terrorism Act 2000, the Secretary of State may, by order, assign members of HM Forces to specified duties performed by examining officers, although this applies to Northern Ireland only.

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arrived at, or are about to leave, any place in Great Britain or N orthern Ireland on an aircraft (whether the place they have com e from or going to, is w ithin or outside Great Britain or N orthern Ireland). An exam ining officer m ay board any ship, aircraft or v e h icle in p u rsu a n ce o f th is p o w er and m ay u se re a so n a b le fo rce if necessary. Interestingly, an exam ining officer may delegate these pow ers to another person w ho is not necessarily a police, im m igration or Custom s and Excise officer. It is submitted that these delegated search pow ers m ay be vested in ordinary citizens, including persons from the private security industry, although the bodies w hich appeared to have been the m ain focus of this pow er when it was first introduced include persons employed within organisations such as the Dover Harbour Board Police.30 All persons entitled to exercise these search pow ers may detain anything found for up to seven days for the purpose of further exam ination. Should this later be required as evid ence in crim in al p roceed in g s, the good s m ay be d etained u n til no longer needed. A nyone w ho w ilfully obstructs or seeks to frustrate the object of a search com m its a sum m ary offence, punishable by a m axim um of 51 w eeks' im prisonm ent a n d /o r a level 4 fine on the standard scale (currently £2,500).31

Police cordons This is another power conferred on the police under the auspices of prevention and d etection o f terrorism under the Terrorism A ct 2000 althou g h, in this instan ce, it contains a mixture of provisions w hich include pow ers of entry into premises, as well as som e search pow ers (see A ppendix 8). Sections 33 -3 6 of the 2000 A ct enable a police superintendent or above to authorise the imposing of a cordon in a specified area if it appears expedient for the purposes of a terrorist investigation. This m ay be given in written or oral form, although verbal authorisations must be put into writing as soon as is reasonably practicable. A police officer below the rank of superintendent may make an authorisation, but only in matters of great urgency. In such circumstances, the officer m ust record this in w riting and inform a superintendent or above of his or her action as soon as is reasonably practicable. The senior officer receiving this information may then either confirm or cancel the authorisation in writing. U nd er this pow er, police cordons m ay be in force for up to 14 d ays initially, although a superintendent or above may renew it but, in aggregate, the total period for which an authorisation is in force m ust not exceed 28 days. W hilst an authorisation is operative, the area specified must be indicated as clearly as possible, involving the use of police tape or other means. Uniformed police officers have the power to order any person to leave the cordoned area immediately, including persons in prem ises within or adjacent to it, and persons in charge of vehicles w ithin the cordoned area must rem ove them if ordered to do so by the police. Failure to com ply with any of these orders w ithout lawful authority or reasonable excuse constitutes a sum m ary offence punishable by a maxim um of 51 w eeks' im prisonm ent a n d /o r a fine not exceeding

30 31

See Jason-Lloyd, L, 'The Prevention of Terrorism (A dditional Pow ers) Act 1996 - a commentary' (1996) 160 JP 503. These penalties apply to other powers exercisable under the Terrorism Act 2000 in respect of port and border controls. These include powers conferred on examining officers under Sched 7, paras 7 and 8, enabling them to search ships, vehicles and aircraft, as well as persons, in connection with their powers to detain and question suspected terrorists.

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level 4 on the standard scale. This sam e maxim um penalty also applies to persons who disobey directions by uniform ed police officers w hilst they are are exercising their pow er to prohibit or restrict access to the cordoned area to pedestrians or vehicles. Anyone who wilfully obstructs the police in the execution of any of these powers also com m its an offence punishable by the sam e m axim um penalties. U nder Sched 5, para 3 to the 2000 Act, written authority by a superintendent or above can extend police powers within cordoned areas even further. This will enable prem ises wholly or partly within that area to be searched if the authorising officer has reasonable grounds to believe that material is to be found there that is likely to be of substantial value to a terrorist investigation, excluding item s subject to legal privilege or excluded or special procedure m aterial (see Chapter 4 for the definition of these term s). For as long as such prem ises are subject to a police cordon, entry m ay be effected at any time and on more than one occasion. In addition to the pow er to enter and search such prem ises, the police may also search any person found there and may seize anything which is reasonably believed to be of substantial value to the terrorist investigation (except item s subject to legal privilege). Persons found in such prem ises w ho are subsequently searched in public may not be required to rem ove any of their clothing other than any headgear, footwear, outer coat, jacket or gloves. Anyone who w ilfully obstructs such a search com m its a sum m ary offence punishable by the same maxim um sentence as mentioned above. A part from this pow er to impose cordons under anti-terrorism legislation, a recent case has highlighted the curious fact that the police have no general pow er to impose cordons to preserve crim e scenes, especially on private property. In D PP v M orrison (2003), the Divisional Court upheld the conviction of a man who defied an order by the police not to enter a cordoned area in a private shopping mall, where a stabbing had occurred. The court held, inter alia, that the police were entitled to assum e that the owner of the private land would have consented to their imposing a cordon on that occasion.32

'Raves' and prohibited assemblies Under ss 65 and 71 of the Crim inal Justice and Public Order A ct 1994, the police have been given powers to prevent persons going to certain gatherings, although this has provided them with powers to stop, but not search. Section 65 of the 1994 A ct provides that police officers in uniform m ay stop persons w ho are reasonably believed to be travelling to a 'rave', where such a gathering has already been disbanded under the direction of a police sup erintend ent or above. This pow er m ay only be exercised within a five-m ile radius o f the gathering and the police have a further power to direct the persons stopped not to proceed in the direction of the 'rave'. There is no specific pow er under s 65 to stop motor vehicles for this purpose and therefore it appears that the police may rely on their general pow er to stop motor vehicles under s 163 of the Road Traffic Act 1988. The police may arrest without warrant anyone who disregards such a direction and that person will be liable on sum m ary conviction to a fine not exceeding level 3 on the standard scale (£1,000). These pow ers may not be exercised on

32 Sec the commentary on this case in [2003] Crim LR 727.

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an 'exem pt person', who is described under the Act as the occupier of the land where a 'rave' has been disbanded, any m em ber of that person's family, any em ployee or agent of that person and any person w hose hom e is on that land. Section 71 of the 1994 Act is alm ost identical to s 65, except that it is applied in order to stop and turn back persons reasonably believed to be going to the venue of a prohibited assem bly. A s m entioned above, no p ow er o f search ap p lies under the provisions of s 65 or 71, although the police may draw upon search powers from other legal sources where appropriate. For exam ple, if any persons are reasonably suspected of carrying stolen property or offensive weapons, the police may exercise their search powers under s 1 of PACE. N either is there a specific pow er under s 71 to stop motor vehicles, thereby placing reliance on s 163 of the Road Traffic Act 1988 for this purpose.

Police powers to stop harassment of persons in their homes Section 42 of the Crim inal Justice and Police Act 2001 creates provisions designed to prevent the harassm ent of persons in their hom es. These measures have been included here because they also involve the lawful restriction on the freedom of m ovem ent of certain persons by the police. These provisions cam e into force on the day that the Crim inal Justice and Police Act 2001 received Royal A ssent (11 M ay 2001), and were enacted in response to the increase in incidents involving the harassm ent of persons in their hom es by certain protestors. Section 42 provides that the m ost sen ior police officer w ho is at the scene of a protest may direct any person outside or in the vicinity of any prem ises used as a dwelling to m ove to a different location. Various conditions and m odifications m ay be attached to these directions, but anyone w ho knowingly contravenes a direction com m its an offence which is punishable by a m axim um of 51 w eek s' im p riso n m en t a n d /o r a fine n o t exceed in g level 4 on the standard scale (currently £2,500). A con stable in uniform m ay arrest w ithout w arrant any person whom he or she reasonably suspects is com m itting this offence. Note that this power of arrest applies only to a uniformed police officer, whereas a police officer does not have to be in uniform in order to make a direction in the first instance.

Police powers to combat anti-social behaviour A num ber of measures have been introduced in recent years in order to com bat the increase in anti-social behaviour. One of these is s 1 of the Crim e and Disorder A ct 1998 (as am ended), which enables local authorities, the police and social landlords to apply to the courts for anti-social behaviour orders. These are preventative orders which are designed to deal with persons who act in an anti-social m anner that causes, or is likely to cau se, h arassm e n t, alarm o r d istress to one or m ore p erso n s not o f the sam e hou sehold . Section 50 o f the P olice Reform A ct 2002 em pow ers a police officer in uniform to require the nam e and address of a person w hom that officer has reason to believe has been acting, or is acting, in an anti-social m anner within the m eaning of s 1 of the Crim e and D isorder A ct 1998. It will be an offence for that person to fail to provide his or her nam e and address or to give false or inaccurate particulars. This attracts a fine not exceeding level 3 on the standard scale (currently £1,000). Another power that has recently been given to the police under the Police Reform A ct 2002 is under s 59. This is mentioned here as it is related to anti-social behaviour and also involves stopping vehicles. Section 59 em pow ers a police officer in uniform to

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order the driver o f a m otor vehicle to stop, after w hich the officer m ay then seize and rem ove the vehicle, using reasonable force if necessary. This pow er m ay be exercised w here that police officer has reasonable grounds for believing that the m otor vehicle is being used on any occasion in a m anner w hich constitutes the offences of careless or inconsiderate driving, or off-road driving, and is causing, or is likely to cause alarm , d istre ss o r a n n o y a n c e to the p u b lic. T h e re is a lso the p o lic e p o w e r to e n te r any prem ises w here the m otor vehicle is reasonably b elieved to be in order to seize the vehicle, using reasonable force w here necessary. H ow ever, a m otor vehicle m u st not be seized unless the person using it in the above m an ner has been given p rior w arning by the p o lice officer or any o th er con stab le on a sep arate o ccasio n w ith in the last 12 m onths that it will be seized if he or she continues to use it or another vehicle in the prohibited m anner. If the circu m stances m ake it im practicable for a police officer to g iv e a w a rn in g , the m o to r v e h icle m ay th en be seiz e d and re m o v e d . S e ctio n 60, h ow ev er, p ro v id e s th a t the H o m e S e cre ta ry m ay m ak e re g u la tio n s re g ard in g the rem oval and retention o f m otor vehicles under s 59, as w ell as their release or disposal.

C H A PT ER 3 PO LIC E PO W ER S OF A R R EST

DEFINITION OF 'ARREST' One of the m ost popularised conceptions of an arrest is the scenario whereby a police officer takes a suspect by the arm w ho is then led to a w aiting police car having first been cautioned. In the A m erican style, one would expect the suspect to be 'read his righ ts' w hilst being handcuffed. T hese arrests usually occur in the street or other pu blic places, or even in private property, but this is not the only situation under w h ich a p e rso n m ay b e a rre s te d . A p e rso n m ay a lre a d y be at a p o lic e sta tio n volu ntarily, in ord er to 'assist the p olice w ith th eir e n q u iries', but could later be arrested. U nder w hat other circum stances can a person be arrested? W hat pow ers are available to the police? W hat are the correct arrest procedures? To w hat extent may ord in ary citizen s m ake arrests? T hese, am on g o th er qu estio n s, w ill be discu ssed throughout this chapter, but first it is necessary to define the word 'arrest'. An arrest may be defined as the lawful deprivation of a citizen's liberty, using w hatever degree of lawful force is reasonably necessary and proportionate, in order to assist in the investigation and prevention of crim e, to ensure that a citizen is brought before a court or to preserve a person's safety or others or their property. From this definition, an insight may already be gained regarding the com plexity of this subject. This is not by chance, since it is a fundam ental tenet of our basic rights and freedom s that no person shall be deprived of their liberty without lawful reason.1

An overview of police powers of arrest As w ell as recognising the need to reform police p ow ers of stop and search (see C h ap ter 2), the P h ilip s Royal C o m m ission w ere also aw are o f a sim ilar need to ratio n alise p o lice p ow ers o f arrest w h ich , lik ew ise, con sisted o f a p atch w o rk of statutory and com m on law provisions: There is a lack of clarity and an uneasy and confused mixture of common law and statu tory pow ers of arrest, the latter having grow n piecem eal and w'ithout any consistent rationale.2

T h e G o v e rn m e n t accep ted th is p o in t in p rin c ip le , b u t did n o t acce p t all o f the Com m ission's proposals as to how this problem could be rem edied.3 In the end, the

1

2 3

'The right to personal liberty as understood in England ... means, in substance, a person's right not to be subjected to imprisonment, arrest or other physical coercion in any manner that does not admit of legal justification.' Dicey, A, A n Introduction to the Study o f the Law of the Constitution (10th edn, London: Macmillan, 1959), cited in Hood-Phillips, 0 and Jackson, P, Constitutional and Administrative Law (8th edn, London: Sweet & Maxwell, 2001), Chapter 24. This is reinforced by Art 5 (right to liberty and security) under the European Convention for the Protection of Human Rights and Fundamental Freedoms (see Chapter 8). Philips Royal Commission, para 3.68. See Zander, M, The Police and Criminal Evidence Act 1984 (4th edn, London: Sweet & Maxwell, 2003).

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enactm ent of the Police and Crim inal Evidence Act 1984 (PACE), am ong a num ber of other things, rationalised and preserved m any statutory police powers of arrest that existed prior to its enactm ent. All such pow ers w ork through PACE, especially in terms of its procedures. These statutes include the Prison A ct 1952, the Bail Act 1976, the Crim inal Law Act 1977, the Public O rder A ct 1936, the Children and Young Persons Act 1969 and the M ental Health Act 1983 (see Sched 2 to PACE for the com plete list). These were preserved basically because of the need to take certain vulnerable persons into police custody or to apprehend persons unlaw fully at large. A substantial num ber of statutes conferring arrest powers on the police have been enacted since PACE. These include the Sporting Events (Control of Alcohol, etc) Act 1985, the Public O rder Act 1986, the C rim in al Ju stice and Public O rder A ct 1994, the Terrorism A ct 2000, the Crim inal Justice and Police A ct 2001 and the Police Reform A ct 2002 to nam e but a few. A t this stage, it is im portant to distinguish betw een the different categories of arrest pow ers that are available to the police. The tw o main categories are arrests w ithout w arrant and arrest ivith warrant. A rrests w ith w arrant are far less com m on than those w hich are made without; therefore, the form er will be discussed later in this chapter.

Arrests without warrant As far as arrests w ithout w arrant are concerned, these fall under five main subheadings as follows: (1) Offences where the police only are given an arrest pow er under the statutes which created these offences. This is know n as a 'pow er of arrest'. A num ber of these, w hich existed before 1984, were preserved by PACE. For exam ple, under s 1 of the Public Order A ct 1936, it is an offence to wear a political uniform in public. Section 7(3) of the 1936 A ct states: A constable may, without warrant, arrest any person reasonably suspected by him to be committing an offence under s 1 of this Act.

An exam ple of a pow er of arrest conferred on the police for a specific offence since PACE was enacted is s 3 of the Public O rder Act 1986, w hich created the offence of affray. Section 3(6) provides that: A con stab le m ay arrest w ithout w arran t anyone he reasonably su spects is committing affray.

A pow er of arrest actually created by PACE can be found under s 27. Under s 27(1), a person convicted of a 'recordable offence' (see Chapter 6, fn 21 for the definition) w ho has not been in police detention for the offence and, subsequently, has not been fingerprinted m ay be required by a constable to attend a police station to have this done. Section 27(3) then states: Any constable may arrest without warrant a person who has failed to comply with a requirement under sub-s (1) above.

A lso, s 63A (7) of PACE, which was inserted by s 56 of the Crim inal Justice and Public O rder Act 1994, has given the police a further pow er of arrest. This applies to persons w ho do not com ply with a request to attend a police station to have a body sample taken (see Chapter 6).

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It should be mentioned that s 41 of the Terrorism Act 2000 enables a constable to arrest, w ithout w arrant, a person w hom he or she reasonably suspects to be a terrorist. Special procedures apply regarding the suspect's detention, treatment, review and extension of the review period. U nder s 114 of the 2000 Act, reasonable force may be used to make the arrest. The exercise of a 'pow er of arrest', as in all arrests made by the police, is subject to the general rules governing arrest procedures under PACE, as will be illustrated later in this chapter. (2) S tatu to ry p ow ers o f arrest w ith ou t w arran t con ferred up on 'an y p erso n ' for specific offences. These fall under a rather grey area and are therefore covered towards the final part of this chapter. (3) Offences classed as 'arrestable offences', which are defined and listed under s 24 of and Sch ed 1A to PACE w here the p o lice and (su b ject to certain lim itatio n s) ordinary citizens may make an arrest (see A ppendix 9). Running alongside these provisions are those under s 116 of and Sched 5 to PACE, w hich create 'serious arrestable offences', although these have greater significance to police powers of detention rather than arrest. Arrestable offences will be discussed in greater detail below. (4) A ny offences to which there is no direct police pow'er of arrest or w hich are not arrestable offences, but the circum stances surrounding their com m ission justify in v o kin g 'g en eral arrest co n d itio n s' un der s 25 o f PACE. T h ese o ffen ces are norm ally dealt with by way o f sum m ons, such as nearly all motoring offences, but, u n d er s 25, the p o lice m ay arrest if certa in ad v e rse c o n d itio n s or p o te n tia l obstructions are present. Further coverage of this subject is included below. (5) T he com m o n law p o w er to arrest for a breach o f the peace. T his is the only com m on law power that was not repealed by PACE and is available to both the police and ordinary citizens. The d efinition o f w hat constitutes a breach of the peace, together with the relevant case law, will be discussed below.

Arrestable offences Arrestable offences are covered under s 24 of PACE, which is divided into seven sub­ sections. Sub-sections (1)—(3) define arrestable offences and sub-ss (4)—(7) provide the conditions under which these arrest powers may be exercised. Section 24(1) provides that: (1) The powers of summary arrest conferred by the following sub-sections shall apply: (a) to offences for which the sentence is fixed by law; (b) to offences for which a person of 21 years of age or over (not previously convicted) may be sentenced to imprisonment for a term of five years (or might be so sentenced, but for the restrictions imposed by s 33 of the Magistrates' Courts Act 1980); and (c) to the offences to which sub-s (2) below' applies and, in this Act, 'arrestable offence' means any such offence.

Section 24(l)(a) sim ply m eans that murder is an arrestable offence because it is now the only offence for which the sentence is fixed by law. The only sentence that can be given on a m urder conviction is m andatory life im prisonm ent (or its equivalent for young offenders). Up until 1998, technically at least, the offences of treason and piracy

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actually attracted the death sentence. H ow ever, s 36 o f the C rim e and D isord er A ct 1998 h as rep laced this w ith d iscre tio n ary (but not m an d ato ry ) life im p riso n m en t; therefore, the sentences for these offences are no longer fixed by law. Section 2 4 (l)(b ) is m uch w ider in term s o f the nu m ber o f offences w hich fall under its p r o v is io n s . It in c lu d e s a n y o f fe n c e w h ic h c a n a t t r a c t a f iv e - y e a r te rm o f im prisonm ent or m ore if com m itted by a person aged 21 o r over (due to be reduced to 18 years o r over) w ho h as not b een prev iou sly con victed. E xam p les o f su bstantiv e offences w hich fall under this category, together w ith their m axim um custodial term s, are: assau lt occasioning actual b odily harm (five years); w o u n d in g /g rie v o u s bodily harm (five years); blackm ail (14 years); burglary o f a d w elling (14 years); burglary of a n o n -d w e llin g (10 y e ars); th e ft (sev en y e ars); o b tain in g p ro p e rty b y d ece p tio n (10 years); obtaining services by deception (five years); forgery (10 years); counterfeiting (10 years); ord inary crim inal d am age (10 years); riotin g (10 years); vio len t d isord er (f iv e y e a r s ) ; b o m b h o a x (s e v e n y e a r s ) ; c o n t a m in a t io n o f g o o d s (1 0 y e a r s ) ; w itn e ss/ju ro r intim idation (five years); perju ry (seven years); possession of a C lass A controlled drug (seven years); p ossession of a C lass B controlled drug (five years) and m any m ore.4 Section 24(2) is m ore com plex than the preceding provisions. It lists a nu m ber of s p e cific o ffe n ces w hich do n o t th e m se lv e s a ttra ct the fiv e y e a r o r m ore cu sto d ial s e n te n ce s , as in su b -s (l) ( b ) , b u t are c o n sid ere d s e rio u s en o u g h to be c la sse d as arrestable. This list has changed significantly sin ce it w as originally enacted in 1984 and has been subject to som e deletions as w ell as m any additions. Section 24(2) o f and Sched 1A to PACE provide that the follow ing are arrestable offences - the w ords in square brackets have been inserted for clarification w here necessary: Customs and Excise Acts 1

An offence for which a person may be arrested under the customs and excise Acts (within the meaning of the Customs and Excise Management Act 1979 (c 2). [This b asically includ es sm uggling offences. A lth ough en forcem ent of these provisions falls primarily on Custom s and Excise officers, the police sometimes become involved in the enforcement of this aspect of the law. Note that the specific offence of importing indecent or obscene articles under s 170 of the Customs and Excise Management Act 1979 is a serious arrestable offence.!

Official Secrets Act 1920 2

An offence under the Official Secrets A ct 1920 (c 75) w'hich is not an arrestable offence by virtue of the term of imprisonment for which a person may be sentenced in respect of them. [Some offences under the 1920 Act attract terms of imprisonment which fall under s 24(1 )(b) of PACE; therefore, they automatically become arrestable offences. Others do not, but are considered serious enough to justify making them arrestable under the above.]

Criminal Justice Act 1925 2ZA An offence under section 36 of the Criminal Justice Act 1925 (untrue statement for procuring a passport).

4

A more complete list can be gained from authoritative works such as Blackstone's Criminal Practice (London: Blackstone) and Archbold's Criminal Pleadings, Evidence and Practice (London: Sweet & Maxwell). See also Cape, E and Luqmani, J, Defending Suspects at Police Stations (4th edn, London: Legal Action Group, 2003).

C h a p t e r 3 : P o lic e P o w e r s o f A r r e s t

[This was inserted under Sched 1A to PACE by s 3(2) of the Crim inal Justice Act 2003.] W ireless Telegraphy Act 1949 2A An offence mentioned in section 14(1) of the Wireless Telegraphy Act 1949 (offences under that Act which are triable either way). Prevention of Crim e Act 1953 3

An offence under section 1(1) of the Prevention of Crim e Act 1953 (c 14) (prohibition of carrying offensive weapon without lawful authority or excuse).

[4

Repealed by s 140 of and Sched 7 to the Sexual Offences Act 2003.]

O bscene Publications Act 1959 5

An offence under section 2 of the Obscene Publications A ct 1959 (c 66) (publication of obscene matter).

Firearm s Act 1968 5A An offence under section 19 of the Firearms Act 1968 (carrying firearm or imitation firearm in public place) in respect of an air weapon or imitation firearm. T h eft Act 1968 6

An offence under (a) s ectio n 12(1) o f the T h e ft A ct 1968 (c 60) (tak in g m otor v e h icle or o th er conveyance without authority etc); or (b) section 25(1) of that Act (going equipped for stealing etc).

M isuse of Drugs Act 1971 6A An offence under section 5(2) of the M isuse of Drugs Act 1971 (having possession of a controlled drug) in respect of cannabis or cannabis resin (within the meaning of that Act). [This inclusion was m ade under s 3(3) of the Crim inal Justice Act 2003. This has been made in conjunction with the reclassification of cannabis and cannabis resin from Class B to Class C controlled drugs. Ordinary possession of a Class B drug is autom atically arrestable because the m axim um sentence for this offence is five years' imprisonment, w'hereas possession of a Class C drug does not constitute an arrestable offence because this attracts a m axim um custodial penalty of no more than two years. How'ever, it has been decided that p ossession of cannabis and cannabis resin should remain arrestable offences and have therefore been placed under Sched 1A. However, the police have been issued with guidance stating that p o ssessio n o f these tw o d ru gs should not be su b ject to arrests ex ce p t under aggravated circum stances, for exam ple, being openly sm oked in the street or in close proximity to children.] T h eft Act 1978 7

A n o ffen ce u n d er sectio n 3 o f the T h eft A ct 1978 (c 31) (m ak in g o ff w ithou t payment).

Protection o f C hildren Act 1978 8

An offence under section 1 of the Protection of Children Act 1978 (c 37) (indecent photographs and pseudophotographs of children).

W ild life and Countryside Act 1981 9

An offence under section 1(1) or (2) or 6 of the Wildlife and Countryside A ct 1981 (c 69) (taking, possessing, selling etc of wild birds) in respect of a bird included in Schedule 1 to that Act or any part of, or anything derived from, such a bird.

65

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10

An offence under (a) section 1(5) o f the W ildlife and C ou ntryside A ct 1981 (disturbance o f wild birds); (b) section 9 or 13(l)(a) or (2) of that Act (taking, possessing, selling etc of wild animals or plants); or (c) section 14 of that Act (introduction of new species etc).

Civil Aviation Act 1982 11

An offence under section 39(1) of the Civil Aviation Act 1982 (c 16) (trespass on aerodrome).

11A An offence of contravening a provision of an Order in Council under section 60 of that Act (air navigation order) where the offence relates to (a) a p rovision w hich prohibits specified b ehaviou r by a person in an aircraft towards or in relation to a member of the crew', or (b) a provision which prohibits a person from being drunk in an aircraft, in so far as it applies to passengers. [These offences were made arrestable by the Aviation (Offences) Act 2003.] A viation Security Act 1982 12

An offence under section 21C(1) or 21D(1) of the Aviation Security Act 1982 (c 36) (unauthorised presence in a restricted zone or on an aircraft).

Sexual O ffences Act 1985 13

An offence under section 1 of the Sexual Offences Act 1985 (c 44) (kerb-crawling).

Public Order Act 1986 14

An offence under section 19 of the Public O rder A ct 1986 (c 64) (publishing etc material likely to stir up racial or religious hatred).

Crim inal Justice Act 1988 14AComm on assault. [This was inserted by s 10 of the Domestic Violence, Crim e and Victims Act 2004.] 15

An offence under (a) section 139(1) of the Criminal Justice Act 1988 (c 33) (offence of having article with a blade or point in public place); or (b) section 139A(1) or (2) of that Act (offence of having article with a blade or point or offensive weapon on school premises).

Road Traffic Act 1988 16

An offence under section 103(l)(b) of the Road Traffic Act 1988 (c 52) (driving while disqualified).

17

An offcncc under subsection (4) of section 170 of the Road Traffic Act 1988 (failure to stop and report an accident in respect of an accident to w'hich that section applies by virtue of sub-section (l)(a) of that section (accidents causing personal injury)).

17A A n offence under section 174 of the Road Traffic Act 1988 (false statem ents and withholding material information). [This w'as included under Sched 1A by s 3(4) of the Criminal Justice Act 2003. This offence applies to a person making false statements and withholding information in order to obtain a driving licence.] O fficial Secrets Act 1989 18

An offence under any provision of the Official Secrets Act 1989 (c 6) other than sub­ section (1), (4) or (5) of section 8 of that Act.

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[T h ese o ffe n c e s are co n ce rn e d w ith the u n a u th o rise d d is clo s u re o f o ffic ia l information, but do not attract custodial sentences of sufficient length to place them under s 2 4 (l)(b ); how ever, they are considered serious enough to be classed as arrestable offences. O ffences falling w ithin s 8(1), (4) and (5) of the 1989 Act are offences which are triable summarily only and have been excluded from the ambit of arrestable offences.] Football Spectators Act 1989 19

An offence under section 14J or 21C of the Football Spectators Act 1989 (c 37) (failing to com ply with requirem ents imposed by or under a banning order or a notice under section 21B).

Football (O ffences) Act 1991 20

An offence under any provision of the Football (Offences) Act 1991 (c 19). [These are the offences of throwing missiles, indecent or racialist chanting, or pitch invasion during designated football matches.]

Crim inal Justice and Public O rder Act 1994 21

An offence under (a) section 60AA(7) of the Criminal Justice and Public Order Act 1994 (c 33) (failing to com ply with requirement to remove disguise); (b) section 166 of that Act (sale of tickets by unauthorised persons);

or

(c) scction 167 of that Act (touting for car hire services). Police Act 1996 22

An offence under section 89(1) of the Police Act 1996 (c 16) (assaulting apolice officer in the execution of his duty or a person assisting such an officer; thisalso includes any person who is a member of an international joint investigation team who is led by a m em ber of a police force or the N ational Crim inal Intelligence Service or the National Crim e Squad). [The latter was inserted by s 104 of the Police Reform Act 2002.)

Protection from H arassm ent Act 1997 23

An offence un der section 2 o f the Protection from H arassm ent A ct 1997 (c 40) (harassment). [Although the above offence includes harassment of different kinds, the most well known aspect of the Protection from Harassment Act is that it is designed to deal with 'stalking'.]

Crim e and D isorder Act 1998 24

An offence falling within section 32(l)(a) of the Crim e and Disorder Act 1998 (c 37) (racially or religiously aggravated harassment).

Crim inal Justice and Police Act 2001 25

An offence under (a) section 12(4) of the Crim inal Justice and Police Act 2001 (c 16) (failure to comply with requirements imposed by constable in relation to consumption of alcohol in public place); or (b) section 46 of that Act (placing of advertisements in relation to prostitution).

Licensing Act 2003 26

An offence under section 143(1) of the Licensing Act 2003 (failure to leave licensed premises etc).

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Sexual Offences Act 2003 27

An offence under (a) section 66 of the Sexual Offences Act 2003 (exposure); (b) section 67 of that Act (voyeurism); (c) section 69 of that Act (intercourse with an animal); (d) section 70 of that Act (sexual penetration of a corpse); (e) scction 71 of that Act (sexual activity in public lavatory).

In relation to the above list o f arrestable offences under sub-s (2) and Sched 1 A, s 24(3) o f PACE provides: Without prejudice to s 2 of the Criminal Attem pts Act 1981, the powers of summary arrest conferred by the following sub-sections shall also apply to the offences of: (a) conspiring to commit any of the offences listed in Schedule 1A; (b) attem ptin g to com m it any such offence [other than one w'hich is a su m m ary offence]; (c) inciting, aiding, abetting, counselling or procuring the comm ission of any such offence, and such offences are also arrestable offences for the purposes of this Act.

T h ese p ro v isio n s m ean th at aid in g , ab e ttin g , c o u n se llin g o r p ro cu rin g any o f the offences listed in s 24(2) of PACE (in other w ords, being an accom plice to any o f them ) are also a rresta b le o ffen ces. T h is also ap p lies to the in ch o ate o ffen ces o f in citin g , c o n s p irin g o r a tte m p tin g to c o m m it th e m , a lth o u g h th e re are so m e e x c e p tio n s regarding attem pts. Section 24(3)(b) states that an attem pt does not apply to any of those offences under Sched 1A that are sum m ary offences. T his is because s 1(4) of the C rim inal A ttem pts A ct 1981 provides that there is no such offence as attem pting to com m it an offence w hich is triable sum m arily only.5 An im portant point regarding the issue o f arrestable offences is that certain w ide investigative pow ers are available to the police w here an offence is arrestable. These in clu d e p o w e rs o f e n try and search o f p re m ise s w ith o u t w a rra n t, w h ich w ill be covered in C hapter 4. This is one o f the principal reasons for the inclusion of certain offences u n d er s 24(2) o f PACE. W h ilst som e o f these are not p articu larly serio u s, several being triable sum m arily only, and a few are not even im prisonable, they can lead or be connected to m ore serious crim es. U nd er w hat circum stances can an arrest be m ade for an arrestable offence? T his is dealt w ith u n der s 2 4 (4)-(7) of PACE, w hich provides: (4) Any person may arrest without a warrant: (a) anyone w'ho is in the act of committing an arrestable offence; (b) anyone whom he has reasonable grounds for suspecting to be committing such an offence.

5

Tine insertion of Sched 1A under PACE and the amendment of s 24(3)(b) to its present form were effected by s 48 of the Police Reform Act 2002. For a full discussion of the reasons for these changes, see Jason-Lloyd, L, 'Section 24(2) of the Police and Criminal Evidence Act 1984 - codification or complication?' (1999) 163 JP 944; 'New arrest powers under the Criminal Justice and Police Act 2001' (2001) 165 jP 536; and 'Arrestable offences - an update' (2002) 166 JP 736.

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(5) Where an arrestable offence has been committed, any person may arrest without a warrant: (a) anyone who is guilt)' of the offence; (b) anyone whom he has reasonable grounds for suspecting to be guilty of it. (6) Where a constable has reasonable grounds for suspecting that an arrestable offence has been com m itted, he m ay arrest w ithout a w arrant anyone whom he has reasonable grounds for suspecting to be guilty of the offence. (7) A constable may arrest without a warrant: (a) anyone who is about to commit an arrestable offence; (b) anyone whom he has reasonable grounds for suspecting to be about to commit an arrestable offence.

See also A ppendix 9 which should assist in understanding the follow ing discussion.

Section 24(4) of PACE U nd er sub-s (a), any person , inclu d ing the p o lice, m ay arrest w ith o u t a w arrant anyone w ho is caught in the act o f com m itting an arrestable offence. If a suspect is arrested on that basis and if he or she is not com m itting an arrestable offence, then the arrest is unlawful. However, if an arrest is made under sub-s (b) on the basis that the police officer or an ordinary citizen has reasonable grounds for suspecting a person to be com m itting an arrestable offence, the arrest will be lawful, even if the suspect was not com m itting such an offence. This is illustrated in R v Broscft (1988), where a store manager had lawfully arrested a man seen in the toilets who w as looking dazed and had a syringe in his possession. The store manager asked him som e questions about drugs and then took hold of him when he tried to leave and said 'You are not going anywhere'. In this case, the store m anager had reasonable grounds for suspecting the defendant to be unlawfully in possession of controlled drugs, which is an arrestable offence. H owever, if, for instance, the suspect did not unlaw fully have drugs in his possession, the arrest w ould have still been law ful, because the store m anager had reasonable grounds for suspecting that an arrestable offence zuas being committed. This constitutes the w ell know n 'citizen 's arrest' pow er, w hich is often relied upon by security professionals, such as store detectives, since the focus of their attention is on theft, w hich is an arrestable offence, as it can attract a m axim um seven year prison sentence. However, such pow ers should alw ays be exercised with care, since an arrest w hich is declared unlaw ful can result in civil or even crim inal action being taken against the arrestor. If the p olice m ake an unlaw ful arrest, as far as the form er is concerned, they are usually protected by the vicarious liability mentioned in Chapter 1. O thers may not have the sam e legal protection and m ay suffer the punitive effects of being sued for m aking an un law fu l arrest (see the coverage below regarding the consequences of such action).

Section 24(5) and (6) of PACE This applies to situations where an arrestable offence has been com m itted, in contrast to s 24(4), where the offence is being com m itted. Under s 24(5)(a), any person may arrest anyone w ho is guilty of having com mitted an arrestable offence or, under sub-s (b), is reasonably suspected of being guilty of it. In both instances, the lawfulness of an arrest by an ordinary citizen under these provisions is contingent upon the suspect being

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found guilty in court. If not, then the arrest is unlawful. This is illustrated in R v S elf (1992), where a store detective and a shop assistant allegedly saw the defendant take a bar of chocolate and leave the store without paying. He then threw it under a car and was challenged by the store detective. Following a scuffle, the defendant ran away and w as pursued and later arrested by a m an w ho had seen the earlier incident. The defendant was charged w'ith theft (shoplifting) and assault with intent to resist arrest. H e was acquitted of the shoplifting charge, but was found guilty o f two counts of assau lt w ith intent to resist arrest. These two charges w ere overturned on appeal, becau se he had been acquitted o f theft; therefore, no arrestable offence had been com m itted and this invalidated the arrest pow er that was used.6 It should be noted that this was a scenario affecting just one defendant. There is one redeem ing feature under these provisions where m ore than one suspect is allegedly involved. This is illustrated as follows: The legality of the arrest is not affected by the fact that the person arrested did not commit the arrestable offence if there were such reasonable grounds, provided that the offence was committed by someone. For example, security officers arrested three men reasonably suspected of theft from their employer. Two were subsequently acquitted; the third was convicted. The conviction made it clear than an arrestable offence had been committed; therefore, the arrest of those acquitted w'as lawful under s 24(5)(b). The acquittal of all three would not render the arrest unlawful.7

However, sub-s (6) significantly extends this arrest pow er to the police only, where they have reasonable grounds to suspect that an arrestable offence has been com mitted in the first place, even if it is later disclosed that one has not occurred. This may seem to m ilitate som ew hat harshly against public spirited citizens w ho make arrests when an arrestable offence has not been com mitted at the outset, but the rationale for this is that Parliam ent believed that w ider pow ers are best left in the hands o f trained police officers.

Section 24(7) of PACE This arrest power applies only to the police, who may arrest a person about to com m it an arrestable offence or anyone whom they have reasonable grounds for suspecting to be about to com m it an arrestable offence. This would cover the situation where, for exam ple, a police officer sees a person about to throw a brick through a window, but re strain s the su sp e ct at the la st m om ent. In this case, the su sp e ct is reaso n ably suspected o f being about to com m it crim inal damage. This principle would also apply where a police officer sees a person about to stab som eone, but m anages to hold the suspect down before any harm is done to the intended victim. However, w hat if an ordinary citizen sees the sam e things about to happen? It would be absurd to leave the general public with no legal provision for dealing with such situations; therefore, there is the pow er under s 3(1) of the Crim inal Law A ct 1967, which states: A person may use such force as is reasonable in the circumstances in the prevention of crime or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.

6 7

See Stannard, J, 'The store detective's dilemma' (1994) 58 JCL 393, November. Clark, D, Bevan and Lidstone's The Investigation o f Crime: A Guide to the Law of Criminal Investigation (3rd edn, London: Butterworths, 2004).

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Note that this provision applies to 'a person', w hich includes all citizens, including the p olice. W ith regard to the latter, this em p o w ers them to use reaso n ab le force if necessary in the exercise of their powers outside of PACE (note that s 117 of PACE only em powers them to use reasonable force in the exercise of the coercive powers under that statute). W hether s 3(1) of the 1967 Act is used by the police or m em bers of the public, it is essential that any force used must be reasonable and necessary. This is a question of fact w hich is left to the jury to decide. A nother point which must be borne in mind is that any force used m ust be proportionate to the harm threatened. In the som ew hat dram atic case of Cockcroft v Smith (1705), it was held that excessive violence should not be returned in response to a m inor assault. Cockcroft, a clerk in a court, becam e involved in an altercation with Smith, an attorney, hi the course of the scuffle, Cockcroft pointed his finger towards Sm ith's eye and Sm ith prom ptly bit it off. In this case, H olt CJ said: ... in a case of a small assault, [a man ought not toj give a violent or an unsuitable return. For hitting a man a little with a little stick is not a reason for him to draw a sword and cut and hew the other.

Serious arrestable offences Certain offences are so grave that, by virtue of their nature and consequences, the Philips Royal Com m ission felt that these should attract additional police pow ers in order to enhance their chances of detection.8 These include additional pow ers to detain those suspected of having com mitted such crim es, the authorising of road blocks and delaying a suspect's access to legal advice or notification to another of his or her arrest. The definition of serious arrestable offences is rather com plicated, as is the case with those w hich are sim ply arrestable. We therefore have a list o f offences w hich are alw ays classed as serious arrestable offences, as w ell as a form ula for con v erting arrestable offences into the serious variety. The latter operates under s 116 of PACE, which provides that an arrestable offence becom es a serious arrestable offence where it has led to any of the following consequences or is intended or likely to lead to any of them, namely: (a) serious harm to the security of the State or to public order; (b) serious interference with the administration of justice or with the investigation of offences or of a particular offence; (c) the death of any person; (d) serious injury to any person; (e) substantial financial gain to any person; and (f) serious financial loss to any person.

If an arrestable offence involves m aking a threat which, if carried out, would be likely to lead to any of the consequences in (a)-(f) above, that will also be classed as a serious arrestable offence (see A ppendix 10). An exam ple of where an arrestable offence may becom e serious can be illustrated in the follow ing scenarios.

8

Royal Commission on Criminal Procedure, 1981, para 3.5.

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A person is caught whilst com m itting a burglary, which is an arrestable offence. However, this could be transform ed into a serious arrestable offence if the premises constituted the hom e of an im portant governm ent official and the suspect was about to break into a safe where secret docum ents were kept (see (a)). If the suspect w as caught in official prem ises where important evidence w as being held and was in the process of trying to destroy it, then the provisions under (b) may apply. Also, (e) may apply if the suspect was caught in prem ises whilst stealing valuable jew ellery and art treasures, and (f) m ay apply if the b u rg lar w as cau g h t stealin g £1,000 from the hom e of a pensioner and this constituted the victim 's life savings. However, (f) may not apply if the sam e am ount of m oney was stolen from a bank, as this would not constitute a great loss to that organisation. Crim es w hich are alw ays classed as serious arrestable offences are listed under s 116 o f and S ch ed 5 to P A C E. T h e se in c lu d e tre a s o n , m u rd er, m a n sla u g h te r, kidnapping, im porting ind ecent or obscene articles, causing an explosion likely to endanger life or property, possession of a firearm with intent to injure, use of firearms and im itation firearms to resist arrest, carrying firearms with crim inal intent, hostagetaking, hijackin g, torture, cau sin g d eath by d angerou s d riving , causin g d eath by careless driving w hen under the influence of drink or drugs, endangering safety at aero d ro m es, h ijack in g o f sh ip s, seizin g or exercisin g con tro l o f fixed p latfo rm s, hijacking of Channel Tunnel trains, seizing or exercising control of the tunnel system, o ffen ces relatin g to in d ecen t p h o to g rap h s and p seu d o -p h o to g rap h s o f ch ild ren , publication of obscene matter, rape, assault by penetration, causing sexual activity w ithout consent involving penetration, rape of a child under 13, assault o f a child under 13 by penetration, causin g/inciting a child under 13 to engage in sexual activity involving penetration, sexual activity with a m entally disordered person involving p en etratio n , c a u s in g /in c itin g a m en tally d isord ered p erson to en g ag e in sexual a ctiv ity in v o lv in g p e n e tra tio n , and cau sin g or allo w in g the d eath o f a child or vulnerable adult, as well as drug trafficking and certain money laundering offences. See A ppend ix 10, w hich d ep icts the relation ship betw een arrestable and serio u s arrestable offences.

General arrest conditions The provisions under s 25 of PACE were am ong som e of the m ost controversial under the Police and Crim inal Evidence Bill during its passage through Parliam ent. This is because it em pow ers the police to arrest persons who have com m itted offences which are not arrestable. At first sight, this would appear to be a rather draconian power, but deeper analysis into the purposes behind these provisions discloses sound practical reasons for this arrest power being conferred upon the police. N on-arrestab le offences inclu de literally dozen s o f m inor offences, w hich are usually dealt with at sum m ary level before magistrates. The bulk of these constitute m otoring offences, apart from som e of the m ost serious, such as causing death by dangerous driving. H owever, there are also a substantial num ber of other offences which are non-arrestable, in view of their less serious nature, but which fall within the scope of law enforcem ent duties that fall upon the police. These include com m on assault, highw ay obstruction, litter dropping, unlaw ful street trading and many more. A com m on p ro ced u re for p ro secu tin g o ffen ces u n d er th is categ o ry is to issu e a sum m ons for the defendant to attend court. This procedure is known as 'reporting' rather than 'arresting'. The effectiveness of this method in bringing suspects to court is

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largely con tin gen t upon the correct nam e and address being given. In the past, substantial num bers of sum m onses w ere 'u nserved ' on such persons, because of incorrect particulars being given to the police at the time, as w’ell as other reasons. Section 25 of PACE enables the police to arrest a person in connection with a nonarrestable offence which they have reasonable cause to suspect is being or has been com m itted or attem pted, and where it appears that the service of a sum m ons is im practicable or inappropriate 'becau se any of the general arrest conditions are satisfied'. Section 25(3) then defines what the general arrest conditions are (the words in square brackets have been added for clarification where appropriate): (3) The general arrest conditions are: (a) that the nam e of the relevant person is unknow n to, and cannot be readily ascertained by, the constable; [This includes situations where a suspect sim ply refuses to provide a police officer with his or her name, or gives an absurd name which is obviously not real, such as 'M ickey M ouse'!] (b) th at the co n stab le has reaso n ab le g ro u n d s for d o u b tin g w h eth er a nam e furnished by the relevant person as his nam e is his real name; [Sometimes, a name is given which does not sound quite as absurd as above, but the police officer has reasonable grounds for doubting that this is the suspect's real name.] (c) that: (i) the relevant person has failed to furnish a satisfactory address for service; or (ii) the co n sta b le has re a so n a b le g ro u n d s fo r d o u b tin g w h e th e r an ad d ress furnished by the relevant person is a satisfactory address for service; [In both the above situations, a police officer may arrest a suspect who either refuses to give his or her address (or gives one which is obviously very doubtful, such as 10 D ow ning Street) or provides an address w hich would be unsatisfactory for the service of a summons, for instance, a large gypsy encampment.] (d) that the constable has reasonable grounds for believing that arrest is necessary to prevent the relevant person: (i) (ii) (iii) (iv) (v)

causing physical injury to him self or any other person; suffering physical injury; causing loss of or damage to property; committing an offence against public decency; or causing an unlawful obstruction of the highway;

(e) that the constable has reasonable grounds for believing that arrest is necessary to protect a child or other vulnerable person from the relevant person. [The ab ov e co n d itio n s m ay g e n erally ap p ly w h ere a m inor assau lt has been committed and the suspect is still in a very aggressive mood, despite the presence of the police, or if the suspect threatens self-harm or if that person is at risk of being harm ed by others involved in the incid ent. A lso, the su spect m ay threaten to damage property out of revenge or there may be a risk of evidence being destroyed. W here an offence involves gen erally ind ecent b ehaviou r and the con d ition in sub-s (5) below applies, an arrest will be appropriate in order to rem ove such a person. If a person obstructs the highway and refuses to move the source of that obstruction, then an arrest may be a correct course of action. Finally, the protection o f child ren and other vu lnerable persons could apply w here, for instan ce, an aggressive man involved in a road traffic accident with a female driver, threatens her, and there are also children or very elderly passengers in her car.]

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(4) For the purposes of sub-s (3) above, an address is a satisfactory address for service if it appears to the constable: (a) that the relevant person will be at it for a sufficiently long period for it to be possible to serve him with a summons; or (b) that some other person specified by the relevant person will accept service of a summons for the relevant person at it. [Even if a suspect provides a correct address, if that abode happens to be an overnight hostel or a holiday address, for instance, and a more suitable alternative address is not given or the suspect is unable to specify someone living at a suitable address who is able to accept the summons on his or her behalf, that suspect will be arrested.) (5) Nothing in sub-s (3)(d) above authorises the arrest of a person under sub-paragraph (iv) of that paragraph, except where members of the public going about their normal business cannot reasonably be expected to avoid the person to be arrested.

In Nicholas v DPP (1987), it was held that the correct approach to arresting a person under s 25 is to inform the suspect of the offence for which he or she is being arrested and the general arrest condition w hich exists, such as failing to provide a nam e and address. As a m atter of good practice, the police are advised that the suspect should be told the consequences of m eeting the general arrest conditions before arresting that person, for exam ple, by saying 'If you do not provide me with your nam e and address, then you w ill be arrested'. U nder s 30(7) o f PACE, there is a pow er to d e-arrest a person before reaching a police station w ho co-operates and provides a nam e and address (see below for further coverage of this power).

Common law power to arrest for a breach of the peace This is a com m on law power of arrest that was preserved by PACE and is available to ordinary citizens as well as the police. As far as the police are concerned, it has not been widely used by them in more recent times because of the array of public order offences created by the Public O rder A ct 1986 and the Crim inal Justice and Public Order Act 1994. Also, the police have specific powers under s 17 of PACE, for instance, to effect entry into prem ises in order to deal with incidents which can som etim es be placed under the heading of breaches of the peace (see Chapter 4). These have made the exercise o f their pow ers m ore certain , in view o f the availability o f statu tory provisions, rather than relying on the interpretation of the com m on law in individual cases. However, this pow er has proved to be useful in circum stances where the other pow ers may not be used. What is a breach of the peace? It is important to note that a breach of the peace is not sim ply noisy or exuberant behaviour, but there m ust be violent conduct or the apprehension of it. In R v Hozvell (1981), a breach of the peace w as defined by the Court of Appeal as follows: We are emboldened to say that there is a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property, or a person is in fear of being so harmed through an assault, an affray, a riot, an unlawful assembly or other disturbance.

Any citizen (including the police) may arrest another where a breach of the peace has been com mitted in his or her presence, or where there is reasonable cause to believe that unless a person is arrested, a breach will be com mitted in the immediate future, or

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where a breach has occurred and there are reasonable grounds to believe that it will be repeated if the person is not arrested (R v Howell (1981); see also R v Kelbie (1996)). The law perm its the temporary restraint and detention of persons breaching or threatening to breach the peace, although this falls short of making an arrest. This is to enable the person to calm down, so that no further action will be necessary.9 This was held in Albert v Lavin (1982), where Lord Diplock stated: Any person, in whose presence a breach of the peace is being or reasonably appears to be about to be committed, has the right to take reasonable steps to make the person who is breaking or threatening to break the peace refrain from doing so; and those reasonable steps in appropriate eases will includc detaining him against his will. At common law, it is not only the right of every citizen, it is also his duty, although, cxcept in the case of a citizen who is a constable, it is a duty of imperfect obligation.

In C hief Constable o f Cleveland Police v M cGrogan (2002), it was held that the following applied where a person has been arrested for a breach of the peace: • the pow er to detain that person in order to prevent a further breach of the peace m ust be based on a real apprehension that the arrested person will com m it or restart the breach of the peace within a short time; •

there m ust be a real apprehension that this will occur and not merely a fanciful one;

• the police officer m aking the decision for the continued detention of the arrested person must have an honest belief that further detention is necessary to prevent a breach of the peace, and there m ust be reasonable grounds for this belief; •

the arrested person cannot be subjected to continued detention on the ground that sooner or later that person is likely to breach the peace if released;

•

as a person detained for a breach of the peace should be regularly reviewed in order to decide w hether continued detention is justified, the rules under PACE should apply in such cases.

This com m on law pow er also extends to the entering of prem ises, public or private, in order to deal with breaches of the peace. As far as the police are concerned, they have relied to a certain exten t on the law as stated in T hom as v Saw kins (1935), w hich em powers them to enter and rem ain on any prem ises in order to prevent a breach of the peace. In this case, tw o police officers w ere present during a m eeting held on private prem ises, although the public were invited. The presence of these officers at the m eeting w as unw elcom e and a stew ard attem pted to eject one of them . Sergeant Saw kins prevented this and a private prosecution was brought against him . It was held by the Divisional Court, inter alia, that the police were entitled to enter and remain on prem ises if they reasonably anticipated a breach of the peace (see also Lamb v DPP (1990), regarding the power to enter prem ises where a breach of the peace is actually occurring). O rd in ary citizen s should exercise great cau tion w hen in terv en in g in m atters concerning breaches of the peace, w hether or not they enter prem ises for this purpose. It has been stated that even the police may be reluctant to use this pow er in private

9

Op cit, Clark, fn 7.

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prem ises unless a breach of the peace is actually occurring.10 The problems inherent w hen actin g in an ticip atio n o f a breach o f the p eace are illu strated in M cLeod v Commissioner o f Police fo r the M etropolis (1994). In this case, in anticipation of a dispute, two police officers, together with a solicitor, accom panied a m an to the hom e of his form er w ife in order to collect property under a court order. All four of them were admitted by the w ife's m other in the absence of the wife and the property w as duly removed. In later proceedings, the wife alleged that although her m other opened the door, she had not given actual perm ission for them to enter; therefore, they were all trespassers. W hilst the Court of Appeal held that this applied to the husband and his solicitor, it did not apply to the two police officers w hose presence w as legitim ised by s 17(6) of PACE, w hich preserved the com m on law pow er to deal with breaches of the peace. The court w ent on to issue a w arning that police officers m ust be sure that, before they enter private prem ises against the will of the ow ner or occupier, a real and im m in en t risk of a breach of the peace exists. T h is case w as later referred to the European Court o f H um an Rights (M cLeod v UK (1999)), where it was held that the police officers should not have entered the applicant's hom e, as there were insufficient grounds to apprehend a breach of the peace. Subsequently, there had been a violation of A rt 8 of the European Convention on H um an Rights (the right to respect for private and family life, as discussed in Chapter 8). In M oss v M cLachlan (1985), discussed in Chapter 2, it was held that the police had correctly exercised their pow ers to prevent a breach of the peace by turning vehicles away four miles from a colliery. It w as suspected that the occupants were intending to join fellow striking miners and that a breach of the peace was likely. The defendants were arrested for obstruction follow ing refusal to com ply w ith the direction to turn back. However, in R (on the Application o f Laporte) v C hief Constable o f the Gloucestershire Constabulary (2004), the judges took a rather different view in the light of the following facts. Three coaches containing about 120 passengers w ere travelling from London. T h e p a s s e n g e r s w e re in te n d in g to ta k e p a r t in a p r o te s t a t an a ir b a s e in G loucestershire. The coaches were stopped by the police a short distance from the intended destination as there had been recent incidents there. The police found articles that included masks, shields, scissors, spray paint and a sm oke bom b, and concluded that the intended protest was not a peaceful one. They escorted the coaches back to London on a journey that took about tw o hours, and w ithout a break. O ne of the passengers brought an action for judicial review on the grounds that the police had acted unlawfully by preventing her from travelling to the dem onstration, and forcing her to return to London that involved a tw o-hour period of detention. She contended that this constituted a breach of Art 11 of the European Convention on Hum an Rights (the right to freedom of peaceful assem bly), Art 10 (freedom of expression) and Art 5 (the rig h t to liberty ). It w as held that alth o u g h the p o lice had acted law fu lly in preventing the coaches from reaching the airbase, they were not entitled to cause the detention of the passengers w hilst being escorted back to London. A restriction on their liberty for this period of time could only be justified if an im m ediate breach o f the peace was apprehended and they were under arrest at the time and due to be brought before a court.

10 Stone, R, Entry, Search and Seizure: A Guide to Civil and Criminal Powers of Entry (2nd edn, London: Sweet & Maxwell, 1989).

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ARREST PROCEDURE Inform ation that m ust be given on arrest An arrest is the law ful d ep rivation o f a p erso n 's liberty. In ord er for an arrest to be law ful, it m ust be based on a legal pow er to do so and m u st also be conducted in the correct m anner. P art o f the arrest procedure is that the suspect m u st be inform ed that he or she is under arrest and the correct grounds for the arrest m ust also be given. This w as held in Christie v Leachinsky (1947), w here it w as stated, inter alia, that an arrest w ould be unlaw ful if such a procedure w as not follow ed. T he grounds for an arrest need no t be in precise technical term s, but should be given in such a m anner that the suspect 'know s in substance the reason w hy it is claim ed that this restraint should be im p o sed '.11 This com m on law principle w as later enacted under s 28 o f PACE (entitled 'inform ation to be given on arrest'), w hich m akes the follow ing provisions: (1) Subject to sub-s (5) below, when a person is arrested otherw ise than by being informed that he is under arrest, the arrest is not lawful, unless the person arrested is informed that he is under arrest as soon as is practicable after his arrest. (2) W here a person is arrested by a constable, sub-s (1) above applies, regardless of whether the fact of the arrest is obvious. (3) Subject to sub-s (5) below, no arrest is lawful unless the person arrested is informed of the ground for the arrest at the time of or, as soon as is practicable after, the arrest. (4) W here a person is arrested by a constable, sub-s (3) above applies, regardless of whether the ground for the arrest is obvious. (5) Nothing in this section is to be taken to require a person to be informed: (a) that he is under arrest; or (b) of the ground for the arrest, if it was not reasonably practicable for him to be so informed, by reason of his having escaped from arrest before the information could be given.

The requirem ents under sub-ss (2) and (4) that the fact that an arrest is b ein g m ad e and the ground s for it m u st be con veyed to the suspect, even if those facts are obvious, o n ly a p p lie s to the p o lic e . S u b -s e c tio n (5) s ta te s , s o m e w h a t o b v io u sly , th a t th is requirem ent does not apply w here the suspect escapes before this inform ation can be given. The w ords 'as soon as practicable after h is /th e arrest' in sub-ss (1) and (3) cover the contingency w here the suspect m ay be incapable of know ing w hat is happening, for exam ple, w here he or she is drunk, o r m ay be v iolent to the extent that the police are com pelled to im m ediately restrain the suspect. T he police m ay later inform him or her o f the arrest and the grou nd s for it w hen the perso n has eith er sobered up or calm ed dow n at the police station. It should be noted that the grounds for m aking an arrest as com m u nicated to the suspect m ust constitute the correct reasons. If not, then the arrest is unlaw ful and a third party w ould also be legally entitled to intervene to prevent the arrest. T his w as confirm ed in Edwards v D PP (1993), w here Evans LJ stated:

11

Per Simon V in Christie v Leachinsky (1947). See also Clarke v Chief Constable of North Wales Police (2000), where it was stated that terms such as 'You're nicked for handling this gear' are

sufficient.

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... it has to be borne in mind that giving correct information as to the reason for an arrest is a matter of the utmost constitutional significance in a case where a reason can be and is given at the time.

Apart from the ethical implications of giving reasons for depriving a person of his or her liberty, there are also practical reasons for this course of action. An arrested suspect may be able to provide an explanation w hich could have the effect of reducing the charges against him or her (see R v Fennelley (1989), discussed below). In addition, in Wilson v C hief Constable o f Lancashire Constabulary (2000), the Court of Appeal stated that one of the reasons for stating the grounds of an arrest is to enable an innocent suspect to repudiate the allegation. The im portance of this procedure is underlined by the inclu sion o f a new para 10.3 o f C od e C, w hich states that: 'A p erson w ho is arrested, or further arrested, m ust be informed at the time, or as soon as practicable, thereafter, that they are under arrest and the grounds for their arrest, see Note 10B.' T h is re q u ire m e n t is e sp e c ia lly im p o rta n t in v iew o f A rt 5 (2) o f the E u ro p e a n C onvention on H um an Rights, w hich states: 'E v eryone w ho is arrested should be informed promptly, in a language w hich he understands, of the reasons for his arrest and o f any charge against him .' An illustration o f the ap plication o f A rticle 5(2) can be seen in Taylor (A C hild Proceeding by his M other & Litigation Friend CM Taylor) v C hief Constable o f Thames Valley (2004). In this case, the resp o n d en t, Taylor, w as arrested by a p olice o fficer w ho inform ed him that he was being arrested on suspicion of violent disorder, having been seen throwing rocks during a dem onstration. This occurred in 1998 w hen Taylor was 10 years old. He w as then taken to a police station and later released, having been given a form al caution. He subsequently claimed dam ages for false im prisonm ent on the grounds that his arrest w as unlaw ful. The judge awarded him dam ages on the grounds that, inter alia, insufficient w ords were spoken to him law fully to effect his arrest under s 28(3) of PACE, because more inform ation w as reasonably required, such as m en tio n in g the th ro w in g o f ston es. T he ch ief co n stab le ap p ealed a g a in st the ju d g m en t in w hich the respond ent Taylor w as aw arded £1,500 d am ages for false imprisonment. The Court of Appeal referred to Fox, Campbell and Hartley v UK (1990), which was considered on Art 5(2) of the European Convention on Human Rights. The issue was whether adequate information was given under s 28(3) of PACE, which had to be assessed objectively in respect of the information which was reasonably available to the arresting officer. The court w ent on to state that, in this instance, the offence of violent disorder w as com mitted by a large number of people and it w as not practicable for the p olice to give p recise d etails o f the case again st each arrested person. In allowing the appeal and setting aside the £1,500 dam ages, the court held that Taylor's arrest w as lawful and com plied with s 28(3) of PACE and A rt 5(2) of the European Convention on Hum an Rights, on the grounds that it was sufficient to inform him that he w as being arrested for violent disorder. In Dliesi v C h ief Constable o f the West M idlands Police (2000), it was held that the reason for an arrest does not necessarily have to be given by the arresting officer. An arrest is lawful, provided the suspect is given the reason at the time or as soon as is practicable thereafter, even if this is done by a police officer other than the one making the arrest.

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The act of legal restraint W hen an arrest is being made, it is necessary to convey to the suspect a clear indication that he or she is under legal restraint. This may be done by words (see Alderson v Booth (1969)), although the suspect must subm it to the arrest, w hich must then be followed by in fo rm in g him o r her o f the reasons for it. If the su sp ect d oes n o t su b m it or circum stances militate against the use of mere words, an arrest may consist of taking hold of the suspect. In cases where a person about to be arrested is not show ing any signs of hostility or likelihood of escaping, it is usual police procedure to take a firm hold of the suspect's arm whilst giving the reason for the arrest and adm inistering the cau tion . In a m ore v o la tile situ a tio n , the p o lice m ay u se m ore p h y sical force if necessary, but this m ust alw ays be reasonable in all the circum stances (s 117 of PACE, s 3(1) of the Crim inal Law A ct 1967 and s 114 of the Terrorism A ct 2000 regarding, inter alia, the arrest of suspected terrorists). It is largely for this reason that the requirem ent to give certain inform ation on arrest m ay be delayed until it is practicable to do so. It is not uncom m on for the police to meet with such strong resistance when m aking arrests that this inform ation cannot be conveyed until the suspect has ceased to behave in a violent and noisy m anner or when other potential dangers have passed. As a general rule, the use of handcuffs to effect restraint is confined to cases where the suspect may becom e violent or attem pt to escape. This falls within the am bit of using reasonable force, as is the case where the police use batons, CS spray or other incapacitants, in accordance with police guidelines.

The caution A further arrest procedu re is the givin g o f the caution to the suspect. T his is not covered under PACE, but under paras 10.4,10.5 and 10.7 of Code C, which provide: 10.4 A person who is arrested, or further arrested, must also be cautioned upon arrest unless: (a) it is impracticable to do so by reason of their condition or behaviour at the time; or (b) they have already been cautioned immediately prior to arrest... 10.5 The caution which must be given on arrest... should ... be in the following terms: '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.' 10.7 Minor deviations from the words of any caution given in accordance with this Code do not constitute a breach of this Code, provided that the sense of the relevant caution is preserved ...

Voluntary attendance at a police station W hat is the position where a person is voluntarily at a police station and is 'helping the police with their inquiries'? This issue is covered under s 29 of PACE, but is a subject w hich has attracted m uch controversy. A ccording to Professor Zander: 'T he police fre q u en tly find it co n v en ie n t to b lu r the lin e b etw een freed om and arrest. The new spaper phrase "a man is helping the police w ith their inquiries" has becom e a

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polite euphemism to describe this shadowy area.' Professor Zander then goes on to make the following point: 'But, in law, the position has not been in doubt. A person is either under arrest or he is not. If he is not technically under arrest, he is free to go.'12 Section 29 of PACE makes the following provisions: 29 W here, for the pu rpose o f assistin g w ith an in v estigatio n , a person attends voluntarily at a police station or at any other place where a constable is present or accompanies a constable to a police station or any such other place without having been arrested: (a) he shall be entitled to leave at will, unless he is placed under arrest; (b) he shall be informed at once that he is under arrest if a decision is taken by a constable to prevent him from leaving at will.

During the passage of the Police and Criminal Evidence Bill through Parliament, it was suggested that such individuals should be protected by certain safeguards, such as expressly informing them that they were free to leave at any time or asking if they wished to have a solicitor. Lord Denning even described such attendance at a police station as 'half way to making an arrest'.13 This was rejected by the Government on the grounds that so many people attend police stations for a variety of reasons that to introduce such a scheme would cause the police severe administrative burdens. There is one safeguard under para 10.2 of Code C, which states: Whenever a person not under arrest is initially cautioned, or reminded they are under caution, that person must at the same time be told that they are not under arrest and are free to leave if they want to ...

Further guidance is given under paras 3.21 and 3.22 of Code C, as follows: 3.21 Any person attending a police station voluntarily to assist with an investigation, may leave at will unless arrested. If it is decided they shall not be allowed to leave, they must be informed at once that they arc under arrest and brought before the custody officer, w'ho is responsible for making sure that they are notified of their rights in the same way as other detainees. If they are not arrested, but are cautioned ... the person who gives the caution must, at the same time, inform them they are not under arrest, they are not obliged to remain at the station, but if they remain at the station, they may obtain free and independent legal advice if they want. They shall be told the right to legal advice includes the right to speak w'ith a solicitor on the telephone and be asked if they want to do so. 3.22 If a person attending the police station voluntarily, asks about their entitlement to legal advice, they shall be given a copy of the notice explaining the arrangements for obtaining legal advice ...

However, it will be observed that these safeguards only apply when a suspect is under caution and not before then. A suspect can, of course, be arrested at any time during his or her voluntary attendance at a police station once the police have the required grounds for making it.

12 Op cit, Zander, fn 3. 13 House of Lords, Hansard, 5 July 1984, col 502.

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Arrests made elsewhere than at police stations M ost arrests occur away from police stations and there is the general rule under s 30(1) of PACE that arrested persons shall be taken to a police station as soon as practicable following their arrest. Sub-section (10), how'ever, provides that a constable may delay this procedure if the arrested person's presence is needed elsewhere in order to further the investigation, if it is reasonable to do this immediately. Sub-section (11) provides that in the event of such a delay, the reasons for it m ust be recorded on arrival at the police station. N orm ally arrested persons should be taken to a 'd esign ated ' police station, namely, a station where there are facilities for the purpose o f detaining arrested persons (s 35 of PACE), although there are exceptions to this general rule under sub-ss (3)-(6) inclusive. These provide that unless the suspect will have to be detained for longer than six hou rs, police officers o p erating w ithin an area covered by a n o n ­ designated police station may take an arrested person there. If it is necessary to keep that p erso n for lo n ger than six ho u rs, that p erson m u st then be transferred to a designated police station. These rules also apply to constables em ployed by bodies which do not fall under the m ainstream police forces, such as the British Transport Police. The other exception is where a police officer has arrested a suspect on his or her own (or taken charge of a person arrested by som eone else, such as a store detective), no assistance is available from other officers and it appears to the arresting officer that the suspect may injure him or herself or anyone else (including the constable) if taken to a designated police station. This covers the contingency where a non-designated police station in proxim ity to an arrest may be closer than one which is designated, and the constable carrying out the arrest w ithout police assistance is having difficulty restraining the suspect. This situation is more likely to occur in rural areas, where a local police station m ay be consid erably closer than the nearest designated police station. There is provision under s 30(7) for a police officer to release a suspect before arriving at a police station, where the constable is satisfied that there are no grounds for keeping that person under arrest. This can occur under a num ber of situations, but let us assum e, for instance, that a m an has been arrested under the general arrest conditions under s 25 of PACE because he has com mitted a m inor road traffic offence and has refused to give the police officer his nam e and address. If the arrested person decides to co-operate before being taken to the police station or whilst en route and provides the police officer with the required details, that person may be released, as there are no grounds for keeping him or her under arrest. However, sub-ss (8) and (9) provide that a record m ust be m ade as soon as is practicable if this is done. The power to release a suspect w ithout taking that person to a police station has been extended under the new 'street bail' schem e. This may apply, for instance, where a shoplifter has been arrested by a police officer. The shoplifter is well know n to the arresting officer, who knows where the suspect lives. In those circumstances, the police officer has the discretion to give 'street bail' to that person that requires his or her attendance at a police station, bu t at a later date. H owever, if the shopkeeper then approaches the officer and expresses a willingness not to press charges if the goods are paid for, and the suspect agrees, the suspect may be released on the spot. The suspect is therefore not taken to a police station or even given street bail, but is released unconditionally. The new procedure where bail may be given in places other than police stations is discussed further below. H ow ever, it should be noted at this stage that s 4 of the Crim inal Justice Act 2003 has made provision that a person given street bail may be

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required to attend any type of police station and not necessarily a designated police station. The sam e also applies if that person is arrested and taken to a police station if he or she fails to attend voluntarily.

Arrest for one or more further offences Section 31 of PACE provides that where a person is at a police station as a result of being arrested and one or more further offences com e to light, that person shall be arrested at the police station for those offences. This is to prevent an arrested person being released and then im m ediately re-arrested for further offences where this could have been done in the course of the original period of detention. In Chapter 5, the full significance of this procedure will be apparent; suffice it to say here that there are strict lim itations on the tim es that an arrested su sp ect m ay be d etained w ith o u t being charged. Section 31, inter alia, prevents an arrested person being released w ithout charge for one offence w hen the detention time becom es exhausted, and then being im m ediately re-arrested for another alleged crim e, w here fresh detention tim e w'ill begin.

Searches on arrest W hen a person has been arrested away from a police station under any arrest power, s 32 o f PACE em pow ers the police to search the suspect and, if the arrest is for an offence, any prem ises the person was in at the time o f the arrest or im m ediately before it, w hether or not the prem ises are occupied or controlled by the suspect. The pow er of entry into prem ises must be confined to searching for evidence relating to the offence in question and can only be exercised if it is reasonably believed that such evidence will be found there. In R v Beckford (1991), it was stated that s 32 must not be used to initiate 'fishing expeditions'. The police must have genuine belief that the prem ises contain evidence of the offence for which the suspect has been arrested; this will be a matter of fact for the jury to decide. If a person is arrested in prem ises which consist of tw o or more separate dwellings, such as a block of flats, the police may only search the prem ises in which the suspect was arrested or w as in im m ediately beforehand, as well as any com mon parts shared with others, such as stairw ays and balconies. Section 32 of PACE shares certain sim ilarities with s 18, in so far as both em pow er the police to search prem ises following the arrest of a suspect, although s 18 applies to prem ises occupied or controlled by the suspect, whether or not the suspect was in such p laces at the tim e o f the arrest; also, s 18 is confined to arrestable offences only. Furtherm ore, the pow er to enter and search prem ises under s 32 has to be applied either immediately or very soon after the arrest. In R v Badham (1987), it was held that a lapse of four hours betw een an arrest and the subsequent entry and search of prem ises under s 32 was unacceptable (see also Hewitson v C hief Constable o f Dorset Police (2003)). Section 18 is covered in more detail in Chapter 4, since all of it falls within the am bit of p olice p ow ers o f entry and search o f prem ises. A t this stage, it m ay be useful to m ention s 17 of PACE, w hich is also covered in detail in Chapter 4. Part of this section em pow ers the police, inter alia, to enter and search prem ises in order to execute an arrest w arrant issued in connection w ith crim inal proceedings, as w ell as m ake an arrest for an arrestable offence or for certain other offences. Under s 32, an arrested person m ay be searched on arrest if there are reasonable grounds for believing that the suspect may present a danger to him or herself, or to

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others. This will often be focused on the suspect carrying any weapons, as is the power to search an arrested person for anything which might be used to effect an escape from law ful custody. Section 32 also perm its the searching of an arrested person for any evidence relating to an offence but, in all the foregoing circum stances, sub-ss (3) and (4) provide that a search must be confined to the extent that is reasonably required in order to find such objects. W here an arrested person is searched in public under these p ow ers, sub-s (4) provides that such persons shall not be required to rem ove any clothing other than outer coat, jacket or gloves. A lso, under s 59(2) of the Crim inal Justice and Public O rder A ct 1994, the m outh of an arrested suspect may be searched in public. Arrested suspects could be required to rem ove other clothing if there are reason ab le grou nd s for this requ irem en t, b u t this should no t be d one in p u blic, although such item s may be removed in public with the suspect's genuine consent.

Police discretion in making arrests In Holgate-M ohamm ed v Duke (1984), a w om an was suspected of having stolen jew ellery and w as arrested by a detective on the basis that not only did he have reasonable grounds to suspect that she had com mitted this offence, but he also believed that she w ould be m ore ready to confess if she w ere arrested and questioned at the police station. This action w as upheld by the H ouse of Lords w hich, inter alia, held that a decision to arrest constitutes an executive discretion expressly conferred on the police, which can only be questioned in the courts on the grounds that no reasonable police officer would make such a decision. In other words, such an executive discretion can only be questioned if it w as m anifestly absurd (see Associated Provincial Picture Houses Ltd v W ednesbury Corp (1948)). It is also useful to mention here the issue of reasonable suspicion with regard to police discretion to make arrests. The leading case, as m entioned earlier in Chapter 2, is O'Hara v C hief Constable o f the RU C (1997), where the House of Lords considered the entitlem ent of a police officer to arrest a terrorist suspect. In this case, the officer had acted on in fo rm a tio n receiv ed d u rin g a b rie fin g b y a se n io r p o lice o ffice r w ho instructed him to make the arrest. Their Lordships held that a police officer may make an arrest based on inform ation received from another, although this m ust cause that officer to have suspicion based on reasonable grounds. This issue w as later considered in Hough v C hief Constable o f the Staffordshire Constabulary (2001), where police officers effected their arrest powers based on inform ation received from the Police National C o m p u te r. T h e C o u rt o f A p p e a l h e ld th a t, d e p e n d in g on the n a tu re o f su ch information, a police officer could base his or her reasonable suspicion on information received from that source.14 There are instances where a crim e has been committed for w hich only one person could be responsible, but the suspect is in a small group and the police do not know who the culprit is. In Cum m ing v C hief Constable o f Northumbria Police (2003), it was held that in those circum stances, each m em ber or all of the group may be arrested.

14 See Parpworth, N, 'Reasonable suspicion and the power of arrest' (2002) 166 JP 702.

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Street bail Section 4 of the Crim inal Justice Act 2003 has substantially amended s 30 of PACE, as well as inserting new ss 30A, 30B, 30C and 30D. Collectively, these have created a new schem e com m only called 'street b ail' (although the A ct officially nam es it as 'B ail elsewhere than at police station'). The purpose behind this new procedure is to obviate the need to take ev ery arrested su sp e ct to a p o lice statio n w here this is clearly unnecessary. In such cases, the arresting officer has the discretion not take the suspect into custody but will require the suspect to attend a specific police station at a later date and time. This will either be recorded at the scene on the appropriate document, or notified to the suspect at some future date. W here a person has been arrested and then taken elsewhere for identification purposes, for instance, street bail may then be given at the arresting officer's discretion; otherw ise that person would norm ally be taken to a police station at that stage. No conditions may be attached to street bail other than the requirem ent for the suspect to attend the relevant police station as required in order to participate in the police investigation. The time, date or police statio n sp ecified in the o rig in al or a su bseq u en t notice m ay be varied by a later notification. A police officer may arrest without warrant anyone who fails to attend the police station at the specified time. Although no crim inal sanctions are attached to a failure to attend, this is to be treated as an arrest for an offence for the purposes of ss 30 and 31 of PACE.

Unlawful arrests The consequences on the police in making unlaw ful arrests are varied. Such incidents can be the subject of formal com plaints against the police (see Chapter 1) and may also in v o lv e civ il and ev en crim in al actio n b ein g taken ag ain st those resp o n sib le. In H olgate-M ohamm ed v Duke (above), the arrest of the appellant was initially challenged before the county court and she was awarded £1,000 dam ages for false imprisonment. The chief constable for that police area appealed against this decision which, as already discussed above, resulted in the House of Lords finding in his favour. A lthough a civil action under the tort of false im prisonm ent is available in cases of w rongful arrest, som etim es, an action for assault and battery m ay also brought in the sam e case; this can apply where som e degree of force was used in effecting that arrest (see Chapter 1 for further discu ssion of the consequences of unlaw ful police action). H ow ever, it should be noted that in Simpson v C hief Constable o f South Yorkshire Police (1991), it was held that the use of excessive force in m aking an arrest will not autom atically render the arrest unlawful. A fu rth e r co n se q u e n ce o f the p o lice m ak in g w ro n g fu l a rre sts or o th e rw ise unlaw fully d etaining a person can be the exclusion of any evidence obtained as a result of such im proper conduct, thereby leading to the collapse of the case. Section 78 of PACE, headed 'exclusion of unfair evidence', makes the following provisions; (1) In any p ro ceed in gs, the co u rt m ay refuse to allow evid ence on w hich the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. (2) Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence.

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In R v Fennelley (1989), the defendant was stopped and searched in the street and then arrested. In the course of the searches, including a strip search at the police station, so m e je w e lle ry w as fo u n d and tw o p a c k e ts o f h e ro in w ere d is co v e re d in h is underpants. Since the prosecution w ere unable to establish that the defendant was given reasons for the stop, search and subsequent arrest, the evidence of the search was excluded at the Crow n C ourt trial under s 78 of PACE. This w as done on the grounds that, had he been informed of the reasons for being stopped, he would have had the opportunity to provide an early explanation; it would therefore be unfair to ad m it ev id e n ce o b tain ed in this m a tte r w here he w as d en ied th at op p ortu nity. However, the decision in this case was criticised in R v M cCarthy (1996), where the C ou rt of A ppeal stated that it w as d ifficu lt to un derstand w hy the evid ence was excluded in Fennelley. There was no denial by the defendant that the evidence was on him and the drugs would have been discovered by the police in any event, although the m atter m ay be different where a confession is made. In ja n ett v C hief Constable o f the W est M idlands Police (2003), it was held that a police officer m ust have reasonable grounds for being suspicious that a person is guilty of an offence and m ust also have genuine suspicion. The latter denotes that a partly subjective elem ent exists within the test as to w hether an arrest is law ful. In DPP v L and S (1998), it w as held by the Divisional Court that even where an initial arrest is unlawful, it does not necessarily mean that everything w hich follows is also unlawful. An arrest which is flawed may be rectified later by com plying with the relevant provisions of PACE. In this case, a person was arrested, but w ithout being informed as such, despite the fact that it was reasonably practicable to do so. The arrest w as therefore unlawful. However, the court took the view that it is well established that the custody officer (see Chapter 5) must com p ly w ith a set o f p ro ced u res w hen a p erson is d etain ed at a p o lice statio n ; therefore, at som e stage after the arrested person's arrival, she must have been told the reason for the arrest. A custody officer receiving a prisoner at a police station may assume that the prisoner has been lawfully arrested. If that person then assaults the custody officer, this will constitute an assault on police, even though the initial arrest may have been unlawful.

Arrests with warrant Arrests under warrant account for a m inority of arrests and are applied in relatively lim ited circumstances. U nder s 1 of the M agistrates' Courts A ct 1980, an arrest warrant m ay be issued against a person w ho is suspected of having, or has com m itted, an indictable offence or an offence w hich is otherw ise punishable by im prisonm ent, or w hose whereabouts are unknown. This method of arresting a suspect may be used, inter alia, where the suspect's identity is known, but not his or her location, or it m ay be too dangerous or otherwise inexpedient to make an arrest immediately. Section 13 of the 1980 A ct enables w arrants to be issued w here a defendant fails to attend court w hen required to do so in answer to a sum m ons or other official notification. Arrest w arrants m ay also be issued in a n u m ber o f o th er circu m stan ces. T h ese inclu de instances where an offender has breached certain com m unity sentences and has to be brought before the court to be re-sentenced, where a m em ber of Her M ajesty's armed forces has deserted, or the arrest of a reluctant w itness, to name but a few. For a number of practical reasons, it is not always essential for the arresting officer to be in actual possession of the w arrant when executing it; this depends on the type of w a rra n t in q u e stio n . O ne ex a m p le w h ere the w a rra n t m u st be in th e o ffic e r 's

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possession on arrest is for non-p aym en t o f a fine, b u t w here the w arrant is for a person's arrest in order to enquire into his or her ability to pay, rather than for non­ payment. In DPP v Peacock (1989), it was held that in such cases, the officer must be in possession of the warrant as this can enable the defaulter to pay the outstanding fine. If the warrant does not have to be in the officer's possession at the time of the arrest, the arrested person must be shown the warrant as soon as is practicable if sight of it is requested. W here an arrest is made under a warrant, the procedure for m aking it is essentially the sam e as an arrest w ithout one, although it seem s that a su sp ect is entitled to be informed that he or she is being arrested under a warrant.15 However, this should be done as a m atter of good practice in view of the wording of s 28(3) of PACE (the giving of reasons for the arrest). Under s 117 of the M agistrates' Courts Act 1980, arrest warrants are endorsed with or w ithout bail. W here the latter applies, the arrested person must be held in custody until that person is brought before the court. If the form er applies, the arrested person m ust be released from the police station as directed. As will be discussed im m ediately below , som e fairly recent prov ision s hav e been m ad e reg ard ing the cro ss-bo rd er enforcem ent of arrests, w'hich includes those made under warrant. Under Pt V of the Access to Justice Act 1999 (amended by the Domestic Violence, C rim e and V ictim s A ct 2004), certain arrest w arran ts m ay be served by civ ilian enforcem ent officers and not just the police. The use of civilians in the exercise of other policing functions is discussed in Chapter 7.16

Cross-border enforcement Section 136 of the Crim inal Justice and Public O rder A ct 1994 enables arrest warrants issued in England and W ales or N orthern Ireland against persons charged w ith an offence to be executed in Scotland. Sim ilarly, arrest w arrants issued in Scotland or N orthern Ireland m ay be executed in England and Wales, and w arrants issued in England and Wales or Scotland m ay be executed in N orthern Ireland.17 Warrants may be executed by any constable from within the country where the warrant was issued or the country where it is to be executed, or by any other person within the directions of the warrant. Section 137 of the 1994 Act provides that any police officer in England and Wales who has reasonable grounds to suspect that an arrestable offence has been com mitted or attem pted in England and Wales, w here the suspect is in Scotland or N orthern Ireland, m ay arrest that person within any of those countries w ithout w arrant. The sam e reciprocal m easures w ill apply to p o lice officers in Scotland and N orthern Ireland. This pow er also applies to non-arrestable offences, provided the service of a sum m ons would be im practicable or inappropriate.18 In effect, the sam e conditions will apply as in s 25 of PACE (general arrest conditions).

15

Levenson, H, Fairweather, F and Cape, E, Police Powers: A Practitioner's Guide (3rd edn, London: Legal Action Group, 1996). 16 See Jason-Lloyd, L, Quasi-Policing (London: Cavendish Publishing, 2003). See also JasonLloyd, L, 'Civilian enforcement officers: enhancement of their powers' (2005) 169 JP 88. 17 See Jason-Lloyd, L, The Criminal justice and Public Order Act 1994: A Basic Guide fo r Practitioners (London: Frank Cass, 1996). 18 Ibid.

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Persons arrested should be taken by the arresting officer, as soon as is reasonably practicable, to the nearest convenient designated police station w here the alleged offence is being investigated. Reasonable force may be used where necessary in the execution of the above powers, and s 139 of the 1994 Act provides alm ost the same search pow ers and procedures as those prescribed under s 32 of PACE on the arrest of a suspect, with or without warrant. However, s 139(1) and (5) provides that in the case of suspects wanted in N orthern Ireland or suspects from elsewhere in the UK being arrested in N orthern Ireland, police powers to search such suspects in public may not extend beyond the rem oval of headgear and footw ear as well as outer coat, jacket and gloves (but m ay include searching a p erso n 's m outh). Section 140 o f the 1994 Act covers reciprocal powers of arrest and provides that police officers from one part of the UK who are exercising arrest powers under the above provisions in another part of the U K m ay c o n d u c t th e a r r e s t u s in g th e sa m e p o w e rs a p p lic a b le to th a t lo c a l jurisdiction.19

P O W E R S U N D E R T H E C R IM E A N D D IS O R D E R A C T 1998 Sections 14, 15 and 16 of the Crim e and Disorder A ct 1998 confer two powers on the police which can be usefully be considered in this chapter, since they, technically at least, involve actions which com e close to m aking arrests. These are pow ers to rem ove children from areas which are subject to local child curfew s and the removal of truants from public places.

Local child curfews U nder ss 14 and 15 of the 1998 Act, local authorities or chief officers of police have the power to give notice of local child curfew schem es in certain areas. This will enable them to apply a ban on children under the age of 16 from being in specific public places betw een the hours of 9 pm and 6 am, unless under the effective control of a parent or a responsible person aged at least 18. These notices may specify different hours in relation to different age groups and the total period o f such bans may not exceed 90 days. The curfew notices may be effected by posting them in one or more conspicuous places within the specified area and in any other such m anner as the local authority or chief police officer considers to be d esirable in order to pu blicise the notice. This could include distributing circulars through letter boxes or advertising in local newspapers. These curfews will be im posed if the relevant local authority or chief officer of police considers it necessary for the purpose of m aintaining order in response to com plain ts from local residents. These m easures have been enacted becau se of in c re a sin g co n ce rn s re g a rd in g y o u n g p e o p le e n g a g in g in g e n e ra lly d isru p tiv e behaviour by being allow ed to roam the streets unsupervised at night and placing them selves at risk. W hether a child curfew schem e is being considered by a local authority or a police chief, each is under a duty to con su lt w ith the other prior to putting such a schem e into effect. They are also under a duty to consult with such

19 Ibid.

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other persons or bodies as they consider appropriate. However, a local child curfew schem e m ust ultimately be approved by the Secretary of State. W here a police officer has reasonable cause to believe that an unaccom panied child is contravening a ban imposed by a curfew notice, that officer may take the child to his or her place o f residence, unless there is reasonable cause to believe that the child would be likely to suffer significant harm if taken there. In such circum stances, the o ffice r m ay take the child into p o lice p ro te ctio n , in o rd er to be acco m m o d ated elsewhere. W here the child is returned hom e im m ediately after having been found in contravention of a curfew, the police have a duty to inform the relevant local authority as soon as is practicable. Although not expressly regarded as an arrest, the removal of a child from the street in this m anner is technically a deprivation of that person's liberty and, therefore, reasonable force may be used where necessary. This m atter is discussed further below w hen considering the pow er of the police to rem ove truants from public places. U nder the origin al prov isions o f the C rim e and D isord er A ct 1998, only local authorities had the pow er to initiate local child curfew schem es, but there seem ed to be great reluctance to use this power. Subsequently, s 49 of the Crim inal Justice and Police Act 2001 has made the necessary am endm ent that enables chief officers of police also to exercise this power. It was also an am endm ent under s 48 of the 2001 Act that increased the upper age limit of young people subject to child curfew s from 10 to 16. On the subject of police discretion in enforcing these curfew s, the 1998 Act requires that they m ay only exercise their pow ers based on reasonable belief that a child is under the age o f 16. U nless the officer actually know s each ch ild 's age, it m ay be extrem ely difficult to enforce this power, especially w here a curfew notice specifies different age groups under the age of 16. It will also becom e very difficult to enforce where an officer has definite knowledge that one or more children are under the age of 16, but others in the group are not or the officer is unsure. It appears that in such circum stances, the police will have to leave the others in the prohibited area, unless they have cause to exercise their powers under public order law, for instance. U nder the Anti-social Behaviour A ct 2003, designated com m unity support officers (see Chapter 7) may be given police pow ers to rem ove a child or young person to his or her place of residence when in contravention of a local child curfew. They will also be under the sam e duty as the police to inform the relevant local authority when such a contravention occurs (see below under 'Pow ers under the Anti-social Behaviour Act 2003' and 'Police powers to issue fixed penalties under the Crim inal Justice and Police Act 2001' for further details regarding com m unity support officers).

Power to remove truants In order to prevent under 16 year olds from com m itting crim inal and anti-social acts w hilst truanting from school, s 16 of the 1998 Act has empowered the police to remove them from public places and to take them to designated prem ises or back to their respective schools. A local authority may designate certain prem ises where children and young persons of com pulsory school age who are caught playing truant may be taken by the police. These prem ises may include offices in social services departments, fo r in s ta n c e , or s c h o o ls, a lth o u g h the H o m e O ffic e h as stre ss e d th a t it is no t appropriate to take such persons to police stations, unless they have com m itted an offence. The chief officer of police for that area should then be notified that such

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prem ises are available and a police officer of at least the rank of superintendent may authorise police officers to exercise their pow ers w ithin specific areas and periods of time. Those powers are to rem ove a child or young person to designated prem ises, or return him or her to school if found in a public place within the geographical and time param eters mentioned above. The police may do this if they have reasonable cause to believe that the child or young person is of com pulsory school age and is absent from school without lawful authority. The provision of designated prem ises by a local authority (which are not intended to be perm anent), plus the requirem ent of a police superintendent's authority, indicate that these pow ers are likely to be used following consultations with specific schools and other agencies. In other words, it appears that these pow ers may be intended to be used as p art o f an o rg an ised p o lice 'sw o o p ' on kn ow n trou b le sp ots, in v o lv in g truanters who are also known. The latter would seem necessary, since the police may on ly act on the g ro u n d s o f reaso n ab le b e lie f th at a ch ild o r y ou n g p erso n is of com pulsory school age and is absent from school w ithout lawful authority. Since the exercise of this pow er is not strictly an arrest, there has been som e debate regarding the need to use reasonable force in the case of unco-operative children or young persons. It has been suggested that the com m on law principles governing the use o f force w ill ap p ly h ere, b u t w ith the cav eat th at it is essen tial that any one deprived of their liberty should be given the reasons for doing so (Christie v Leachinsky (1947)).20 However, it has been suggested that the use of force in exercising this power should be less than that w hen m aking an arrest, becau se o f the general rule that ju v e n ile s should be han d led w ith p a rtic u la r care w h e rev e r p o ssib le (in clu d in g avoiding the use of handcuffs), plus the risk of endangering relations betw een the police and the younger community.21 However, the possible long term consequences of allowing young people to 'cock a snook' at the police when exercising these powers could outw eigh the utility of this argum ent, despite it being soundly based on the balance of social interest. A m ong other things, it could becom e com mon knowledge that a child or young person playing truant merely had to walk away from the police to avoid further action, thus rendering these powers useless. Section 75 of the Police Reform A ct 2002 em pow ers police superintend ents or above from the British Transport Police to issue directions regarding the rem oval of truants from specified areas w hich are within are partly within places w hich fall under their jurisdiction. This is one of many exam ples o f the recent inclusion of the British Transport Police w ithin a greater range of overall policing activities in this country beyond their own specialised duties.

P O W E R S U N D E R T H E A N T I-S O C IA L B E H A V IO U R A C T 2003 P ow ers to im p ose lo cal child cu rfew s and rem ove tru an ts u n d er the C rim e and Disorder A ct 1998 are am ong m any measures taken recently to com bat both crim e as well as sub-crim inal behaviour. The latter has been described as such because it falls

20 21

Card, R and Ward, R, The Crime and Disorder Act 1998: A Practitioner's Guide (Bristol: Jordans, 1998). Leng, R, Taylor, R and Wasik, M, Blackstone's Guide to the Crime and Disorder Act 1998 (London: Blackstone, 1998).

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short of actual crim inal acts but still causes harm to victims. This has led to the now w id ely used term 'a n ti-so c ia l b e h a v io u r' w h ich , in its b ro a d e st sen se, cou ld be described as a form of nuisance that causes significant discom fort to others. Part 4 of the Anti-social Behaviour Act 2003 has provided the police with further powers to deal w ith conduct that is placed under the heading of anti-social behaviour. U nder this Part of the 2003 A ct, anti-social behav iou r is defined as 'behav io u r by a person w hich causes or is likely to cause harassm ent, alarm or distress to one or more other persons n o t o f the sam e h o u seh o ld as the p e rso n '. If m em b ers o f the p u b lic h av e b een intimidated, harassed, alarmed or distressed by the presence or behaviour of groups of at least two persons in public places within a locality, and that anti-social behaviour is a significant and persistent problem in that locality, the follow ing action may be taken. To b e g in w ith , a p o lic e o ffic e r o f at le a st the ran k o f s u p e rin te n d e n t w ho re aso n a b ly b e lie v e s th at su ch c o n d u ct h as o ccu rred m ay giv e an a u th o risa tio n enabling police officers in uniform to disperse these groups in public places. This must be preceded by con su ltation w ith the relevan t local authority, follow ed by giving advance notice regarding the locality affected by the authorisation and its duration. This notice should be posted in one or more conspicuous places within that locality a n d /o r published in a local newspaper. An authorisation m ust be in writing, stating the grounds ju stifying it, and the period w hen it w ill be in force, w hich m ust not exceed six months. The senior police officer w ho made the authorisation, or another officer of at least the sam e rank, m ay w ithdraw it, but only when there has been prior consultation with the relevant local authority. If the authorisation is withdrawn or it sim ply expires, fresh authorisations m ay be made regarding all or part of the relevant locality. U niform ed police officers in public places within the relevant locality will have a num ber of pow ers available to them when an authorisation is in force. These constitute a pow er to disperse troublesom e groups in a num ber of w ays, provided they have reasonable grounds for believing that the presence or behaviour of a group of two or more persons has, or is likely to result in, m em bers of the public being intimidated, harassed, alarmed or distressed. If these conditions are present, the police may give one or more directions as follows: •

direct persons in the group to disperse either im m ediately or at a later specified time and in a way specified by the police;

•

direct any within the group who do not reside in the relevant locality to leave that area or any part of it. They will be directed to do this either im m ediately or at a later specified time and in the w ay as directed by the police;

•

further direct those who are dispersed but who live outside the relevant locality not to re-enter that area or part o f it for any period not exceeding 24 hours.

Flexibility is introd uced into these prov isions by enablin g d irection s to be given verbally and to individuals as well as groups of two or more, and the police officer w ho gives a direction m ay withdraw or vary it. There are two circum stances where a direction may not be given, nam ely where a group is lawfully assembled during an industrial dispute or participating in a public procession. Police officers in uniform have the pow er to arrest anyone defying a direction, w hich constitutes a sum m ary offence that is punishable by a m axim um of three m onths' im prisonm ent a n d /o r a fine not exceeding level 4 on the standard scale (currently £2,500). It should be noted that the m axim um custodial sentence for this offence could be changed at som e future date. Section 281(1) and (2) of the Crim inal Justice Act 2003 enables the H ome Secretary to

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increase m axim um custodial sentences of five m onths or less to 51 w eeks, or make those offences no longer punishable with imprisonment. W hen an authorisation applicable to a relevant locality is in force, and any under 16 year olds are engaged in the prohibited conduct within that area, the police have a further pow er to deal w ith such situations. Instead of dispersing them as described above, the police have the pow er to rem ove them to their norm al places of abode. There are, however, a num ber of restrictions on the use of this power. Police officers in uniform may return persons under 16 to where they norm ally live, and this should only be done where they are within the relevant locality betw een 9 pm and 6 am. In ad d itio n , this p ow er m ay not be exercised if the u n d er 16 year old is u n d er the effective control of a parent or a responsible person aged 18 or above. N or should the child or young person be taken to his or her norm al place of residence if the officer has reasonable grounds for believing that the young person would suffer harm if taken there. If an under 16 year old is rem oved under this power, the police are under a duty to inform the relevant local auth ority accordingly. A uthorisin g officers conferring p o w ers o f d isp e rsal and rem o v al ap p licab le to any re le v an t locality , as w ell as uniformed officers exercising any of these powers, will have to com ply with a code of practice that may be issued by the H om e Secretary. It should be noted that all of the above pow ers are also available to the British Transport Police. T h e se new p o w e rs h av e been in clu d e d h ere b e ca u se alth o u g h th ey do not constitute arrest powers (except where there is a contravention of a direction), they do involve a restriction on the liberty of citizens. In this case, the restriction involves com pelling them to move rather than remain. Part 4 of the Anti-social Behaviour Act has extended the exercise of these powers to include designated com m unity support officers, as well as the pow er to rem ove young persons w ho contravene local child curfews as mentioned above (see Chapter 7).22

'ANY PERSON' ARREST POWERS Section 3 of the Theft Act 1978 created the offence of making off w ithout payment. This covers activities described as 'bilking' where, for instance, a person arrives at his or her destination in a taxi, then runs off in order to avoid paying the fare or has a meal and then leaves the restaurant, intending to avoid paying the bill. Sub-section (4) states that: Any person may arrest without warrant anyone who is, or whom he, with reasonable cause, suspects to be, committing or attempting to commit an offence under this section.

N ote the in clu sio n o f the w ord s 'an y p e rso n ', m ean in g that b o th the p o lice and ordinary citizens have this power of arrest without warrant. However, this w as made an arrestable offence by virtue of s 48 of the Police Reform Act 2002, which placed it under para 7 of Sched 1A to PACE. This enhances the powers of the police to deal with such an offence, but it also preserves the right of the ordinary citizen to intervene, although subject to the restrictions discussed earlier in this chapter. Once again, it is suggested that ordinary citizens exercise great caution if considering using this power. Apart from the physical dangers inherent in m aking arrests, there m ay be potential

22

For a full discussion of these, and other powers conferred upon civilians, see Jason-Lloyd, L, 'Community support officers - more powers in the pipeline' (2003) 167 JP 637.

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legal traps, bearing in mind the instantaneous nature of this specific offence. A suspect may be able to convince magistrates or a jury that it was his or her intention to pay for the goods later, since it has to be proved beyond reasonable doubt that there was the intention never to pay the amount due. This offence is triable either way and, when tried on indictment, carries a m axim um prison sentence of two years. A num ber of other statutes have created arrest pow ers for specific offences where 'any person' or 'anyone' may arrest without a warrant (see A ppendix 11), for exam ple, s 91 of the Crim inal Justice A ct 1967 (arrest of a person who is drunk and disorderly in a public place). See also s 1 of the Licensing Act 1902, s 11 of the Prevention of Offences Act 1851 and s 6 of the Vagrancy A ct 1824. According to som e com m entators,23 these arrest pow ers have n ot strictly been rem oved from the police by s 26(1) of PACE, w hich repealed all statutory pow ers of arrest w ithout w arrant previously held by them, except those recast under Sched 2. The general line of argum ent is that since the above arrest pow ers m ay be exercised by any person, this also includes the police (although, with specific reference to s 3 of the Theft A ct 1978, a contrary view' has been expressed).24 However, in DPP v Kitching (1989) and Gapper v C hief Constable o f Avon and Som erset (1998), the m atter seem s to have been clarified as far as offences under s 91 of the Crim inal Justice A ct 1967 and s 6 of the Vagrancy A ct 1824 are concerned. In both these cases, it w as held that 'any person' also included the police. It has been suggested in H ome Office guidance, inter alia, that it may be prudent for the police to take into account the criteria in the general arrest conditions under s 25 of PACE before exercising such powers of arrest. Section 41 of the Sexual Offences Act 1956 had the specific requirem ent attached to it under para 9 of Sched 6 to PACE that the police should only make an arrest for this offence using their powers under s 25. This has now' been repealed by Sched 7 of the Sexual Offences Act 2003, thus reducing the num ber of offences subject to arrest by 'any person' to a mere handful.

POLICE POWERS TO ISSUE FIXED PENALTIES UNDER THE CRIMINAL JUSTICE AND POLICE ACT 2001 Increasingly, the police are being given powers to use alternative m ethods in enforcing the law w ith o u t arrestin g the p e rso n s co n ce rn e d or ev en re p o rtin g them fo r a sum m ons. Apart from giving 'street b ail' as m entioned earlier, the police are now' empowered to issue fixed penalty notices, where appropriate, for a range of offences that obviate the need to make arrests. The issue of fixed penalties is therefore no longer confined to road traffic offences but has been extended to include other offences as follows.

23 24

Op cit, Zander, fn 3. See also op cit, Clark, fn 7. Op cit, Levenson, Fairweather and Cape, fn 15. See also op cit, Cape and Luqmani, fn 4.

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P art 1, C h ap ter 1 o f the C rim in al Ju stice and P olice A ct 2001 gives the police a discretion to issue a fixed penalty notice to a 10 year old and above25 w here there is reason to believe that he or she has com m itted any o f the follow ing offences: (a) b ein g d run k in a highw ay, o th er pu blic place o r licen sed p rem ises (s 12 o f the L icensing A ct 1872); (b) th r o w in g f ir e w o r k s in a t h o r o u g h f a r e (s 80 o f th e E x p lo s iv e s A c t 1 8 7 5 ) (p ro s p e ctiv e ly re p e a le d b y s 15 o f th e F ire w o rk s A ct 2 0 0 3 fro m a d ate to be appointed); (c) know ingly giving a false alarm to a fire and rescue authority (s 49 of the Fire and R escue Services A ct 2004); (d) trespassing on a railw ay (s 55 o f the British Transport C om m ission A ct 1949); (e) th ro w in g s to n e s etc at tra in s or o th e r th in g s on ra ilw a y s (s 56 o f the B ritish Transport C om m ission A ct 1949); (f) buying or attem pting to buy alcohol for a person under 18 or for consum ption on licensed prem ises (s 169C(2) of the Licensing A ct 1964 and s 149(4) of the Licensing A ct 2003); (g) disorderly behaviou r w hile d runk in a public place (s 91 of the Crim inal Justice A ct 1967); (h) w asting police tim e or giving false report (s 5(2) o f the Crim inal Law A ct 1967); (i) u sing p u b lic electro n ic co m m u n icatio n s n etw o rk in o rd er to cau se an n oy an ce, inconvenience or needless anxiety (s 127(2) of the C om m u nications A ct 2003); (j) consu m ption o f alcohol in designated public place (s 12 of the Crim inal Justice and P olice A ct 2001); (k) behaviour likely to cause harassm ent, alarm or distress (s 5 of the Public O rder A ct 1986).26 M ore recently, the follow ing fixed penalty offences have been created as follow s: (1) sale o f alcohol to a person under 18 years (s 169A of the Licensing A ct 1964); (m) consu m ption o f alcohol by a person under 18 years or allow ing such consum ption (s 169E of the Licensing A ct 1964); (n) delivery of alcohol to a person under 18 years or allow ing such delivery (s 169F of the Licensing A ct 1964);

25

26

Originally, under the Criminal Justice and Police Act 2001, the minimum age was 18 years, but this was lowered to 16 as a result of an amendment under the Anti-social Behaviour Act 2003. Then, on 26 December 2004, the Penalties for Disorderly Behaviour (Amendment of Minimum Age) Order 2004 came into force. That reduced the lower age limit to 10 years. This also makes the parent or guardian of an under 16 year old who receives a penalty notice, liable to pay the financial penalty. This means that they must receive written notification plus a copy of the penalty notice originally given to the under 16 year old (the 'young penalty recipient'). There is also the provision for the police to cancel the original notification and issue a fresh one where the original version was issued to the wrong person. This includes the situation where the original notification was issued to someone who is not the parent or gu ard ian of the youn g p enalty recip ien t, or w here the n otification w ould be m ore appropriately sent to another person. Initially, this scheme is being piloted by a limited number of police forces. The offence under s 5 of the Public Order Act 1986 was not included in the original list under s 1(1) of the Criminal Justice and Police Act 2001. This was subsequently added by means of the power held under s 1(2) of the 2001 Act which enables the Home Secretary to make changes to this range of offences.

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(o) th eft (s 1 o f the T h e ft A ct 1968) [in p ractice this is m ain ly d irected tow ard s shoplifting]; (p) d estro y in g /d am ag in g property (s 1(1) o f the C rim inal D am age A ct 1971) [this should apply to relatively minor acts of vandalism]; (q) depositing and leaving litter (s 87 of the Environm ental Protection A ct 1990); (r) p ro h ib itio n /fa ilu r e to com p ly reg ard in g firew o rks re g u la tio n s /m a k in g false statem ents (s 11 of the Fireworks A ct 2003). W here a fixed penalty notice is issued in a place other than at a police station, such as in the street, it m ust be given by a p olice officer in uniform . O nly p olice officers authorised by their chief officer of police m ay issue fixed penalty notices at a police station, and these officers need not be in uniform. This will occur, for instance, where a drunken person has been taken to a police station and, on sobering up, is given a fixed penalty notice before being released. For a num ber of years, the police have been given the discretion to issue a range of fixed penalty notices instead of initiating a prosecution in each case. The reason for introducing fixed penalties for the above offences under the 2001 Act is to com bat lowlevel disorder in a sim ple and swift manner. In return for the saving of police and the courts' time, the alleged offender does not acquire a crim inal conviction for the offence in question. However, a person risks a conviction if he or she opts for trial before a court, as well as receiving a higher financial penalty. This will also apply in cases where the alleged offender refuses to pay the fixed penalty sum. This fixed penalty schem e is discretionary and does not prevent the police from exercising their arrest pow ers where they consider it appropriate. U nder the Police Reform A ct 2002, the power to issue fixed penalties with some possible exceptions is also held by designated com m unity support officers. This has been extended by the Anti-social Behaviour A ct 2003 to include 'accredited civilians', but with the exception of the offences of being drunk, or drunk and disorderly, in a public place (see Chapter 7).27

27

Op cil, Jason-Lloyd, fn 22.

C H A PT ER 4 PO LIC E PO W ER S O F EN TR Y A N D SEA R CH OF P R EM ISES, AN D SEIZ U R E O F EV ID EN C E INTRODUCTION As d iscussed in C h apters 2 and 3, the Royal C om m ission on C rim inal Procedure recognised that police pow ers of stop and search, as w ell as those affecting arrests, w ere both fragm ented and unclear. This also applies to the C om m ission's findings regarding p olice pow ers of entry and search o f p rem ises, and the seizu re o f any evidence found there. A num ber of recom m endations were made, som e of w hich, but by no means all, were later enacted under the Police and Crim inal Evidence Act 1984 (PACE). The relevant provisions under s 8 of PACE, described below, constitute a genera l p ow er to obtain search w arrants. Sections 17 and 18 of PACE also include certain pow ers to enter and search prem ises, but w ithout warrant, as well as s 32 (entry and search o f prem ises w hich an arrested person w as in at the tim e o f their arrest or im m ediately before it, as considered in the previous chapter). It should be noted that PACE is not the only legal source enabling the police to enter and search premises. A num ber of statutes conferring specific police pow ers to obtain search warrants also exist, although the procedures involved in issuing search w a rra n ts and e x e c u tin g th em m u st co m p ly w ith the sta n d a rd p ro ce d u re s and safeguards contained in PACE and Code of Practice B. Some exam ples of these specific powers are included under the following statutes: s 26 of the Theft A ct 1968 (warrant to enter prem ises to search for stolen goods); s 23(3) of the M isuse of Drugs A ct 1971 (warrant to enter and search prem ises for controlled drugs or docum ents relating to unlaw ful drug transactions); s 2(4) of the Crim inal Justice A ct 1987 (warrant to enter and search for evidence of serious fraud), and many m ore.1 T here are also fu rth er sp ecific statu to ry p ow ers of en try and search w ith o u t w arrant included under the follow ing exam ples: s 23(1) of the M isuse of Drugs Act 1971 (power of entry into prem ises of a person carrying on business as a producer or supplier of controlled drugs in order to exam ine records and stocks of drugs); s 13 of the Aviation Security A ct 1982 (power to enter any building, etc, at airports to search for firearms, explosives or other dangerous articles).2 M ore recently, the Terrorism Act 2000 has given the police further powers of entry and search w ithout warrant in order to com bat terrorism. These will be discussed later in this chapter. M ention should be made at this stage of pow ers under ss 4(7) and 6(6) and the Road Traffic A ct 1988. These em pow er the police to enter prem ises in order to arrest persons for drink-drive o ffen ces or for the p u rp o se o f m ak in g breath tests w h ere road traffic accid en ts involving personal injury have occurred. There is also a com mon law pow er of entry into prem ises w hich has been unchanged by PACE and that is the pow er to enter

1

Stone, R, Entry, Search and Seizure: A Guide to Civil and Criminal Powers of Entry (3rd edn, London: Sweet & Maxwell, 1997).

2

Ibid.

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prem ises to deal w ith or prevent a breach o f the peace. H ow ever, as discussed earlier, this com m on law pow er is largely superseded by s 17 of PACE.

D efinition of 'prem ises' For the p u rp o se s o f the e x e rc ise o f p o lice p o w e rs o f e n try and sea rch , the w ord 'p rem ises' applies to a w ide variety of public and private places. Section 23 o f PACE provides only a partial definition by stating: 23

In this Act - 'premises' includes any place and, in particular, includes: (a) any vehicle, vessel, aircraft or hovercraft; (b) any offshore installation; and

(c) any tent or movable structure; and 'offshore installation' has the meaning given to it by s 1 of the Mineral Workings (Offshore Installations) Act 1971.

A part from those specific exam p les m entioned above, w hat con stitutes 'an y p lace'? U sing case law, the term 'p rem ises' has also been held to include buildings, caravans, houseboats, non-residential prem ises, such as unattended garages, and land. In P alm er v B u gler (1988), it w as h eld that a field u sed on a reg u lar b a sis fo r car b o o t sales co n stitu te d 'a p la c e '.3 It is in te re stin g to n o te th at s 2 5 (1) o f the P riv a te S e cu rity Industry A ct 2001 defines prem ises as including '. .. any vehicle or m oveable structure and any other place w hatever, w hether or not occup ied as land '. T hese very broad d efinitions under both PACE and the 2001 A ct could, inter alia, include virtually any o p e n -a ir lo ca tio n b u t, a cco rd in g to P ro fe sso r Z and er, H o m e O ffice g u id a n ce th at originally accom p anied PACE stated that such p laces 'sh o u ld b e a d istin ct piece of land in single occup ation or ow nership '.4

ENTRY AND SEARCH BY WARRANT A s alread y d iscu sse d , s 8 o f PACE h as in tro d u ce d a g e n eral p o w er u n d e r w h ich m agistrates m ay issue w arrants enabling the police to enter prem ises and search for item s n o t co v ered by the s p e cific A cts m e n tio n e d ab o v e. H o w ev er, a c co rd in g to P rofessor Stone: There is no evidence that these more specific powers are used any less now that the police have the general power to obtain a search warrant under s 8 of PACE. This power only applies to 'serious arrestable offences' and, in some cases (perhaps where it is proposed to use other procedures under an Act, for example, the forfeiture procedures under the Obscene Publications Act 1959), the specific powers may anyway be thought more appropriate.5

3 4 5

Levenson, H, Fairweather, F and Cape, E, Police Powers: A Practitioner's Guide (3rd edn, London: Legal Action Group, 1996). Zander, M, The Police and Criminal Evidence Act 1984 (4th edn, London: Sweet & Maxwell, 2003). Op cit, Stone, fn 1.

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S ection 8 p rov id es that a police o fficer m ay ap p ly in w riting fo r a w arran t from a ju stice o f the peace if there are reasonable grounds for believing that there is m aterial on prem ises relating to the com m itting o f a serious arrestable offence6 w hich is likely to be of substantial value to the investigation and adm issible as evid ence in court, and that this is the only m eans to obtain such evidence; in other w ords, w here it w ould be im practicable to try to gain entry w ithout a search w arrant. This w ill include instances w here the pu rpose o f the search m ay be frustrated o r seriously prejudiced unless the police effect im m ediate entry. It will also include circum stances w here no one can be con tacted w ho h as the au th ority to grant access to the p rem ises or to the required m aterial on those prem ises, or w here consent to enter those prem ises has already been re fu se d . It th erefo re fo llo w s that a ju stice o f the p e a ce sh ou ld n o t issu e a search w arrant if entry can be gained through the consent o f the occupier. C ertain item s m ay no t be obtained by a search w arrant u n der s 8, bu t m ay be obtained through other prov isio n s. T h ese are item s su b ject to legal p riv ileg e, e xclu d ed m aterial o r sp ecial procedure m aterial.

M eaning of 'item s subject to legal privilege' This is defined under s 10 of PACE as follow s, w ith explanations in square brackets where appropriate: (1) Subject to sub-s (2) below, in this Act, 'items subject to legal privilege' means: (a) com m unications between a professional legal adviser and his client or any person representing his client m ade in connection with the giving of legal advice to the client; [First, what is meant by the term 'professional legal adviser'? This includes qualified barristers and solicitors. A solicitor in this context does not have to be employed by a solicitors’ practice. This will therefore include a solicitor working from an advice centre, for instance. Solicitors' clerks are also included, since they act under the d ire ctio n o f s o lic ito rs . U n q u alified a d v is e rs m ay p o ssib ly claim th at communications fall under this heading if acting as agents for barristers or solicitors, but generally the advice from unqualified persons does not fall under legally privileged material, although it could reccive some protection as 'excluded material' (see below). The legally privileged material must be in the possession of a person who is entitled to possess it, and communications subject to legal privilege can be written or verbal, including tape recordings of interviews.]7 (b) com m unications between a professional legal adviser and his client or any person representing his client or between such an adviser or his client or any such rep resentative and any oth er person m ade in connection w ith or in contemplation of legal proceedings and for the purposes of such proceedings; and (c) items enclosed with or referred to in such communications and made: (i)

6 7

in connection with the giving of legal advice; or

Or a 'relevant offence' as defined under s 28D(4) of the Immigration Act 1971 (added bv s 169(1), Sched 14, para 80(1), (2)). Op cit, Levenson, Fairweather and Cape, fn 3.

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(ii) in connection with or in contemplation of legal proceedings and for the purpose of such proceedings, when they are in the possession of a person who is entitled to possession of them. (2) Items held with the intention of furthering a criminal purpose are not items subject to legal privilege.

W hat is meant by 'the intention of furthering a crim inal purpose'? W ithin the context of sub-s (2), this can perhaps be illustrated by the follow ing scenarios. M r X is thinking of com m itting a crim e and writes a letter to his solicitor, asking w hat the consequences would be. His solicitor writes and tells him that he could go to prison, say, for five years if convicted. These letters would be subject to legal privilege. However, if M r Y writes to his solicitor and tells him of a crim e he intends to com m it and asks how he can avoid being detected and his solicitor replies and gives him this information, this would not be subject to legal privilege, as this constitutes furthering a criminal purpose. In R v Central Criminal Court ex p Francis arid Francis (1989), the exclusion of legal privilege im m unity w as given a broad interpretation by the H ouse of Lords which excludes from such im m unity not only the criminal intentions of legal advisers or their clients, but also anyone using a client as an innocent agent.8 Material which is legally privileged cannot be subject to a search, except under rare circum stances, where it can be obtained un der w ritten au th o rity other than a w arrant. E xam p les inclu d e the powers under s 73 of the Explosives Act 1875 and s 9(2) of the Official Secrets Act 1911, where a police superintendent may, in extrem ely urgent cases, make a written order to e n ter and search sp ecified p rem ises for exp lo siv es or for certain m aterial in the interests of State security. Legally privileged material is therefore highly protected and in R v Guildhall M agistrates' Court ex p Primlaks Holdings Co (1989), it w as stressed that great care should be exercised by those applying for search w arrants to ensure that the m aterial sought after did not include anything that w as subject to legal privilege. However, in R v Customs and Excise Commissioners ex p Popely (1999), it w as held that ev en thou gh a search w arrant can n ot au th o rise the seizu re o f leg ally p riv ileg ed material, the inadvertent seizure of such material during a search under a warrant did not rend er the execu tion o f the w arrant unlaw ful. In R v C hesterfield ju stices ex p Bramley (1999), it was held that the police will not be acting unlawfully if they seize item s subject to legal privilege, providing they do not have reasonable grounds for believing that the material is privileged; however, 'violation of the legal privilege by m aking use of the privileged inform ation would be unlaw ful'. It was this case that necessitated the enactm ent of ss 50 -6 6 of and Scheds 1 and 2 to the Crim inal Justice and Police A ct 2001, in order to create a new power to seize and sift property following the execution of a search warrant.

Meaning of ''excluded m aterial' T h e term 'e x c lu d e d m a te r ia l' is d e fin e d u n d e r s 11 o f PA C E as fo llo w s , w ith explanations included in square brackets where appropriate. Such material falls under

8

Cited in Jason-Lloyd, L, The Law on M oney-Laundering: Statutes and Commentary (London: Frank Cass, 1997).

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three categories, namely, personal records, human tissue or tissue fluid and journalistic material. It is important to note that there must always be an element of confidentiality in the holding of excluded material, whichever category it falls under: (1) Subject to the following provisions of this section, in this Act, 'excluded material' means: (a) personal records which a person has acquired or created in the course of any trade, business or profession or other occupation or for the purposes of any paid or unpaid office and which he holds in confidcnce; ['Personal records' are defined under s 12 of PACE and consist of documents and other records regarding a p erson, w hether living or d ead , w hich relate to the following: (1) documentary or other records regarding physical and mental health (this also includes dental records);9 (2) personal records in relation to spiritual counselling or assistance, which includes information kept by members of the clergy and o th er relig io u s m in isters; (3) p erso n al record s reg ard in g c o u n se llin g or assistan ce given to a p erson for p ersonal w elfare p u rposes by any vo lu n tary organisation or by any person w ho, 'by reason o f his office or occupation, has responsibilities for his personal welfare'. This may include careers advice records in educational establishments, records of social workers, records in advice centres and so o n .10 Also included are personal records regarding counselling or assistance given to a person for his or her welfare by any voluntary organisation or individual who, 'by reason of an order of a court, has responsibilities for his supervision'. This was originally designed to protect personal records held by probation officers, but this must now clearly extend to local authority social w orkers and, more recently, to m em bers of Youth O ffen d in g Team s and , under Pt I of the Youth Ju stice and Criminal Evidence Act 1999, to members of Youth Offender Panels.] (b) human tissue or tissue fluid which has been taken for the purposes of diagnosis or medical treatment and which a person holds in confidence; [This category of excluded material is not defined in PACE, but such material will include blood samples, for instance.] (c) journalistic material which a person holds in confidence and which consists: (i) of documents; or (ii) of records other than documents. (2) A person holds m aterial other than jo u rn alistic m aterial in con fid ence for the purposes of this section if he holds it subject: (a) to an express or implied undertaking to hold it in confidence; or (b) to a restriction on d isclo su re or an obligation o f secrecy contained in any enactment, including an enactment contained in an Act passed after this Act. (3) A person holds journalistic material in confidence for the purposes of this section if: (a) he holds it subject to such an undertaking, restriction or obligation; and (b) it has been continuously held (by one or m ore persons) subject to such an undertaking, restriction or obligation since it was first acquired or created for the purposes of journalism. [The protections afforded to journalistic material apply to the media generally and not exclusively to professional journalists. The material may be in the form of maps,

9 10

R v Singleton [1995| Crim LR 236, cited in Levenson, Fairweather and Cape, op cit, fn 3. Op cit Levenson, Fairweather and Cape, fn 3.

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plans, photographs, discs, tapes, films or microfilms. If journalistic material is not continuously held in confidence, then it does not constitute excluded material, but falls under 'special procedure material', which will be discussed below. Media coverage of certain public demonstrations involving the photographing or filming of those events has been regarded as special procedure material, since this material, although journalistic, was not held in confidence. See, for example, R v Bristol Crown Court ex p Bristol Press and Picture Agency Ltd (1987).]

Unless they are able to gain access to such evidence w ith the appropriate co-operation and consent from the person concerned, if the police need access to excluded material, they m ust apply to a circuit judge for a 'produ ction ord er'. This avoids the police having to search prem ises to find and obtain such evidence because a production order requires the person in possession of this m aterial to either give it to the police or allow them access to it. In exceptional circum stances, such as where this evidence is likely to be tampered with, a circuit judge may issue a warrant instead of a production order or m ay even issue both.

Meaning of 'special procedure material' The provisions regarding the definition of special procedure m aterial are contained under s 14 of PACE. As mentioned above, such material includes that of a journalistic nature, but w hich is not continuously held in confidence (or the material may not be in the prescribed form required under the Act). The second type of special procedure material is that which is not legally privileged or excluded material, but which is in 'th e possession of a person w ho acquired or created it in the course o f any trade, business, profession, or other occupation or for the purposes of any paid or unpaid office' and holds it in confidence. E xam p les o f sp ecial p roced u re m aterial have in clu d ed bank acco u n ts, stock records, the accounts of a youth association and photographs held by the media (see R v B ristol C row n C ou rt ex p B ristol Press an d P ictu re A g en cy Ltd (1986)). T h e m ost im portant sources of special procedure m aterial are banks and building societies, as w e ll as a c c o u n ta n ts , e s ta te a g e n ts , fin a n c ia l b r o k e r s , in s u r a n c e b r o k e r s , te le co m m u n ica tio n s o rg a n isa tio n s, jo u rn a lis ts and s o lic ito rs (e x clu d in g leg ally privileged m aterial).11 Access of the police to special procedure material can be gained in several ways. First, such access can be voluntarily given by the person who holds this material. However, where such consent cannot be obtained, the police m ay apply for a search w arrant from a justice of the peace or, depending on the nature of the material in question, they m ay apply for a production order from a circuit judge. In the excep tion al circu m stan ces m entioned above, a ju d g e m ay grant a search w arrant instead of a production order or may issue both. T h e im p o rta n ce o f th e p ro v isio n s u n d e r PA C E re g a rd in g su ch m a te ria l is illustrated by the following: In England and Wales, more than 2,000 orders for the production of special procedure material or warrants to search for and seize such material were granted in the first three

11

Clark, D, Bevan and Lidstone's The Investigation o f Crim e: A Guide to the Law of Criminal Investigation (3rd edn, London: Butterworths, 2004).

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years of PACE 1984. These have enabled the police to investigate crimes which they were previously unable to investigate and to obtain evidence in respect of other crimes which they were previously unable to obtain, or were able to obtain only after a charge had been laid under the Bankers' Books Evidence Act 1879.12

Section 9 of PACE, in conjunction with Sched 1, m akes detailed provision regarding special procedures w hen applying for prod uction orders or search w arrants from circuit judges in respect of excluded or special procedure material. These finer points will not be covered in detail within this chapter, as they are largely applicable to those working within specialist areas of crim inal investigation. It is also for this reason that not all police pow ers pertaining to the prevention o f terrorism are included either, except those w hich are likely to be enforced by the police in the course o f routine duties, rather than by specialised squads. However, som e mention will be made at this stage of several methods used to obtain evidence in cases connected with terrorism in view of the increasing im portance of this subject.

Powers of entry and search in the prevention of terrorism Terrorism w ith in its gen eral m ean in g falls w ith in the d efin itio n o f a n u m ber of different crim es, including firearms and explosives offences to nam e but a few. These will often necessitate the use of entry and search pow ers of prem ises, since m any of them also fall under the heading of serious arrestable offences. T he P revention of Terrorism (Additional Pow ers) A ct 1996, which substantially amended the Prevention of Terrorism (Temporary Provisions) Act 1989, conferred w ide-ranging powers on the police in order to deal with and prevent acts of terrorism. Those provisions augm ented specific and more general pow ers already held by the police in England and Wales to deal with terrorist activities. These have now been recast under the Terrorism Act 2000 w hich, inter alia, has con so lid ated e arlie r an ti-terro rism law that had d ev eloped piecem eal over a num ber of years. Several am endm ents to the 2000 A ct were later made by the Anti-terrorism , Crim e and Security A ct 2001, although these largely fall outside the scope of this book (one notable exception being the extended pow er to require the rem oval of disguises as discussed in Chapter 2). Some of the powers under the 2000 Act to enter and search prem ises have also been discussed in Chapter 2, since those provisions also involve the stop ping and searching of vehicles and persons. H owever, s 42 of the 2000 A ct, w hich deals w ith police pow ers to enter and search prem ises to arrest su sp ected terro rists, should be noted for the p u rp oses o f this chapter. Provisions are made under s 37 of and Sched 5 to the Terrorism A ct 2000, whereby the police m ay apply to m agistrates and circuit judges for a variety of court orders and warrants relating to terrorist investigations. For instance, a constable may apply to a justice of the peace for a warrant to enter and search specified prem ises, as well as any person found there, and to seize and retain any relevant m aterial discovered in the course o f the search. This excludes item s subject to legal privilege as w'ell as special procedure or excluded material as defined in ss 10, 11 and 14 of PACE. The pow ers under ss 5 0 -6 6 o f and Scheds 1 and 2 to the Crim inal Justice and Police Act 2001

12

Ibid.

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enabling the police, where necessary, to seize and then sift through articles elsewhere also applies here. Note the inclusion of the power to search any persons found on the prem ises and also note that there is a restriction on the extent o f such searches in pu blic. W here such persons have not been arrested, the overall con d u ct o f those searches should also be in accordance with the provisions under Code of Practice A (see para 2.4 of Code B). In view of the nature of terrorism in modern times, there is provision under Sched 5 whereby a search warrant may be dispensed with, but only in cases of 'great em ergency'. In such circum stances, a superintendent or above may m ake a w ritten order conferring the entry and search pow ers on police officers as stated above provided 'that im m ediate action is necessary'. However, where a senior police officer makes such an order, there is a duty to inform the H om e Secretary of the particulars of the case as soon as is reasonably practicable. There is also provision under para 2 of Sched 5 to the 2000 A ct that enables the p olice to search n o n -resid en tial p rem ises w here an officer o f at least the rank of superintendent applies to a magistrate for a warrant to search one or m ore premises nam ed in the application, and this is granted accordingly. This may be done where a terrorist investigation is taking place and there are reasonable grounds for believing that it is likely that m aterial of substantial value to that investigation will be found there (although this excludes item s subject to legal privilege, excluded m aterial or special procedure material). A search w arrant issued under para 2 of Sched 5 must be executed w ithin 24 hours and em pow ers the police to enter and search any of the prem ises nam ed in it and anyone found there. A nything found on the prem ises or found on anyone discovered there m ay be seized and retained if there are reasonable grounds for believing that it is likely to be of substantial value to the investigation and it is necessary to prevent it from being concealed, lost, dam aged, altered or destroyed. These provisions enable the police to search any num ber of non-residential premises specified in the warrant, w'hereas under the earlier provisions, separate warrants had to be issued for each of them. It is important to note that these pow ers do not apply to prem ises w hich the ap p lican t has reasonable cause to believe are used w holly or m ainly as a dwelling. An exam ple of the type of prem ises to which these pow ers may apply is given by Professor Walker as follows: The purpose is to allow for mass searches, such as lock up premises in a given area where it is suspected that bomb-makers are active but without sufficient knowledge as to the location of their premises.13

Instead o f applying for a w arrant, a police sup erin ten d en t or above m ay m ake a written order for the entry and search of one or more unattended prem ises if there are reasonable grounds for believing that this is a case of great em ergency and immediate action is necessary. W here such an order has been m ade, there is a legal duty to notify the particulars of the case to the H om e Secretary as soon as is reasonably practicable.14

13 Walker, C, Blackstone's Guide to the Anti-Terrorism Legislation (Oxford: OUP, 2002). 14 For a complete commentary on all the provisions of the Prevention of Terrorism (Additional Powers) Act 1996, from which these and other powers originated, see Jason-Lloyd, L, 'The Prevention of Terrorism (Additional Powers) Act 1996: a commentary' (1996) 160 JP 503, although note the changes where appropriate.

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As mentioned in Chapter 2, Sched 5 to the 2000 Act enables a police officer of at least the rank o f su p erin ten d en t to au th o rise p olice o fficers to en ter and search prem ises, residential or otherwise, that are located wholly or partly within a cordoned area. This includes the pow er to seize articles found on the prem ises that are likely to constitute evidence of terrorist activity, including such articles found on any person who is searched within those prem ises at the time. However, this does not apply to item s subject to legal privilege; nor does it apply to excluded or special procedure material. The powers under ss 50-66 of and Scheds 1 and 2 to the Crim inal Justice and Police A ct 2001 to seize m aterials and sift them elsew here m ay be applied where necessary. In particularly urgent situations, an authorisation to use these pow ers may be given by an officer below the rank o f superintendent, even to the extent as stated as follows by Professor W alk er:'... perhaps within the first few m inutes of cordoning off, any constable m ay give an authorisation (presum ably to him self) if he considers it necessary by reason of urgency.'15 One effect of the Anti-terrorism , Crim e and Security A ct 2001 is that this power, under certain circum stances, has been extended to the M inistry of Defence Police and also the British Transport Police Force. W here the police wish to obtain or gain access to excluded or special procedure m a te ria ls, Sch ed 5 e n a b le s a co n sta b le to ap p ly to a c irc u it ju d g e fo r an o rd er com pelling a specified person to produce or give information regarding such items. W here necessary, a w arrant may be obtained from a circuit judge to enable the police to enter prem ises in order to search for excluded or special procedure m aterial; this also includes the power to search any person found on those prem ises at the time. A circuit judge m ay issue a search w arrant, not only because the m aterial m ay be of su b sta n tia l v alu e to a te rro rist in v e stig a tio n , b u t also b e ca u se o f d ifficu ltie s in com m unicating with any person entitled to produce or give access to the material, or to give access to the prem ises in question. There is the further ground that a warrant is necessary becau se a terrorist investigation may be seriou sly prejudiced unless the police can secure im m ediate access to the m aterial. A search w arrant m ay also be issued on the grounds that an order has previously been made for the production of, or access to, the requ ired m a te ria l, b u t th is o rd er has n o t been com p lied w ith. However, para 3.4(b) of Code B states that an application to a circuit judge for a search w arrant or any court order m entioned above must be supported by signed w ritten authority from a superintendent or above. In cases of 'great em ergency' and where 'im m ediate action is necessary', a superintendent or above may issue a written order giving police officers the pow ers norm ally conferred by a warrant to enter and search prem ises as w ell as search anyone found there. This provision is identical to that described above regarding search w arrants obtained from magistrates, including the requirem ent to inform the particulars of the case to the H om e Secretary. The requirem ent of prior authority before certain action can be taken, w hether under anti-terrorism pow ers or more general provisions, is an im portant issue. This is mentioned under para 2.7 of Code B, w hich states: When this Code requires the prior authority or agreem ent of an officer of at least inspector or superintendent rank, that authority may be given by a sergeant or chief inspector authorised to perform the functions of the higher rank under PACE, section 107.

15

Op cit, Walker, fn 13.

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In the previous version of para 6.14 of Code B, it w as stipulated that the person in charge of a search under Sched 5 to the 2000 Act had to be a police officer of at least the rank o f inspector. This also applied to Sched 1 to PACE, w hich em pow ers circuit judges to issue production orders or warrants regarding excluded or special procedure material in respect of serious arrestable offences. The latest para 6.14 has rem oved the requirem ent for an inspector to be in charge of the search and largely reflects para 2.10, w hich states that: 'The "officer in charge o f the search " m eans the officer assigned specific duties and responsibilities under this Code. W henever there is a search of prem ises to which this Code applies one officer m ust act as the officer in charge of the search ...' This requirem ent is discussed in further detail under Note for Guidance 2F to Code B, which provides the following guidance: For the purposes of paragraph 2.10, the officer in charge of the search should normally be the most senior officer present. Some exceptions are: (a) a supervising officer who attends or assists at the scene of a premises search may appoint an officer of lower rank as officer in charge of the search if that officer is: •

more conversant with the facts;

•

a more appropriate officer to be in charge of the search;

(b) when all officers in a premises search are the same rank. The supervising officer if available must make sure one of them is appointed officer in charge of the search, otherwise the officers themselves must nominate one of their number as the officer in charge; (c) a senior officer assisting in a specialist role. This officer need not be regarded as having a general supervisory role over the conduct of the search or be appointed or expected to act as the officer in charge of the search. Except in (c), nothing in this Note diminishes the role and responsibility of a supervisory officer who is present at the search or knows of a search taking place. The latest para 6.14 includes the following provision that repeats the earlier version regarding officers in charge of searches: '... They are responsible for making sure the search is conducted w ith discretion and in a m anner that causes the least possible disruption to any business or other activities carried out on the prem ises.' O ther general search provisions under PACE and Code B w'ill now be discussed im m ediately below.

General search provisions N otw ithstanding the m ultiplicity of legal pow ers enabling the police to enter and search p rem ises, w 'hether en acted b efo re or afte r 1984, PACE h as estab lish ed a co m m o n p ro c e d u re re g a rd in g a p p lic a tio n s for all search w a rra n ts, as w ell as establishing a uniform set of procedures in respect of the conduct of such searches. This is in addition to applications for search w arrants under PACE itself, w hether obtained from circuit ju dges or ju stices of the peace, and the subsequent searches. These procedures are covered under ss 15 and 16 of PACE w hich, if breached, will render the entry and search unlawful. These provisions are supplem ented by Code B, although, under para 2.3(a), this Code does not apply to police searches of premises fo llo w in g b om b th re a ts, o r w h en a n sw e rin g b u rg la r alarm or fire c a lls, or the discovery of insecure prem ises, or w hen m aking routine investigations at the scenes of crim es, including burglaries. N either do they apply where it is unnecessary to seek the

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consent of a person entitled to grant entry, because this would cause disproportionate inconvenience to that person, or where there is a statutory power to enter prem ises to inspect goods, equipm ent or procedures where no offence is suspected. It is submitted that the latter m ay apply to s 23(1) of the M isuse of Drugs Act 1971, where the police may routinely exam ine the records and stocks of a person carrying on the business of producing or supplying controlled drugs such as pharm aceutical manufacturers and distributors. Any breaches of the Codes of Practice, whilst not necessarily rendering police action unlaw ful, may constitute evidence in civil or even crim inal proceedings and also in internal disciplinary proceedings. P aragraph 3 o f C ode B, entitled 'Search w arrants and p rod uction orders - (a) Before m aking an application', states that the following m ust be com plied with prior to any action under s 15 of PACE. First, any inform ation w hich appears to justify an application for a search warrant m ust be checked for accuracy and that it is not out of date. Reasonable steps m ust also be taken to ensure that the inform ation has not been provided m aliciously or irresponsibly. C orroboration m ust also be sou gh t in cases where the inform ation com es from an anonym ous source. N ote for Guidance 3A to Code B states the follow ing with regard to such information: 3A The identity of an informant need not be disclosed when making an application, but the officer should be prepared to answer any questions the magistrate or judge may have about: •

the accuracy of previous information from that source;

•

any other related matters.

Secondly, the officer concerned in the application m ust ascertain, as specifically as possible, the nature o f the articles sought and their location. This provision is echoed in Note for Guidance 3B to Code B, which states: The information supporting a search w arrant application should be as specific as possible, particularly in relation to the articles being sought and where in the premises it is suspected they may be found. The meaning of 'items subject to legal privilege', 'special procedure material' and 'excluded material' are defined by PACE, sections 10,11 and 14 respectively.

Thirdly, the officer shall be expected to m ake reasonable inquiries to see if anything is know n about the likely occupier of the prem ises in question, as well as the nature of the prem ises, and to ob tain any other info rm atio n w hich m ay be relevan t to the application. This will include w hether the prem ises have been searched before and, if so, how recently. Fourthly, no application to a m agistrate for a search warrant, or to a circuit judge for a search warrant or production order under Sched 1 of PACE, may be made w ithout the accom panying w ritten authority of a police officer of at least the rank of inspector although, in urgent cases, the senior officer on duty may do this. However, as mentioned earlier, applications for production orders or search warrants under Sched 5 to the Terrorism Act 2000 must be made on the written authority of a police officer of at least the rank o f su p erin ten d en t.16 Finally, if there is reason to believe that the execution o f a search w arrant m ight have an adverse effect on relations

16 A police officer of the next lower rank may be allowed to give prior authority if they are acting in the capacity of an inspector or superintendent (apart from the provision regarding urgent cases). See s 107 of PACE and para 2.7 of Code B.

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betw een the police and the community, the local police/com m unity liaison officer must be consulted beforehand. The exception to this rule is in cases of urgency where such persons should be informed of the search as soon as practicable after the event (see para 3.5 of Code B).

Safeguards regarding applications for search w arrants The provisions governing applications for search warrants are contained under s 15 of PACE, which are augmented by Code B. Section 15 will now be reproduced, with annotations in square brackets w here appropriate, accom panied by the relevant information and guidance under Code B in each instance: Search warrants - safeguards (1) This section and s 16 below have effect in relation to the issue to constables under any enactment, including an enactm ent contained in an Act passed after this A ct of warrants to enter and search premises, and an entry on or search of premises under a warrant is unlawful, unless it complies with this section and s 16 below. [S u b -se ctio n (1) s ta te s th at the p ro v isio n s u n d er th is s ectio n and s 16 ap p ly to applications for warrants under any enactment, whether it w as passed before or after PACE, including applications m ade under PACE itself. It also provides that any noncompliance with these provisions will render the entry and search unlawful.] (2) Where a constable applies for any such warrant, it shall be his duty: (a) to state: (i) the ground on which he makes the application; and (ii) the enactment under which the warrant would be issued; (b) to specify the premises which it is desired to enter and search; and (c) to identify, so far as is practicable, the articles or persons to be sought. [Code B, under the subheading 'Before making an application', reiterates much of what is already stated in sub-s (2), although para 3.8 makes the following statem ent which is absent from the above provisions: 'If a search warrant application is refused, a further ap p licatio n m ay not be m ade for those p rem ises u n less su pported by ad d ition al grounds.'] (3) An application for such a w arrant shall be m ade ex parte and supported by an information in writing. (4) The constable shall answ er on oath any question that the justice of the peace or judge hearing the application asks him. [See also Note for Guidance 3A to Code B (see above, with regard to sub-s (4)).] (5) A warrant shall authorise an entry on one occasion only. [The reason for this safeguard will be obvious. U nlim ited entry to prem ises in this context would be view ed as too d raconian and challengable on constitutional and hum an rights grounds. This rule is also repeated in para 6.3 of C od e B. There are, however, exceptions under prevention of terrorism legislation, which are discussed in this chapter. In addition, para 6.3 m akes reference to the new seize and sift powers w hich m ay b e consid ered w here a search is likely to take a long tim e due to the complexity or extent of a search.) (6) A warrant: (a) shall specify: (i) the nam e of the person who applies for it; (ii) the date on which it is issued;

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(iii) the enactment under which it is issued; and (iv) the premises to be searched; and (b) shall identify, so far as is practicable, the articles or person to be sought. [In R v South Western M agistrates' Court and Metropolitan Police Commissioner ex p Cofie (1996), it was held that where a property is in multi-occupancy, the warrant should state to which part of those prem ises the search should be directed. In this case, a search w arrant was obtained in which the num ber of the house was 78. The police did not m ake it clear that they only needed to search Flat 78F and the com m on parts of the building. The cou rt held that the w arrant w as unlaw ful, as it did not com ply with s 15(6)(a)(iv) of PACE.) (7) Two copies shall be made of a warrant. (8) The copies shall be clearly certified as copies.

The execution of search w arrants Section 16 of PACE, together with the relevant provisions under Code 13, cover the important issue of the conduct of entry and search of premises. The provisions under s 16 are as follows, together with appropriate annotations and quotations from the Code of Practice: Execution o f warrants 16(1) A warrant to enter and search premises may be executed by any constable. [This means that any constable may execute a search warrant, in so far as that officer need not be the person named in it. It also means that the constable may be of any rank, although note the provisions mentioned above, whereby an inspector or above must take charge and be present during a search under Sched 1 to PACE and Sched 5 to the Terrorism Act 2000.] (2) Such a w arrant m ay authorise persons to accom pany any constable w ho is executing it. (2A) A p erso n so au th o rise d has the sam e p o w ers as the co n stab le w hom he accompanies in respect of (a) the execution of the warrant, and (b) the seizure of anything to which the warrant relates. (2B) B ut he m ay e x e rc ise those p o w ers o n ly in the com p an y , and u n d er the supervision, of a constable. [Occasionally, other persons may accompany the police during the search of premises. This may include an expert w itness,17 a social worker, a com munity leader where the search m ay adversely affect p o lice/co m m u n ity relations or even a carpenter to lift floorboards.18 Sub-sections (2A) and (2B) were inserted by s 2 of the Criminal Justice Act 2003, and this enables certain civilians to play a more direct role in the execution of search warrants. Previously they were confined to a more passive role as ruled in R v Reading justices ex p South West M eats Ltd (1992), where it was held, inter alia, that the police m ust exercise care in order to avoid delegating their authority to non-police officers who may accompany them. Although it appears that this is now overruled by the new sub-ss (2A) and (2B), it is submitted that any civilian assistance must still be under the control of the police who are ultimately responsible for the execution of search warrants; but note the provisions under the Police Reform Act 2002 as discussed in

17 18

Op cit, Levenson, Fairweather and Cape, fn 3. Op cit, Clark, fn 11. See also Note for Guidance 3C in Code B.

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Chapter 7 where civilian investigating officers have been given certain police powers to enter and search premises.] (3) Entry and search under a warrant must be within one month from the date of its issue. (4) Entry and search under a warrant must be at a reasonable hour, unless it appears to the constable executing it that the purpose of a search may be frustrated on an entry at a reasonable hour. [The provisions under sub-ss (3) and (4) are repeated in paras 6.1 and 6.2 of Code B. These are designed to prevent warrants lasting indefinitely and to ensure that 'dawn raids' on premises are restricted to cases where this is essential. Paragraph 6.3 of Code B, inserted in the Codes of Practice in April 2003, offers the following guidance with regard to the time of searches: A warrant authorises an entry on one occasion only. W hen the extent or complexity of a search mean it is likely to take a long time, the officer in charge of the search may consider using the seize and sift powers referred to in section 7. A gain, the new pow ers o f seize and sift under ss 5 0 -6 6 and Sched s 1 and 2 to the C rim inal Ju stice and P olicc A ct 2001 arc referred to in the Codes of Practice. This indicates the potential usefulness of these powers with regard to police powers of entry, search and seizure, even though it has been predicted that such cases may be fairly rare.] (5) Where the occupier of premises which are to be entered and searched is present at the time when a constable seeks to execute a warrant to enter and search them, the constable: (a) shall identify him self to the occupier and, if not in uniform, shall produce to him documentary evidence that he is a constable; (b) shall produce the warrant to him; and (c) shall supply him with a copy of it. [In R v C hief Constable o f Lancashire ex p Parker and M agrath (1993), the police executed search warrants to which a schedule listing the articles sought was attached when the application was made. Following the search and subsequent seizure of documents, the police supplied the applicants with a copy of the authorisation, but not the schedule. The court held that since there had been a breach of s 16(5)(c) of PACE, the police had no legal right to retain the docum ents seized in the course of this unlaw ful entry and search.] (6) Where: (a) the occupier of such premises is not present at the time when a constable seeks to execute such a warrant; but (b) some other person who appears to the constable to be in charge of the premises is present, sub-s (5) above shall have effect as if any reference to the occupier were a reference to that other person. (7) If there is no person present w ho appears to the constable to be in charge of the premises, he shall leave a copy of the warrant in a prom inent place on the premises. [Paragraphs 6.4 to 6.6 of Code B cover 'E ntry other than w ith con sent' and fill certain gaps uncovered by s 16 of PACE by making the following provisions: 6.4 The officer in charge of the search shall first try to com m u nicate w ith the occupier, or any other person entitled to grant access to the premises, explain the authority under which entry is sought and ask the occupier to allow entry, unless:

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(i) the search premises are unoccupied; (ii) the occupier and any other person entitled to grant access are absent; (iii) there are reasonable grounds for believing that alerting the occupier or any other person entitled to grant acccss would frustrate the objcct of the search or endanger officers or other people. 6.5 Unless sub-paragraph 6.4(iii) applies, if the premises are occupied the officer, subject to paragraph 2.9, shall, before the search begins: (i)

identify him or herself, show their warrant card (if not in uniform) and state the purpose of and grounds for the search;

(ii) identify and introduce any person accompanying the officer on the search (such persons should carry id entification for production on request) and b riefly describe that person's role in the process. [In R v Longman (1988), police officers obtained a search warrant under s 23(3) of the M isuse of Drugs Act 1971 and went to the defendant's address in plain clothes. One of them posed as a delivery lady, since there had been difficulty executing a warrant there in the past. Once the door was opened by the defendant, the police entered the premises and one of them shouted w'ho they were and that they had a warrant. In the course of the search, the defendant lunged at a police officer with a knife and was subsequently convicted of attempted wounding and obstructing the police. During his appeal, it was contended that, under ss 15 and 16 of PACE, the police officer should have announced his identity and produced his warrant card as well as the search warrant prior to entry. The C ou rt o f A ppeal held that these p rocedu res could be byp assed if there w'ere reasonable grounds for believing that this would frustrate the object of the search or endanger the police or others. H ow ever, in R v Lin ehan (1999), the p olice attend ed the d efe n d a n t's ad dress, intending to conduct a search under s 18 of PACE, having previously arrested his son (this pow er to enter and search prem ises is covered below ). W hen they identified them selves and requested entry, he responded by asking them to push their warrant under the door; instead, the police offered to display it at the window, but this offer w'as rejected. The defendant was then warned by the police that the door would be forced, which they subsequently did, and he then threw liquid through the door, which struck two of the officers in the face. The defendant w as later convicted of two charges of assault on police. In allowing his appeal against conviction, the Divisional Court held that as it was unclear as to whether the police had given a proper explanation regarding the reason for their intention to enter and search the prem ises, the officers w ere not acting in the execution of their duty.) 6.6 Reasonable and proportionate force may be used if necessary to enter premises if the officer in charge of the search is satisfied that the premises are those specified in any warrant, or in exercise of the powers described in paragraphs 4.1 to 4.3, and 16 if: (i)

the occupier or any other person entitled to grant access has refused entry;

(ii) it is impossible to com municate with the occupier or any other person entitled to grant access; or (iii) any of the provisions of paragraph 6.4 apply. [Apart from specific mention of the use of reasonable force in the Codes of Practice, it should also be remembered that s 117 of PACE applies this to all the coercive powers under PACE; also, the provisions of s 3(1) of the Crim inal Law Act 1967 should be borne in mind in the exercise of other powers.]

Section 16 of PACE continues as follows: (8) A search under a w'arrant m ay only be a search to the extent required for the purpose for which the warrant w as issued.

109

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[This is a safeguard which prevents unfettered search powers being exercised by the police. If, for instance, a warrant is issued to search for a large power drill suspected of being used to break into a bank, police officers executing a search warrant would not be justified in sifting through clothing in a small draw er in a dressing table, unless they were also seeking documents relating to ownership of the drill. This is confirmed in para 6.9 of Code B, which states: 'Premises may be searched only to the extent necessary to achieve the object o f the search, halting regard to the size and nature o f whatever is sought.' But, in the other extreme, it does not mean that the police should ignore the presence of a dead body when looking for something else! (See sub-s (9)(b), below, which covers such eventualities.) Sub-section (8) should also be read in conjunction with s 15(2)(c) and (6)(b), which states that the w arrant should state, as far as is practicable, the articles or persons to be sought. In R v Reading Justices ex p South Wref Meats Ltd (1992), cited above, a search warrant was applied for by the police at the requ est o f the Interv en tio n Board for A gricu ltu ral Produce. H ow ever, the warrant was not executed correctly, as the actual search was conducted by members of the Board, instead of the police, and the w arrant did not identify the persons likely to enter the premises with the police. Also, the objects and documents sought were not described in sufficient detail and an inappropriate enactm ent was cited. The Divisional Court held the warrant to be invalid and the subsequent entry and search unlawful to the extent that exem plary damages were awarded against the police and the board. Also relevant to sub-s (8) is R v Chesterfield Justices ex p Bramley (1999), where it was held that, when executing warrants under s 8(1) of PACE, the police are not entitled to remove items from the premises in order to 'sift through' them for the purpose of ascertaining whether or not they fall within the scope of the warrant. Item s seized unlaw fully during a search m ust be returned, although the search rem ains valid regarding any item s that were properly seized. As a result o f this judgm ent, law enforcem ent bodies w ere placed in a difficult position, especially those w'ho needed to sift through large quantities of m aterials, such as during a fraud investigation. According to M r Justice Turner, w'hilst expressing reluctance in making his judgment: ' . . . I agree that further statutory power has to be provided to cover the situation which I have considered above. For my part, I doubt whether anything short of primary legislation would suffice to meet the stringency of the re q u ire m e n ts o f the E u ro p e a n C o n v e n tio n . H a v in g reg ard to the p ra c tica l implications of the result of this case, it may be thought that the authorities should consider this matter with a degree of urgency.' In other words, it was necessary to pass an A ct o f Parliam ent in order to resolve this difficult situation. In lim ited circumstances, the removal of disputed legally privileged (and other) material for sifting m ay now be perm issible, provided it cannot be ascertained on the spot w hether any item falls within this definition. This, and other measures, are now possible through ss 50-66 of and Scheds 1 and 2 to the Crim inal Justice and Police Act 2001 (Part 2), which will be discussed later in this chapter.] (9) A constable executing a w'arrant shall make an endorsem ent on it, stating: (a) whether the articles or persons sought w'ere found; and (b) w'hether any articles w'ere seized other than articles which w'ere sought. (10) A w arrant which: (a) has been executed; or (b) has not been executed w'ithin the time authorised for its execution, shall be returned: (i)

if it w'as issued by a justice of the peace, to the clerk to the justices for the petty sessions area for which he acts; and

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(ii) if it was issued by a judge, to the appropriate officer of the court from which he issued it. (11) A warrant which is returned under sub-s (10) above shall be retained for 12 months from its return: (a) by the clerk to the justices, if it was returned under para (i) of that sub-section; and (b) by the appropriate officer, if it was returned under para (ii). (12) If, during the period for which a warrant is to be retained, the occupier of the premises to which it relates asks to inspect it, he shall be allowed to do so.

Finally, in DPP v M eaden (2003), it was held that when executing search warrants, the police may restrict the m ovem ent of persons within those prem ises, using reasonable force if necessary, in order to enable the search to be effective. In this case, the warrant authorised the searching of the prem ises and persons for controlled drugs, as well as docum ents connected with drug offences.

ENTRY AND SEARCH WITHOUT WARRANT Introduction At the beginning of this chapter, it w as stated that there are a num ber of statutory pow ers available to the police enabling them to enter and search prem ises w ithout warrant (apart from executing arrest warrants). One of those cited was s 23(1) of the M isuse of D rugs A ct 1971, w hich em pow ers the police to enter prem ises w here a person is carrying on business as a producer or supplier of controlled drugs, in order to exam ine their records and stocks of drugs. O thers include s 13 of the Aviation Security Act 1982, s 15(3) of the Theatres A ct 1968 and s 2 of the Perform ing Animals (Regulation) A ct 1925 to nam e bu t a few.19 M any of these provisions are essentially regulatory by nature and often specialised in their enforcem ent since, inter alia, certain prem ises are excluded from their ambit. The three main statutory sources of police pow ers to enter and search prem ises w ithout warrant are to be found under ss 1 7 ,1 8 and 32 of PACE, although the search powers in these instances are lim ited.20 There is also a com m on law power which has been preserved by PACE, nam ely the pow er for the police to enter prem ises in order to deal with or prevent a breach of the peace. Finally, there are a num ber of specific entry and search powers conferred on the police in order to prevent acts of terrorism, under the Terrorism A ct 2000, and also pow ers to enter school prem ises in order to search those prem ises and any person on them for knives and any offensive weapons. The latter provisions are to be found in the Offensive Weapons Act 1996. All the statutory sources of police pow ers to enter and search prem ises mentioned in this paragraph will now be discussed.

19 20

For a comprehensive list of such statutory powers, see op cit, Levenson, Fairweather and Cape, fn 3, Appendix 6. Code B, paras 4.1 to 4.3 refer to entry without warrant under PACE, ss 17,18 and 32.

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Section 17 of PACE - entry for purpose of arrest, etc Section 17 applies to any prem ises (which, inter alia, includes vehicles for this purpose) and perm its entry for a num ber of purposes, including m aking arrests. As far as the latter is concerned, a constable m ay enter and search prem ises in order to execute a warrant for an arrest in connection with or arising out of crim inal proceedings, or to execute a w arrant o f com m itm ent (these are issued in response to non-paym ent of fines, com pensation orders or m aintenance orders). The police m ay also enter and search prem ises in order to arrest a person for an arrestable offence or for the following offences: (a) s 1 o f the P u b lic O rd e r A ct 1936 - p ro h ib itin g the w e a rin g o f u n ifo rm s in connection with political objects; (b) any enactm ent under ss 6 -8 or 10 of the Crim inal Law Act 1977 - offences relating to entering and rem aining on property (squatting); (c) s 4 of the Public O rder A ct 1986 - causing fear or provocation of violence; (d) s 163 of the Road Traffic Act 1988 - failure to stop a vehicle when required to do so by a police officer in uniform; (e) s 76 of the Crim inal Justice and Public Order Act 1994 - failure to com ply with interim possession order (squatters failing to leave). Note that, with regard to (b) and (e), these police pow ers of entry and search may only be exercised by officers in uniform. Section 17 also em pow ers the police to enter and search prem ises for the purposes of recapturing persons unlaw fully at large. U nder sub-ss (l)(ca) and (cb), this includes any child or young person rem anded or com mitted to local authority accom m odation under s 23(1) of the Children and Young Persons Act 1969 and persons unlaw fully at large from a prison, rem and centre, young offend er institu tion or secure training centre. Also included are children or young persons guilty of 'grave crim es' w ho are u n law fu lly at large from any p lace d esig n ated by the H om e S e cre tary fo r their detention. 'G rave crim es' are defined under s 91 o f the Pow ers of Crim inal Courts (Sentencing) A ct 2000, w hich refers to particularly serious offences which, if com mitted by any 10-17 year old, can justify long term detention (although ss 226 and 228 of the Crim inal Justice Act 2003, when in force, will m odify this criteria). Persons u nlaw fu lly at large w ho do not fall under any o f the aforem entioned categories are covered under sub-s (l)(d ), w hich provides that the police may enter and search prem ises in order to recapture any person 'w hatever' w ho is unlaw fully at large. This appears to include those w ho escape from such places as police stations, court cells and police vehicles, and com pulsory patients who abscond from psychiatric hospitals. H owever, it is im portant to note that, w ith regard to this m iscellaneous category under sub-s (l)(d ), the police may only exercise these pow ers when in actual pursuit of the person unlawfully at large. The m eaning of the word 'p u rsu ing' m eans actually 'ch asin g ' or being in 'hot pursuit', according to the H ouse of Lords in D'Souza v DPP (1992). In this case, Mrs D 'S o u za w as com p u lsorily adm itted to a psychiatric unit, bu t abscond ed shortly afterwards. Three police officers, acting on inform ation received, later arrived at her hom e, together with two nurses, intending to return her to hospital, although they did not have a warrant. Other m em bers o f the family refused to admit the police to the prem ises; therefore, they forced entry. A struggle ensued betw een the family and the

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police, and subsequently the daughter, M iss D 'Sou za, w as charged and later convicted o f a ssa u lt o n p o lic e . H e r c o n v ic tio n w as q u ash e d b y the H o u se o f L o rd s on the grounds that w hilst her m other w as unlaw fully at large, the police had no legal right to enter her hom e, since they w ere not actively pursuing her at the tim e and, therefore, they w ere not acting in the cou rse o f their duty. Subsequently, there could b e no assault on police. In this decision, Lord Low ry stated: There must be an act of pursuit - a chase - however short in time and distance. It was not enough for the police to form an intention to arrest, which they put into practice by resorting to the premises where they believed the person whom they sought might be found. Entry without warrant under s 17(l)(d) of PACE could be made for the purpose of recapturing a person who was unlawfully at large, but could be made only if the constables were 'pursuing' that person and not in any other circumstances. Therefore, a constable, acting on information received, but not being in possession of a warrant, who simply goes to a house where he reasonably (and correctly) believes that the person he is seeking can be found, cannot conceivably say that he is 'pursuing' that person. To do so would empty the word 'pursuing' of all meaning.21

Up until the passing of the Prisoners (Return to C u stod y) A ct 1995, the recapture o f all p erso n s u n law fu lly at larg e w as s u b je ct to th e 'h o t p u rsu it' req u irem en t. T h is no longer applies to those m entioned above in sub-ss (l)(ca ) and (cb), although it is still an essen tial requ irem en t reg ard in g those w h o fall u n d er su b-s (l)(d ), w h ich inclu d es form ally detained psychiatric patients w ho abscond , as illustrated in the above case.22 Se ctio n 17 fu rth e r e m p o w ers the p o lice to e n te r and search p rem ises w ith o u t w arrant in order to save life or lim b or to prevent serious dam age to property (sub-s (l)(e )). A nu m ber o f situ ations w hich m ay fall under this broad head in g could also constitute a breach of the peace for w hich a com m on law pow er of entry exists and has been preserved under sub-s (6). In addition to this overlap ping o f pow ers, it has been suggested that the potential for intervention under sub-s (l)(e ) can create even further inroads into other police pow ers; for exam ple, entry in order to deal w ith or prevent a child or w ife being battered by a violent partner, entry into the prem ises o f an extrem e political organisation w here it is believed that w eapons are being kept for im m inent use and entry into prem ises w here it is alleged that a drunken braw l is taking place.23 In view o f the infinite v ariety o f dangerous situations that sub-s (l)(e) is designed to prevent or alleviate, it m ay com e as no surprise that this is not subject to the follow ing procedural requirem ents under sub-s (2), w hich restrict all the other entry and search p o w e rs u n d e r s 17. T h e s e are th a t th e y are o n ly e x e r c is a b le if th e p o lic e h a v e reasonable grounds for believin g that the person bein g sou ght is on the prem ises, and confining the entry and search to com m unal parts o f prem ises w here they consist o f m ore than one dw elling. Since this lim itation does not apply to sub-s (l)(e ), the scope for its application is even wider, as illustrated in the follow ing statem ent:

21 22

23

The Guardian, 17 November 1992. The legal situation, however, is not entirely clear on this issue. See Jason-Lloyd, L, 'Prisoners (Return to Custody) Act 1995 - a review' (1995) 159 JP 754; Jason-Lloyd, L, 'Escape from lawful custody anct the Prisoners (Return to Custody) Act 1995 - are thev reconcilable?' (1997) 161 JP 354. Op cit, Clark, fn 11.

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Furthermore, there is no requirement that the threat to life, limb or property should concern the premises in question, eg the police can enter if they believe that the premises contain material such as burglary or arson equipment which may be used against other premises or if a person who has planted a bomb elsewhere is on the premises.24

Section 17 goes on to state that all search powers within its am bit m ust be confined to searching prem ises to the extent that is reasonably required to find who or what the police are seeking. Since m ost o f this section applies to searching for persons, this means, inter alia, that it would not be perm issible to search a dressing table for a fully grown adult, although it may be perm issible to open a wardrobe which could be large enough to conceal such a person. Section 17 ends by abolishing all the earlier com m on law rules go v ern in g entry o f prem ises w ith ou t w arrant bu t, at the sam e tim e, it preserves the com m on law pow er of entry to deal w ith or prevent a breach o f the peace (see sub-s (6), mentioned above). However, in R (Rottman) v M etropolitan Police Com m issioner and the Secretary o f State fo r the H om e O ffice (2002), the H ouse of Lords confirm ed that s 17 did not abolish the com m on law pow er for the police to enter the hom e of a person arrested on warrant and search for evidence and seize property. This applied to extradition cases as well as dom estic crimes. Inevitably, the police w ill som etim es have to use force in effecting their pow ers under s 17, but this is always subject to s 117 of PACE, w hich requires the use of any force to be reasonable and necessary. In Smith (Peter John) v DPP (2001), it was held that police officers had the power to use reasonable force where they moved a man from the front door of a house where an abandoned 999 call had been made, in order to gain entry under s 17.

Section 18 of PACE - entry and search after arrest S e ctio n 18 p ro v id es th at the p o lice m ay e n te r and search p rem ises o ccu p ied or co n tro lled by a p erso n w ho h as been arrested for an a rresta b le o ffen ce. T h is is contingent upon them having reasonable grounds for suspecting that there is evidence on those prem ises w hich relates to the offence in question or som e other arrestable offence connected with, or sim ilar to it, although this excludes item s subject to legal privilege. The pow er to search prem ises under this section may only be exercised to the extent that is reasonably required to discover any evidence just m entioned. If the arrested suspect is already at the police station, a police officer of at least the rank of inspector must make w ritten authorisation before these entry and search pow ers are exercised. In R v Badham (1987), it was held that this authorisation m ust be made on an independent docum ent and not a mere entry in a notebook as confirm ation of verbal instructions. O n this issue, para 4.3 of Code B states that, if possible, that authority shall be given on the notice of pow ers and rights (see below). If the presence of the arrested person is necessary for the effective investigation of the offence, the police may exercise their powers under s 18 before the suspect is taken to the p o lic e s ta tio n and w ith o u t an in s p e c to r or a b o v e g iv in g p rio r w ritte n authorisation. W here this is done, the officer conducting the search m ust inform the inspector as soon as practicable following its com pletion. W here an inspector or above

24

Op cit, Clark, fn 11.

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e ith e r a u th o ris e s a search u n d er s 18 o r h as b e e n in fo rm ed th a t o n e h as b een conducted prior to the suspect being brought to the police station, that officer shall record, in w riting, the grounds for the search and the nature of evidence that was sought. This will be part of the custody record if the person w ho was in occupation or control of the prem ises during the search is under police detention at the tim e the record is being made. Otherw ise, the relevant entry should be made in the officer's pocket book or the search record.

Section 32 of PACE - search upon arrest The provisions under s 32 w ere discussed in C hapter 3, since searches under this section can apply to suspects them selves as well as prem ises they were in at the time of the arrest or im m ediately beforehand (see above).

Notice of powers and rights W henever a search of prem ises is m ade under Code B, para 6.7 states that, unless it is im practicable to do so, the occupier shall be given a copy of a notice in a standard form at, w hich contains the following information: (a) w hether the search is made under a w arrant or with the occu p ier's consent, or under s 1 7 ,1 8 or 32 of PACE; (b) a sum m ary of the extent o f the pow ers o f search and seizure conferred under PACE; (c) an explanation of the occup ier's rights, and those of the ow ner of any property seized; (d) n o tifica tio n that co m p en satio n m ay be av ailab le in ap p ro p riate cases w here dam age has been caused by entering and searching prem ises, together with the address to which such claim s may be directed; (e) a statem ent that a copy of this Code m ay be consulted at any police station. Paragraph 6.8 provides that copies of the notice of pow ers and rights shall be given to the occupier and any warrant, where applicable, if he or she is present. This shall, if practicable, be given to the occupier prior to the com m encem ent of the search, unless the officer in charge reasonably believes that this w ould frustrate the object o f the search or endanger police officers present or other people. W here the occupier is not p resen t, a co p y o f the n o tice and w arran t, w here a p p ro p riate , sh all be left in a prom inent place on the premises. This shall be endorsed with the nam e of the officer in charge (or w arrant number, where the search is linked to a terrorist investigation), the nam e of the police station where that officer is attached and the date and time of the search. Any warrant shall be endorsed to the effect that this has been done. With regard to com pensation under (b) above, N ote for Guidance 6A to Code B provides the following advice where forced entry occurs: Whether compensation is appropriate depends on the circumstances in each case. Compensation for damage caused when effecting entry is unlikely to be appropriate if the search was lawful, and the force used can be shown to be reasonable, proportionate and necessary to effect entry. If the wrong premises are searched by mistake everything possible should be done at the earliest opportunity to allay any sense of grievance and there should normally be a strong presumption in favour of paying compensation.

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Consensual entry and search of premises Paragraph 6.4 of Code B provides that, w herever possible, the police are obliged to seek the co-operation of the occupier to enter prem ises, even w here they have the pow er to enter without his or her consent. The exceptions to this rule are where the prem ises are know n to be unoccupied or the occupier or any other person entitled to grant access is absent, or where attem pting to com m unicate with such persons would fru stra te the o b je ct o f the sea rch or e n d a n g er p o lice o ffice rs or o th e rs p resen t. Paragraph 6.6 states that reasonable and proportionate force may be used if necessary to enter prem ises under the authority of a w arrant or where entry is required under s 17, 18 o r 32 o f PA C E. T h is m ay b e d o n e w h ere any o f the a b o v e -m e n tio n e d conditions are present, or where the occupier or other person entitled to grant access has refused to allow entry to the prem ises, or where it is not possible to com m unicate with such persons. Searches w ith consent are covered under paras 5.1-5.4 of Code B, together with N otes for Guidance 5A, 5B and 5C as follows. Unless it would cause disproportionate inconvenience to the person concerned,25 the police should seek the consent of that person in the follow ing manner. First, the officer in charge should make necessary inquiries to ensure that the person is in a position to give consent. Secondly, the officer should state the purpose and the extent of the search and inform the person that he or she is n o t o b lig ed to c o -o p e ra te and th a t an y th in g seized m ay be p ro d u ced in evidence. If the person is not suspected of an offence at the time, the officer shall tell that person when stating the purpose of the search. Thirdly, where consent is given, this should be put into writing if practicable on the notice of pow ers and rights before the search takes place. The police cannot enter and search prem ises, or continue to do so once a search has started, if the consent has been given under duress or the person w ithdraws their consent before com pletion of the search. For an interesting perspective on the issue of consensual entry to prem ises by the police, see Hobson and Others v C hief Constable o f the Cheshire Constabxilary (2004), and the article 'Police officers entering private property: the issue of consent' by Neil Parpworth, in (2004) 168 JP, 28 February. Searches o f lodging houses or sim ilar accom m odation should not be made solely on the basis of the land lord 's consent, unless the m atter is urgent and the tenant, lodger or occupier is not available.

Police powers of entry and search of school premises26 In response to a series of incidents involving the use of knives and sim ilar weapons both in and around school premises, the Offensive Weapons Act 1996 was passed, in

25

Note for Guidance 5C states that this applies where it is reasonable to assume that innocent occupiers would not object to the police taking action where, eg, a suspect is fleeing from the police and they need to quickly check surrounding gardens and readily accessible places to see if that person is hiding there or the police have arrested someone and wish to briefly check gardens nearby for any discarded evidence. 26 For further discussion on this subject, as well as other issues arising from the enactment of the Offensive Weapons Act 1996, see Jason-Lloyd, L, 'The Offensive Weapons Act 1996 - an overview' (1996) 160 JP 931; and 'The Offensive Weapons Act 1996 and the Knives Act 1997 how effective will they be?' (1997) 161 JP 572, 599.

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ord er to com bat the increasing knife cu ltu re that has been p articu larly prevalent am ong teenagers in recent tim es. O ne of the provisions un der the 1996 A ct is the power under s 4, enabling the police to enter school prem ises in order to search such places and any person in them for any article with a blade or point, or any offensive w eapon. The d efinition and general search pow ers to find such dangerous articles have been covered in Chapter 2, although it should be noted that these apply to public places. Prior to the passing of the O ffensive Weapons Act, there was som e contention as to whether these general stop and search pow ers applied to school premises. This was subsequently resolved when s 4 made express provision for school prem ises to be included within the am bit of police pow ers to search for articles such as knives (except folding pocket knives with cutting edges of no more than three inches) and offensive weapons. In addition, s 1 of the 1996 A ct created the new offences of unlaw ful possession of an offensive w eapon or an article with a blade or point in school prem ises, and made them arrestable offences un der s 24 of PACE (see C h ap ter 3). T his is su bject to a num ber of defences, w hich include instances where the person in possession of such an article has it w ith good reason, with lawful authority or where it was for use at work or for educational purposes, religious reasons or as part of a national costume. 'School p rem ises', for the p u rposes of the 1996 A ct, inclu de m ain and second ary buildings, playgrounds, sports fields, and even extend to school buses.27 However, dwellings used by persons em ployed at schools are excluded from these provisions. This will include the hom es of caretakers and groundsm en, for instance. E ntry by the police in school prem ises for the pu rposes o f search in g for such dangerous articles is contingent upon them having reasonable grounds to believe that som eone is in unlaw ful possession o f them . The requirem ent of reasonable belief, rather than reasonable su sp icio n , seem s rather anom alou s. If a police officer has reasonable suspicion that som eone on school prem ises is unlaw fully in possession of a prohibited article under the 1996 Act, that officer has the power to enter those prem ises in order to make an arrest under s 17 of PACE and may then search the prem ises and that individual under s 32. This is possible because such offences are arrestable. Also, subject to the constraints mentioned above under the coverage of s 18 of PACE, the police may then search the suspect's hom e. W hy rely on the much higher requirement o f reaso n ab le b e lie f to en ter and search sch o o l p rem ises or any p erson there for w eapons w hen the lesser requirem ent o f reasonable suspicion avails the police far greater powers? The position is even more puzzling when considering that the 1996 A ct, as applied in Scotland , requires police officers there to have only reasonable suspicion in this context. W here any suspected p erson in school prem ises is below the age of crim inal responsibility (10 years), the police cannot exercise this arrest power, because those under 10 years old are not crim inally liable; therefore, they cannot com m it this or any other offence. In such cases, the police may even have difficulty in relying on their entry and search pow ers conferred un der the 1996 A ct w here any person m ay be searched, because, according the wording of the Act, an offence has to be involved. Prim ary schools therefore appear to be excluded from the am bit of the 1996 Act. It could be argued, however, that weapons offences are more likely to be com mitted in

27

Hansard, Parliamentary Debates, HC Standing Committee C, 6 March 1996,15.

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secondary schools; therefore, these potential legal difficulties may not present a serious problem. A further anomaly seems apparent under the 1996 Act. Although it enables the police to use reasonable force where necessary in order to effect entry into school premises, it makes no express provision regarding force in order to search persons. However, it is submitted that the courts may imply such a power, notwithstanding the absence of any precise provision under the Act. Any resistance could be regarded as obstructing police, thereby constituting an offence, albeit a non-arrestable one. Up until April 2003, there was no specific guidance in the Codes of Practice regarding the power to enter and search school premises, and any person in such places. This has now been rectified by the inclusion of the following new provisions under Code A: 2.27The following powers to search premises also authorise the search of a person, not under arrest, who is found on the premises during the course of the search: (a) section 139B of the Criminal Justice Act 1988 under which a constable may enter school premises and search the premises and any person on those premises for any bladed or pointed article or offensive weapon; and (b) under a warrant issued under section 23(3) of the Misuse of Drugs Act 1971 to search premises for drugs or documents but only if the warrant specifically authorises the search of persons found on the premises. 2.28Before the power under section 139B of the Crim inal Justice Act 1988 may be exercised, the constable must have reasonable grounds to believe that an offence under section 139A of the Criminal Justice Act 1988 (having a bladed or pointed article or offensive weapon on school premises) has been or is being committed. A warrant to search premises and persons found therein may be issued under section 23(3) of the Misuse of Drugs Act 1971 if there are reasonable grounds to suspect that controlled drugs or certain documents are in the possession of a person on the premises. 2.29The powers in paragraph 2.27(a) or (b) do not require prior specific grounds to suspect that the person to be searched is in possession of an item for which there is an existing power to search. However, it is still necessary to ensure that the selection and treatment of those searched under these powers is based upon objective factors connected with the search of the premises, and not upon personal prejudice.

It will be seen that paras 2.27-2.29 of Code A also apply to searches under s 23(3) of the Misuse of Drugs Act 1971, but only when the warrant to search premises also includes the power to search any persons found there. As is the case regarding searches in schools, the new Code of Practice now places some constraints on searching persons in the exercise of specific powers to enter and search premises.

G eneral p rovision s u n d er C ode B Some miscellaneous provisions under Code B, most of which have not yet been discussed, will now be mentioned. Paragraphs 6.10 and 6.11 make provision regarding certain aspects of the conduct of searches and para 6.13 covers police conduct when leaving premises that have been searched. These are cited as follows, with annotations in square brackets where appropriate: 6.10 Searches must be conducted with due consideration for the property and privacy of the occupier and with no more disturbance than necessary'. Reasonable force may be used only w hen necessary and proportionate because the co-operation of the occupier cannot be obtained or is insufficient for the purpose ...

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6.11 A friend, neighbour or other person must be allowed to witness the search if the occupier wishes unless the officer in charge of the search has reasonable grounds for b e lie v in g the p re se n ce o f the p e rso n ask ed for w o u ld s e rio u sly h in d e r the in v e s tig a tio n o r e n d a n g e r o ffic e r s or o th e r p e o p le . A s e a r c h n e e d n o t be unreasonably delayed for this purpose. A record of the action taken should be made on the prem ises search record including the grounds for refusing the occup ier's request. [This provision exists for a number of reasons, including reducing fears of evidence being 'planted' in the course of a search, as well as having a witness to any damage done to property.] 6.13If premises have been entered by force, before leaving the officer in charge of the search must make sure they are secure by: •

arranging for the occupier or their agent to be present

•

any other appropriate means.

Note for Guidance 6A, mentioned earlier, gives the following important advice when errors have been made: 6A W hether com pensation is appropriate depends on the circumstances in each case. Compensation for damage caused when effecting entry is unlikely to be appropriate if the search w as law fu l, and the fo rce used can be show n to be reaso n ab le, proportionate and necessary to effect entry. If the wrong premises are searched by mistake everything possible should be done at the earliest opportunity to allay any sense of grievance and there should normally be a strong presumption in favour of paying compensation.

Paragraphs 8.1 to 8.3 and 9.1 provide the action to be taken after police searches and the maintenance of search registers at police stations as follows: 8.1 If prem ises are searched in circu m stances w here this C ode applies, unless the exceptions in paragraph 2.3(a) apply [note that these exceptions cover scenes of routine crim e searches, calls to fires or burglaries, bomb threat calls and searches w here it would cause disproportionate inconvenience if consent was sought] on arrival at a police station the officer in charge of the search shall make or have made a record of the search to include: (i)

the address of the searched premises;

(ii)

the date, time and duration of the search;

(iii)

the authority used for the search:

•

if the search was m ade in exercise of a statutory pow er to search prem ises without warrant, the power which was used for the search:

•

if the search was made under a warrant or with w ritten consent:

a copy of the warrant and the written authority to apply for it, [see para 3.4; refer to earlier coverage regarding prior authority o f inspectors and superintendents before warran ts can be applied for] or the written consent; shall be appended to the record or the record shall show the location of the copy warrant or consent. (iv) subject to Ipara 2.91, the nam es of: • •

the officer(s) in charge of the search: all other officers w ho conducted the search;

[Paragraph 2.9 referred to above exempts officers from disclosing their names in terrorist investigations, or where it is reasonably believed that this might put them in danger for other reasons such as where serious organised crime is being

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in v e stig a te d , o r w here p a rtic u la rly v io le n t su sp e cts h av e been arrested . Paragraph 2.9 is augmented by Note for Guidance 2E which, inter alia, advises that w'here there is any doubt, an inspector or above should be consulted. In approp riate cases, instead of d isclosing their nam es, they should use their warrant or other identification numbers and the name of their police station.] (v)

the names of any people on the premises if they are known;

(vi)

any grounds for refusing the occu p ier's request to have som eone during the search;

present

[See para 6.11 above.] (vii)

a list of any articles seized or the location of a list and, if not covered by a warrant, the grounds for their seizure;

(viii) whether force w'as used, and the reason; (ix)

details of any damage caused during the search, and the circumstances;

(x)

if applicable, the reason it was not practicable: (a) to give the occupier a copy of the Notice of Powers and Rights; [See para 6.7, discussed above.] (b) before the search to give the occupier a copy of the Notice; [See para 6.8 above.]

(xi)

when the occupier was not present, the place where copies of the Notice of Powers and Rights and search warrant were left on the premises.

[See para 6.8, discussed above.] 8.2 Where premises are searched under warrant, the warrant shall be endorsed to show: (i)

if any articles specified in the warrant were found;

(ii) if any other articles were seized; (iii) the date and time it w'as executed; (iv) subject to paragraph 2.9, the nam es of the officers w'ho executed it; (v) if a copy, together with a copy of the Notice of Powers and Rights was: • •

handed to the occupier; or endorsed as required by paragraph 6.8 [see above], and left on the premises and where. 8.3 Any w arrant shall be returned w'ithin one calendar m onth of its issue, if it was issued by a: •

ju stice of the peace, to the clerk to the ju stices for the petty sessions area concerned;

•

judge, to the appropriate officer of the court concerned.

[Note that para 8.2 constitutes an extension of the provisions contained under s 16(9) of PACE, and para 8.3 is identical to s 16(10).] 9.1 A search register will be m aintained at each sub-divisional or equivalent police station. All search records required under paragraph 8.1 [see above] shall be made, copied or referred to in the register ...

Somewhat ironically, this discussion will end with key extracts from the introduction to Code B. Rather than set the tone for this subject at the beginning, it is perhaps eq u a lly u sefu l to co n clu d e by citin g th ese im p o rtan t p ro v isio n s at th is stage. Paragraphs 1.3-1.5 of Code B make the following points regarding powers of entry, search and seizure: 1.3 The right to privacy and respect for personal property are key principles of the Hum an Rights Act 1998. Powers of entry, search and seizure should be fully and

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clearly justified before use because they may significantly interfere with the occupier's privacy. Officers should consider if the necessary objectives can be met by less intrusive means. 1.4 In all cases, police should: •

exercise their powers courteously and with respect for persons and property;

•

only use reasonable force when this is considered necessary and proportionate to the circumstances.

1.5 If the provisions of PACE and this Code are not observed, evidence obtained from a search may be open to question.

Common law power of entry to prevent or deal with a breach of the peace This was the only com m on law pow er to enter prem ises which survived PACE. The p ow er to arrest in ord er to d eal w ith o r p rev en t a breach o f the p eace has been discussed in Chapter 3, along with the pow er to enter public and private prem ises to do this.

Powers to enter and close drug houses under the Anti-social Behaviour Act 2003 Since 20 January 2004, Pt 1 of the Anti-social Behaviour Act 2003 has given the police a wide-ranging pow er to close prem ises associated w ith certain drug activities where this is also causing serious public nuisance. Although intended principally to deal with 'crack houses', the provisions under Pt 1 of the 2003 Act also have a w ider application. T h e first sta g e in the p ro ce ss is w here a p o lic e s u p e rin te n d e n t or ab o v e h as a reasonable belief that during a three-month period, specific prem ises have been used for certain drug activities. These activities are the unlaw ful production, supply or use of any C lass A controlled drugs. There m ust also be a reasonable b elief that those prem ises have been associated with disorder or serious nuisance to the public. During this three-m onth period, the relevant local authority m ust be consulted and reasonable steps m ust be taken in order to establish the identity of anyone who lives on, controls, or is otherwise responsible for those premises. A superintendent or above may then authorise a closure notice, w hich prohibits public access to those premises. In other words, only those who habitually reside on those prem ises m ay rem ain, and any other persons there at the time must leave. The serving of a closure notice involves the police fixing copies of it in several parts of the prem ises as well as any outbuildings; cop ies m ust also be given to p ersons affected by the notice. The con tents of this docum ent m ust explain the effects of this closure pow er as w ell as state that noncom pliance is an offence. Inform ation m ust also be given as to w here any person affected by this action can obtain legal and housing advice. A very im portant com ponent of a closure notice is that it has to contain a warning that an application will be made for a closure order against the prem ises as well as give the date, time and venue of the hearing. M agistrates are under a duty to consider the application within 48 hours of the closure notice being served. If a closure order is granted, this will have the effect of denying anyone access to the prem ises for up to three months that may, in turn, be extended by up to a further three months. Part 1 of the 2003 Act also contains a number of safeguards in order to com ply with the Human

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Rights A ct 1998. This includes detailed provisions enabling the relevant parties to request m odifications to any of the closure powers, as well as an appeals process and provision for com pensation, where appropriate. W here necessary, reasonable force may be used w hilst entering and securing the prem ises and, although the prem ises will be fully secured against entry throughout the closure period, the police a n d /o r contractors may enter at any time to effect essential repairs and maintenance. It is an offence for any person unlaw fully to remain on or enter into prem ises in defiance of any pow er of closure, or to obstruct the police or authorised persons such as contractors when entering and securing the premises. Any of these offences are punishable by a m axim um of 51 w eeks' im prisonm ent a n d /o r a fine not exceeding level 5 on the standard scale (currently £5,000). Police officers in uniform may arrest without warrant anyone reasonably suspected of com m itting, or having com m itted, any of these offences.28

POLICE POWERS OF SEIZURE Introduction A num ber of sections under PACE have given the police specific and general powers to seize ev id en ce, and a nu m ber o f o th er statu tes passed befo re and after PACE provide the police w ith a variety of pow ers of seizure in respect of certain categories of property. These include the Betting, G am ing and Lotteries A ct 1963, the Biological W eapons A ct 1974, the M isuse of Drugs A ct 1971, the Theft A ct 1968, the Financial Services A ct 1986 and the Crim inal Justice (International Co-operation) A ct 1990 to nam e but a few. Further exam ples of specific police powers of seizure under statutes enacted since PACE will be illustrated later in this chapter, including the new pow er to 'seize and sift' under the Criminal Justice and Police Act 2001.

General powers of seizure under PACE, other statutes and the common law U n d er s 19 o f PACE, a con stab le m ay seize an y th in g if he or she has reasonable grounds for believing that it constitutes evidence in relation to any offence or that it has been obtained as a result of an offence being com m itted, and that it is necessary to seize such item s to p rev ent them bein g con cealed, lost, altered or destroyed. The general pow er of seizure only applies w hen the constable is on prem ises lawfully, namely, w here the officer is executing a search w arrant or any other search under w ritten authority, is d ealing w ith or preventing a breach of the peace, is entering prem ises under s 17, 18 or 32 of PACE or has entered prem ises with the consent of a person entitled to give it. It is submitted that this m ay also apply where the police are

28

For a full commentary on the provisions of Pt 1 of this Act, see Jason-Lloyd, L, 'Controlled Drugs and the Anti-social Behaviour Bill' (2003) 167 JP 32, 9 August.

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on prem ises under the authority of any statutory power to enter prem ises without a warrant.29 It is irrelevant that the police did not have the express authority to search for a particular item w hich is seized. This will include situations where the police may be searching prem ises for a m urder w eapon, for instance, but find illicit drugs in the course of the search. It will be for the trial judge to decide whether such articles should be admitted as evidence in accordance with s 78 of PACE. Paragraph 7.4 of Code of Practice B m akes provision for the scenario where an officer has entered prem ises and has reasonable grounds for believing that property there has been obtained as a result of the com m ission of a crim inal offence, but decides that it is inappropriate to seize that property, because of an explanation by the person holding it. In those circumstances, that officer shall inform the holder of his suspicions and explain that he may be liable to civil or crim inal proceedings if he or she disposes of that property. It should be noted at this stage that w hilst excluded or special procedure may be seized under these provisions, material subject to legal privilege may not be seized under any pow er under PACE or any other statute. The exception to this rule is where it is inextricably linked with material for w hich there is a pow er of seizure (see the coverage below of the new seize and sift power under the Crim inal Justice and Police A ct 2001). A ny item s that have been seized un law fu lly d uring a search m u st be returned, although this will not invalidate the search regarding any other items that were properly seized.

Specific powers of seizure under PACE and the Terrorism Act 2000 Property may be seized by the police under the following circumstances: •

articles obtained as a result of a search under s 1 of PACE which are reasonably suspected to be stolen or prohibited;

•

m aterial o b tain ed as a resu lt o f a w a rra n t issu ed by m a g istra te s u n d er s 8 regarding evidence o f a serious arrestable offence, or anything obtained in the execution of a search warrant authorised by a circuit judge under Sched 1 to PACE;

•

any object found as a result of searches under ss 18 and 32 of PACE;

•

item s found under ss 54 and 55 of PACE as a result o f the search of a suspect while detained by the police; and

•

m aterial discovered as a result of searches under the Terrorism A ct 2000.

Information held on computer S ectio n 19(4) o f PACE m ak es p ro v isio n for access to in fo rm a tio n stored in any electronic form. This is put into more simplified form under para 7.6 of Code B, which states:

29

In Cowan v Metropolitan Police Commissioner (2000), it was held that ss 18(2) and 19(2) of PACE include the power to seize everything, even the premises themselves! In this case, a car, which was held to constitute 'premises', was seized bv the police, since it was alleged that a number of indecent assaults had taken place in it and the car was needed as evidence.

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7.6 If an officer considers information stored in any electronic form and accessible from the premises could be used in evidence, they may require the information to be produced in a form: •

which can be taken away and in which it is visible and legible; or

•

from which it can readily be produced in a visible and legible form.

This, for exam ple, will cover the police obtaining a printout, as opposed to a disk,30 and such procedures may be applied under the following powers: powers of seizure u nder any enactm ent before or after PACE; pow ers of seizure under s 8 of PACE; pow ers of entry and search under s 18 of PACE; searches under Sched 1 to PACE; and the pow er un der s 19 of PACE to seize ev id ence d iscovered w hen the p olice are lawfully on premises, but which is not the object o f the search. It has been stated that in order to avoid a com puter being destroyed or tampered with, the police may secure it in order to ensure the production of a print out.31 See also the coverage o f the new seize and sift pow ers below.

Access to and the copying of seized articles Access to all property seized and subsequently held by the police under any power of seizure is provided for under s 21 of PACE. W here a person can show that he or she was the occupier of the premises from which the police have seized property, or had custody or control of the property im m ediately before it was seized, that person may request a record of the item s taken, which m ust be provided within reasonable time. Such a person, or som eone acting on their behalf, m ay be granted supervised access to the property by the investigating officer and may photograph or copy it; alternatively, this may be done by the police and given to the person concerned. However, these provisions will not apply where there are reasonable grounds for believing that this w ould prejudice that or any other crim inal investigation or proceedings.

Retention of articles seized U nder s 22 of PACE, the police may retain any property seized (including information obtained from a com puter) for as long as is necessary in all the circumstances. This will in clu d e re ta in in g it for u se as e v id e n ce at a trial, for fo re n sic ex a m in a tio n , for in v e stig atio n into any crim in al o ffen ce or to estab lish the rig h tfu l ow n er o f the property where applicable. However, the police should not retain any property which can be photographed or otherwise copied for their purposes. In som e circumstances, the police m ay not be under an obligation to return the property at all, for exam ple, drugs which have been unlawfully possessed.32 However, they should return anything seized from a person where it may have been used to cause physical injury or damage to property, to interfere with evidence or to assist in escape from police detention or

30

Levenson, H, Fairweather, F and Cape, E, Police Powers: A Practitioner's Guide (3rd edn, London: Legal Action Group, 1996). 31 Zander, M, The Police and Criminal Evidence Act 1984 (4th edn, London: Sweet & Maxwell, 2003). 32 Op cit, Levenson, Fairweather and Cape, fn 30.

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law ful custody, if that person is no longer in police d etention or the custody o f a court or is in the custody o f a court, but has been released on bail. A t this stag e, fu rth e r m en tio n sh o u ld b e m ad e o f R v C h esterfield ju stic es ex p Brainley (1999), discussed earlier, w here it w as held, inter alia, that it w as unlaw ful to rem ove item s from prem ises in order to 'sift throu gh' them , so as to find out if they fall w ithin the scope of the search w arrant. In this case, it w as stated that: ... if the material is taken from the premises searched other than by agreement, it is 'se iz e d '... and the only right to seize is that to be found in s 8(2) of the [1984] Act which, subject to s 19(2)(iii) and (iv),33 is restricted to item s for w hich a search has been authorised by the warrant. If a constable executing a warrant seizes items which, when examined, are found to be outside the scope of the warrant and not covered by s 19, even if he acts in good faith, I find in the statute no defence to an action for trespass to goods based on that unjustified seizure ...

This decision has since been overturned by Pt 2 o f the Crim inal Justice and Police A ct 2001, w'hich w ill be m entioned below.

'Seizure and sift' pow ers under the Crim inal Justice and Police Act

2001 P art 2 o f the C rim in a l Ju s tic e and P o lice A ct 2001 (w h ich in c lu d e s ss 5 0 -6 6 and S ch ed s 1 and 2) d eals w ith situ ation s w here the police are law fully on prem ises in order to search for certain m aterial, but it is not practicable to exam ine the item s there and then. T his m ay b e due, for instance, to the length o f tim e it w ould take for the m a te ria l to b e e x a m in e d b e c a u se o f its sh e e r b u lk , o r w h e re m a te ria l c a n n o t be separated from other item s on the spot, such as com puterised inform ation. In such cases, 'in extricab ly linked m aterial' on the hard d rive m ay be seized and retained, w hich m ay include legally privileged m aterial. A further exam ple w ould include the discovery of a safe w hich the police reasonably believed contained m aterial that could be seized, but it w ould not be possible to open the safe w hilst on the prem ises. This new p ow er h as been created u n der the 2001 A ct in response to the d ecisio n in R v Chesterfield Justices ex p Bram ley (1999) as m entioned earlier, and m ay also b e exercised by designated civilian investigating officers (see C hapter 7). Furtherm ore, these new p ro v ision s apply to existin g po w ers o f seizu re av ailab le to o th er law en fo rcem en t bodies such as the D epartm ent of Trade and Industry, H M C ustom s and Excise, and the Serious Fraud O ffice to nam e bu t a few. These are listed u n der Pt 1 of Sched 1 to the 2001 A ct, w hich includes no few er than 73 such pow ers of seizure in ad dition to those applicable u n der PACE. A lthough the police (and others) have the pow er to rem ove m aterial elsew here for exam ination, they m ay not retain item s that they do not norm ally have the pow er to seize unless it is inextricably linked m aterial. The criteria that w ill justify the rem oval o f item s and their su bseq u en t exam in atio n elsew h ere is w hen it is not 'reaso n ab ly p racticab le' to d eterm ine or sep arate the m aterial that is b ein g sought. 'R easonab ly p racticab le' inclu d es the length o f tim e it w ould take to d eterm in e or sep arate the m aterial on the prem ises, or w hether such action w ould cause alteration or d am age to

33

It is respectfully submitted that this should have been quoted as s 19(2)(a) and (b).

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o th e r re le v a n t m a te ria l. A s m e n tio n e d a b o v e , th is new p o w e r e n a b le s le g a lly privileged material to be seized where it is inextricably linked with material for which there would norm ally be a power of seizure. This is the exception to s 19(6) of PACE, w hich forbid s the seizu re o f m aterial w hich is reasonably b eliev ed to be legally p riv ileged . T herefore, if the p olice are seek in g certain inform ation w hich is on a com puter disk, and that sam e d isk also con tain s legally p rivileged m aterial, that w ould be classed as in extricably lin ked m aterial w hich can ju stify rem ov ing the com puter disk for exam ination or analysis elsewhere.

Seizure of suspect cash U nder Pt II o f the D rug T rafficking A ct 1994, prov ision w as m ade to prevent the im port or export of cash being used as part of the drug trafficking process. The police (or custom s) officers were empowered to seize and detain imported or exported cash that directly or indirectly represented the proceeds of drug trafficking w hich could later be forfeited to the courts. Chapter 3 of the Proceeds of Crim e Act 2002 has now replaced these provisions with a much w ider schem e that em powers police or custom s officers to seize cash inland as well as at the borders. This pow er may be exercised where that officer has reasonable grounds for suspecting that the cash is recoverable p roperty or is intended for use in unlaw fu l conduct. This not only inclu d es drug trafficking but also any crim inal offence, w hether com mitted in this country or abroad un der a corresp on d in g law, and ap p lies to cash o btain ed throu gh such crim inal activity. The cash m ay not be detained for m ore than 48 hours unless a m agistrate makes an order that can extend this period up to three m onths; further extensions may be given up to a period not exceeding two years. A magistrate may order the further detention of the cash on the following grounds: •

that there are reasonable grounds for the officer's suspicion;

•

that the continued detention of the cash is justified in order to investigate its origin or intended use; or

•

if crim inal proceedings are being considered, or have already com m enced but have not been concluded.

The person from whom the cash w as seized m ay apply to the m agistrates' court to have it released on the grounds that it is not recoverable property and is not intended for use in unlaw ful conduct. The cash may also be returned where the officer notifies the court that it can no longer be justified. However, if the court is satisfied on the balance of probabilities, that the cash is recoverable property or is intended for use in unlaw ful conduct, it may order its forfeiture. Victims connected with the cash, such as w here it w as stolen from them , and o ther ow ners m ay also apply for its release. O therw ise any aggrieved party m ay appeal to the Crow n Court against the forfeiture of the cash. Com pensation m ay be applied for, although it is expected that the seized cash will be placed into an interest-bearing account at the first opportunity after the initial 48-hour period of detention. The m inim um am ount of cash held that is liable to seizure is currently £10,000, although there is provision for this am ount to be changed by an order made by the Secretary of State.

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SPECIFIC POWERS OF SEIZURE UNDER OTHER STATUTES Som e exam ples of specific police powers of seizure will be provided below. These will include provisions under the Crim inal Justice and Public Order Act 1994, the Terrorism A ct 2000, the O ffensive W eapons A ct 1996 and the C onfiscation of A lcohol (Young Persons) A ct 1997.

The Criminal Justice and Public Order Act 1994 Section 60(6) of the 1994 Act provides the police with the pow er to seize any offensive or dangerous w eapons found in the course of a search under w ritten authority in anticipation of serious violence (see Chapter 2); and s 60AA, inserted by s 94 of the Anti-terrorism , Crim e and Security A ct 2001, em pow ers the police to seize any item w hich it is reasonably b eliev ed any p erson intend s to w ear w holly or m ainly to conceal his or her identity whilst such a written authority is in force. U nder s 64(4) of the 1994 Act, the police may seize vehicles a n d /o r sound equipm ent used for 'raves' under specific circumstances, and s 62 provides them with the pow er to seize vehicles w hich have not been rem oved from land in accordance w ith a direction under s 61 (power to rem ove trespassers on land).

The Terrorism Act 2000 U nder Sched 5 to the 2000 Act, the police are provided with the power to seize and retain item s (except those subject to legal privilege) w hich are found in residential and non-residential prem ises and on persons within them, in the course of a search. This m ay be done where any item is reasonably believed to be of substantial value to a terrorist investigation and that it is necessary to prevent it from being concealed, lost, dam aged, altered or destroyed. Also under Sched 5, the police may seize and retain anything found on prem ises or on any person found there w hich are within a police cordon and are subject to a search under the written authority of a superintendent or above, or lesser rank in an emergency. Any property seized m ust not be subject to legal privilege and it must be reasonably believed that it is likely to be o f substantial value to a terrorist investigation and that seizure is necessary to prevent its concealm ent, loss, damage, alteration or destruction. It should be noted that the new seize and sift pow ers discussed above also apply to searches under the Terrorism A ct 2000.

The Offensive Weapons Act 1996 Police officers, using their pow ers to search school prem ises and persons on them for o ffensive w eap ons and articles w ith b lad es or p oints, m ay seize and retain such articles if found in the course of a search under the Offensive Weapons Act. This same pow er of seizure will also apply, of course, where such item s have been discovered as a result of a stop and search in a public place under s 1 of PACE.

The Confiscation of Alcohol (Young Persons) Act 1997 Although there is no direct pow er of seizure or search under this statute, the 1997 Act is considered here because it em pow ers the police to require under 18 year olds to

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surrender any alcohol in their possession when in a public place, other than in licensed premises. Failure to do so without reasonable excuse and to state name and address w hen requested constitutes a sum m ary only offence and confers a pow er of arrest on the p o lice, w h ich is a p ow erfu l in d u cem en t for the y o u n g ster to hand ov er the alcoholic drink.34 The pow er to require the surrender of alcohol has been extended to include a sealed container for such liquor, although under s 155 of the Licensing Act 2003, there must be reasonable belief that the person has been drinking, or intends to consum e the drink. A sim ilar pow er to that under the 1997 A ct can also be found in the Crim inal Justice and Police A ct 2001, under ss 12-16. This em pow ers the police to require a person w ho is, or has been, drinking in a designated public place, or intends to do so, to refrain from doing so, and to surrender the drink or a container w hich contains alcohol. Designated public places are places designated by local authorities as virtual no-go areas for d rinkers due to their association w ith gen eral disorder. Failure to com ply w ith such directions within a designated place is an arrestable offence.

34

For a full commentary on the 1997 Act, see Jason-Lloyd, L, 'The Confiscation of Alcohol (Young Persons) Act 1997 - an overview' (1997) 161 JP 871; Jason-Lloyd, L, 'The Confiscation of Alcohol (Young Persons) Act 1997: implications for the police service' (1997) LXX(4) Police Journal 287, October-December.

C H A PT ER 5 PO LIC E PO W ER S OF D ET EN T IO N

INTRODUCTION Section 30 of the Police and Crim inal Evidence A ct 1984 (PACE) (already discussed above in Chapter 3) provides that, follow ing the arrest of a person by the police away from a police station or the taking into custody of a suspect arrested by a non-police officer (a store detective, for exam ple), there is a duty to convey the suspect to a police station as soon as practicable unless, o f course, if street bail has been given by the p o lice. N orm ally , th a t p o lice statio n w ill be on e d esig n ated for the p u rp o ses of d etaining su sp ects, although there are excep tio n s, as d iscussed earlier. W hat is a designated police station, as distinct from one which is not?

DESIGNATED POLICE STATIONS Section 35 of PACE places a statutory duty on all chief officers of police to provide d esig n ated p o lice s ta tio n s w ith in th e ir re sp e ctiv e p o lice areas. T h e se m ay not necessarily function in that capacity all the tim e. For instance, a designated police station may operate as such for certain days of the w eek, although they may not be restricted to just certain times of the day.1 Police stations falling within this category are p lace s w here cu sto d y areas are prov id ed for the d eten tio n and su b seq u e n t questioning of suspects, and where at least one 'custody officer' is present.

THE CUSTODY OFFICER U nder s 36(3) of PACE, a custody officer must be a sergeant or above, although, under s 36(4), if a custody officer is not readily available at a designated police station, a police officer of any rank m ay perform this duty. H ow ever, in any event, such an officer must not be involved in the investigation of the case. A person appointed as a custod y officer m ay not n ecessarily perform such d uties all the tim e and m ay be assigned to other tasks although, in particularly busy police stations, custody officers are invariably full time. U nder s 36(7) of PACE, where a suspect is taken to a non­ designated police station, any police officer m ay assum e the role of custody officer although, w herever possible, it should not be done by the officer investigating the case. If this cannot be avoided, due to shortage of manpower, for instance, then the officer who took the suspect to the police station or any other police officer may assume the role of custody officer; how ever, the arresting officer must, under s 36(9) and (10), inform an officer of at least the rank of inspector at a designated police station, as soon as practicable, that this is being done.

1

Zander, M, The Police and Criminal Evidence Act 1984 (4th edn, London: Sweet & Maxwell, 2003).

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The custody officer, including anyone acting in that capacity under any o f the circum stances mentioned above, is the person primarily responsible for ensuring the proper treatm ent of persons held in police detention (s 36(8)). This is in accordance w ith the relevant provisions of PACE and the Codes of Practice (s 39(1)). Custody officers are also under a duty to record all relevant matters w hich have to be included in the 'custody record'. W here it is necessary to transfer the suspect to the investigating officer or to an officer w ho has charge o f that person outside the police station, the responsibilities of the custody officer are then incum bent upon them (s 39(2)). W here a suspect is subsequently returned by the investigating officer, he or she must account to the custody officer for the proper treatm ent of that person w hilst in their charge. Section 39(6) deals w ith the potentially d ifficu lt situ ation w here a high er ranking officer than the custody officer gives directions w hich are at a variance with those of the custody officer. In such circum stances, the custody officer m ust im m ediately refer the m atter to a police officer of at least the rank of superintendent who is responsible for that police station. Section 34(1)—(5) of PACE contains im portant provisions regarding the overall responsibilities of custody officers towards detained suspects, w hether arrested at the police station or elsewhere. However, para 1.10 of Code C m akes the im portant point that the Code also applies to persons in custody at police stations, w hether or not they have been arrested for an offence, as well as those removed to police stations as a place of safety under ss 135 and 136 of the M ental H ealth Act 1983 (m entally ill persons rem oved to police stations as an interim m easure, prior to exam ination by m edical practitioners); but para 1.12 excludes the following from the am bit of the Code, whilst p ro v id in g th at th ey sh o u ld still be su b je c t to the sam e m in im u m stan d ard s on conditions and treatment as other detainees (see also Chapter 6): persons arrested by police officers from Scotland exercising their detention pow ers under cross-border pow ers of arrest (see Chapter 3); persons arrested under s 142(3) of the Immigration and Asylum Act 1999 for fingerprinting, those w hose detention is authorised by an immigration officer under the Immigration Act 1971; convicted or remanded prisoners held in police cells on behalf of the Prison Service; persons detained for exam ination under the Terrorism A ct 2000; and persons detained for search es under stop and search powers except as required by Code A. For the sake o f sim p licity , the rem ain d er o f this ch ap ter w ill co n cen trate on arrested persons. The provisions under s 3 4 (l)-(4 ) of PACE are as follows: (1) A person arrested for an offence shall not be kept in police detention except in accordance with the provisions of this Part of this Act. (2) Subject to sub-s (3) below, if, at any time, a custody officer: (a) becomes aware, in relation to any person in police detention, that the grounds for the detention of that person have ceased to apply; and (b) is not aware of any other grounds on which the continued detention of that person could be justified under the provisions of this Part of this Act, it shall be the duty of the custody officer, subject to sub-s (4) below, to order his immediate release from custody.2

2

Code C, para 1.1 reinforces this duty by stating that: 'All persons in custody must be dealt with expeditiously, and released as soon as the need for detention no longer applies.'

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(3) No person in police detention shall be released, except on the authority of a custody officer at the police station w here his detention w as authorised or, if it was authorised at more than one station, a custody officer at the station where it was last authorised. (4) A person who appears to the custody officer to have been unlawfully at large when he was arrested is not to be released under sub-s (2) above.

Sub-section (5) states that where a suspect is released from police detention, this must be unconditional, except where there is the need to im pose bail because it appears to the custody officer that proceedings may be taken against the suspect in respect of the case or that further investigation is needed into the matter, or that the suspect may be reprim anded or w arned under s 65 of the Crim e and D isorder A ct 1998. H owever, w hat are the provisions for holding suspects before any of these circum stances may apply? These will now be discussed.

THE FIRST STAGES AT THE POLICE STATION The custody record O n arrival at a police station, an arrested person has the benefit o f a considerable num ber o f rights and safeguards, m any o f w hich either did not exist or w ere not clearly defined before the enactm ent of PACE. These provisions also apply to persons already at the police station prior to being arrested or to those who attend in order to answer bail. Once an arrested person has arrived at the police station (or once a person has been arrested at the police station or answ ers bail), that person should be brought b e fo re the cu sto d y o ffice r, w h o w ill n o rm a lly o p en a c u sto d y record fo r each individual. In strict accordance with procedure, the custody officer should do this once he or she has decided w hether or not to authorise the detention of the suspect having heard the reasons for the arrest from the arresting officer. H ow ever, para 2.1A of C ode C, w hich cam e into force on 1 A ugust 2004, m akes the follow ing provisions regarding the bringing of persons before the custody officer w ithout delay: 2.1A When a person is brought to a police station: •

under arrest;

•

is arrested at the police station having attended there voluntarily; or

•

attends a police station to answer bail,

they should be brought before the custody officer as soon as practicable after their arrival at the station or, if appropriate, following arrest after attending the police station voluntarily. This applies to designated and non-designated police stations. A person is deemed to be 'at a police station' for these purposes if they are within the boundary of any building or enclosed yard which forms part of that police station.

U nder s 37 of PACE, the custody officer must determ ine if there is enough evidence to charge the suspect and, if so, may detain that person for as long as is necessary for that purpose. If not, the suspect m ust be released either on bail or w ithout bail,3 or the

3

If a person is arrested on warrant which is endorsed for bail, that person must be released on bail accordingly.

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custody officer may authorise the suspect being detained without charge if there are reasonable grounds for believing that this is necessary to secure or preserve evidence relating to the offence in question, or to obtain such evid ence by question in g the suspect. H ow ever, sin ce custod y officers rarely refuse to au th orise d eten tion, the custody record for the arrested suspect is usually opened on their arrival at the police station or very soon afterwards. W here detention without charge is authorised, the grounds must be noted on the c u s to d y re c o rd an d th e s u s p e c t in fo rm e d a c c o r d in g ly , u n le s s in c a p a b le o f understanding what is said, or is asleep, or is violent or likely to be so, or is in urgent need of m edical attention. According to para 2.1 of Code C: '... Any audio or video recording m ade in the custody area is not part of the custody record.' Paragraphs 2.3, 2.6 and 2.7 p ro v id e that the cu sto d y o fficer is resp o n sib le for the accu racy and com pleteness of the custody record. All of its entries m ust be signed and timed by the persons m aking them , together w ith their appropriate identification, although para 2.6A states that police or civilian support staff m ay not disclose their nam es if this is reasonably believed that this m ight pu t them in danger, such as w here a terrorist investigation is involved. Instead they m ay record their appropriate identification num bers and the nam e of their police station. If any detainee refuses to sign an entry in the custody record w hen required to do so, this fact m ust be recorded as well as the tim e of the refusal. W hen a detained person is transferred to another police station, it is the d uty o f the cu sto d y o fficer to ensure that the cu stod y record or a cop y o f it accom panies the suspect.

The initial and continuing three rights of arrested persons U nder para 3.1 of Code C, the custody officer m ust inform the arrested person of the follow ing rights w hich m ay be exercised at any stage throughout his or her detention, although this is subject to certain exceptions under A nnex B, which is discussed below. In practice, unless those exceptions apply, arrested persons are usually notified of them at a very early stage in the d eten tion process. T hese rights are to h av e som eone inform ed of the arrest; to con su lt privately w ith a solicito r w ho may, if required, provide independent legal advice free of charge under the duty solicitor schem e; and to consult the Codes of Practice. U nder para 3.2, the arrested person should then be served with a written notice, setting out these rights, together with the entitlem ent to a copy of the custody record, an explanation of the caution and the arrangem ents for obtaining legal advice. A further w ritten notice m ust also be given to that person, w hich briefly sets out his or her entitlem en ts w hilst being held in custody. These include reasonable standards of physical com fort, adequate food and drink, access to to ile ts and w 'ashing fa c ilitie s , c lo th in g , m e d ica l a tte n tio n and e x e rc ise w h en practicable. Note for G uidance 3B to C ode C states that: 'In addition to notices in English, translations should be available in Welsh, the main m inority ethnic languages and the principal European languages, w henever they are likely to be helpful. Audio versions of the notice should also be m ade available.' The last sentence o f 3B w as added under the latest Codes, w hich came into force on 1 August 2004. The arrested person should then be asked to sign the relevant part of the custody record w hich acknowledges receipt of these notices and any refusal to sign should be noted on it. In the case of the right to legal advice, posters advertising this right should be displayed in p rom in ent places w ithin police stations and in d ifferent langu ages w here it is practicable and likely to be helpful.

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Legal advice The provisions regarding access to legal advice are contained under s 58 of PACE, augm ented by procedures covered under s 6 of C ode C. Apart from specific exceptions which will be dealt with later, arrested persons held in police custody (w hether or not they have been arrested for an offen ce) hav e the fu n d am en tal righ t to co n su lt a solicitor in private at any time. This m ay be in person, in w riting or by telephone, unless the design and layout of the custody area or the positioning of the telephones m ake the latter im practicable. In Roques v M etropolitan Police Com m issioner (1997), a su ccessfu l action for b reach o f statu to ry duty w as b rou ght w here the p olice had insisted on being present during the time that a suspect was speaking on the telephone to his solicitor. The right to private consultation with a solicitor is even more important in order to com ply with A rt 6(3) of the European Convention on H um an Rights; see R (on the Application o fM (A Child)) v Comm issioner o f the Police o f the M etropolis (2002). Persons voluntarily attending police stations ('helping police with their inquiries') also have the sam e right and this cannot be subject to any delay as long as they rem ain unarrested. P ersons d etained un der p revention of terrorism legislation m ay have access to legal advice (subject to any postponem ent), although they may not consult w ith a solicitor privately if the relevant provisions of Sched 8 to the Terrorism Act 2000 apply. In such cases, an assistant chief constable (or a com m ander in London) may give a direction authorising a uniformed officer of at least the rank of inspector to be within the sight and hearing of a solicitor giving legal advice to a person detained under the relevant terrorism provisions. As previously stated, arrested persons are usually informed of the right to legal advice at an early stage during their detention (or voluntary attendance at a police statio n ), bu t this rig h t m u st also be no tified to them at o th er stag e s d u rin g the d eten tio n period w here ap p rop riate. This inclu d es: the stage before a review of detention is m ade; the stage ju st prior to the com m encem ent of any interview or con tin uation o f an interview ; w here fu rther q u estion s are put to, or answ ers are invited from, a person already charged or notified of possible prosecution; where a person is asked to provide an intimate sam ple; and the stage before an identification parade or a group identification or video identification is arranged. If the presence of a solicito r is d eclin ed , the d etained person should be inform ed that he or she m ay consult with a solicitor on the telephone. If this is also declined, that person must be asked to state the reason w hich, if given, m ust then be recorded in the custody or interview record. If this is not given, the detained person should not be pressed to explain any reasons for declining legal advice, but no police officer shall do or say anything intended to dissuade a person from obtaining legal advice. It should be noted that in Rixon and Others v C hief Constable o f Kent (2000), it was held, inter alia, that if a detained person has the right to legal advice, a solicitor does not autom atically have the right to see his or her client. This right only applies if the detained client is entitled to legal advice and requests it. Provided access to legal advice is not denied under s 58 of PACE (see below), the police should not delay in calling a solicitor unless there is justification. In Kirkup v DPP (2003), it was held that even a delay of seven m inutes constituted a breach of s 58 of PACE and the Codes of Practice. However, the evidence in this case w as not excluded under s 78 of PACE because the delay w as very short. H ow m ay a solicitor be o btain ed? It is im portan t that the d etained person be informed that he or she has the right to free legal advice and of the availability of the

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Duty Solicitor Schem e. This schem e operates in each locality where a 24-hour rota system is organised by local legal practitioners w ho attend police stations on a 'call out' basis. However, detained persons w ho request legal advice should be given the opportunity to consult with a specific solicitor of their choice or another solicitor from the sam e firm. If legal advice is not available by these means or the services of the duty solicitor are declined, a list may be provided, containing solicitors willing to provide legal advice, from which the detained person may select a legal adviser and up to two alternatives if the first choice is not available. Even then, the custody officer has a discretion to m ake further efforts to obtain a solicitor if these attem pts to secure legal advice are unsuccessful, although specific advice by the police about particular firms of solicitors must be avoided. In R v Vernon (1988), the defendant, who w as arrested for assault, nom inated a solicitor of her choice who w as not available, due to the lateness of the hour. She w as n o t inform ed of the D uty So licitor Schem e and agreed to be interview ed w ithout legal representation, w hich she would not have done had she k n o w n th a t a s o lic ito r w o u ld h av e atte n d ed . T h e reco rd o f the in te rv ie w w as subsequently excluded under s 78 of PACE. Can only fully qualified solicitors provide this service? Paragraph 6.12 of Code C clarifies the po sitio n as follow s: 's o lic ito r' m eans a so licitor w ho hold s a current practising certificate, a trainee solicitor, a duty solicitor representative or an accredited representative included on the register of representatives m aintained by the Legal S erv ices C om m ission . U nder para 6.12A , if a solicito r sen d s a no n -accred ited or probationary representative to provide advice on his behalf, then that person shall be admitted to the police station for this purpose, unless an officer of the rank of inspector or above considers that such a visit will hinder the investigation of crim e and directs otherwise. Paragraph 6.14 states that any refusal of access to a non-accredited or probationary representative m ust be followed by the inspector notifying the solicitor w ho sent such a person, in order that alternative arrangem ents may be made. The custody record should then be noted and the detainee informed accordingly. Note for Guidance 6F p ro v id es that if a p olice o fficer o f at least the rank o f in sp ecto r con sid ers that a p articular solicito r or firm is p ersistently sen ding non-accredited or probationary representatives who are not suited to provide legal advice, that officer should make this known to a superintendent or above for consideration as to w hether this m atter should be taken up w ith the Law Society. The above provisions clarify the position arising from R v C hief Constable o f Avon and Somerset ex p Robinson (1989). In this case, an instruction was issued by the deputy c h ief co n stab le to p o lice o fficers in that area reg ard in g the su itab ility o f certain so licito rs clerk s, w ith p articu lar referen ce to som e u n q u alified clerk s w ho w ere em ployed by a solicitor to be present during the interv iew ing o f clients in police stations. This related to their background and conduct, with particular reference to four of them. The Divisional Court held that a police inspector or above is entitled to deny access if that officer knew or believed that a clerk was not capable of providing legal advice. This would not apply if such a person w as capable of giving advice, even though it was of poor quality, and that a clerk could be denied entry if that person had a crim inal record or was crim inally orientated. This decision w as applied in R t> C hief Constable o f N orthum bria ex p Thompson (2001), where the Court of Appeal held that it is not perm issible to im pose blanket bans on persons who are not qualified as solicitors, as each case has to be judged on its ow n merits.

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P a ra g ra p h 6.1 2 A g o e s on to m ak e the im p o rta n t p o in t th a t h in d e rin g the investigation of crim e does not include giving proper legal advice to a detained person in accordance with the provisions under N ote for Guidance 6D. This stresses the right of a detained person to free legal advice and to be represented by a solicitor, and goes on to state w hat constitutes acceptable and non-acceptable conduct on the part of a solicito r d uring the questio n in g o f a su spect. This, and other relevant prov isions relating to the interview ing of suspects, will be covered in detail in Chapter 6.

Notification to another of a person's detention Paragraph 5 of Code C sets out the basic right for detained persons not to be held incom m unicado. This applies w hether or not they have been arrested for an offence; for exam ple, they might have been arrested to prevent a breach of the peace. Anyone arrested may request that one person be informed of his or her whereabouts as soon as is practicable. This w ill be done at public expense. Up to two alternatives m ay be contacted if the first attem pt does not succeed and any further attem pts are at the discretion of the person in charge o f d etention or the investigation. The detained person m ay also receive visits at the discretion of the custody officer. A ny friend, relative or other person interested in the suspect's w elfare w ho contacts the police station inquiring if that person is there should be inform ed as such, provided the suspect agrees and that the exceptions under A nnex B to Code C do not apply. There is a difference betw een having a person informed by the police of a suspect's w h ereabo u ts and allo w in g the su sp e ct d irect con tact w ith su ch p erso n s for this purpose. W hilst a suspect m ay be supplied w ith w riting m aterials on request and allowed to speak on the telephone for a reasonable time to one person, an inspector or above may deny or delay either or both of these privileges. This will apply where an arrestable or a serious arrestable offence is involved and the consequences laid down in A nnex B apply. This does not affect the right of having a person informed of the suspect's w hereabouts or the suspect's entitlem ent to legal advice, provided these do not run contrary to A nnex B. Before the suspect sends any letter or m essage, that person m ust be warned that any of these may be read and given in evidence; where the suspect m akes a telephone call, he or she m ust be warned that the conversation may be listened to and also given in evidence. This does not apply to com m unications with a solicitor. The cost of such telephone calls can be at public expense, but this will be at the custody officer's discretion. This will take into account factors such as the distance at which a call is being m ade and the time involved. A telephone call m ay be terminated if the right is being abused. Paragraph 5 of Code C provides that a record must be kept of all requests made under these rights and privileges, and the action taken, including any letters, m essages or telephone calls made or received, or of any visits to the suspect. A record must also be kept o f any refusal on the p art o f the su sp ect to have any inform ation or the w hereabouts regarding him or herself disclosed to an outside inquirer. The suspect must be asked to countersign the record to this effect and a record should be made of any refusal to sign.

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Unco-operative detainees It should be mentioned that the conduct of persons as a w hole can vary considerably w hen confronted by the police at any point in the execution of their duties. W hether a police officer is exercising stop and search powers or effecting an arrest or detaining a suspect at a police station, it is often the case that such actions are m et with verbal abuse, physical resistance and violent behaviour directed towards the police. In many cases, such conduct is drink or drug-related. In addition, arrested persons may not alw ays be in the b e st p h y sical con d itio n w hen b ro u gh t to the p o lice statio n ; for exam ple, they m ight have been injured in a fight. Paragraph 1.8 of Code C therefore makes the following provisions: 1.8 If this Code requires a person to be given certain information, they do not have to be given it if at the time they are incapable of understanding what is said, are violent or may become violent or in urgent need of medical attention, but they must be given it as soon as practicable.

With regard to unco-operative detainees, the follow ing case, inter alia, illustrates the volatile nature of working in a custody suite. This particular case w as also severely criticised by the court as being a waste of public money. In Bucher v DPP (2003), the 16 year old appellant w as with her m other in a custody suite; the latter was acting as the appropriate adult for her daughter but becam e abusive towards the custody officer to the extent that he was unable to perform his duties. He therefore tried to escort the m oth er from the cu stod y su ite, bu t the ap p ellan t cau sed in ju ries to the cu stod y officer's face and w as later convicted of assault on police. On appeal, however, it was argued that the custody officer was neither arresting the m other, nor preventing a breach of the peace and therefore he was not acting in the execution of his duty. The A dm inistrative Court rejected this argum ent on the grounds that it is w ithin the power of the police to rem ove disruptive or abusive persons from police stations in order to m aintain their 'p ro p er w o rk in g '. The cu stod y o fficer w as therefore actin g in the execution of his duty (see also Parpworth, N and Thom pson, K, 'Physical contact and a police officer's execution of duty' (2003) 167 JP 4 2 6 ,7 June).

General search provisions U nder s 54 of PACE, a person brought to a police station following an arrest or under other circum stances may be searched where necessary if the custody officer needs to fu lfil the d u ty to a sce rta in e v ery th in g th at su ch p e rso n s h av e w ith them . T h is especially includes anything w hich could be used to: (a) cause physical injury; (b) cause dam age to property; (c) interfere with evidence; (d) assist in an escape; or (e) where there are reasonable grounds for believing that it constitutes evidence of an offence. A nything w hich falls w ithin any of these categories m ay be seized by the custody officer (except item s subject to legal privilege), w ho m ust list them in the custody record. A ny other property that the person m ay have when brought to the police station or w hen arrested at the police station m ust be ascertained by the custody officer. This includes anything found as a result of a search under ss 18 and 32 of PACE if the person was arrested away from the police station. However, s 8 of the Crim inal Justice A ct 2003 has am ended s 54 of PACE so as to give the custody officer a discretion as to w h at item s to list in the cu stod y record. In o th er w ord s, u n like the earlier provisions under s 54, the custody officer no longer has to record everything found on

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the detainee. In this connection, para 4.4 to Code C, which cam e into force on 1 August 2004, states that: 4.4 It is a matter for the custody officer to determine whether a record should be made of the property a detained person has with him or had taken from him on arrest. Any record made is not required to be kept as part of the custody record but the custody record should be noted as to where such a record exists. Whenever a record is made the detainee shall be allowed to check and sign the record of property as correct. Any refusal to sign shall be recorded.

Anyone searched at a police station should be informed of the reasons, unless this is u n n ecessary or im p racticab le ; this p ro v isio n cou ld th erefore ren d er 'a u to m a tic ' searches unlaw ful (see Brazil v C hief Constable o f Surrey (1983)). A d etained p erso n 's cloth es and any p ersonal property, such as w atches and spectacles, for exam ple, m ay only be seized if the custody officer believes that the conditions mentioned in (a)-(e) above apply. If any property is seized, whether clothes, personal effects or otherw ise, the custody officer is under a duty to give reasons to the suspect, unless that person is violent or likely to be so, or is incapable of understanding w hat is being said. Any cash and valuables should be rem oved from a detained person and held in safe custody after being recorded in the custody record. A search under s 54 m ust be carried out by police officers o f the sam e sex as the ind ividu al being searched, using reasonable force if necessary (s 117), and this m ay be conducted to the extent that the custody officer considers necessary. This could include a strip search, but not an intimate search, which has to be authorised under the provisions of s 55.

Strip searches The rules governing strip searches are to be found under Annex A to Code C. These were explained in Chapter 2, since a strip search involves more than the rem oval of outer clothing, but any search requiring exposure of intimate parts of the body must not be conducted in a police van. The legal source of the pow er to strip search detained suspects can be found under the relevant part of s 54 o f PACE. This provides that in the exercise of a custody officer's duty to ascertain everything which a suspect has in his or her possession following arrest, the suspect may be searched 'to the extent that the custody officer considers necessary for that purpose'. However, para 10 of Annex A to Code C states that: A strip search may take place only if it is considered necessary to remove an article which a detainee would not be allowed to keep, and the officer reasonably considers that the detainee might have concealed such an article. Strip searches shall not be routinely carried out if there is no reason to consider that articles are concealed.

Intimate searches Section 55 of PACE p ro v id es that a p o lice in sp ecto r or above m ay au th o rise the intimate search of an arrested suspect if that officer has reasonable grounds to believe that the suspect may have concealed on him or herself any of the following: anything w hich the suspect could use to cause physical self-injury or injury to others while law fu lly d etain e d ; or an y C lass A d ru g b ein g sm u g g led o u t o f th is cou ntry, or possessed with intent to supply to another. It is im portant to em phasise that the drugs in question m ust be Class A controlled drugs listed under the M isuse of Drugs Act 1971 - the m ost socially harm ful substances w hen m isused. These inclu de heroin

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(diam orphine), cocaine, 'ecstasy', LSD, pethidine, m ethadone, dipipanone and over 100 other named substances, plus num erous chemical variations. These do not include am p hetam ine, w hich is a C lass B con trolled drug, or cannab is, cannabis resin or tem azepam , which are under Class C.4 Such authorisations m ust ultim ately be put into w ritten form if initially given orally and may not be given if the object can be obtained in some other way. Therefore, the suspect should be given the opportunity to voluntarily hand over the object and, if there is a refusal, then an intimate search may be authorised. An intimate search for a drug offence m ust be carried out by a registered medical practitioner or a registered nurse and may only be conducted at a hospital, a d octor's surgery or other place used for m edical purposes, but not at a police station. Intim ate searches for other objects covered under s 55 (which can generally be headed 'w eapons') may be m ade at any of these prem ises, including police stations, and by a registered m edical practitioner or nurse. However, if a police inspector or above considers this im practicable, then the search may be carried out by a constable of the same sex as the suspect. Paragraph 3A to A nnex A of Code C m akes the follow ing caveat where this is being considered: 3A Any proposal for a search under paragraph 2(a)(i) to be carried out by someone other than a registered medical practitioner or registered nurse must only be considered as a last resort and when the authorizing officer is satisfied the risks associated with allowing the item to remain with the detainee outweigh the risks associated with removing i t ...

Apart from m edical practitioners and nurses, no person of the opposite sex shall be present or anyone w hose presence is n o t necessary. H ow ever, a m inim u m o f two people (exclu d ing the suspect) m ust be present d uring an intim ate search, w hich should be conducted with due regard to the sensitivity and vulnerability of the suspect under these conditions. W h ere an in tim a te s e a rch in v o lv e s a ju v e n ile or a p e rso n w h o is m e n ta lly disordered or otherwise m entally vulnerable, this may only take place in the presence o f an 'ap p ro p riate a d u lt' (see b elow ) w ho is o f the sam e sex, u n less the su sp ect requests a particular adult of the opposite sex who is readily available. An intimate search of a juvenile m ay only take place in the absence of the appropriate adult if the ju v e n ile states th at he or she p refers the search to b e d one in th is w ay and the appropriate adult agrees. A record shall be made of the ju venile's decision, and this should then be signed by the appropriate adult. An intim ate search involves the exam ination o f the bod ily orifices, except the m outh;5 in other words, the ears, nasal passages, rectum and vagina. W here such a search is carried out, the custody record must state which parts of the suspect's body were searched and why. Anything found in the course of an intimate search may be seized and retained by the custody officer where it is believed that it may be used to cause physical injury to the suspect or anyone else, cause dam age to property, interfere w ith evidence or assist the suspect to escape. The custody officer may also seize and

4

For further reading on the law on controlled drugs, see Jason-Lloyd, L, Drugs, Addiction and the Law (9th edn, Cambridgeshire: Elm, 2004).

5

The examination of a suspect's mouth was excluded from the ambit of an intimate search by the Criminal Justice and Public Order Act 1994, s 59.

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retain an article obtained in this way which, it is reasonably believed, may constitute evidence relating to an offence. The suspect must be informed of the reason for the seizure, unless he or she is violent or likely to be so, or is incapable of understanding what is being said. The average layperson may be amazed at the number of items falling under the above description which can be concealed in the body orifices in question. Fairly substantial quantities of drugs in appropriate packaging can sometimes be concealed in a vagina or rectum and so may certain weapons: The types of w eapon which may be concealed in a body orifice include a penknife in the mouth (no longer an intimate search),b a wrapped razor blade concealed in the vagina, a detonator or radio transmitter designed to detonate explosives elsewhere concealed in the rectum ... and a phial of poison concealed in the nose.7

The very intrusive nature of an intimate search justifies careful scrutiny; therefore, s 55 requires that annual reports to the Home Secretary from chief officers of police must contain details of all intimate searches carried out within their police area. However, such searches are used infrequently: ... only 172 were recorded in England and Wales in 2002-03. O f these 91% were for drugs. In 61 cases, Class A drugs were found and, in two cases, a harmful article was found.8

S E A R C H E S A N D E X A M IN A T IO N TO A SC E R T A IN ID E N T IT Y Section 90(1) of the Anti-terrorism, Crime and Security Act 2001 inserted a new s 54A under PACE. This is a power enabling the police to search or examine a suspect in order to establish the true identify of that person or their involvement in an offence. A search or examination of the suspect under this power may be carried out as stated under s 5 of Code D as follows: 5.1 PACE, section 54A (1), allow s a d etain ee at a p o lice station to be searched or examined or both, to establish: (a) whether they have any marks, features or injuries that would tend to identify them as a person involved in the commission of an offence and to photograph any identifying marks, see paragraph 5.5; or (b) their identity, see Note 5A. A person detained at a police station to be searched under a stop and search power, see Code A, is not a detainee for the purposes of these powers. 5.2 A search a n d /o r examination to find marks under section 54A (l)(a) may be carried out w'ithout the d etainee's consent, see paragraph 2.12, only if authorised by an o fficer o f at least in sp ecto r rank w hen con sen t has been w ithheld or it is not practicable to obtain consent, see N ote 5D. 5.3 A search or exam ination to establish a suspect's identity under section 54A (l)(b) m ay be carried out w ith o u t the d etain ee's con sent, see paragraph 2.12, only if

6 7 8

Emphasis added. C lark, D, Bevan and Lidstone's The Investigation o f Crim e: A G uide to the Law o f C rim inal Investigation (3rd edn, London: Butterworths, 2004). Ibid.

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authorised by an officer of at least inspector rank when the detainee has refused to identify themselves or the authorizing officer has reasonable grounds for suspecting the person is not who they claim to be. 5.4 Any marks that assist in establishing the detainee's identity, or their identification as a person involved in the com m ission of an offence, are identifying marks. Such m arks m ay be photographed with the d etainee's consent, see paragraph 2.12; or without their consent if it is withheld or it is not practicable to obtain it, see Note 5D. 5.5 A detainee may only be searched, examined and photographed under section 54A by a police officer of the same sex. 5.6 Any photographs of identifying marks, taken under section 54A, may be used or disclosed only for purposes related to the prevention or detection of crim e, the investigation of offences or the conduct of prosecutions by, or on behalf of, police or other law enforcem ent and prosecuting authorities inside, and outside, the UK. After being so used or disclosed, the photographs may be retained but must not be used or disclosed except for these purposes, see Note 5B. 5.7 The powers, as in paragraph 5.1, do not affect any separate requirements under the Crim inal Procedure and Investigations Act 1996 to retain m aterial in connection with criminal investigations. 5.8 Authority for the search a n d /o r examination for the purposes of paragraphs 5.2, and 5.3 may be given orally or in writing. If given orally, the authorising officer must confirm it in writing as soon as practicable. A separate authority is required for each purpose which applies. 5.9 If it is established a person is unwilling to co-operate sufficiently to enable a search a n d /o r exam ination to take place or a suitable photograph to be taken, an officer may use reasonable force to: (a) search an d /o r examine a detainee without their consent; and (b) photograph any identifying marks without their consent. 5.10The thoroughness and extent of any search or exam ination carried out in accordance with the powers in section 54A must be no more than the officer considers necessary to achieve the required purpose. Any search or exam ination w hich involves the removal of more than the person's outer clothing shall be conducted in accordance with Code C, Annex A, paragraph 11. 5.11 An intimate search may not be carried out under the powers in section 54A.

Although not expressly stated in s 5 of Code D, the above powers to search, examine and photograph suspects may be exercised by civilians who are designated by the chief officer of police for their area to perform such functions. This is provided under s 54A(6) of PACE, which states: Where a search or exam ination may be carried out under this section, or a photograph may be taken under this section, the only persons entitled to carry out the search or examination, or to take the photograph, are: (a) constables; and (b) persons w ho (w ithout being constables) are designated for the purposes of this section by the chief officer of police for the police area in which the police station in question is situated; and section 117 (use of force) applies to the exercise by a person falling within paragraph (b) of the powers conferred by the preceding provisions of this section as it applies to the exercise of those powers by a constable.

It should also be noted that searching or exam ining a suspect for any marks will include, for instance, any tattoos, birthmarks, scars or other injuries that may be on

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that person. Further guidance in respect of s 54A of PACE is given in ss 5.12 to 5.24 and the accom panying N otes for Guidance in Code D. This is to be found in Chapter 6, as this guidance also applies to photographing suspects generally.

DETENTION W ITHOUT CHARGE T h e d ecisio n to a u th o rise d eten tio n w ith o u t ch arg e is an im p o rtan t step in the investigation of crime. However, Art 5 of the European Convention on Hum an Rights, w hich is now incorporated into our system o f law by the H um an Rights A ct 1998, makes it even more im portant to make the right decisions.

Introduction As m entioned above, the custody officer m ay authorise the detention of a suspect w ithout charge in ord er to secure or preserve ev id ence relating to the offence in question or to obtain such evidence by questioning the suspect. The suspect must then b e in fo rm e d o f th e g r o u n d s fo r d e te n tio n , u n le s s h e o r s h e is in c a p a b le o f understanding w hat is being said, or is asleep, or is violent, or likely to be so, or in urgent need of medical attention. The grounds for detention should be recorded in the custody record as soon as is practicable. If a suspect is not in a fit state to be either charged or released, that person may be kept in police detention until fit. However, w h eth er the su sp ect is fit or otherw ise once the ap p rop riate tim e lim it has been reached, that p erson m u st eith er be released on b ail, released un co n d ition ally or charged. If released w ithout charge, that person cannot be re-arrested unless new evidence is discovered which justifies arresting the suspect again or unless a warrant is issued for the sam e offence. The exception to this rule is where, under s 30D or s 46A of PACE, a person fails to surrender to police bail and is subsequently arrested without warrant and taken to the police station where the suspect should have reported at the due time and date. This is to be treated as an arrest for an offence, although this does not apply to a breach of bail conditions. The sam e principle applies to persons who breach court bail. It should be noted that custody officers are now required to conduct a series of procedures designed to reduce risk to detainees and others. These are to be found under paras 3.6-3.10 to Code C as follows: 3.6 ... the custody officer is responsible for initiating an assessment to consider whether the detainee is likely to present specific risks to custody staff or themselves. Such assessments should always include a check on the Police National Computer, to be carried out as soon as practicable, to identify any risks highlighted in relation to the d etain ee. A lth ou gh such assessm en ts are p rim arily the cu sto d y o ffice r's responsibility, it may be necessary for them to consult and involve others, eg the arresting officer or an appropriate health care professional, see paragraph 9.13. R easons for delaying the initiation or com pletion of the assessm ent must be recorded. 3.7 Chief officers should ensure that arrangem ents for proper and effective risk assessments required by paragraph 3.6 are implemented in respect of all detainees at police stations in their area. 3.8 Risk assessm ents must follow a structured process which clearly defines the categories of risk to be considered and the results must be incorporated in the detainee's custody record. The custody officer is responsible for making sure those

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responsible for the detainee's custody are appropriately briefed about the risks. If no specific risks are identified by the assessment, that should be noted in the custody record. See Note 3E and paragraph 9.14. 3.9 The custody officer is responsible for implementing the response to any specific risk assessment, eg: •

reducing opportunities for self-harm;

•

calling a health care professional;

•

increasing levels of monitoring or observation.

3.10Risk assessment is an ongoing process and assessments must always be subject to review if circumstances change.

The above Codes are augm ented by H om e Office Circular 3 2 /2 0 0 0 regarding detainee risk assessment.

Time limits The general rules Section 41 of PACE im poses strict lim its on the period of detention w ithout charge. This is normally 24 hours, but is subject to certain exceptions, discussed below. The 24hour period starts from the 'relevant tim e', which, in m ost cases, is either the time that an arrested person arrives at the first police station he or she is taken to or the time that a person already at the police station is actually arrested, or initially presents him or herself in response to being given 'street bail' earlier. If a person is arrested outside England and Wales, the relevant time operates from when the suspect arrives at the first police station within the area where the alleged crim e is being investigated or 24 hours after the suspect's arrival in England and Wales. It is the earlier of the two which is calculated as the relevant time. If a suspect is arrested in a different police area from the one where the alleged offence is being investigated, but w ithin England and Wales, m uch depends on whether the arrested person is questioned regarding the offence at the time. If so, the relevant tim e operates from w hen the suspect arrived at the first police station follow ing arrest. If not, the relevant time is calculated from either 24 hours after the arrest or the tim e of arrival at the police station w here the alleged offence is being investigated, w hichever is the earlier. If a person returns to a police station in response to police bail and is detained on arrival, the relevant time is calculated from that applicable to the initial detention, and that p erson m ay be d etained w ithou t charge up to the m axim um o f any unused detention tim e left from the previous occasion. If a suspect in police detention is taken to hospital, the detention clock stops running w hilst he or she is in hospital and in the course of the journey, unless the suspect is being questioned during this tim e. No account is taken under PACE where a suspect is taken directly to hospital following arrest and then to the police station. The reader may find it useful to consult Appendix 12 in order to follow the main stages in the detention of a suspect from arrest until eventual release from the police station.

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Periodic reviews of detention In order to ensure that no person arrested for an offence is detained any longer than can be legally ju stified , s 40 o f PACE provides a system o f periodic review s o f persons in police detention. These rules do not apply w'here a person is voluntarily attending a police station, bu t will, o f course, apply if that person is later arrested for an offence. The general rule is that arrested suspects d etained w ithout charge are review ed by a police officer o f at least the ran k o f insp ector w ho is not directly involved w ith the inv estigation o f the alleged offence. T hese review s m u st be carried out periodically from the tim e that the su sp ect's d etention w as authorised by the custody officer. This w ill b e later than the relevan t tim e w hich, in m ost cases, ap p lies w hen an arrested suspect arrives at the police station. It therefore follow s that two 'clo cks' run alongside each other w hen a person is in police detention, nam ely, the detention clock and the review clock (see A ppend ix 12). It should be noted at this stage that periodic review s are applicable to persons in 'police d eten tion', nam ely, suspects w ho have been arrested for an offence and have been taken to a police station (including arrests m ad e under s 41 o f and Sched 8 to the Terrorism A ct 2000), or those subsequ ently arrested after initially attend in g a police station voluntarily. T herefore, they do no t ap p ly to arrested p ersons w h o have not been arrested for an offence (for exam ple, persons arrested in order to be fingerprinted, or m entally disordered persons arrested under s 136 of the M ental H ealth A ct 1983 in order to be taken to a place o f safety). N either do they apply to persons held by the police w ho are aw aiting extradition or deportation. H ow ever, w hilst persons detained for a breach o f the peace do not expressly fall under the requirem ent o f review s under PACE, in practice this is done by the police and in C h ief C onstable o f Cleveland Police v M cG rogan (2002), such action w as held to be correct. This is further confirm ed by N ote for G uidance 15B in C od e C, w hich states: The d eten tio n of p erso n s in p olice cu sto d y n ot subject to the s ta tu to ry review requirement in paragraph 15.1 should still be reviewed periodically as a matter of good practice. The purpose of such reviews is to check the particular power under which a detainee is held continues to apply, any associated conditions are complied with and to make sure appropriate action is taken to deal with any changes. This includes the detainee's prom pt release when the power no longer applies, or their transfer if the power requires the detainee be taken elsewhere as soon as the necessary arrangements are made. Examples include persons: (a) arrested on warrant because they failed to answer bail to appear at court; (b) arrested under the Bail A ct 1976, section 7(3) for breaching a condition of bail granted after charge; (c) in police custody for specific purposes and periods under the Crime (Sentences) Act 1997, Schedule 1: (d) convicted, or remand prisoners, held in police stations on behalf of the Prison Service under the Imprisonment (Temporary Provisions) Act 1980, section 6; (e) being detained to prevent them causing a breach of the peace; (f)

detained at police stations on behalf of the Immigration Service.

The detention of persons remanded into police detention by order of a court under the Magistrates' Courts Act 1980, scction 128 is subject to a statutory requirement to review that detention. This is to make sure the detainee is taken back to court no later than the end of the period authorised by the court or when the need for their detention by police ceases, whichever is the sooner.

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W here a person in police detention has been charged, it is then the custody officer w ho is responsible for carrying out the periodic reviews. W hether the reviews are conducted by an inspector or the custody officer, either is regarded as the 'review officer'. The first review must be carried out no later than six hours following the authorisation of the suspect's detention and then at intervals of no more than nine hours. Reviews may be postponed where necessary, but must be resumed as soon as practicable; this takes into account the wide and often unpredictable nature of police duties. This will include instances where the crim inal investigation would be prejudiced if the questioning of the suspect were interrupted or where a review officer is not readily available, due to a serious incident requiring his or her urgent attention. The review officer m ust record the reasons for any p o stp o n em en t in the cu stod y record; how ever, a review o f a suspect's detention who has not been charged may be conducted by video link, or over the telephone if this is the only practicable means by which it can be conducted (see Note for Guidance 15F to Code C). Prior to authorising a suspect's further detention, the review officer m ust give the su sp e ct o r the s o lic ito r re p re s e n tin g th a t p e rso n the o p p o rtu n ity to m ak e any representations. Other people may be involved in this process, at the review officer's discretion. These will be persons having an interest in the suspect's welfare, including the appropriate adult, if available. These representations m ay be given orally or in w ritin g and m ay in clu d e su ch m atte rs as w h e th e r d ete n tio n w ith o u t ch arg e is necessary in ord er to secu re or p reserv e ev id en ce, or w h eth er there is su fficien t evidence for the police to charge the suspect. Any dispute between the review officer and som eone of higher rank regarding a suspect's detention in police custody should be referred to an officer of at least the rank of superintendent. The review officer is under a duty to remind the suspect of the entitlem ent to free legal advice prior to conducting a review and to ensure that all such rem inders are entered in the custody record. Other matters should also be recorded in the custody record, including the reasons for any delay in conducting a review and the extent of the delay, as well as the result of each review and any application for a w arrant of further detention and any extension of it (see below ). Any representations made in writing must be retained. Paragraph 15.7 to Code C states that if the suspect is sleeping at the time of a review, that person must be informed about the decision to authorise continued detention and the reason, as soon as practicable after waking. In Roberts v C h ief Constable o f Cheshire (1999), the claim ant sued for dam ages for false im prisonm ent. H aving been arrested on suspicion o f burglary, he arrived at a police station at 11.25 pm , where his detention w ithout charge was authorised. The first review should have been m ade at 5.25 am, but did not take place until 7.45 am. T h e co u rt held that the d eten tio n w as u n law fu l after 5.25 am , u n til som e ev en t occurred to make it lawful. S ig n ific a n t ch an g es h av e re ce n tly b een m ad e that no lo n g e r n e c e ssita te the physical presence o f review officers at police stations where suspects are held. The latest changes are to be found under s 6 of the Crim inal Justice A ct 2003, which inserts a new s 40A (1) and (2) into PACE that enables review s to be conducted using the telephone, although if video conferencing facilities are available, these should be used as appropriate. The provisions regarding the use of the telephone do not apply to suspects who have been charged, or to reviews under Sched 8, Pt II to the Terrorism Act 2000.

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Extensions to normal detention periods As mentioned above, the general time limit for detention without charge is 24 hours, but this is subject to the following exceptions. Sections 42, 43 and 44 of PACE make provision for the authorisation of 'continued detention' by the police and w arrants of 'further detention' by m agistrates and their extension. The provisions un der s 42 regarding continued d etention by the police apply where it is reasonably believed that the crim inal investigation is concerned with an arrestable offence (or a serious arrestable offence as defined in Chapter 3), where the investigation is being conducted diligently and expeditiously, and where continued detention w ithout charge is necessary to secure or preserve evid ence or to obtain evidence by questioning the suspect. The authorisation for continued police detention without charge m ust be given before the expiry of the 24 hour detention period and by an officer of at least the rank of superintendent if the above criteria are met. U nder N ote for G u idance 15C to C ode C, this m u st be done in person and not over the telep h o n e or by v id eo lin k. T h e p eriod o f d eten tio n w ithou t charge m ay then be extended up to 36 hours from the relevant time; in other words, up to another 12 hours beyond the initial 24 hours that norm ally apply. Representations m ay be made by the suspect or any solicitor representing that person on grounds such as w hether the investigation is proceeding with due diligence, the length of the continued detention or w hether the alleged crim e constitutes an arrestable offence. Representations may also be m ad e by o th er p erso n s h av in g an in terest in the w elfare o f the su sp ect, including the appropriate adult w here applicable. Special provisions now exist for juveniles and mentally vulnerable persons with regard to the police pow er to extend detention beyond 24 hours (see below under the subheading 'Initial action' in respect of safeguards regarding vulnerable persons). Where continued detention has been authorised, the suspect m ust be informed by that officer of the grounds for the decision w hich, in turn, must be recorded in the c u s to d y re co rd . U n le s s a w a rr a n t fo r fu r th e r d e te n tio n h a s b e e n g ra n te d by m agistrates in the case of a serious arrestable offence (see below), if at the end of the 36hour time limit the suspect has not been charged, that person must be released on bail, released unconditionally or charged. The suspect must not be re-arrested for the same offence without a warrant, except w here new evidence has been discovered.

Delay in access to legal advice and notification of arrest to another It is important to mention at this stage that access to legal advice, as well as the right for a suspect to have a person informed of their detention, can be postponed in the case of a serious arrestable offence w'here the suspect has not been charged. The following p ro v isio n s, u n d er ss 56 and 58 o f PACE and A nnex B to C od e C , co n stitu te the exceptions to the general rules discussed above. Section 58 and A nnex B provide that a police superintendent or above may delay access to a solicitor for up to 36 hours if there are reasonable grounds for believing that such access would lead to: interference with or harm to evidence connected with any seriou s arrestab le offen ce; in terferen ce w'ith or p h y sical in ju ry to other persons; alerting other persons not yet arrested, but suspected of having com mitted a serious arrestable offence; or hindering the recovery of any property obtained as a result of such an offence.

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Section 58 provides a further ground under w hich a superintendent or above may postpone access to legal advice. This is w here the person is detained for a serious arrestable offence and the suspect has benefited from his or her crim inal conduct,9 and the recovery of that property will be obstructed if access to legal advice is granted. The rules governing the postponem ent o f the right for a detained suspect to have a person informed of his or her detention are the sam e as those applicable to delaying access to legal advice, except that the postponem ent may be authorised by an inspector or above. These are to be found under s 56 of PACE and A nnex B to Code C. However, it should be noted that if one right can be delayed, it does not m ean that the other can be denied autom atically (see para 5 of A nnex B to Code C). If the authorisation for a delay in giving access to legal advice or inform ing a person of a suspect's detention is given orally, it m ust be put into w riting as soon as is practicable and the suspect m ust be informed of the postponem ent, together with the re a s o n s , w h ic h m u st b e n o te d in th e c u s to d y re c o rd . If th e g r o u n d s fo r th e postponem ent cease to exist before the 36-hour time limit, the detained person m ust be asked if he or she requires the presence of a solicitor and sign the custody record to this effect. This will also apply where the suspect is charged during this period. In R v Sam uel (1987), two important points were established regarding the power to delay access to legal ad vice under s 58 o f PACE. In this case, the d efen d an t w as arrested for arm ed robbery and w as subsequently detained for questioning. In the course of the second interview with the police, he requested access to legal advice, but this w as denied on the ground that this m ight inadvertently alert other suspects. He later confessed to two burglary offences, one of which constituted a serious arrestable offence, since firearms were allegedly used, and he w as duly charged with both these o ffen ces. A bo u t 15 m in u tes later, the d e fe n d a n t's so licito r telep h o n ed and w as inform ed of this, but w as still denied access to the defendant. Shortly afterw ards, d uring the final interview , the d efen dan t con fessed to the robbery and w as later charged. Eventually, he was allowed access to his solicitor 29 hours after his arrest. The Court of Appeal held that the trial judge should have ruled the evidence regarding the final interview inadm issible, since the denial of access to the solicitor was not justified. His conviction for robbery was therefore quashed. The two im portant points held by the Court of Appeal were that once the suspect is charged with any offence, especially if it is a serious arrestable offence, the right to legal advice cannot be delayed thereafter. Secondly, an authorising officer must believe that such access will lead to alerting other s u s p e c ts and n o t ju s t m ay le ad to th is c o n s e q u e n c e , e v e n if th is c o u ld o cc u r inadvertently or unwittingly, and that due regard should be had as to w hether legal advice could be given by another solicitor where there is such a risk. In this case, the Court of Appeal stated in passing that as far as duty solicitors were concerned, since they were well know n to the police, it would be very difficult to justify delaying access to any of them if another solicitor was denied access to the suspect. In other words, denial of access to a particular solicitor m ay be justified , but denial of access to all solicitors is another matter. This is emphasised in para 3 of A nnex B to Code C, which states:

9

Under Pt 2 of the Proceeds of Crime Act 2002, criminal conduct is conduct which constitutes an offence if committed in England and Wales, or would be an offence if it occurred in this country. Anyone who obtains property from criminal conduct benefits from it and therefore falls under this heading.

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Authority to delay a detainee's right to consult privately with a solicitor may be given only if the authorising officer has reasonable grounds to believe the solicitor the detainee wants to consult will, inadvertently or otherwise, pass on a message from the detainee or act in some other way which will have any of the consequences specified under paragraph 1 or 2. In these circumstances the detainee must be allowed to choose another solicitor. See Note B3.

However, in R v A lladice (1988), the Court of Appeal, w hilst supporting the decision in R v Samuel, dismissed an appeal against the defendant's conviction for robbery where a confession was obtained whilst access to legal advice was denied by a police officer of the rank of chief inspector. First, the court held that since the chief inspector was acting under the authority of an acting chief superintendent, he was to be treated as if he were the holder of the substantive rank, 'unless the appointm ent to the acting rank was a colourable pretence, w hich w as not suggested in the present case'. Secondly, whilst acknow ledging that there had been a breach of the defendant's right to legal advice under s 58, the court held that there was no suggestion of oppression or that the confession w as given because of the absence of a solicitor and that the confession was unreliable. Subsequently, the breach did not require the court to render the confession inadmissible. The provisions of s 107 of PACE as follows should be noted at this stage: Police officers performing duties of higher rank (1) For the purpose of any provision of this Act or any other Act under which a power in respect of the investigation of offences or the treatment of persons in police custody is exercisable only by or with the authority of a police officer of at least the rank of superintendent, an officer of the rank of chief inspector shall be treated as holding the rank of superintendent if: (a) he has been au th orised by an officer holding a rank above the rank of superintendent to exercise the pow er or, as the ease m ay be, to give his authority for its exercise; or (b) he is acting during the absence of an officer holding the rank of superintendent who has authorised him, for the duration of that absence, to exercise the power or, as the case may be, to give his authority for its exercise. (2) For the purpose of any provision of this Act or any other Act under which such a power is exercisable only by or with the authority of an officer of at least the rank of inspector, an officer of the rank of sergeant shall be treated as holding the rank of in sp e cto r if he has been au th o rised by an officer of at least the rank of superintendent to exercise the power or, as the case may be, to give his authority for its exercise.

The general provisions regarding access to legal advice, and the right to have a person inform ed of a su sp ect's arrest and subsequ ent detention, w ere discussed above. It should be noted that Pt B of A nnex B contains special provisions regarding the delay of access to legal advice and notification of arrest in respect of persons detained under s 41 of or Sched 7 to the Terrorism A ct 2000. One of the m ain differences is that only a superintendent or above may authorise delaying the notification of a terrorist suspect's detention to another. A lso, as discussed below , the provisions under A nnex B are m odified in the case of juveniles and the m entally disordered or m entally vulnerable.

Warrants of further detention by magistrates U nder s 43 of PACE, further detention w ithout charge beyond the 36 hour maxim um may be authorised by magistrates in the case of serious arrestable offences only. Unless

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a d is tr ic t ju d g e (m a g is tr a te s ' c o u rts ) is p re s e n t in c o u rt, w h o m ay m ak e the authorisation sitting alone, the authority to extend the 36 hour period must be made by at least tw o lay m agistrates, although three is the usual number. W here further detention is being sought, a constable may apply on oath for their authority to keep the suspect in detention beyond 36 hours. This must be supported by 'an inform ation', a cop y o f w hich the su sp ect should alread y have in his or her p o ssessio n w hen attending court at the time the application is being made. The 'inform ation', in this context, m eans the nature of the offence and the evidence which justified the suspect's arrest, as well as inquiries made to date and anticipated further inquiries in addition to the grounds for applying for further detention. An application for further detention w ill on ly b e ju s tifie d w here the o ffen ce is a serio u s a rre sta b le o ffe n ce and the investigation is proceeding diligently and expeditiously, and this is necessary to secure or preserve evidence or to obtain it by questioning the suspect. W here a suspect has been denied legal access under s 58 o f PACE and is due to be taken before m agistrates under an application for further detention, reasonable time should be allo w ed for the d etained p erso n to con su lt w ith a so licito r before the h earing . In any even t, the d etain ee is entitled to legal rep resen tation d uring the a p p licatio n and an ad jo u rn m en t m ay be g ran ted , if necessary, in ord er for such representation to be obtained. The legal representative may cross-exam ine the police applicant on oath and the application m ay be challenged accordingly. Particular care has to be taken in anticipating w hether further detention m ay be necessary as, unlike m any police stations, m agistrates' courts are not operational 24 hours a day, seven days a week. It is therefore perm issible for an application for further detention to be made prior to the expiry of the 36 hour period, in order to ensure that the court is sitting. However, where the court is not sitting at the end of the first 36 hours (and it was not reasonably practicable to have made the application before then), but the court is due to sit during the following six hours, the application for further detention may be m ade w ithin that six hour period. The suspect m ay be kept in police detention during this tim e and these facts must be recorded in the custody record accordingly. W here the application is made in court beyond the expiry of the first 36 hours and it appears to the court that it was unreasonable for the police not to have done so before, it is a m andatory requirem ent that the court dism iss the application. In R v Slough Justices ex p Stirling (1987), it was held that in failing to bring an application in good tim e w h en the p o lice o ffic e r w as in a p o sitio n to do so (in th is case , the application w as made just eight m inutes before the expiry of the first 36 hours), that officer did not act reasonably w ithin s 43(7) of PACE. It was also confirmed that the application for further detention occurs w hen the police officer makes the application in court and gives evidence. The application to m agistrates for further detention is by no m eans a rubber stamp process. U nder s 43 of PACE, m agistrates may refuse the application if they feel that further detention is not justified and a further application against a refusal may only be considered by the court if new evidence is discovered. W here appropriate, the court m ay adjourn the hearing, but only if the 36 hour m axim um period of police detention has not expired. W here there has been a refusal, the police m ay continue to detain the suspect w ithout charge, but only up until the norm al m axim um of 24 hours, or up to 36 hours if continued authorisation was made by a police superintendent. However, if during the application for further detention the court rules that the offence is not a serious arrestable offence, it is subm itted that the custody officer m ust ensure the release of the suspect once the first 24 hour period has elapsed, or if a superintendent

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has au th orised con tin u ed d eten tion , up to 36 hou rs. The su sp ect m ust eith er be charged or released (unconditionally or on bail) where the court rejects an application for any reason or where the appropriate 24 or 36 hour detention period expires. If the cou rt agrees to issue a w arrant o f further d eten tion, it m ay do so for a maxim um period of 36 hours, having regard to all the circum stances of the case. At the end of this maxim um period (which can be less than 36 hours), the suspect must be either be charged or released unconditionally or on bail, and may not be subject to fu rth e r a rre st for the o ffe n c e w ith o u t w a rra n t, u n le ss new e v id e n c e h as b e e n discovered.

Extended powers of detention by magistrates U nder s 44 of PACE, the warrant of further detention may be extended (repeatedly if necessary) if the court is satisfied that there are reasonable grounds for believing that this is justified. In such cases, the sam e procedures apply as those governing initial applications for w arrants of further detention, and include an application being made on oath by a police officer - supported by an information, a copy of the latter being given to the d etained su sp ect - and the entitlem en t to legal representation . If an application to extend a warrant of further detention is refused by the court, the suspect must either be charged, im m ediately released on bail or released unconditionally, or any of these m ay be done at the end of the previous detention period authorised by magistrates. W here the court agrees to extend a warrant of further detention (or even one or more extensions since then), it may be for any period the court thinks fit, but the extension period m ust not exceed 36 hours. No extension m ay result in a total period o f 96 h o u rs' d eten tion b ein g exceed ed from the relevan t tim e. A lso, due accoun t should be taken of any time spent in waiting for the court to sit when the first 36 hours of police detention has expired. A t the end of the period specified in an extension or further extension of a warrant of further detention, the suspect m ust either be charged, released on bail or released unconditionally, and may not be subject to further arrest for the offence w ithout warrant, unless new evidence is discovered. The suspect need not be charged or released at that stage, of course, if a further extension is granted by the court, but the absolute lim it of 96 hours' total detention without charge m ust not be exceeded.

Police detention under prevention of terrorism legislation The time lim its described above in respect of the detention of suspects without charge do not apply to certain offences under prevention of terrorism legislation. Section 41 of and Sched 8 to the Terrorism A ct 2000 provide that a person arrested for bein g a suspected terrorist may be detained by the police without charge for up to 48 hours. This may, in turn, be extended by a 'judicial authority' for a period or periods totalling up to five days. The detention period without charge may, therefore, be up to seven days, although this m ay be extended by a further seven days, m aking a total of 14 days in all. Section 75 of the Crim inal Justice and Police A ct 2001 has amended Sched 8 to the Terrorism A ct 2000 to enable judicial authority to use video link when conducting their proceedings regarding extended detention. The term 'judicial authority' means a district judge (m agistrates' courts) appointed for this task by the Lord Chancellor.

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SAFEGUARDS REGARDING VULNERABLE PERSONS W hilst PACE and the Codes of Practice contain many provisions designed to protect the rights of persons in police custody, further measures are available to ensure that p articu larly v u ln erab le su sp e cts are su b je ct to ad d itio n al safeg u ard s. T h ese are juveniles, persons who are mentally disordered or otherwise m entally vulnerable, deaf persons, blind persons, foreign suspects and those unable to understand English. It should be mentioned that in the case of juveniles, the child or young person should be of a m inim um age of 10 and no older than 17 years. The m ost im portant provisions either originate from or are largely echoed in Code C, the relevant parts of w hich are summ arised as follows.

General Section 1 o f C ode C m akes the follow ing general provisions regarding vulnerable persons held in police custody. W here a police officer suspects or is informed in good faith that a person o f any age m ay be m entally disordered or otherw ise m entally vulnerable, or is m entally incapable of understanding questions put to him or her or u n d erstan d in g any rep lies, that p erso n w ill fall u n d er the scop e o f this C od e in p ro te ctin g such p erson s. N ote for G u id an ce 1G en d eav o u rs to d efin e 'm en tally vulnerable' for the purposes of this Code of Practice. For the sake of brevity, the term generally means: (1) m ental illness (such as schizophrenia and m anic depression, to nam e but two); (2) psychopathic disorder; and (3) various states of mental impairm ent caused as a result o f brain dam age or an undeveloped brain (arrested or retarded developm ent). In any event, the presence of an appropriate adult should be sought where the custody officer has any doubt regarding the mental state or capacity of a detained person. Section 1 goes on to state that, for the purposes of this Code and in the absence of clear evidence to the contrary, persons appearing to be under the age of 17 shall be tre a te d as ju v e n ile s , and p e rso n s a p p e a rin g to b e b lin d o r s e r io u s ly v is u a lly handicapped, deaf, unable to read, speak or w ho have difficulty orally because of a speech im pedim ent also fall under the provisions of this Code. W ith regard to ju v en iles and those w ho are m entally disordered or otherw ise mentally vulnerable, provision is made for such persons to have the support of 'the appropriate adult' w'hen in police custody. The definition as to w hom the appropriate adult may be is variable, depending on the category of vulnerable person in question. The Code of Practice therefore defines the appropriate adult in each case as follows. In the case of juveniles, the 'appropriate adult' m eans the child or young person's parent or guardian and, if the ju venile is in care, this w ill m ean the relevant local authority or voluntary organisation. The term 'in care' is defined under the Code of P ractice as all cases in w hich a ju v e n ile is 'lo o k ed a fte r' u n d er the term s o f the Children A ct 1989. The appropriate adult may also be a social w orker and, if any o f the above are not available, the presence of another responsible adult aged 18 or over is perm issible, provided that person is not a police officer or em ployed by the police service. In addition to these rules, the police should still be alert as to the general suitability of persons who may be asked to act as the appropriate adult. I n R u M orse and Others (1991), it w as held that the father of the suspect in this case should not have b een ask ed to a ct as the ap p ro p ria te a d u lt, sin ce he m ay h av e b een u n ab le to

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a p p re c ia te th e s e r io u s n e s s o f th e s itu a tio n d u e to b e in g illite r a te an d o f low intelligence. W ith regard to the m entally disordered or otherw ise m entally v ulnerable, the appropriate adult may be a relative, guardian or other person responsible for that person's care or custody. Alternatively, that person may be som eone with experience in dealing with mentally disordered or otherw ise mentally vulnerable people, such as an officer o f a local social services authority appointed to act as an 'app roved social w orker' for the purposes of the M ental Health A ct 1983, or any other specialist social worker. However, the person with the relevant experience m ust not be a police officer or any em ployee within the police service. In any of these are not available, then the appropriate adult may be som e other responsible person aged 18 or over, provided, as before, that the person is not a police officer or a police em ployee. Note for Guidance ID states th at in certain circu m stan ces, it m ay be b etter for all con cern ed if the appropriate adult is som eone w ith experience and training in the care of the mentally d isord ered or otherw ise m en tally vu lnerable, rather than a relative w ithou t such qualifications. However, it goes on to state that the detained person's wishes should be respected , if p racticable, w here that p erson prefers a relative to a better qualified stranger. In R v Aspinall (1999), the defendant was arrested for a drug offence and, on h is a rriv al at the p o lic e sta tio n , he in fo rm ed the cu sto d y o ffic e r th a t he w as a schizophrenic. Two doctors later confirm ed that he w as probably in a fit state to be interview ed ; m eanw hile, he asked for a solicitor, w ho w as not obtained, due to a m istake by the police. The d efendant w as interview ed 13 hours later, w ithout the presence of a solicitor or an appropriate adult. His conviction for conspiracy to supply h ero in w as qu ash ed on the g ro u n d s th at the cu sto d y o ffice r knew th a t he w as suffering from a mental illness and that there was a clear breach of para 11.15 of Code C, which stipulates that such persons must not be interviewed w ithout an appropriate adult. The unfairness of the proceedings was also made w orse by the absence of legal advice during the interview. N o tes for G u id an ce IB , 1C, I E and I F p ro v id e fu rth er g u id elin es reg ard ing appropriate adults. They begin by making the important point that no one, including a p aren t or gu ard ian , should be an ap p rop riate ad u lt if he or she is su sp ected of involvem ent in the offence in question, or is the victim of it, or is a w itness, or is inv olv ed in the in v estig atio n o f the o ffen ce or has receiv ed ad m ission s p rior to attending the police station to act as the appropriate adult. In DPP v M orris (1990), it w as held that a social w orker probably should not have acted as the appropriate adult in this case, becau se that person had called the police. This would have led to the juvenile viewing the social w orker as being biased towards the police. If the parent of a juvenile is estranged from that child or young person, the parent should not be asked to act as the appropriate adult if the juvenile expressly objects to that paren t's presence. The N otes for G uidance continue by providing that, in the interests of fairness, if a juvenile adm its to an offence in the presence of a social worker, except w hen acting as the appropriate adult, then another social w orker should act in that capacity. The guidance ends by stating that a solicitor or an independent custody visitor (formerly a lay visitor), w ho happens to be in the police station in that capacity at the time, may not act as the appropriate adult and that w hen an appropriate adult is called to a police station, a detained person should alw ays be given an opportunity to c o n su lt p riv a te ly w ith a s o licito r in the a p p ro p ria te a d u lt's ab sen ce. H ow ever, para 6.5A to Code C, w hich took effect on 1 A ugust 2004, states that:

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6.5A In the case of a juvenile, an appropriate adult should consider whether legal advice from a solicitor is required. If the juvenile indicates that they do not want legal advice, the appropriate adult has the right to ask for a solicitor to attend if this would be in the best interests of the person. However, the detained person cannot be forced to see the solicitor if he is adamant that he does not wish to do so.

Normally, only one person should be designated as the appropriate adult, although in H and M v DPP (1997), it was held that, in certain circumstances, it may be perm issible to have more than one person perform ing this function during a juvenile's interview. This would apply, for instance, where both the parents were present or w here one parent w as present but, due to langu age d ifficu lties, needed som eone to assist in overcom ing this problem.

Custody records Section 2 of Code C states that as soon as practicable after their arrival at the police station, a solicitor or appropriate adult must be allowed to consult the custody record of the detained person. W hen that person leaves police custody or is taken before a court, he or she, or the legal representative or the appropriate adult, m ust be supplied with a copy of the custody record if requested, as soon as practicable, provided the request is m ade within 12 months following that person's release. The original custody record m ay be exam ined by any o f these three classes of person after the detained person has left police custody, if reasonable notice is given. If this inspection takes place, it shall be noted in the custody record.

Initial action Section 3 m akes a num ber of provisions affecting all classes o f vulnerable persons together with references to the relevant notes for guidance.

Detained persons: normal procedure U n d e r th is s u b h e a d in g , th e C o d e p ro v id e s th a t a c itiz e n o f an in d e p e n d e n t Com m onw ealth country or a national of a foreign state, including the Irish Republic, must be informed, as soon as practicable, of the right to com m unicate with his or her High Com m ission, em bassy or consulate. This right is covered in detail under s 7 of this Code. At this stage, reference is made to the risk assessm ent procedure under para 3.5(c) and (d) and p aras 3 .6 -3 .1 0 as listed ab ov e in the in tro d u ctio n under 'Detention w ithout charge'.

Detained persons: special groups T h e cu sto d y o ffic e r m u st, as soo n as p ra ctica b le , call an in te rp re te r if e ffectiv e com m unication cannot be established, because it appears that a person is deaf or there is d o u b t ab o u t th at p e rso n 's h earin g or ab ility to sp eak or u n d erstan d E nglish . Detailed provisions regarding interpreters are given in s 13 of C ode C. Where the detained person is a juvenile, the custody officer must, if practicable, ascertain the identity of a person responsible for the w elfare of the child or young person, w ho may be a parent, guardian, or the care authority or voluntary organisation

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if in care, or any other person w ho has assu m ed resp o n sibility for the ju v en ile's welfare. That person must be informed, as soon as practicable, that the juvenile has b een a rreste d , the reason w hy and w here th ey are d etain ed . T h is rig h t m ay be exercised in addition to the general right not to be held incom municado. Even where Annex B to Code C applies, this action must be taken. N ote for Guidance 3C makes provision where a juvenile is in care, but living with his or her parents or other adults responsible for the juvenile's welfare. In such cases, whilst there is no legal obligation to do this, it is advised that they too should norm ally be inform ed, as well as the relevant authority or organisation, unless suspected of involvem ent in the offence in question. Consideration should still be given to inform ing a juvenile's parents, even where a juvenile in care is not living with them. W here a juvenile is detained, or a person in police custody appears to be mentally disordered or otherw ise m entally vulnerable, the custod y officer m ust, as soon as practicable, inform the appropriate adult of the reasons for and the location of the detention and request that person's presence (see R v Aspinall (1999), regarding those which fall under the latter category). In the case of a juvenile, the appropriate adult m ay or may not be a person responsible for the welfare of that individual. Again, this action m ust be taken, even if the provisions under A nnex B to Code C apply. If a detained child or young person is known to be under a supervision order, the police m ust take reasonable steps to notify the probation officer or local auth ority social w orker w ho is responsible for supervising that person. M entally disordered o r otherw ise m entally vulnerable persons detained under s 136 of the M ental Health Act 1983 must be assessed as soon as possible. An approved social w orker and a m edical practitioner m ust be called w ithout delay, in order to exam ine the person if that assessm ent is to take place at the police station. That person can no longer be detained under s 136 once this has been done and arrangem ents have been made for that person's care and treatment. In the meantim e, that person should not be released until seen by the approved social w orker and medical practitioner. Earlier in this chapter, the norm al procedures in dealing initially w ith arrested persons were described. U nder s 3 of Code C, these procedures m ust be conducted in the p re se n c e o f th e a p p ro p ria te a d u lt if a lre a d y at the p o lic e s ta tio n . If th o se procedures are not com plied w ith in the appropriate adult's absence, then they must be repeated in that person's presence once he or she arrives. This provision is designed to protect juveniles and mentally disordered or otherwise m entally vulnerable people who may not understand the significance of the rights that are being stated at the time. The appropriate action must be taken im m ediately if a detained person within that category wishes to have access to legal advice and this should not be delayed, pending the arriv al o f the ap p rop riate ad ult. The p erso n d etain ed by the p olice m u st be informed by the custody officer that the appropriate adult is there to assist and advise him or her, and that he or she is also entitled to consult privately with the appropriate adult at any time. Another im portant aspect of s 3 is directed towards the blind and those w ho are seriously visually impaired. If such a person suffers from such a disability or is unable to read, the custody officer is under a duty to ensure that a suitable person is available to help in checking any docum entation. Such persons m ay include the solicitor, a relative, the appropriate adult or som e other person who is likely to take an interest in the detained person, but who is not involved in the investigation. That person may be asked to sign on the detained p erso n 's behalf anything w hich requires consent or

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sig nification . T h is is becau se blind or seriou sly v isu ally im paired p eop le m ay be unwilling to sign police docum ents; therefore, the alternative of their representative signing on their behalf is a m easure designed to protect the interests of all concerned. Section 13 of this Code covers the use of interpreters in respect of deaf persons or those who do not understand English, and A nnex E provides a sum m ary of provisions relating to the m entally disordered and the otherw ise m entally vulnerable, w hich largely echoes provisions made in different parts of Code C. The rem aining aspects of this Code o f Practice which affect vulnerable suspects are covered below and also in the following chapter, especially the provisions under A nnex E which override some of the above safeguards, but which are subject to several strict prerequisites. It should be noted that, with regard to juveniles, even where delay is authorised under ss 56 and 58 o f PACE, the p olice are u n d er a duty to take all p racticab le step s in o rd er to ascertain the identity of the person responsible for the welfare of the child or young person and to inform that person of the juvenile's arrest. Also, Note for Guidance 11D states that arresting a juvenile at their place of education is to be avoided if possible. W here this cannot be avoided, the person in charge of that establishm ent m u st be informed. In the section above entitled 'E xten sion s to norm al d etention p e rio d s', it w as m e n tio n e d th a t sp e cia l p ro v isio n s now e x ist re g a rd in g ju v e n ile and m e n ta lly v u ln e rab le p erso n s w ho are su b je ct to the no rm al m axim u m 24 h ou r p eriod o f detention being extended up to 36 hours by the police. Paragraph 15.2A o f Code C, w hich cam e into force on 1 August 2004, states the following: 15.2ASection 42(1) of PACE as amended extends the maximum period of detention for arrestable offences from 24 hours to 36 hours. Detaining a juvenile or mentally vulnerable person for longer than 24 hours will be dependent on the circumstances of the case and with regard to the person's: (a) special vulnerability; (b) the legal obligation to provide an opportunity for representations to be made prior to a decision about extending detention; (c) the need to consult and consider the views of any appropriate adult; and (d) any alternatives to police custody.

Although H om e Office Circular 6 0 /2 0 0 3 states that in the case of juveniles, the police pow er to extend detention beyond 24 hours should only be used if the m atter concerns a serious arrestable offence, the Code does not m ention this.10 P a ra g ra p h 1 5 .3C , w h ich a lso to o k e ffe c t on 1 A u g u st 2 0 0 4 , m ak es fu rth e r provisions regarding vulnerable persons as follows: 15.3CThc decision on whether the review takes place in person or by telephone or by video conferencing (see Note 15G) is a matter for the review officer. In determining the form the review' may take, the review officer must always take full account of the needs of the person in custody. The benefits of carrying out a review in person should always be considered, based on the individual circumstances of each case with specific additional consideration if the person is:

10 Zander, M, 'Revised PACE Codes of Practice' (2004) 154 NLJ, 23 July.

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(a) a juvenile (and the age of the juvenile); or (b) mentally vulnerable; or (c) has been subject to medical attention for other than routine minor ailments; or (d) there are presentational or community issues around the person's detention.

THE CHARGING OF SUSPECTS AND SUBSEQUENT DETENTION Introduction Paragraph 16.1 o f C ode C m akes the follow ing provisions regarding the duties of investigating and custody officers, once all that can be achieved from d etaining a suspect without charge has been accomplished: When the officer in charge of the investigation reasonably believes there is sufficient evidence to provide a realistic prospect of the detainee's conviction, see paragraph 11.6, they shall without delay, and subject to the following qualification, inform the custody officer who will be responsible for considering whether the detainee should be charged. See Notes 11B and 16A . When a person is detained in respect of more than one offence, it is permissible to delay informing the custody officer until the above conditions are satisfied in respect of all the offences, but see paragraph 1 1.6. 11 If the detainee is a juvenile, mentally disordered or otherwise mentally vulnerable, any resulting action shall be taken in the presence of the appropriate adult if they are present at the time. See Notes 16B and 16C. Under new provisions inserted by s 28 o f and Sched 2 to the Crim inal Justice A ct 2003, the Crown Prosecution Service will play a more direct part in deciding what charges should be brought against suspects. U nder the am ended s 37(7) of PACE, once the custody officer has decided that there is enough evidence to charge a detained suspect, the case should should be referred to the C PS for a decision w hether to institute proceedings and w hat charges should be brought. T his will not apply w here the suspect m ay be rem anded in custody or if the case is straightforward and m inor in nature. W here cases are referred to the C PS under the new procedure, the suspect should be released on bail to which conditions m ay or m ay not be attached. In other cases, the suspect may be released w ithout bail or m ay be charged. Paragraphs 16.1A and IB of Code C, which took effect on 1 August 2004, make the following provisions regarding the new role of the Crow n Prosecution Service in the charging of suspects: 161A Where guidance issued by the Director of Public Prosecutions under section 37A is in force the custody officer must comply with that Guidance in deciding how to act in dealing with the detainee. See Note 16AB. 16.1B Where in compliance with the DPP's Guidance the custody officer decides that the case should be immediately referred to the CPS to make the charging decision,

11

Paragraph 11.6 states, inter alia, that once police questioning has ceased, this should not prevent certain other investigating officers from inviting suspects to complete a formal questions and answer record after the conclusion of the police interview. These include officers in revenue cases or those acting under the confiscation provisions of the Criminal Justice Act 1988 or the Drug Trafficking Act 1994.

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consultation should take place with a Crown Prosecutor as soon as is reasonably practicable. Where the Crown Prosecutor is unable to make the charging decision on the information available at that time, the detainee may be released without charge and on bail (w ith co n d itio n s if n ecessary ) u nd er section 3 7 (7 )(a ). In such circumstances, the detainee should be informed that they are being released to enable the Director of Public Prosecutions to make a decision under section 37B.

Persons unfit to be charged or released may be kept in police detention until they are fit to be dealt with accordingly (this is com m only due to intoxication). W here a person has been released w ithout being charged and no decision has been taken at that time as to w hether that person will be prosecuted, the released suspect m ust be informed as such. This is to avoid leading the suspect into thinking that the m atter is com pletely finished, w hen a prosecution m ay still arise. It should be noted that instead of charging a person w ith an offence, the suspect m ay be issued with a 'w ritten charge' as well as a 'requisition', w hich states the date and time where that person is to appear before m agistrates. This is a new streamlined procedure under ss 29 and 30 of the Crim inal Justice Act 2003 w hich replaces the old method where a person w as 'reported' for an offence and then the police had to apply to the court for a sum m ons to be issued ('laying an inform ation'). This means that the p o lice m ay p ro se cu te a p erso n and p ro ceed by w ay o f a w ritte n charg e (and a requisition) if the offence proves to be of a m inor nature. For instance, a person may be arrested on suspicion of taking a m otor vehicle w ithout consent, but further inquiries disclose that the suspect has merely failed in the duty to inform the relevant authority (the D V LA ) o f a chang e of the v eh icle's ow nership. H ow ever, som e su sp ects are cautioned rather than charged, depending upon the nature o f the offence and the offender's background (this subject is covered in the final part of this chapter). Within the context of the charging o f suspects, it should again be m entioned that w hen a su sp ect's detention tim e has expired, that person must either be charged, released uncon dition ally or on bail (see A ppendix 12). W hen a suspect is charged w ith an offence, that person must also be cautioned as follows: You do not have to say anything. But it may harm your defence if you do not mention now something which you later rely on in court. Anything you do say may be given in evidence. [Note the slight difference in wording compared with cautions given under other circumstances.]

T h is p roced u re should be follow ed by the su sp ect b ein g given a w ritten notice, disclosing the particulars of the offence. W here an appropriate adult has had to be present, the written notice shall be given to that person. Anything said by a detained person when charged shall be recorded.

Release or detention after charge? U nder s 38 of PACE, when a person has been arrested and subsequently charged with an offence (whether or not it is arrestable), provided that person has not been arrested under a warrant endorsed for bail, the custody officer then has to decide on one of four cou rses o f action. T he su sp ect m ay eith er be released on bail o r w ithou t bail, or

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released on bail, but with conditions attached,12 or may be detained in police custody until the suspect can be produced in court (see Appendix 12). Section 38 goes on to state that the custody officer may only detain a person in police custody after charge when the following conditions are met: (a) if the nam e or address o f the person cannot be ascertained or the custody officer has reasonable grounds for doubting w hether any nam e or address given by the suspect is genuine; (b) where the custody officer has reasonable grounds for believing that the suspect will fail to answer to bail and will not appear in court (in other words, may 'jum p bail'). This decision will be influenced by the nature and seriousness of the offence, the relevant background and lifestyle of the suspect, any record of previous bailjum ping and the strength of evidence. These factors m ust also be applied to the criteria in (c)-(e), below, inclusive; (c) provided the suspect has been arrested for an offence which is im prisonable, the custody officer may detain that person in police custody after charge where there are reasonable grounds for believing that this is necessary to prevent the suspect from re-offending; (d) even where a person has been detention after charge may be reasonable grounds to believe causing physical injury to any property;

arrested for an offence which is not im prisonable, authorised by the custody officer where there are that this is necessary to prevent the suspect from other person or causing the loss of or dam age to

(e) the cu stod y o fficer m ay detain the su sp ect in police cu stod y w here there are reasonable grounds to believe that this is necessary to prevent that person from interfering w ith the ad m inistratio n of ju stice or w ith the inv estigation o f any offence; (f) w here there are reaso n able grou nd s for b elie v in g that it is n ecessary for the su sp ect's ow n protection, the custod y officer m ay au th orise that person to be detained in police custody after being charged; (g) if the suspect is 14 years or more and the custody officer has reasonable grounds to believe that his or her detention is necessary to take a drug test; this further power of detention is limited to no more than six hours (see Chapter 6 for further details of this power).

12

Under the Criminal Justice and Public Order Act 1994, s 27, the police may attach almost any conditions to bail when releasing a charged suspect that a court may impose (except the conditions to reside at a bail hostel and to co-operate in the making of any report). This may only be justified in order to ensure that a charged suspect surrenders to custody at a later date, does not offend whilst on bail, does not interfere with witnesses or generally obstruct the course of justice (these conditions also govern the requirement of a surety or security being imposed). Conditions may also be imposed for the person's welfare or protection. A person given conditional bail may ask the custody officer to vary the conditions. This request may be directed to another custody officer, but at the same police station, although the custody officer has the power to vary the conditions, so as to make them more restrictive. Custody officers granting conditional police bail or varying such conditions must enter their reasons"in the custody record and inform the person charged. The Criminal Justice and Public Order Act 1994, Sched 3, para 3 enables persons given conditional police bail to appeal to the magistrates' court, in order to have the conditions varied, although the court also has the power to make the conditions more restrictive and may even withhold bail completely. (See further commentary in Jason-Lloyd, L, The Criminal ]ustice and Public Order Act 1994: A Basic Guide for Practitioners (London: Frank Cass, 1996).)

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It should be reiterated that a p erso n d etained for a breach o f the p eace h as not com m itted an offence; therefore there is no pow er to grant bail except in crim inal pro ceed ing s (W illiam son v C h ief C on stable o f W est M idlands P olice (2004)). A lso, in A ddison v C h ief C onstable o f West M idlands Police (2004), the appellant alleged false im prisonm ent arising from his arrest and subsequent detention by the police. He had becom e threatening during a neighbour dispute and w as held at a police station and later released. The Court of A ppeal held that the appellant was released as quickly as possible once it was decided not to take him before the m agistrates' court or to charge him. His detention was therefore lawful.

An additional ground for detaining juveniles If the person charged is an arrested juvenile, the above grounds may also be applied, although the follow ing additional ground exists, w hich may justify detention after charge. Section 3 8 (l)(b )(ii) of PACE provides that in the case of ju veniles only, the custody officer may order detention after charge where there are reasonable grounds for believing that it is in the interests of that person to be detained. Although detention in the interests of an arrested juvenile may also run very close to detention for his or her ow n protection, there is a d ifference, bearin g in m ind the relative youth and vulnerability of such persons: The concept of 'own interests' is intended to be wider than 'own protection', although the distinction will not always be easy to draw. This criterion might apply where the juvenile would otherw ise be released to vagrancy, hom elessness, prostitution or loneliness.13

Juveniles w ho are not released after being charged must be moved to local authority accom m odation, unless it is im practicable to do so or where no secure accom m odation is available in the case of arrested 12 to 17 year olds and that other local authority accom m odation would be inadequate to protect the public from serious harm from that person. W here any of these conditions are present and such action is taken, this must be certified by the custody officer.

The exception to the above rules Section 25 of the Crim inal Justice and Public O rder A ct 1994 (as amended by s 56 o f the C rim e and D iso rd er A ct 1998, and by Sch ed 6 to the Sexu al O ffen ces A ct 2003) provides that bail may only be granted to a person charged with an offence from a list of specific crim es, and where that person has a previous conviction for any of those offences, if the police officer (or the court) considering bail is satisfied that there are excep tion al circu m stan ces w'hich ju stify it. T hose offences are m urder, attem pted murder, m anslaughter, rape, assault by penetration, causing a person to engage in sexual activity w ithout consent involving penetration, rape of child under 13, assault of child under 13 by penetration, causin g/inciting a child under 13 to engage in sexual activity involving penetration, sexual activity with a person with a mental disorder w here the touching involved penetration, cau sin g /in citin g a person w ith a mental

13

Levenson, H, Fairweather, F and Cape, E, Police Powers: A Practitioner's Guide (3rd edn, London: Legal Action Group, 1996).

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disorder to engage in sexual activity involving penetration, as well as attem pting to com m it any of the foregoing eight sexual offences. The original s 25 of the 1994 Act m ade it a strict rule that bail in the case of those p reviously con victed of certain o ffe n c e s w a s a u to m a tic a lly re fu se d . T h e o n ly e x c e p tio n w a s if an y p re v io u s m anslaughter conviction did not result in a prison sentence or long term detention in the case of a child or young person. How will a custody officer recognise the 'exceptional circum stances' that would justify granting bail to a person charged with any of the above offences who has a previous conviction for any of them? Som e doubt has been cast on the practicality of these new m easures, as follows: Section 56 removes the absolute ban, but it goes nowhere near reverting to the general presumption in favour of bail under the Bail Act 1976. Instead, it provides that, in the situations with which s 25 is concerned, bail is to be granted only if the court or custody officer is satisfied that there are exceptional circumstances which justify it. Section 56, in effect, introduces a strong rebuttable presumption against the grant of bail in such cases, in place of the absolute ban. This presumption can be rebutted by satisfying the court or, as the case may be, the custody officer considering the grant of bail. It would seem most unlikely that a custody officer would ever be so satisfied.14

Police bail in general If a person released on police bail fails to surrender to custody w ithout reasonable cause, that person com m its an offence under s 6 o f the Bail A ct 1976 and m ay be arrested w ithout warrant. W hen a person w ho is released from police detention on bail returns to the police station as required, or is arrested and taken to the police station becau se of failure to surrender to b ail, any unused tim e from the previous period w hilst detained m ay be used to detain that person further w ithout charge, but not exceeding the m axim um period allow ed. This is contingent on the custody officer having reasonable grounds for believing that this is necessary to secure or preserve evidence, or to obtain it by questioning the suspect. Schedule 2 to the Crim inal Justice Act 2003 has inserted new ss 37C and 37D into PACE thereby, inter alia, enabling the police to im pose conditional bail before charge where a case is being considered by the Crow n Prosecution Service, and confers a pow er o f arrest on the police w here they have reasonable suspicion that such bail con d itio n s have been breached . U nd er the Bail A ct 1976, the p olice m ay im pose conditions on bail in almost the sam e way as the courts w ith ju st a few exceptions. A c u s to d y o ffic e r m ay a tta c h c o n d itio n s in o rd e r to p re v e n t th e s u s p e c t fro m : ab sco n d in g ; re-o ffen d in g w h ilst on b ail; in te rfe rin g w'ith w itn esses or g en erally obstructing justice, or to protect the suspect, or to ensure a child or young person's welfare or their interests if the suspect is a juvenile (see also footnote 12).

14 Card, R and Ward, R, The Crime and Disorder Act 1998: A Practitioner's Guide (Bristol: Jordans, 1998) (emphasis added). Note that this refers to the position before the Sexual Offences Act 2003.

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Q u estio n in g after charge O n c e a p e rso n h a s b e e n c h a rg e d , th e re are lim ita tio n s o n th e e x te n t o f a n y q u e stio n in g fro m th at p o in t o n w a rd s. U n d e r p a ra s 1 6 . 4 , 16 .4 A , 16.5 a n d 16.9 o f C o d e C , th e se ru les a re a s fo llo w s: 16.4 If, after a detainee has been charged with or informed they may be prosecuted for an offence, an officer wants to tell them about any written statem ent or interview with another relating to such an offcnce, the detainee shall cither be handed a true copy o f the w ritten statem ent or the contcnt of the interview record brought to their attention.15 Nothing shall be done to invite any reply or com ment except to: (a) caution the detainee, 'You do not have to say anything, but anything you do say may be given in evidence'; and (b) remind the detainee about their right to legal advice. 16.4A If the detainee: •

cannot read, the document may be read to them;

•

is a ju v e n ile , m en tally d iso rd ered o r oth erw ise m en tally v u ln e rab le , the appropriate adult shall also be given a copy, or the interview' record shall be brought to their attention.

16.5 A detainee may not be interviewed about an offence after they have been charged w'ith, or informed they m ay be prosecuted for it, unless the interview is necessary: •

to prevent or minimise harm or loss to some other person, or the public;

•

to clear up an ambiguity in a previous answer or statement;

•

in the interests of justice for the detainee to have put to them , and have an opportunity to com m ent on, inform ation concerning the offence w hich has com e to light since they were charged or informed they might be prosecuted.

Before any such interview, the interviewer shall: (a) caution the detainee, 'You do not have to say anything, but anything you do say may be given in evidence'; (b) remind the detainee about their right to legal advice. P a ra g ra p h 1 6.9 s ta te s th a t w h e n a n y q u e stio n s a re p u t a fte r a su s p e ct h a s b e e n c h a rg ed a n d a n s w e rs g iv e n , th ese sh a ll b e c o n te m p o ra n e o u sly reco rd e d o n the fo rm s p ro v id e d . T h e record sh a ll th e n b e sig n e d b y the su sp e ct. If th a t p e rso n re fu se s to sig n , th e n th is d o c u m e n t sh a ll b e s ig n e d b y th e in te rv ie w in g o ffic e r an d a n y o n e else w h o is p re se n t. T h e p ro v isio n s s e t o u t in C o d e E o r F w ill a p p ly w h e re th e q u e s tio n s h a v e b e e n tap e re co rd e d o r v is u a lly reco rd ed .

T h e duty to tak e a charged person b efo re a court S e ctio n 4 6 o f P A C E s ta te s th at a p e rs o n c h a rg ed w ith an o ffe n c e w h o is th e n k e p t in p o lic e d e te n tio n , o r in lo cal a u th o rity a c co m m o d a tio n in th e c a se o f ju v e n ile s, m u st b e b ro u g h t b e fo re a m a g is tra te s ' co u rt a s s o o n a s is p ra c tica b le an d , in a n y e v en t, n o t la ter th a n th e first sittin g a fte r b e in g ch a rg ed . In m o st ca se s, b o th the p o lic e sta tio n a n d the r e le v a n t m a g is tr a te s ' c o u rt w ill b e in th e s a m e p e tty s e s s io n s a re a a n d th e p e rs o n c h a rg e d w ill th e re fo re b e p ro d u c e d in c o u rt e ith e r o n the d a y w h e n c h a rg e d o r the

15

This m eans playing back any tape recording of an interview (op cit Clark, fn 7).

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follo w in g day (this exclu d es S u nd ay s, G ood Frid ay and C h ristm as D ay). In less straightforward situations, the custody officer must inform the court clerk (justices' chief executive) of the presence of a charged person in custody, in order that a sitting may be arranged in accordance with s 46. There is no requirem ent for a person charged w ith an offence w ho is in hospital to be produced in court if that person is not well enough.

CAUTIONING Cautioning in this context is different from actually adm inistering cautions to suspects where a warning is given on arrest or prior to form al questions being asked. In many cases, where a suspect may be charged with an offence, the case may be disposed of by means of a caution. As far as children and young persons are concerned (10-17 year o ld s in c lu s iv e ), a re p r im a n d a n d w a rn in g s c h e m e w a s p ilo te d in 1 9 9 9 an d im plem ented nationw ide in A pril 2000. This schem e is discussed in further detail below. O lder offenders are cautioned in accordance with H om e Office Circular 18 /9 4 , w hich provides gu id ance as to the use of this d isp osal option. This d o cu m ent is e n titled 'N a tio n a l S tan d ard s fo r C au tio n in g (R e v ise d )' and con sists o f six m ain sections, which are headed as follows, together with the relevant provisions.

Aims A caution is not a sentence; therefore, a caution is not contingent upon certain activities being perform ed, such as reparation or paym ent o f com pensation, w hich only the courts may impose. The aim s of cautioning are to deal quickly and sim ply with less serious offenders, to divert them from unnecessary appearance in the crim inal courts and to reduce the prospects of their re-offending.

Decision to caution A lthough a caution does not constitute a crim inal record, it is still recorded by the police and may be cited in any later court proceedings. Earlier cautions should also be considered by the police if considering w hether or not to prosecute. A caution should be ad m in istered only w here there is a realistic p rosp ect o f a con v ictio n and the offender adm its to the offence and is capable of understanding the significance of this admission.

Public interest considerations The police should consider w hether giving a caution would be in the public interest and, in this respect, they are referred to the gu idance under the C ode for Crow n P ro secu to rs. T h ey are also en cou rag ed to be m ore fav o u rab ly in clin ed tow ard s cautioning certain classes of offenders, rather than prosecuting them. These include the elderly and the physically and m entally disabled, although it is stressed that this must not constitute com plete im m unity in all cases. M uch depends upon the offend er's attitude to the offence and the degree of w ilfulness in w hich it w as com m itted. Also, where group offending is concerned, each offender's degree of involvem ent should be considered.

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Views of the victim Prior to any caution being given, the police are advised to contact the victim of the offence, in order to ascertain his or her views, as well as the effect of the crim e on that p erson and w h eth er the o ffend er has m ad e any form o f vo lu n tary rep aration or com pensation. U nder no circum stances should the police be involved in arranging or negotiating any such recompense.

Administration of a caution A caution should be administered by a uniformed police officer and at a police station if p racticab le. The o fficer should n o rm ally be o f the ran k o f in sp ecto r or above, although designated 'cautioning officers' may be appointed where appropriate and this may include using a sergeant instead of an inspector or com m unity or hom e beat officers.

Recording cautions Every caution should be recorded as directed by the H om e Secretary and their usage should be monitored on a force-w ide basis. Cautions should be cited in court where they are relevant to the offence in question, although care must be taken not to confuse cautions w ith crim inal convictions w hen presenting the offend er's antecedents.

CONDITIONAL CAUTIONS Part 3 of the Crim inal Justice Act 2003, headed 'Conditional Cautions', has created a new statu to ry cau tion in g schem e that runs alo n g sid e the existin g n o n -statu to ry cautioning arrangem ents for adults. Section 22 o f the 2003 A ct states that a police officer, an investigating officer or a person authorised by a prosecutor (an 'authorised person') may give a conditional caution to an offender aged 18 or over, if each of the following five requirements under s 23 of the Crim inal Justice Act is satisfied: (1) The authorised person must have evidence that the offender has committed an offence. (2) A prosecutor decides that there is sufficient evidence to charge the offender with the offence, and that a conditional caution should be given to that person. (3) The offender admits having committed the offencc to the authorised person. (4) The authorised person explains the effect of the conditional caution to the offender and warns that person that failure to comply with any of its conditions may result in that person being prosecuted for the offence. (5) The offender must sign a document which contains details of the offence, his or her admission that they committed it, their consent to being given the conditional caution, and the conditions attached to it.

Section 24 states that the offend er m ay be subject to crim inal proceedings for the offence if that person fails, w ithout reasonable excuse, to com ply w ith any of the con d itio n s attach ed to the con d itio n al cau tion . It also states that the d ocu m en t mentioned in s 23(5) above is to be adm issible in such proceedings. With regard to this procedure, one com m entator notes that:

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The implications are when someone agrees to a conditional caution they in effect restrict their ability to argue later, when prosecuted, that they were 'not guilty'. Clearly, the intention is to ensure that a guilty plea must automatically follow and in this regard the ground can be seen as moving away from the courtroom and into the hands of police and prosecutors. It remains to be seen what ingenious arguments may emerge at the court stage, and whether the provisions hold good in terms of the European Convention on Human Rights.16

Section 22(3) states that the objects of the con d itions w hich m ay be attached to a conditional caution should be: (1) the rehabilitation of the offender and/or; (2) ensuring that the offender makes reparation for the offence.

Section 25 states that the H om e Secretary is under a duty to prepare a code of practice in relation to conditional cautions.

The reprimand and warning scheme for juveniles As mentioned above, a system of reprimands and w arnings for juveniles has been in force nationally since April 2000. The reason for the present system is stated in the H om e O ffice publication, entitled Tackling Youth Crime: Reform ing Youth Justice,17 as follows: While cautioning works well with most first time offenders (about 80% of whom do not re-offend within two years), it becomes progressively less effective once a pattern of offending sets in. If cautioning is used inconsistently or repeated without positive intervention to reverse offending habits, it will not be effective.

The Consultation Paper then points out that approxim ately one in five offenders do not respond to police cautioning and, subsequently, they becom e involved in a pattern of offending. There was an obvious need to replace the cautioning system affecting juveniles with som ething more positive, hence ss 65 and 66 of the Crim e and Disorder Act 1998, which make the following provisions. If the police decide not to prosecute a young offender nor take informal action by giving firm advice to the youngster and his or her parents, they may either issue a reprim and, if the offence is of a m inor nature, or they may issue a w arning, if the offence is m ore serious. If the offender re-offends after receiving a reprim and, the police must then issue a warning, assum ing they do not prosecute on that occasion. No more than one reprim and may be given and no more than one w arning may be issued, unless m ore than tw o years have lapsed betw een the first w arn in g and the latest offence and the latter is not serious enough to require a charge to be brought. Only then m ay a second w arn in g be given, but un der no circu m stan ces w ill a further warning be issued afterwards. Final warnings are not intended to be a mere indication that young offenders have reached the final stage before prosecution. W henever the police issue a juvenile with a final warning, they are under a duty to refer that person to a youth offending team.

16 Gibson, B, Criminal Justice Act 2003: A Guide to the New Procedures and Sentencing (Winchester: Waterside Press, 2004). 17 Home Office, Consultation Paper (London: HMSO, September 1997).

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W here appropriate, it is intended that final warnings should then be accompanied by a program m e of intervention to prevent re-offending in conjunction w ith local youth offending teams, which may also actively involve the offender's parents. The police may also request that the relevant youth offending team m akes a prior assessm ent of the young offender in order to assist in m aking the decision as to w hether a final w arning should be given. If a person is convicted of an offence com m itted within two years of being given a w arning by the police, the cou rts m ay not im pose a con ditional discharge on the offender, unless the court is of the opinion that there are exceptional circum stances relating to the offence or the offender which justify this sentence. W here this applies, the court m ust state the reasons for its opinion. Any record o f a police reprim and, warning or failure to participate in a rehabilitation program m e under a warning may be cited in crim inal proceedings in the sam e circum stances as previous convictions.18

The drug arrest referral scheme Before departing from the issue of police pow ers of detention, it should be mentioned that a relatively new innovation called the 'd ru g arrest referral schem e' had been piloted up until the year 2000 in a num ber o f police forces, and w as im plem ented n ation ally by the end o f that year. T his schem e co n stitu tes an ap p end ag e to the detention process regarding suspects arrested for drug-related crimes. It is now w idely know n that the funding of drug taking is a m ajor m otivation behind certain crim inal activities. Research in selected areas has show n that over 80% of all persons arrested for shoplifting, dom estic burglaries and car theft tested positive for at least one drug.19 In an endeavour to try and break the 'revolving d oor' pattern of offend ing on the part o f d rug users, the police have developed an intervention ist approach to drug-related crim e, rather than adopt purely an enforcem ent role. The e ss e n c e o f the sch e m e can b e fo u n d in th ree m ain ty p es o f re fe rra l: firs t, the 'inform ation' m ethod, w here the arrested person is sim ply given a leaflet or other docum ent containing the details of a drug agency; secondly, there is the 'proactive' method, involving drug w orkers actually perform ing their w ork in police stations and having direct access to persons detained; and, thirdly, there is the 'incentive' method, where persons w ho com e into contact with the police are motivated to seek help in order to deal with their drug problem. The arrest referral schem e does not alter the suspect's status or treatm ent w hilst being held by the police, such as the granting of bail or decisions regarding detention or charging.20

18 This commentary on the reprimand and warning scheme has been taken from Jason-Lloyd, L, The Crime and Disorder Act 1998: A Concise Guide (2nd edn, Cambridgeshire: Elm, 1999). 19 Bennett, T, Drugs and Crime: The Results of Research on Drug Testing and Interviewing Arrestees, Home Office Research Study No 183 (London: HMSO, 1998). 20 See also the relatively new police power to test for drugs in the next chapter.

C H A PT ER 6 TH E Q U EST IO N IN G AN D G EN ER A L T R EA TM EN T O F D ETA IN ED PER SO N S INTRODUCTION The line of dem arcation between Chapter 5 and the present chapter can som etim es be d ifficu lt to draw . T h is is b ecau se, am o n g o th er th in g s, m an y o f the p ro ced u res discussed in the previous chapter may be applied to detained persons under a wide variety of circum stances, including the alleged offences involved and the period that they are d etained for. The topics that w ill now be d iscu ssed inclu d e the gen eral conditions of detention and the treatm ent of detained persons, the adm inistering of cautions, the conduct of interviews including access to legal advice, the tape and video re c o rd in g o f in te rv ie w s , c o n fe s s io n s , fin g e r p r in tin g and o th e r id e n tific a tio n procedures, including the taking of body samples.

GENERAL CONDITIONS OF DETENTION The general conditions under which detained persons may be held in police custody are contained in the provisions under s 8 of Code C, as follows. W herever possible, no more than one person shall occupy a cell. A juvenile must not be placed in a police cell u n le s s n o o th e r s e c u re a c c o m m o d a tio n is a v a ila b le or a c e ll w o u ld be m ore com fortable than another secure place in the police station. W henever a juvenile is placed in a cell, this m ust be recorded and, in any event, a juvenile may not be placed in a cell with a detained adult. Cells must be adequately heated, cleaned, ventilated and lit, although the latter includes such dim m ing as to allow people to sleep at night time, but w ithout com prom ising safety and security. Bedding m ust be of a clean and gen erally reasonable standard and access to toilet and w ashing facilities m ust be available.1 If practicable, brief outdoor exercise shall be offered daily. In any 24 hour period, a m inim um of two light m eals and one main m eal shall be offered, together w ith drinks, and a record m u st be kept of m eals offered. Further drinks should be provided betw een m eals where reasonable. As far as practicable, the m eals should be offered at recognised m eal times, be of a varied diet and m eet any special dietary needs or religious beliefs; w henever necessary, advice shall be sought on medical and dietary matters from the police surgeon. A detained person may have m eals supplied by friends or relatives, but not at public expense. W here it is n ecessary to rem ove a d etained p erso n 's clothes for inv estigatio n purposes, for hygiene or health reasons or for cleaning, that person is to be issued with replacem ent clothing o f a reasonable standard and only w hen adequate clothing has been offered to the suspect may that person be interviewed. Any replacem ent clothing issued to the suspect m ust be recorded. W here restraint in a locked cell is absolutely

1

In Hague v Deputy Governor of Parkhurst Prison (1991), it was held that whilst a claim in negligence could be made where a person was detained in extremely poor conditions, this would not render the detention unlawful.

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necessary, o n ly ap p rov ed eq u ip m en t m ay be used and any use o f this m u st be reco rd ed . P a rticu la r care m u st be taken w hen c o n sid erin g the u se o f ap p rov ed restraints in the case of those w ho are deaf, mentally disordered or otherwise mentally vulnerable. U nder s 9 of Code C, detained persons shall be visited every hour, unless they are drunk, in w hich case they m ust be visited at least every 30 m inutes and, during the visit, they m ust be roused and spoken to. A ppropriate m edical assistance m ust be sought if there is any concern regarding that person's condition. W henever possible, juveniles and others at risk should be visited more frequently,2 although attention is draw n to Chapter 5 regarding the risk assessm ent required under paras 3.5(c) and 3.6-3.10 of Code C. R easonable force m ay be used if necessary in order to secure com pliance w ith reasonable instructions regarding a person's detention or to prevent escape, injury, dam age to property or the destruction of evidence. Although this provision was stated in para 8.9 of the previous edition of Code C before the 2003 Code w as published, it is rather strange that it has not been included in the 2003 or 2004 editions of C ode C with regard to police officers. Even stranger, the use of force is m entioned in the latest Codes A, B and D and mentions this in connection with police civilians in the latest Code C, but not the police. Fortunately, police officers may rely on their com mon law p ow ers and s 117 o f PACE to use reaso n able force in this co n text (see P rofessor Z and er's com m ent in Police and Criminal Evidence Act 1984 (4th edn, London: Sweet & M axwell, 2003), pp 252-53).

THE TREATMENT OF DETAINED PERSONS The provisions in respect of the treatm ent of detained persons are covered under s 9 o f C o d e C , w h ic h is c o n c e rn e d w ith g e n e r a l is s u e s , m e d ic a l tr e a tm e n t and documentation. First, there is the general provision that where a com plaint or concern arises regarding a person's treatment after being arrested, a report m ust be made, as so o n as p r a c tic a b le , to an in s p e c to r o r a b o v e w h o is n o t c o n n e cte d w ith the investigation. W here the matter concerns the possibility' of unlawful force being used, an appropriate healthcare professional must be called as soon as practicable. U nder the Code of Practice dealing with docum entation, it is stated that a record must be made of any such com plaint and subsequent arrangem ents for an exam ination by a healthcare professional together w ith any relevant rem arks by the custod y officer. Flow ever, nothing under this section of Code C prevents the police from calling a police surgeon or an oth er health care p rofessio nal to exam in e a d etain ee to obtain any ev id ence relating to any offence that the detainee may be involved in. Secondly, there are fairly detailed provisions regarding medical matters affecting persons held in police custody. W here a person appears to be suffering from physical or mental illness, is injured, or appears to need m edical attention for other reasons, the

2

See Kirkham v Chief Constable of Greater Manchester Police (1990), where it was held that the police are under a duty of care to prevent a prisoner committing suicide where they are aware that the person has suicidal tendencies.

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custod y officer m ust ensure that clinical attention is given as soon as reasonably practicable. In urgent cases, the person m ust be sent to hospital or the nearest available healthcare professional should be called immediately. The Code of Practice goes on to state that the above action should be taken w hether or not the person requests medical attention or has already had treatment elsewhere. W here a person has been arrested and taken to a police station under s 136 of the M ental H ealth A ct 1983,3 the above provisions should not delay the transfer of a person to a place of safety in order to be assessed by a medical practitioner. If such an assessm ent is due to take place at the police station, the custody officer has a discretion not to call a healthcare professional initially, provided that officer believes that the assessm ent by a suitably qualified m edical practitioner can be made w ithout undue delay. A ny d etain ed p erso n m ay re q u est a m ed ical e x a m in a tio n , in w h ich case an ap p rop riate h e alth care p ro fe ssio n al m u st be called as soon as p racticab le or be exam ined by a m edical practitioner of his or her ow n choice, although this will not be at public expense. The provisions under the Code of Practice regarding documentation provide that where this occurs, a record m ust be kept of any such request, together w ith the a rra n g e m e n ts m ad e for an y e x a m in a tio n and any m e d ical d ire c tio n s subsequently given to the police. In the Notes for Guidance, it is stated that there is no need to call on clinical attention for m inor ailm ents or injuries w hich do not need attention, although they must be recorded in the custody record, but, if in doubt, an appropriate healthcare professional must be called. They also go on to remind custody officers that persons w ho behave in an intoxicated m an ner m ay be ill, under the influence of drugs or may have sustained a head or other injury, all of which may not be easily discernible. This also includes withdraw al sym ptom s experienced by those needing or addicted to drugs. Therefore, when in doubt, the police should always call an am bulance or a healthcare professional with due speed. W here a person detained in police custod y p ossesses m edication relating to a serious condition such as heart disease, diabetes or epilepsy, or claim s to need such medication, the advice of a healthcare professional m ust be sought, even if the person d oes n o t a p p e a r to need su ch a s sista n ce . If a p e rso n h as to take or ap p ly any m e d ica tio n w h ich w as p re scrib e d b e fo re h is or her d e te n tio n , an a p p ro p ria te h e a lth c a re p ro fe ssio n a l sh o u ld b e con su lte d b y the cu sto d y o ffic e r b e fo re it is administered. If this is approved, the custody officer is responsible for ensuring that the medication is available for adm inistration and for its safekeeping in the meantime. However, special provisions apply in the case of medication which is in the form of controlled drugs as defined under the M isuse of Drugs Act 1971.4 Paragraph 9.10 of

3

4

'Under s 136 of the 1983 Act, if a police officer finds in a place to which the public have access a person who appears to him to be suffering from mental disorder and to be in immediate need of care or control, he may, if he thinks it necessary in the interests of that person or for the protection of other persons, remove the person to a "place of safety" ... this includes (among other places) both a hospital and a police station' (Hoggett, B, Mental Health Law (4th edn, London: Sweet & Maxwell, 1996)). For further reading on controlled drugs and their definition, see Jason-Lloyd, L, Drugs, Addiction and the Law (9th edn, Cambridgeshire: Elm, 2004). Note that all controlled drugs are listed under the Misuse of Drugs Act 1971 under Classes A, B or C, depending on their degree of social harm when misused.

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C o d e C s ta te s th a t n o p o lic e o ffic e r m ay a d m in is te r o r s u p e r v is e th e s e l f ­ adm inistration of controlled drugs listed in Sched 1, 2 or 3 under the M isuse of Drugs Regulations 2001.5 A detainee may only self-adm inister such drugs under the personal supervision of the medical practitioner authorising their use. Drugs listed in Sched 4 or 5 under the M isuse of D rugs Regulations 20016 m ay be distributed by the custody o fficer for self-ad m in istration if that officer has con su lted the registered m edical practitioner authorising their use (this may be done by telephone). However, both the custody officer and the m edical practitioner should be satisfied that self-adm inistration will not expose the detainee, police officers or anyone else to the risk of harm or injury. A ny su ch c o n su lta tio n sh o u ld b e n o ted in the cu sto d y reco rd . T h e p ro v isio n s governing docum entation under this Code of Practice state that the custody officer is under a duty to record all m edication in the possession of a person on arrival at the police station and, where applicable, any m edication that the detained person claim s to need, but does not have at the time; however, this is subject to s 4 of Code C. W here a detained person appears to be suffering from an infectious disease or condition, or the custody officer is given this inform ation, reasonable steps m ust be taken by the custody officer to safeguard the health of the detainee and others at the police station. The d etainee and his or her property m ay be isolated until clinical directions have been obtained

The administering of cautions to suspects Section 10 of C ode C is divided into five main Parts. Part (a) deals with when a caution m ust be given and Part (b) deals with terms of the cautions. Part (c) deals with special w arnings under ss 36 and 37 of the Crim inal Justice and Public O rder A ct 1994. Part (d ) d e a ls w ith ju v e n ile s a n d th e m e n ta lly v u ln e r a b le , a n d P a rt (e ) c o v e r s d ocu m entation procedures. W ith regard to P art (a), a caution m u st be giv en to a person suspected of an offence before any questions can be put to that person, or where further questions are put arising from answers which have given grounds for suspicion. This rule applies where that person's answers or failure or refusal to answer a question satisfactorily may be given as evidence to a court in a prosecution. Cautions are therefore not necessary w hen other questions are put, such as establishing the

5

6

In addition to being placed under a class under the Misuse of Drugs Act 1971, each controlled drug is also placecf under Scheds 1-5 to the Misuse of Drugs Regulations 2001. Basically, the lower the scnedule number, the greater the degree of restrictions on the possession and supply of that drug. Oddly, para 9.10 mentions the self-administration of Sched 1 controlled drugs" These are subject to the greatest restrictions and cannot be prescribed as they have no medicinal value. It is anticipated, however, that this anomaly in the Code may be rectified in the new version due to be drafted around the summer of 2005. Examples of the more well known Sched 1 controlled drugs include cannabis resin, 'ecstasy' and LSD. The situation is different regarding Sched 2 and 3 controlled drugs as they may be prescribed. Schedule 2 controlled drugs include painkillers such as morphine, methadone and codeine. Schedule 3 includes cathine and a number of barbiturates. Schedule 4 controlled drugs include mainly mild sedatives such as diazepam (valium) and nitrazepam (mogadon), and Sched 4 also includes anabolic steroids such as nandrolone and testosterone. Scnedule 5 controlled drugs are subject to the least restrictions as they are medicinal compounds that contain very small quantities of controlled drugs, or are prepared in such a way that the extraction of the controlled drugs is extremely difficult.

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suspect's identity or in the course of routine searches. Cautions must be administered to suspects prior to questioning, even when they have not been arrested, such as those voluntarily attending police stations. At the sam e time, that person must be informed that he or she is not under arrest and m ay leave at will. If that person is subsequently arrested or where a suspect is arrested away from a police station, that person must be cautioned on being arrested, unless it is im practicable to do so because of the suspect's condition or behaviour at the time, or where a caution has been administered prior to being arrested. W ith reg ard to P art (b) u n d e r s 10, w h ere th ere is a b re a k in the co u rse o f questioning, the interviewing officer must make the suspect aware that he or she is still under caution and, if there is any doubt, the caution should be given again before the resum ption of the interview. The exact wording of the caution is as follows: 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.

This is som etim es know n as the 'new caution ' as it w as introduced in A pril 1995, although in certain circum stances the earlier or 'old ' caution may still be administered (see below). Provided the sense of the caution is unaffected, m inor deviations from the exact w ord ing are accep tab le. W h ere a p erson can n o t un d erstan d the m ean in g o f the caution, the police officer should explain its m eaning in his or her own words. U nder Part (c), if an arrested suspect who is subsequently interviewed does not answer certain questions, or answers them unsatisfactorily, then, after due warning, a court or jury may draw adverse inferences under ss 36 and 37 of the Crim inal Justice and Public Order Act 1994. These questions relate to any marks, objects or substances that may be found on or otherwise in the possession of the arrested person, including clothing or footwear or in the place where the arrest took place. The questions may also relate to the suspect's presence in the place where the offence w as com m itted. However, in order for adverse inferences to be drawn, the interviewing officer m ust first inform the suspect of the following in ordinary language: w hat offence is being investigated; w hat the suspect is specifically being asked to account for and that this may be due to the suspect's believed participation in the offence; that a court may draw adverse inferences from failure or refusal to account for that fact; that a record is b e in g m ad e o f th e in te rv ie w and m ay be g iv en in e v id e n c e (th is p ro ce d u re is replicated where a suspect's interview is being tape recorded: see below). There are certain restrictions on draw ing adverse inferences from a person's silence where that person is detained in a police station and has requested legal advice, has not been allowed an opportunity to consult any solicitor and has not changed his or her mind about wanting legal advice. In these circumstances, the caution should be: You do not have to say anything unless you wish to do so, but what you say may be given in evidence.

This is the 'old ' or 'earlier caution', as mentioned above, which also applies when a person is charged with or informed that he or she may be prosecuted for an offence w ho is show n a statem ent or content of an interview m ade by som eone else, or is interviewed about that offence, or m akes a written statem ent about that offence.

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In som e cases, a detained person's failure to co-operate may have consequences regarding his or her im m ediate treatment even if cautioned. For instance, the suspect may com m it an offence under the Road Traffic A ct 1988 for failing to provide certain particulars, or may be detained in police custody after being charged with failing to provide a correct nam e and address. In such circum stances, the suspect should be informed of the relevant consequences and that they are not affected by the caution. U nder Part (d), where a juvenile or a mentally disordered or otherw ise mentally vulnerable person is cautioned in the absence of the appropriate adult, the caution m ust be adm inistered again in the appropriate adult's presence. U nder Part (e), any caution given under s 10 shall be recorded either in the police officer's pocket book or in the interview record.

THE GENERAL CONDUCT OF POLICE INTERVIEWS T h e o v erall c o n d u ct o f p o lice in te rv ie w s is g o v ern ed u n d er s 11 o f C o d e C. In sum m ary, these provisions are as follow s. First, w hat is the d efinition o f a police in terv iew ? P arag rap h 11.1 A states: 'A n in terv iew is the qu estio n in g o f a p erson regarding their involvem ent or suspected involvem ent in a crim inal offence or offences w hich ... m ust be carried out under caution ...' O nce it has been decided to arrest a suspect, that person should not be interviewed about the offence in question, except at a police station or other authorised place of detention, although this rule is subject to three exceptions: the first is where the subsequent delay would be likely to lead to evidence or persons being at risk o f harm or interference; the second is where delay would lead to alerting accom plices; and the third will apply where delay would hinder the recovery of property obtained in the course of com m itting an offence. Even so, once the relevant risk no longer exists or the necessary questions have been put in order to avoid that risk, interview ing m ust cease. Subject to five main exceptions, which will be explained below, the interviewing officer has a duty to remind the suspect of entitlem ent to free legal advice and, subject to the exceptions just mentioned, that the interview may be delayed in order that legal advice can be obtained. These rem inders should be given im m ediately before the com m encem ent o f any interview or series of interviews, and should be noted in the interview record. An interview may not be delayed for the purposes of obtaining and receiving legal advice under the following circumstances: (a) where A nnex B to Code C applies. This has been discussed above in Chapter 5, nam ely where a superintendent or above may delay access to legal advice for up to 36 hours in the case of serious arrestable offences, but subject to certain conditions. In such instances the restriction on drawing adverse inferences from silence will apply because the detainee is prevented from obtaining legal advice; (b) where an officer of the rank of superintendent or above has reasonable grounds for b eliev in g that d elay w ill involve a risk o f interference or harm to persons or evidence, serious loss or dam age to property,7 alerting accom plices, hinder the recovery of property, or where a solicitor has agreed to attend, but awaiting his or her arrival would cause unreasonable delay in the investigation;

7

Code C, para 6.7 provides that questioning must cease until the suspect receives legal advice, once sufficient information to avert the risk has been obtained.

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(c) where the solicitor selected by the suspect cannot be contacted, has declined to attend or has previously indicated the wish not to be contacted and the suspect has refused the services o f a duty solicitor. In such circu m stan ces, an inspector or above m ay authorise that the interview takes place without further delay; (d) where the suspect initially requested legal advice, but has since had a change of mind. In such cases, the interview may be started or continued, bu t only if the suspect has agreed in writing or on tape to be interviewed without legal advice. Also, an inspector or above m ust give authority for the interview to proceed in this manner, having first ascertained the suspect's reasons for the change of mind. All these facts, including the nam e of the authorising officer, m ust be recorded, either on tape or in the written interview record at the beginning or recom m encem ent of the interv iew . In the case o f (c) and (d), the re strictio n on d raw in g ad v erse in fe re n c e s from s ile n c e w ill n o t a p p ly b e ca u se the d e ta in e e is a llo w e d an opportunity to consult a solicitor; (e) w here s 11(d) to C ode C applies. This is entitled 'V ulnerable suspects: urgent interviews at police stations' and states that a police superintendent or above may au th o rise the follo w in g action if that officer con sid ers that d elay w ill lead to interference or harm to evidence or interference or physical harm to other persons, alert accom p lices or hind er the recovery o f property obtained as a result of a crim inal offence, or result in serious loss or dam age to property: •

the interview of a person heavily under the influence of drink or drugs; or is otherwise unable to appreciate the significance of questions and their answers;

•

the in terv iew of a ju v en ile or m en tally d isord ered or oth erw ise m en tally vulnerable person, w ithout the presence of the appropriate adult; or

•

the interview of a person w ho has difficulty understanding English or has a hearing disability w ithout an interpreter.

H owever, such interview s m ay not proceed if they could significantly harm the person's physical or mental state. W here question in g has been authorised un der these circu m stan ces, the interview should be discontinued as soon as inform ation necessary to avert any of the immediate risks mentioned above has been obtained. Also, a record m ust be m ade of the grounds fo r ju s tify in g the d e c isio n to in te rv ie w a v u ln e ra b le s u sp e ct u n d e r th e abo v e conditions. At the com m encem ent of an interview at a police station, once the caution has been administered, the suspect should have put to him or her any significant statem ent or silence w hich occurred prior to the interview. The suspect should then be asked to confirm or deny any earlier statem ent or silence and to make any other com m ents. Paragraph 11.4A states that: 'A significant statem ent is one which appears capable of being used in evidence against the suspect, in particular, a direct adm ission of guilt. A significant silence is a failure or refusal to answer a question or answer satisfactorily w hen under caution, w hich m ight, allow ing for the restriction on draw ing adverse inferences from silence, see A nnex C, give rise to an inference under the Crim inal Justice and Public O rder Act 1994, Part III.' U nder para 11.5, no interviewer may try to obtain answers to questions or obtain a statem ent by the use of oppression. N either may the police indicate, unless directly asked, what action they will take if the suspect answers or refuses to answer questions or m akes a statem ent or refuses to do either. The exception to this rule has already

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been mentioned above where, in specific cases, a suspect's failure to co-operate could hav e an im m ed iate effect on that p erso n 's im m ed iate treatm en t. W here a d irect question is asked by the suspect, the police may inform that person of the action the police propose to take in such an event, 'provid ed that action is itself proper and w arranted'. In the cou rse o f a crim inal in v estigatio n , once the p olice b eliev e that there is sufficient evidence to justify a prosecution being brought against a detained suspect, that person should be asked if he or she has anything further to say. A ny further questioning m ust then cease once the person indicates that he or she w ishes to say nothing more. However, this does not prevent investigating officers pursuing matters under revenue cases or confiscation proceedings from inviting that sam e person to co m p lete a form al q u estio n and an sw er record , fo llo w in g the co n clu sio n o f the interview. P aragraphs 11.7-11.14 and N ote for G u idan ce 11E contain detailed provisions regarding interview records. The m ain points arising from these are as follow s. An accurate record m u st be m ade of each interview w hich, in turn, m ust include the location w here it took p lace, the tim e it began and ended, and any breaks in the interview , together w ith the nam es o f all those present (except in cases involving terrorism or other cases where police staff reasonably believe they may be in danger, where the officers need to state their w'arrant or other identification num bers and duty station, but not their names). Written interview records must be both timed and signed by the maker. The record of the interview must be made on the forms provided for this purpose, in the officer's pocket book or on tape, or video recorded in accordance with Codes E and F. The record must be contem poraneous with the interview, unless this is impracticable or would interfere with the conduct of the interview. If either of these exception s apply, the reasons m ust be noted in the o ffice r's p ocket book and the interview record must be made as soon as practicable after the interview. In any event, it must constitute either a verbatim record of w hat w as stated or an account of the interview which sum m arises it adequately and accurately. The suspect should be given the opportunity to read the interview record and sign it, if in agreem ent with its contents, or indicate any alleged inaccuracies, unless it is im p racticable (different arrangem en ts apply w here the interview is tape or video recorded). If the suspect cannot read or refuses to read the record or sign it, the senior interview er present m ust read it to the suspect and invite that person to sign it (or make their mark) or indicate any alleged inaccuracies. That officer should then certify o n th e in te r v ie w re c o rd w h a t h a s o c c u r r e d . W h e re a n in te r v ie w h a s b e e n contem poraneously recorded and signed by the person questioned (or tape or video recorded), a written statem ent is not norm ally necessary. Although a suspect may be asked if he or she w ishes to m ake a statem ent, it is usually only w hen the suspect exp ressly w ish es to m ake a statem en t u n d er cau tion that one is taken. N ote for G u id an ce 11E states that a su sp ect, h av in g read and agreed the co n ten ts o f the interview record, should then be asked to endorse the record w ith words to the effect, 'I agree that this is a correct record of w hat was said' and then sign the document. If the suspect disagrees w ith the record, the interview er should record details of that disagreem ent and then ask the suspect to sign accordingly. Any refusal to sign this docum ent or any record o f interview m ust be recorded. This also applies w here a suspect refuses to sign a w ritten record of any com m ent m ade by him or her which, although outside the con text of the interview , m ay be relevant to the offence (see para 11.13 of Code C).

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Paragraphs 11.15—11.17 and N ote for Guidance 11D provide additional safeguards reg ard in g ju v e n ile s and m e n ta lly d isord ered or o th e rw ise m en tally v u ln e rab le persons. Any person falling w ithin these categories must not be interviewed or asked to provide or sign a w ritten statem ent unless the appropriate adult is present. The exceptions to this rule apply where any delay would be likely to lead to interference or harm to evidence, or interference with or physical harm to other people, or serious loss or dam age to property, or to the alerting of accom plices, or where it m ight hinder the recovery of property obtained in connection with an offence. During the presence of the appropriate adult at an interview, that person shall be informed that he or she is not expected to be a passive observer only. T he approp riate adult should then be inform ed that their role is to advise the p erson bein g question ed and to observe w hether the interview is being conducted properly and fairly, and also to prom ote com m unication with the person being interviewed. Note for Guidance 11C augm ents these provisions by stating the following: Although juveniles or people who are mentally disordered or otherwise mentally vulnerable are often capable of providing reliable evidence, they may, without knowing or w ishing to do so, be particu larly prone in certain circu m stan ces to provide information that may be unreliable, misleading or self-incriminating. Special care should always be taken when questioning such a person, and the appropriate adult should be involved if there is any doubt about a person's age, mental state or capacity. Because of the risk of unreliable evidence it is also important to obtain corroboration of any facts admitted whenever possible.

Ju v e n ile s m ay be in te rv ie w e d at th e ir p la ce s o f e d u ca tio n o n ly in e x c e p tio n a l circum stances and with the agreem ent of the person in charge of that establishm ent or their nom inee.8 W here the police w ant to interview a juvenile, every effort should be made to inform the parents or other person responsible for the juvenile's welfare and, if a different person, the appropriate adult. Reasonable lim e should be allowed for the approp riate ad ult to be present at the interview . If u n reason able d elay would be caused by waiting for the arrival of the appropriate adult, the person in charge of the ed u cational e stab lish m en t, or their n om in ee, m ay act in this capacity, u n less the suspected offence w as com mitted against that establishment.

Interviews at police stations The rules governing the general conduct of interviews in police stations are contained in s 12 of Code C. This begins by stating that the custody officer is responsible for deciding w hether to deliver a suspect into the custody of a police officer w ho wishes to interview or conduct inquiries w hich require the presence of that detained person. A record m ust be m ade, covering the period when the suspect is not in the custody of the custody officer and the reason w hy and, where applicable, the reason for any refusal to d eliver the suspect out o f that custody. Bearing in m ind the strict rules regarding m ax im u m p e rio d s o f d e te n tio n (see C h a p te r 5 ), a s u s p e c t m u st b e allo w e d a continuous period o f at least eight hours rest in any 24 hour period. This should norm ally be at night and must be free from questioning, travel or any interruption by

8

This is basically the same as the restriction on arresting juveniles in their places of education, as mentioned in Chapter 5.

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the police regarding the investigation. This rest period may be interrupted or delayed if there are reasonable grounds for believing that there is risk of harm to persons or of serious dam age to or loss of property, or the outcom e of the investigation would be prejudiced or that it would delay the suspect's release from custody. Also, the rest period may be interrupted at the request of the detained person, the appropriate adult or the legal representative. W here a person initially attends a police station voluntarily and is later arrested there, the 24 hour period starts from the time o f the arrest and not the time of arriving at the police station. Before any interview com m ences, each interviewing officer must identify him or herself and any other officers present to the suspect. This will norm ally be their name and rank, except in cases involving terrorist investigations or other situations where the officers reasonably believe they may be exposed to danger, where their rank and w arran t or o th er id en tificatio n nu m ber, rath er than their nam es, sh all be given. Interview s should, as far as practicable, be held in interview room s, w hich m ust be provided with adequate heating, lighting and ventilation. During questioning and the m aking of statem ents, suspects m ust not be required to stand. There m ust be breaks from in te rv ie w in g at reco g n ised m eal tim es, la stin g at least 45 m in u tes an d , at intervals of approxim ately two hours, there shall be short refreshment breaks, lasting at least 15 minutes, although this is subject to the discretion of the interview ing officer to delay a break if there are reasonable grounds for believing that this would involve a risk of harm to people or serious loss of or dam age to property, unnecessary delay in the suspect's release or otherwise prejudice the investigation. Any prolonged interview should be com pensated for by providing a longer break afterwards. W here there is a short interview and it is contem plated that this w ill be follow ed by another short period of questioning, the length of the break may be reduced if there are reasonable grounds to believe that to do otherwise would involve the risk of harm to persons or serious loss of or dam age to property, unnecessary delay to the suspect's release or otherwise prejudice the investigation. Any decision to delay a break, together with the reasons, must be recorded in the interview record. W ith regard to w ritten statem ents m ade under caution at police stations, these must be written on the forms provided for this purpose and all such statem ents must conform to the rules under Annex D, as follows: (a) Written by a person under caution 1

A person shall always be invited to write down what they want to say.

2

A person who has not been charged with, or informed they may be prosecuted for, any offence to which the statement they want to write relates, shall: (a) unless the statement is made at a time when the restriction on drawing adverse inferences from silence applies, see Annex C, be asked to write out and sign the following before writing w'hat they want to say: 1 make this statement of my own free will. 1 understand that I do not have to say anything, but that it may harm my defence if 1 do not mention when questioned something which I later rely on in court. This statement may be given in evidence.

(b) if the statement is made at a time when the restriction on drawing adverse inferences from silence applies, be asked to write out and sign the following before writing what they want to say: I make this statement of my own free will. I understand that 1 do not have to say anything. This statement may be given in evidence.

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3

W hen a person, on the occasion of being charged w ith or informed they may be prosecuted for any offence, asks to m ake a statem ent w hich relates to any such offence and wants to write it they shall: (a) unless the restriction on drawing adverse inferences from silence, see Annex C, applied when they were so charged or informed they may be prosecuted, be asked to write out and sign the following before writing what they want to say: I make this statement o f my own free will. I understand that I do not have to say anything but that it m ay harm my defence if I do not mention when questioned something which 1 later rely on in court. This statement may be given in evidence. (b) if the restriction on drawing adverse influences from silence applied when they were so charged or informed they may be prosecuted, be asked to write out and sign the following before writing what they want to say: I make this statement o f my oivn free will. I understand that I do not have to say anything. This statement may be given in evidence.

4

W hen a person, w ho has already been charged w ith or inform ed they m ay be prosecuted for any offence, asks to m ake a statem ent w hich relates to any such offence and wants to write it they shall be asked to write out and sign the following before writing what they w ant to say: / m ake this statem ent o f my ozvn fr e e will. I understand that I do not have to say anything. This statement may be given in evidence.

5

Any person w riting their ow n statem ent shall be allow ed to do so w ithout any prom pting except a police officer or other police staff may indicate to them which matters are material or question any ambiguity in the statement.

(b) Written by a police officer or other police staff 6

If a person says they would like som eone to write the statem ent for them, a police officer or other police staff shall write the statement.

7

If the person has not been charged with, or informed they may be prosecuted for, any offence to w hich the statem ent they w ant to m ake relates they shall, before starting, be asked to sign, or make their mark, to the following: (a) unless the statement is made at a time when the restriction on drawing adverse inferences from silence applies, see Annex C: I,..........................ivish to make a statement. I want someone to write down what / say. I understand that I do not have to say anything, but that it may harm my defence if I do not mention when questioned something which I later rely on in court. This statement may be given in evidence. (b) if the statem ent is m ade at a time w hen the restriction on draw ing adverse influences from silence applies: /,..................... wish to make a statement. I want som eone to write down what I say. I understand that I do not have to say anything. This statement may be given in evidence.

8

If, on the occasion of being charged with or informed they may be prosecuted for any offence, the person asks to make a statem ent which relates to any such offence they shall before starting be asked to sign, or m ake their mark to, the following: (a) unless the restriction on drawing adverse influences from silence applied, see Annex C, when they were so charged or informed they may be prosecuted: /,..........................wish to make a statement. I want someone to write down what I say. I understand that I do not have to say anything but it may harm my defence if I do not mention ivhen questioned something which I later rely on in court. This statement may be given in evidence.

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(b)

if the restriction on drawing adverse inferences from silence applied when they were so charged or informed they may be prosecuted: I,.....................wish to make a statement. I want someone to write doivn what I say. I understand that I do not have to say anything. This statement may be given in evidence.

9

If, having already been charged with or informed they may be prosecuted for any offence, a person asks to make a statement which relates to any such offence they shall before starting, be asked to sign, or make their mark to: I,.....................wish to make a statement. I zvant someone to write down what I say. I understand that I do not have to say anything. This statement may be given in evidence.

10 The person writing the statement must take down the exact words spoken by the person m aking it and m ust not edit or paraphrase it. Any questions that are necessary, eg to make it more intelligible, and the answers given must be recorded at the same time on the statement form. 11

When the writing of a statement is finished the person making it shall be asked to read it and to make any corrections, alterations or additions they want. When they have finished reading they shall be asked to write and sign or make their mark on the following certificate at the end of the statement: I have read the above statement, and I have been able to correct, alter or add anything I wish. This statement is true. I have made it o f my own free will.

12 If the person making the statement cannot read, or refuses to read it, or to write the above mentioned certificate at the end of it or to sign it, the person taking the statement shall read it to them and ask them if they would like to correct, alter or add anything and to put their signature or make their mark at the end. The person taking the statement shall certify on the statement itself what has occurred. W h ere a co m p lain t is m ad e by the su sp ect sin ce their arrest, o r w here a com p lain t is m ad e on that p erso n 's b eh alf, the in terv iew in g o fficer m u st record it in the interview record and inform an o fficer o f at least the rank o f inspector, w ho is n o t con nected w ith the in v e s tig a tio n an d w h o w ill b e re s p o n s ib le fo r d e a lin g w ith th e c o m p la in t in acco rd an ce w ith s 9 un d er C od e C (see above).

The role of the solicitor during interview s T he rights and restrictions on access to legal ad vice have b een covered earlier u n d er d ifferen t co n texts. T h e gen eral role and co n d u ct o f so licito rs d u rin g in terv iew s fall un d er the latter h a lf o f s 6 and the N o tes for G u id an ce, w h ich w ill now b e d iscu ssed . A solicito r m u st b e allow ed to b e p resen t w hile a su sp ect is b ein g interv iew ed if that p erson is p erm itted to con su lt a legal adviser. T h is is con tin gen t on the solicitor b ein g av ailab le. A so licito r m ay b e req u ired to leav e an in terv iew o n ly if h is or h e r c o n d u ct p re v e n ts th e in te rv ie w in g o ffic e r fro m p ro p e rly p u ttin g q u e stio n s to the su sp ect.9 In su ch cases, the in terv iew in g o fficer should stop the in terv iew and con su lt a n o ffic e r n o t b e lo w the ra n k o f s u p e rin te n d e n t. If s u c h an o ffic e r is n o t re a d ily a v a ila b le , a n o ffic e r o f a t le a s t th e ra n k o f in s p e c to r m a y b e c o n s u lte d in s te a d , p rov id ed th at o fficer is n o t con n ected w ith the in v estigatio n. T h e o fficer w ho h as been 9

Note for Guidance 6D gives two examples of unacceptable conduct in this context: first, answering questions on the behalf of a suspect and, secondly, providing written answers to questions for the suspect to quote.

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consulted should speak to the solicitor and w ill then decide if the interview should continue w ith that sam e solicitor present. If it is decided that it should not, the suspect m ay con su lt another solicitor b efore the interview continues, w ho w ill be given the o p p o rtu n ity to b e p re se n t. A record m u st b e m ad e on the in te rv ie w record if an in te rv ie w h a s b e e n co m m e n ce d in the a b sen ce o f a so licito r w h ere one h a s b een requested, or w here the solicito r has been required to leave. In view o f the serious im plications in rem oving a solicitor from an interview , consideration should be given by the police as to w hether the incident should be reported to the Law Society. The superintend ent or above w ho took the decision to rem ove the solicitor w ill consider w hether such steps should be taken and , if an officer below that rank rem oved the solicitor, the facts o f the incident should be reported to a superintend ent or above w ho, in turn, w ill consid er w hether to report the m atter to the Law Society. This should also b e rep o rted to the L eg al S e rv ice s C o m m issio n if it w as a d u ty s o licito r w ho w as rem oved from the interview. W h e th e r o r n o t a d eta in e d p e rso n is b e in g in te rv ie w e d , th a t p e rso n m u st be inform ed o f a solicito r's arrival at the police station and asked if he or she w ishes to see the legal adviser. T he exception to this rule is w here A nnex B applies (see above). A p art from th is e x ce p tio n , the d etain ed p erso n h as the rig h t to b e in fo rm ed o f a solicito r's arrival, even if there w as an initial refusal of legal advice or an agreem ent to be interview ed w ithout it. A note should be m ade in the custod y record regarding the solicito r's attendance and the decision of the detained person. In R v Franklin (1994), it w as held that failure to inform a suspect that a solicitor has arrived at the police station cou ld resu lt in an y su b se q u e n t in te rv ie w b ein g exclu d ed as e v id e n c e w h ere the solicitor is absent (see Rixon and O thers v C h ief Constable o f Kent (2000), regarding the right o f solicitors to see their clients at police stations).

Tape recorded interviews Section 60 o f PACE states the follow ing w ith regard to the interview ing of suspects: (1) It shall be the duty of the Secretary' of State: (a) to issue a Code of Practice in connection with the tape recording of interviews of persons suspected of the commission of criminal offences, which are held by police officers at police stations; and (b) to m ake an o rd er req u irin g the tape record in g of in terv iew s of p ersons suspected of the commission of criminal offences, or of such descriptions of crim in al offences as m ay be specified in the ord er, w hich are so held in accordance with the Code as it has effect for the time being. (2) An order under sub-s (1) above shall be made by statutory instrument and shall be subject to annulment in pursuance of a resolution of either House of Parliament.

T h e prov isio n s g o v ern in g the tape record ing o f in terv iew s w ith su sp ects are to be found in the w hole o f C ode E, w hich is divided into six sections, each accom panied by its ow n notes for guidance. A sum m ary of these will now be given in turn.

General A p art from con firm in g th at the term s 'ap p ro p riate a d u lt', 's o lic ito r' and 'cu sto d y o fficer' m ean the sam e in C od e E as they do elsew here in the C odes of Practice, and the requirem ent for these C od es to be available for inspection at police stations, this

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section also states that it does not apply to the follow ing groups of people: persons arrested in Scotland under cross-border arrest pow ers (see Chapter 3); persons arrested in order to be fingerprinted under s 142(3) of the Im m igration and Asylum Act 1999; persons served notice, advising them of their detention under the Im m igration Act 1971; convicted or rem anded prisoners held in police cells on b ehalf of the Prison Service; persons detained under Sched 7 and Sched 14, para 6 to the Terrorism Act 2000; and persons detained for searches under Code A. It then goes on to define the term 'designated person', which refers to a civilian given specified police powers under the Police Reform Act 2002 (see Chapter 7).

Recording and sealing master tapes The tap e reco rd in g o f in terv iew s sh o u ld b e con d u cted o p en ly in ord er to instil confidence in its general integrity. There should alw ays be a master tape, which must be sealed before it leaves the presence of the suspect, and a second or third tape should be used as a w orking copy. W here a twin or triple deck m achine is used, both tapes will record sim ultaneously, but the use of a single deck m achine will necessitate a working copy being m ade from the m aster tape in the presence of the suspect. The identities of police officers or civilian support staff conducting the recorded interviews m ay not be recorded or disclosed in terrorist investigations or if there is reasonable belief that they may be otherwise exposed to danger. The latter is explained in more detail in Note for Guidance 2C with regard to very violent suspects and investigations into serious organised crime. It further advises consultation with an inspector or above in cases of doubt.

Interviews to be tape recorded U nder this section, the following list of circum stances applies under w hich interviews must be tape recorded; however, this is now the way in which all police interviews are usually conducted, and the police have a discretion to conduct other interviews in this m anner (Note for Guidance 3A): (a) where a person has been cautioned and detained in respect of an indictable only offence or one which is triable either way; (b) in exceptional circumstanccs, where the police put further questions to a suspect about an offence falling within (a), above, after that person has been charged or informed of a possible prosecution; (c) where the police bring to a suspect's attention any written statement or content of an interview with another person where the suspect has already been charged or told he or she may be prosecuted.

Although this Code does not apply to suspects arrested under s 41 or detained under Sched 7 to the Terrorism A ct 2000, a separate code of practice is provided for under the 2000 A ct regarding the tape recording of interviews. An interview must be recorded in writing where the custody officer authorises the interview ing officer not to m ake a tape recording, because of equipm ent failure or unavailability of a recording room and the interview' should not be delayed, or where it becom es obvious that no prosecution will ensue. The reason should be duly noted by the custod y officer and in sp ecific term s becau se, under N ote for G u idance 3B, a decision not to tape record an interview m ay be the subject of com m ent in court;

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therefore, the authorising officer should be prepared to justify the decision. If a person refuses to enter or remain in the interview room, the custody officer may authorise that the interview be conducted in a cell using portable recording equipm ent or in writing. This should only be done if the custody officer considers on reasonable grounds that the interview should not be delayed; the reasons for this decision must be recorded. This section ends by stating that each interview shall be tape recorded in its entirety, w hich w ill inclu d e the taking o f any statem en t and the read in g back o f it to the suspect.

The interview This section under Code E begins by stating that the overall provisions under Code C regarding cautions and interviews, also apply to this Code, as well as the restrictions on drawing adverse inferences. This section then provides that as soon as the suspect enters the interview room, clean tapes should be unwrapped and then loaded in the m a ch in e in fu ll v iew o f th a t p e rs o n , and the m a ch in e th en set to re co rd . T h e interviewing officer must then tell the suspect that the interview is being tape recorded and the officer must state his or her nam e and rank, together with the nam es and ranks o f other officers present (there is an exception to this rule w ith regard to inquiries lin ked to terro rist in v estig atio n s, v io len t su sp ects or serio u s org anised crim e, as mentioned above; in such cases, the officer need only state his or her num ber). The interviewing officer must then go on to announce the suspect's nam e and any other person who may be present, such as the solicitor, although it is advised that it will be h e lp fu l if each o f th o se p re se n t actu ally id e n tify th em selv es. T h e d ate, tim e o f com m encem ent and location of the interview m ust also be given and, finally, it should be announced that the suspect will be given a notice describing what will happen to the tapes. This explains how the tape recording will be used and how access to it may be gained, and that if the suspect is charged or prosecuted, a copy will be supplied as soon as p racticab le. T he officer m ust then ad m in ister the ap p rop riate cau tion in accordance with s 10 o f Code C, or put to the suspect any significant statem ent or silence under para 11.4 of Code C. The suspect should then be rem inded of the right to free and independent legal advice in accordance with the provisions of Code C described earlier (subject to the special rules regarding delaying access to legal advice). If the suspect is deaf or there is any doubt about the suspect's hearing ability, the interview shall be both tape recorded and written contemporaneously. If a suspect objects to the interview being tape recorded at any stage during the process (including during breaks), it should be explained that there is the requirement for these objections to be recorded on tape. The tape recorder may then be turned off by the officer once the suspect has recorded any objections on tape or has refused to do so, having first explained to the suspect that the tape recorder is being stopped and the reaso n s for d oin g so. T h e excep tio n to this ru le is w here the o fficer reaso n ab ly considers that questions may continue to be put to the suspect and be tape recorded; otherw ise, the interview m ust be recorded in w ritten form. H owever, it should be borne in mind that to tape record an interview against the suspect's wishes may be the subject of com m ent in court. W here a com plaint is received in the course of the tape recording regarding the interview or the suspect's general treatment in custody, the interview ing officer has a

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duty to record it in the interview record and then inform the custody officer, who must then deal w ith the m atter in accordance w ith s 9 of Code C (see above). N ote for G uidance 4E to Code E states that, wherever possible, the tape recorder should be left running until the custody officer enters the room and speaks to the com plainant. The interview may be continued or terminated at the discretion of the interviewing officer w hilst aw aiting action by the inspector or above, to w hom the com plaint m ust be reported (see para 9.2 of Code C). The interview ing officer also has a discretion to continue with the interview if the com plaint is not connected with the interview or the suspect's general treatment in custody. W here this occurs, the suspect should be told that the custody officer will be informed as soon as possible about the com plaint on com pletion of the interview, and this m ust be com plied with accordingly. This section under Code E then goes on to provide details regarding suspects who w ish to d iscu ss m a tte rs o u tsid e the crim in a l in v e stig a tio n and the p ro ce d u re s concerning the changing of interview tapes. This is followed by provisions in respect of breaks during interviews. If the break is of short duration and the suspect and the officer remain in the room, it should be announced on tape that a break is being taken, togeth er w ith the reaso n s and the tim e. W hen the break is over, the tim e of the recom m encem ent of the interview should be recorded. A lthough the m achine m ay be switched off during the break, there is no need to remove the tapes. W here a break is taken and the suspect is due to vacate the room, this should be recorded, together with the reasons and the tim e. In such cases, the tape m ust then be rem oved from the m achine after the suspect has been asked if he or she wishes to clarify or add anything. The interview ing officer is under a duty to ensure that the suspect is aware of the right to legal ad vice and that he or she is un der cau tion w h en ev er there is a break in questioning. The caution must be given again in full when the interview continues if there is any doubt. At the conclusion of the tape recorded interview, the suspect m ust be offered the opportunity to clarify anything already stated or include anything further. W here applicable, the taking and reading back of any written statem ent will be part of the concluding procedure and, once all this has been com pleted, the tape recorder should then be switched off. The m aster tape should be sealed in the prescribed m anner and the labelling procedure com plied with accordingly.

After the interview The officer should make a notebook entry that a tape recorded interview has taken place, its date, tim e and d uration, together w ith the id entification num ber o f the m aster tape. Even w here no legal p roceed ing s are taken again st the su spect, the interview tapes must still be kept securely, in accordance with the rules under s 6 of Code E, the main provisions of which now follow.

Tape security The responsibility for m aking the necessary arrangem ents for the security of interview tapes falls upon the officer in charge o f each police station w here interview s w ith suspects are recorded. This applies not only to their safe storage, but also accounting for their m ovem ents on the same basis as other evidence. No police officer may break the seal on a m aster tape w hich is required for crim inal proceedings. W here this is necessary, the seal m ust be broken in the presence of a representative of the Crow n

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Prosecution Service and the defendant, or the d efen d an t's legal ad viser shall b e given a reasonable opportunity to b e present. E ither o f these two, if present, shall b e invited to reseal the m aster tape and sign it. In the ev en t o f refusal or non -atten d an ce, the C r o w n P r o s e c u t io n S e r v ic e r e p r e s e n t a t iv e s h a ll p e r fo r m th is ta s k . It is th e responsibility o f the ch ief officer of police to establish arrangem ents for breaking the seal o f a m aster tape, if n ecessary, w h ere no crim in al p ro ceed in g s resu lt from the m atter w hich w as connected w ith the tape recorded interview. This also applies where all court proceedings have been concluded.

VIDEO RECORDING OF INTERVIEW S Section 60A o f PACE (inserted by s 76 o f the C rim in al Ju stice and P olice A ct 2001) authorises the H om e Secretary to issue a code o f practice for the visual recording of interview s at police stations, and to m ake an order requiring these procedures to be adopted. C od e of P ractice F applies w here an interview ing officer decides to m ake a visual recording w ith sou nd w h en a su sp ect is interv iew ed . T h e m ain elem en ts of Code F are reproduced as follow s: 2

Recording and sealing of master tapes

2.1 The visual recording of interviews shall be carried out openly to instil confidence in its reliability as an impartial and accurate record of the interview. See Note 2A. 2.2 The camera(s) shall be placed in the interview room so as to ensure coverage of as much of the room as is practicably possible whilst the interview's are taking place. 2.3 The certified recording medium will be of high quality, new and previously unused. When the certified recording medium is placed in the recorder and switched on to record, the correct date and time, in hours, minutes and seconds, will be superim posed autom atically, second by second , during the w hole recording. See Note 26. 2.4 One copy of the certified recording medium, referred to in this code as the master copy, will be sealed before it leaves the presence of the suspect. A second copy will be used as a working copy. See Notes 2C and 2D. 2.5 Nothing in this code requires the identity of an officer to be recorded or disclosed if: (a) the interview or record relates to a person detained under the Terrorism Act 2000; or (b) otherwise where the officer reasonably believes that recording or disclosing their name might put them in danger. In these cases, the officer will have their back to the camera and shall use their warrant or other identification number and the name of the police station to which they are attached. Such instances and the reasons for them shall be recorded in the custody record. See Note 2E. Notes for Guidance 2A Interviewing officers will wish to arrange that, as far as possible, visual recording arrangements are unobtrusive. It must be clear to the suspect, however, that there is no opportunity to interfere with the recording equipment or the recording media.

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2B In this context, the certified recording media will be of either a VHS or digital CD fo rm a t and s h o u ld b e c a p a b le o f h a v in g an im a g e o f th e d a te and tim e superimposed upon them as they record the interview. 2C The purpose of sealing the master copy before it leaves the presence of the suspect is to establish their confidence that the integrity of the copy is preserved. 2D The recording of the interview is not to be used for any identification purpose. 2E The purpose of the paragraph 2.5 is to protect police officers and others involved in the investigation of serious organised crim e or the arrest of particularly violent suspects when there is reliable information that those arrested or their associates may threaten or cause harm to the officers, their families or their personal property. 3

Interview s to be v isu ally recorded

3.1 Subject to paragraph 3.2 below, if an interview ing officer decides to m ake a visual recording these are the areas w here it m ight be appropriate: (a) with a suspect in respect of an indictable offence (including an offence triable either way). See Notes 3A and 3B; (b) which takes place as a result of an interview er exceptionally putting further questions to a suspect about an offence described in sub-paragraph (a) above after they have been charged with, or inform ed they may be prosecuted for, that offence. See N ote 3C; (c) in which an interview er w ishes to bring to the notice of a person, after that person has been charged w ith, or inform ed they m ay be prosecuted for an offence described in sub-paragraph (a) above, any written statem ent made by another person, or the content of an interview with another person. See Note 3D; (d) with, or in the presence of, a deaf or d eaf/b lin d or speech im paired person who uses sign language to com m unicate; (e) with, or in the presence of anyone who requires an 'appropriate adult'; or (f)

in an y c a se w h ere the su sp e ct o r th e ir re p re s e n ta tiv e re q u ests th at the interview be recorded visually.

3.2 The Terrorism A ct 2000 m akes separate provision for a code of practice for the video recording of interview s in a police station of those detained under Schedule 7 or section 41 of the Act. The provisions of this code do not therefore apply to such interviews. See N ote 3E. 3.3 T h e cu stod y officer m ay au th o rise the in terv iew in g officer n ot to record the interview visually: (a) w here it is n o t reaso n ab ly p ra ctica b le to d o so b ecau se o f failu re o f the equipm ent, or the non-availability of a suitable interview room, or recorder, and the authorising officer considers on reasonable grounds that the interview should not be delayed until the failure has been rectified or a suitable room or recorder becom es available. In such cases the custody officer may authorise the interview ing officer to audio record the interview in accordance with the guidance set out in Code E; (b) where it is clear from the outset that no prosecution will ensue; or

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(c) where it is not practicable to do so because at the time the person resists being taken to a suitable interview room or other location which would enable the interview to be recorded, or otherwise fails or refuses to go into such a room or location, and the authorising officer considers on reasonable grounds that the interview should not be delayed until these conditions cease to apply. In all cases the custody officer shall make a note in the custody records of the reasons for not taking a visual record. See Note 3F. 3.4 When a person who is voluntarily attending the police station is required to be cautioned in accordance with Code C prior to being interviewed, the subsequent in te rv ie w sh all be reco rd ed , u n less the cu sto d y o ffic e r g iv es a u th o rity in accordance with the provisions of paragraph 3.3 above for the interview not to be so recorded. 3.5 The whole of each interview shall be recorded visually, including the taking and reading back of any statement. 3.6 A visible illuminated sign or indicator will light and remain on at all times when the recording equipment is activated or capable of recording or transmitting any signal or information. T h e rem ain in g p ro v isio n s u n d er C o d e F in clu d e p ro ced u res d u rin g v isu ally recorded in terv iew s, proced u res afte r su ch in terv iew s and tape security. M an y o f these b road ly reflect the p ro v isio n s u n d er C o d e E reg ard in g au d io taped in terv iew s. A cco rd in g to P ro fesso r Z and er: An audio tape of the interview has to be provided to the defence in the ordinary way, but receipt of the video requires an undertaking by the legal representative not to give the videotape or a copy to the defendant. (This is because in the Scottish pilots it was found that the videotapes were used by criminal elements to try to identify the police officers involved.) A summary of the interview is provided anyway.10

C O N FE SSIO N S S ection 82(1) o f PACE d efin es a con fessio n as 'a n y statem en t w h o lly or p artly ad verse to the p erso n w h o m ad e it, w h eth er m ad e to a p erso n in au th o rity o r not and w h eth er m a d e in w o r d s o r o t h e r w i s e '. T h is c a n i n c lu d e n o t o n ly v e r b a l o r w r i t t e n com m u n icatio n , b u t also con d u ct, su ch as th e re-en actm en t o f an offen ce recorded on v id eo tape (see L i S hu -L in g v R (1989)). A lso, an ad m issio n n eed n o t b e con fin ed to the police. A p art from the d iscretio n ary p o w e r av ailab le to the cou rts u n d e r s 78 o f PACE to e x c lu d e a n y e v id e n c e w h ic h , in ter a lia , h a s b e e n o b ta in e d im p ro p e r ly (see R v F en n elley (1989) in C h ap ter 3), s 76(2)(a) and (b) o f PA C E p laces a d u ty on the cou rts to exclu d e any con fessio n w h ich h as b een o b tain ed b y o p p ressio n o r w hich m igh t h av e b een rend ered u n reliable 'in co n seq u en ce o f an y th in g said or d o n e'. W h a t is 'o p p r e s s io n '? In R v F u llin g (1 9 8 7 ) , th e m e a n in g o f th is te rm w a s con sid ered b y the C o u rt o f A p p eal in a case w h ere the d efen d an t had m ad e a b o g u s in su ran ce claim and w as su b seq u en tly con v icted o f o b tain in g p ro p erty by d ecep tion.

10 Zander, M, The Police ami Criminal Evidence Act 1984 (4th edn, London: Sweet & Maxwell, 2003).

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W hen interviewed by the police, she remained silent until she was told that a woman in the next cell was having an affair w ith her lover. She then confessed to the charge b ecau se, as she stated u n d er cro ss-exam in atio n d u ring the trial, 'I agreed to the statem ent being taken, it w as the only way I w as going to be released from the cells' (although not suggesting that bail was offered as an inducem ent). The defence sought to have the confession excluded at the trial, but the judge ruled that it w as admissible, since the word 'oppression' implied som e impropriety and he was satisfied that this had not been m ade out. In dism issing the appeal against conviction, the C ou rt of A p p eal held that the w ord 'o p p re ssio n ' should b e giv en its o rd in ary d ictio n ary m eaning, that is to say: '... the exercise of authority or pow er in a burdensom e, harsh or wrongful m anner; unjust or cruel treatment of subjects, inferiors etc; the imposition of unreasonable or unjust burdens.' The court ruled that the trial judge had correctly concluded that the police had not acted oppressively in this case. H owever, in R v Paris, Abdullahi and M iller (1993), one of defendants, Miller, who had a low mental age, was held to have been subjected to hectoring and bullying during questioning which am ounted to oppression. The Court of A ppeal com m ented on the extrem ely hostile and in tim id a tin g m eth od used to o b tain a c o n fe ssio n in this case and sev erely criticised the solicitor present during the interviews, who did nothing to prevent this treatm ent. There is a difference betw een 'proper and robust persistence' and actual h ecto rin g or b u lly in g o f a su spect. T h is case clearly illu strated the d iv id in g line between the two. It should be noted that s 76(8) of PACE provides that, 'In this section, "oppression" includes torture, inhum an or degrading treatm ent and the use or threat of violence (whether or not am ounting to torture)', although this can include a much broader definition o f such conduct, as shown in R v Davison (1988). In this case, the court regarded a confession as being obtained by oppression where it w as obtained in the course of a three hour interview and in the absence of a solicitor, w hich had started six hours after the suspect had initially been unlaw fully detained. In R v Grieve (1996), oppressive conduct included, inter alia, the unlaw ful re-interviewing of the co-accused and the subsequent unjustified rearrest of the defendant, and the police should have ensured the presence of a so licitor d uring the d efen d an t's second interview . The evidence of the latter was therefore excluded. A con fe ssio n m ay b e ju d g ed 'u n re lia b le ' d ep en d in g on a n u m b er o f facto rs surrounding the making of it. In R v Barry (1991), it w as held that the offer of bail as an inducem ent to making a confession clearly fell within s 76(2)(b) of PACE and, in R v jasper (1994), this also applies where a suspect is told by the police that he or she will have to remain in custody pending further inquiries unless he or she talks to the police in order that they may conclude the matter. In this case, the defendant was convicted of theft, despite a subm ission by the defence that during the interview, the police had im pliedly said: 'U nless and until you tell us som ething about this affair, you will rem ain in custody w hilst further inquiries arc carried out.' The Court of Appeal held that the ev id en ce obtain ed in con seq u en ce of su ch com m en ts should have been excluded and subsequ ently ordered a retrial. H ow ever, contrast R v W eeks (1995), w here an ap p eal ag ain st co n v ictio n for d rug o ffen ces w as d ism issed w here the defendant made a confession shortly after being told that he would remain in custody unless he told the police what they wanted to hear. In this case, the Court of Appeal held that the nature of the adm issions was lim ited and that the defendant was a very astute young man with previous experience of being questioned by the police. U nder s 78 of PACE, mentioned above, the courts have a discretion to exclude any evidence on which the prosecution proposes to rely w hich, by virtue of the way it has

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been obtained, inter alia, would have such an unfair effect on the fairness of the trial that the court ought not to adm it it. This discretionary pow er can be used to exclude c o n fe ssio n s in c rim in a l p ro ce e d in g s in case s w h ich fall sh o rt o f o p p re ssio n or unreliability, as in R v M ason (1987). In this case, a confession obtained by deceit was excluded under s 78, even though the defendant w as legally represented at the time. The confession w as made following an interview where the police falsely told both him an d h is s o lic ito r th at h is fin g e rp rin ts had b e e n d isco v e re d on a b o ttle o f inflam m able liquid near the scene of an arson attack. An interesting interpretation of hostility can be seen in R v M (2000),11 where the Court of A ppeal overturned a m an's conviction of four counts of rape due to the hostility of his ow n solicitor who made 'sarcastic interventions' during the police interview. The court held that this may have rendered his confession unreliable. This case serves to illustrate that the hostility need not com e from som eone in authority.

Special protection for the mentally handicapped S e ctio n 77 o f PACE m ak es p ro v isio n re g a rd in g c o n fe ssio n s m ad e by m e n tally handicapped persons. Oddly, it is only the m entally handicapped w ho are expressly prov id ed for in this section and not also the m en tally d iso rd ered , w ho are both covered under the same safeguards under the Codes of Practice. W here a case against a m entally handicapped person depends wholly or mainly on his or her confession, and that this w as not made in the presence o f an 'independent person' (a person other than som eone in or em ployed by the police service), the courts m ust exercise special caution before convicting such a person in reliance on that confession. As far as Crown Court trials are concerned, the judge m ust give a warning to the jury to this effect and, in sum m ary trials, magistrates must take this into account. In R v Lam ont (1989), the trial judge failed to give the relevant warning to the jury in a case of attempted murder where little other evidence existed apart from the confession. The Court o f Appeal subsequently quashed the conviction and substituted a lesser verdict. The rules under s 77 do not apply where there is other evidence to the extent that the prosecution's case does not depend wholly or m ainly on such a confession. There is som e uncertainty as to w hom precisely the term 'ind epend ent person' applies, especially in view of R v Bailey (1995), where a retrial was ordered in a case of murder and arson, on the ground that the trial judge had not given a warning under s 77 where the m entally handicapped defendant confessed to friends and then to the police. A friend w as held not to constitute an 'independent person' in this instance, as such a person was not independent of the suspect. Section 77(3) of PACE merely states: '... "independent person" does not include a police officer or a person employed for, or engaged on, police purposes ...' This clearly excludes serving police officers, cadets, special constables and police civilian em ployees, but it appears that there remains the need for clarification as to w hom the term specifically applies; however, in R v Leivis (1995), it w as held that an 'independent person' would include a solicitor instructed on behalf of the defendant and that the issue of an 'independent person' only arises where a confession was not made in the presence of such a person; therefore, only a small number of cases will involve s 77. However, even where an appropriate adult is not

11

Cited in ibid.

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presen t w hen a m en tally h an d icap p ed person m akes an ad m ission , this w ill not necessarily ju stify the exclusion of this evidence under s 76(2) of PACE. In D PP v Cornish (1997), it w as held that, in com ing to such a decision, a court should also exam ine the content of the interview, as well as considering those present, in order to ascertain the effect on the interview of the absence of the appropriate adult. Section 77(3) also goes on to provide a d efinition of 'm entally handicap ped' as fo llo w s:'... "m entally handicapped", in relation to a person, m eans that he is in a state o f a rr e s te d or in c o m p le te d e v e lo p m e n t o f m in d , w h ic h in c lu d e s s ig n ific a n t im pairm en t of intelligence and social functioning . .. ' The issue as to w hether the defendant is mentally handicapped within this definition is important in view of the d ecisio n in R v H am (1995), w here it w as held that a fin d in g as to w h eth er the defendant was mentally handicapped had to be based on m edical evidence and that it w as w rong for a ju d ge to place reliance on the evid ence of a police officer in this respect. In R v Everett (1988) and in R v Silcott, Braithzvaite and Ragliip (1991), it w as held that the question of mental handicap is tested objectively; therefore, it is a question of w hat the defendant's m ental condition actually is, rather than the opinion of the police officers. T he term 'm e n ta lly h a n d ica p p e d ' p erso n as ap p ears in the e a rlie r C o d es o f Practice, has been replaced by 'otherw ise m entally v u lnerab le' in the m ore recent Codes w hen referring to persons w ith mental conditions other than those classed as suffering from 'm ental disorder'.

IDENTIFICATION PROCEDURES General provisions The procedures regarding police identification are governed by case law and Code of Practice D as PACE is com pletely silent on this aspect of the investigation of crime. Section 2 of C od e D ('C od e o f P ractice for the identification of persons by police officers') m akes a num ber of general provisions regarding identification by witnesses, id en tificatio n by fingerp rints and p hotog rap hs, as w ell as identification by body sam p les and im p ression s. M any o f these ech o sim ilar p ro v isio n s in C od e C; for instance, para 2.1 states that this Code of Practice must be readily available at all police stations, and para 2.6 provides that the terms 'appropriate adult' and 'solicitor' will have the sam e m eaning as d efined in C od e C. Section 2 also relates m any o f the safeguards concerning vulnerable persons stated under Code C, to police powers and duties in respect of the identification of persons. With regard to all suspects, para 3.1 of Code D states that a record m ust be made of the su sp e ct's d escrip tio n as first giv en b y a p oten tial w itn ess. U n less oth erw ise specified, this m ust be done before the w itness participates in an identification parade, a group identification, id entification using a video film , a confrontation or by the show ing of still images. This description m ust be recorded in a m anner which can be accurately reproduced in a visible and legible form, for presentation to the suspect or the suspect's solicitor prior to any of the aforem entioned identification procedures b e in g c a rrie d o u t. U n d e r p a ra 3 .1 1 , th e a r r a n g e m e n ts an d c o n d u c t o f th e s e identification procedures are the responsibility of the 'identification officer', who must be a police officer of at least the rank of inspector and who is not involved w ith the

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investigation. Furtherm ore, no officer connected with the relevant investigation should actually participate in any of those identification procedures. Paragraphs 3.17 and 3.18 provide that, before an identification parade or group or video identification, the identification officer m ust explain 13 relevant points to the suspect, w hich should be contained in a w ritten notice and then handed to him or her for signature. Som e of these m ain points include the purposes o f the identification p ro c e d u re d u e to tak e p la ce , the e n title m e n t to free le g a l a d v ic e , any s p e cia l arran gem en ts if the su sp ect is a ju v en ile or is m en tally d isord ered o r otherw ise m en tally vu lnerable, the su sp e ct's righ t to refu se to con sen t or co-o p erate in the id e n t ific a t io n p ro c e d u re s an d th e c o n s e q u e n c e s o f d o in g so , as w e ll as the con sequ en ces of sig n ifican tly alterin g his or h er ap p earan ce and the righ t o f the suspect or the solicitor to be given details of the first description given by any witness attending the relevant identification procedure. The identification officer should make a re co rd on the fo rm s p ro v id e d o f an y id e n tific a tio n p a ra d e , g ro u p or v id e o identification procedure carried out, as well as a person's refusal to co-operate with any of these procedures. However, under para 3.20, if the identification officer and the officer in charge of the investigation have reasonable grounds to suspect that if the suspect w as given the above information and notice, and the suspect would avoid being seen by a w itness in any identification procedure, the identification officer m ay arrange for the suspect's im age to be obtained for use in a video film before giving the inform ation and the notice. It is now quite com m on for the police to use the media in order to show video film s or p h o to g rap h s o f in cid en ts to the p u b lic, so as to trace and facilitate the recognition of suspects. Any such material released by the police should be preserved and the suspect or the solicitor should be allowed to view it before an identification parade, a group identification, a video identification, exam ination of still im ages or a confrontation occurs. This is subject to the proviso that it is practicable to do so and w ould no t u n reaso n ab ly d elay the in v estig atio n . E very w itn ess in v o lv ed in the relevant identification procedure m ust be asked afterw ards w hether they have seen any such media coverage and their replies m ust then be recorded. Under para 3.4 of Code D, in cases w hen the suspect is know n to the police and that person is available, the following identification procedures m ay be used: •

video identification;

•

identification parade; or

•

group identification.

Being 'know n' means that there is sufficient inform ation known to the police to justify a p articu lar p e rso n 's arrest for su sp ected in v olv em en t in the offence. The word 'a v a ila b le ' m ean s th at the s u sp e ct is a v a ila b le e ith e r im m e d ia te ly o r w ith in a reasonably short tim e and is also w illing to participate in at least one of the abovementioned identification procedures. The circum stances in w hich an identification procedure must be held are stated in para 3.12 as follows: •

w henever a w itness states that they have identified a suspect prior to any video identification, identification parade or group identification; or

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w hen ev er there is a w itness available w ho states they are able to identify the suspect; or

• w henever there is a reasonable chance o f the w itness being able to identify the suspect and they have not been given an opportunity to identify the suspect in any video identification, identification parade or group identification; and •

the suspect disputes being the person the w itness claim s to have seen.

If the above conditions exist, an identification procedure must be held unless: • it is not practicable; or • it w o u ld s e r v e no u se fu l p u rp o se in p ro v in g or d is p ro v in g th e s u s p e c t's involvement in the offence. An exam ple given under para 3.12 is where it is not disputed that the suspect is already well known to the w itness who claim s to have seen the suspect com m it the offence. Paragraph 3.13 adds that 'Such a procedure may also be held if the officer in charge of the investigation considers it would be useful'. It is im p o rta n t to n o te th at sin ce the first e d itio n o f this b o o k, the o rd er o f preference for identification procedures has been changed as a result of am endm ents to the Codes of Practice. Professor Zander states: ... It was felt in some quarters that the mandatory requirement of an identification parade put unreasonable burdens on the police. The view began to be expressed that identification parades were not as useful as the rule suggested and that video libraries could do the job better. The suspect is photographed in front of a neutral background. The photograph is then transferred into the computer system which holds a vast and growing database of digital photos taken in the same way. The suspect and his solicitor are shown a range of photographs similar to the suspect and are asked to agree on eight or nine to be used in the video film. The suspect decides where he wishes to be in the film. A composite video is then made. Each photograph is shown to the witness for the same period of time. The view that video identification is preferable to identity parades has now prevailed.12

The criteria for selecting an identification procedure is now to be found in para 3.14, w h ic h s ta te s th a t if an id e n tific a tio n p ro c e d u re is to be h e ld b e c a u s e o f th e circu m stan ces outlined in para 3.12, the suspect m ust be initially offered a video identification unless the following apply: • a video identification is not practicable; or •

an id e n tifica tio n p arad e is b o th p ra ctica b le and m ore su ita b le than a v id eo identification; or

• the officer in charge of the investigation considers that a group identification be in itially offered b ecau se it is m ore su itab le than a vid eo id e n tificatio n or an identification parade, and the identification officer considers a group identification practicable to arrange. The identification procedure to be offered will be the result of consultation between the identification officer and the officer in charge of the investigation. Paragraph 3.14 goes on to give exam ples where an identification parade may not be practicable in relation to witnesses, such as their number, state of health, availability and travel requirements.

12 Ibid.

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Another factor that may make an identification parade impracticable is that a w itness may sim ply be too fearful to take part. A video identification is usually more suitable and may be com pleted sooner than an identification parade. P aragraph 3.15 covers the situ ation w here a su spect refuses the id entification procedure that is first offered. W here this happens, the suspect must be asked to give their reason (in consultation with their solicitor or appropriate adult if present). They should then be allow ed to m ake representations about w hy another identification procedure should be used. If appropriate, the identification officer should offer the suspect an alternative w hich is suitable and practicable. All the relevant points and decisions should be recorded.

Identification parades The main provisions regarding the general conduct and conditions of an identification parade are contained in Annex B to Code D. These include the following in summary. Ju s t b e fo re the id e n tific a tio n p a ra d e , the s u sp e ct m u st be rem in d ed o f the procedures governing its conduct and m ust also be given the appropriate caution. No less than eight persons, in addition to the suspect, shall com prise an identification parade and they m ust, as far as possible, resemble the suspect in overall appearance. Normally, only one suspect should be present in a parade, but two may be paraded together if they broadly resemble each other, although at least 12 other people must also be present on the parade when this occurs. However, no more than two suspects may be included in a parade at the sam e time and, where separate parades are held, they m ust be com prised of different persons. No unauthorised persons may be present in a place w here a parade is to be conducted (w hich can be a norm al room or one co n tain in g a screen , so that w itn esses can view m em bers o f the p arad e w ith ou t them selves being seen). Prior to the parade being held, the suspect m ust be given a reasonable opportunity to have a solicitor or friend present and either the suspect or the solicitor should be provided with the first description of the suspect. The suspect should be asked to indicate his or her desire to have a solicitor or friend present on a second copy of the notice, containing the 13 points mentioned above. The suspect m ust be given the opportunity to raise any objections regarding the general arrangem ents and the participants in the parade, and these objections should be acceded to where possible. W here this is not practicable, the identification officer should give the reasons to the suspect. Each place in the line must be clearly numbered and the suspect m ay not only select his or her position in the line, but may also change it if more than one w itness is involved. The identification officer must ensure that, prior to attending a parade, witnesses are prevented from com m unicating with each other abou t the case or ov erhearing a w itness w ho has alread y seen the parad e. W itnesses must also be prevented from seeing any m em ber of the parade beforehand or being given any indication or rem inder about the suspect's identity, or from seeing the suspect before or after the parade. Just before a w itness inspects the parade, that person should be informed by the identification officer that the suspect m ay or m ay not be in the line-up and if the w itness cannot positively identify the suspect, then he or she should state this, but not until each person in the parade has been looked at no less than twice by the witness. The identification officer should then go on to inform the w itness that he or she should carefully look at each m em ber of the parade at least tw ice and, once the officer is

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satisfied that this has b een done, the w itness shall be asked to state the relevant num ber if the suspect is on the parade. Identification should be based on the suspect's physical features, instead of clothing. In R v Hutton (1998), the Court of Appeal held that it was inappropriate for everyone in an identification parade to wear baseball hats and scarves, m asking the low er half of their faces. Although the parade were masked only to a limited extent, this, coupled with the limited opportunity for the w itness to h av e see n the su sp e ct, am o u n te d to in s u fficie n t e v id e n c e fo r the case to h av e continued (see also D v DPP (1998) and Parry v DPP (1998)). Paragraph 10 to Annex B of Code D makes provision where the suspect has an unusual physical feature, and includes exam ples such as a facial scar, tattoo or distinctive hairstyle or hair colour. If this cannot be replicated on other persons in the identification parade, that feature may be concealed using, for exam ple, a plaster or a hat, worn by everyone on the parade. This w ill enable all m em bers o f the id en tification parad e to resem ble each other. H ow ever, this m ay not be done unless the su spect and his or her solicito r or the appropriate adult agree. In R v M arrin (2002), it was held that it would be perm issible for other m em bers of an identification parade to wear make up in order to replicate certain features of the suspect. In this case, som e o f the volunteers used dye to replicate the suspect's facial stubble. Provision is made whereby a witness may hear any parade m em ber speak or see them move or adopt a specific posture, but not until the w itness has been asked if identification can be made on the basis of physical appearance only and, where speech is requested, reminded that the mem bers of the parade have been chosen exclusively on the basis o f p h y sical ap p earan ce. W ith regard to v o ice id e n tifica tio n , in R v Gummerson and Steadman (1999), it was held that w hilst Code D did not create a duty to consider a voice identification parade, if one were held, then, in principle, it would be adm issible, although it may be helpful to note the earlier case of R v Hersey (1997), where som e guidance on this issue w as given by the Court of Appeal. In this instance, H w as one o f tw o people w ho robbed a shop w h ilst w earing balaclav a helm ets. D uring the robbery, both o f them conversed exten sively for a period o f about 15 m inutes and the shopkeeper w as certain that one of them was a custom er o f long standing. A voice identification parade, consisting of 12 persons, including H, was arranged, during which the shopkeeper identified the voice of H, although two other w itnesses failed to pick him out. An expert witness wanted to give evidence that too m an y v o ice s w ere used on the p a ra d e , th at, w ith o n e e x c e p tio n , th ey w ere o f significantly higher pitch and that the only person on the parade w ho read out the required text in a m anner w hich m ade sense w as H. The trial judge ruled that this expert evidence w as not adm issible before the ju ry and allow ed in evidence of the voice identification. In upholding this decision, the Court of Appeal held that whilst there may be a danger of the jury placing undue w eight on the parade identification, the e ffe ct o f the s h o p k e e p e r's p re v io u s a s so c ia tio n w ith H on the s u b se q u e n t identification would be obvious to them. This could be dealt w ith in the closing speech of defence counsel and also by the trial judge during the sum m ing up. The court stated that the parade provided the w itness with the opportunity to test his identification and this, even more importantly, gave the defendant the opportunity to be excluded in the e v en t o f an erro n eo u s o rig in a l id e n tifica tio n . In a d d ressin g the c riticism o f the technical aspects of the parade, the court stated that 'the police must do the best they can in such circu m stances' and added that 'a judge will undoubtedly rule out the evidence of an identification parade he considers unfair'. However, according to the

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court, 'There was not a great deal of authority on how a judge should direct a jury in respect of voice identification' (see also R v Deeiiik (1992)). The conduct of a parade must be fully docum ented and recorded not only on the relevant form s, but also photographed in colour or video recorded. A copy of the photograph or recording must be supplied on request and in reasonable time to the suspect or the solicitor. These m ust be destroyed if the person is not charged with a recordable offence, or not informed that he or she may be prosecuted for a recordable offence, or is not prosecuted, cautioned, reprim and ed or w arned for a recordable o ffen ce. H ow ever, su ch a p erso n m ay giv e his o r h er in fo rm ed c o n se n t for the photographs or images to be retained for the purposes of the prevention or detection of crim e, the investigation of offences or the conduct of prosecutions. It has been suggested13 that although pre-2003 cases regarding the requirem ent to hold identification parades related to the previous codes of practice, these should still be applied to the current code and to other identification procedures. This applies particularly in the leading case of R v Forbes (2001), where the House of Lords held that it was still necessary to hold an identification parade even where a suspect had been positively identified in a street identification, particularly if the suspect disputes the id entification. H ow ever, this should be view ed in the light o f other identification procedures as well as para 3.12 of Code D w hich, inter alia, s ta te s :'... an identification procedure shall be held unless it is not practicable or it would serve no useful purpose in proving or disproving w hether the suspect w as involved in com m itting the offence. For exam ple, w hen it is not disputed that the suspect is already well known to the w itness w ho claims to have seen them com m it the crim e.'

Group identification This aspect of identification procedure is governed largely by s 3 of Code with A nnex C, w hich concentrates on the conduct of group identification w itness views a suspect am ongst an inform al group of people. This m ay the su sp ect's con sen t and co-o p eratio n , although w ith o u t it, this m ay covertly.

D, together in which a occur with take place

The suspect's consent to a group identification should be sought and the 13 points mentioned above, under paras 3.17 and 3.20 ('N otice to suspect'), should be conveyed to the suspect accordingly. The identification officer has a discretion to proceed w'ith a group identification w here con sent is refused, using cov ert m ethods. The general conduct of this procedure is governed by A nnex C, som e of the main points of which are summ arised as follows. The location of a group identification should be a place where people congregate informally or generally pass through, so that the suspect can join them and be seen as part of a group. Exam ples given under A nnex C include people leaving an escalator, persons w alking through a shopping arcade, people waiting on railway stations and even the foyer of a m agistrates' c o u rt.14 In any event, it is up to the identification

13

Hutton, G, Johnston, D and Sampson, F, Blackstone's Police Investigator's Manual (Oxford: OUP, 2005). 14 R v Tiplady (1994), cited in op cit, Zander, fn 10.

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o ff ic e r as to th e c h o ic e o f v e n u e , a lth o u g h a c c o u n t m u st b e ta k e n o f a n y representations made by the suspect, the appropriate adult where applicable or the s u s p e c t 's s o lic it o r o r frie n d . P o lic e s ta tio n s s h o u ld o n ly b e u sed fo r g ro u p id en tificatio n s w here this is n ecessary b y v irtu e o f safety or secu rity reasons, or because it may be im practicable to hold them som ew here else. W here this is the case, the procedure may involve the use of screens or one-w ay m irrors.15 If the procedure is to be conducted covertly, then the choice o f venue m ust, of course, include places which the suspect frequents and where sufficient num bers of other people will also be present. This will include regular travel routes used by the suspect. M any o f the safeguards applicable to identification parades are echoed in A nnex C. These include details of the first description by witnesses being given to the suspect or the solicitor and reasonable opportunity for the suspect to also have a friend present, as w ell as the taking of a colour photograph o f the procedure w hilst in progress, although in the case of group identifications, a video recording m ay only be m ade contem poraneou sly if this is practicable; otherw ise, a colour photograph or video recording should be m ade of the general scene after the event, w hether or not the suspect consents. If any photograph or video film includes the suspect, all copies must be destroyed if the suspect is not charged with a recordable offence, or not informed that he or she may be prosecuted for a recordable offence, or is not actually prosecuted for such an offence, or cautioned, reprim anded or warned for it; otherwise, if informed consent is given, the photographs or images m ay be retained for the purposes of the p rev ention or d etectio n o f crim e, the in v estig ation o f o ffen ces or the con d u ct of prosecutions. W here the suspect does not consent, covert identifications should, as far as p ossible, com ply w ith the rules w here con sen t has been given. H ow ever, such persons will autom atically deny them selves the right to legal advice by virtue of being unaware of the identification procedure at the time. A ny undue im pedim ent of the group identification procedure on the part of the suspect, such as unreasonable delays in joining the group or deliberately concealing him or herself from the view of the w itnesses, shall be regarded as a refusal to co­ operate. W here a person in the group is singled out by a w itness and that person is not a suspect, a police officer should approach that person and request his or her name and address, although that person is under no legal obligation to provide these details. A distinction is draw n under A nnex C betw een m oving and stationary groups. W here moving groups are concerned, one im portant provision is that the identification officer must tell a w itness to point out the suspect and then, if practicable, arrange for that witness to take a closer look at the person indicated and ask if they can make a positive identification. W here this is not possible, the witness should be asked how sure he or she is that the person singled out is the suspect. This sam e procedure also applies to stationary groups, although a m ajor distinction betw een this procedure and the one applicable to m oving groups is that where the suspect is in a static situation, such as in a queue, the w itness should pass along or am ongst the group and look at each person at least twice.

15

Op cit, Zander, fn 10.

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Video identification As m entioned above, para 3.14 of C ode D states that a video id en tification m ust initially be offered to a suspect unless it is impracticable, or an identification parade or a group identification are both practicable and more suitable. Therefore, a witness may be show n a video of a suspect by the identification officer where the investigating officer con sid ers that this w ould be the m ost approp riate cou rse o f action. O ther factors which may influence such a decision include, inter alia, the suspect's refusal to participate in an identification parade or a group identification. The consent of the suspect should be sought although, where this is not given, the identification officer h as the d iscre tio n to p ro ceed w ith a v id eo id e n tifica tio n u sin g co v e rt m ean s if necessary. W here consent has been obtained, the suspect should be inform ed of the 13 points m entioned above, under paras 3.17 and 3.20. The general conduct and detailed p ro ced u res g o v e rn in g v id eo id e n tifica tio n are con tain ed u n d er A n n ex A and a sum m ary of its main features now follows. A nnex A b eg in s by p rov id in g that the ov erall arran gem en ts fo r m ak in g and subsequently show ing a suitable set of images to be used in a video identification are the responsibility of an identification officer w ho has no direct involvem ent in the case. The film m ust include at least eight people plus the suspect and the requirem ents w here m ore than one suspect is involved also follow the sam e provisions as those governing 'live' identification parades. Several other provisions in Annex A follow the sam e pattern as those applicable to identification parades as in A nnex B, such as the measures designed to prevent com m unication between witnesses at the crucial times and avoiding 'leading' witnesses by drawing attention to any person being viewed. The important distinction is that witnesses are seeing a visual recording and not a live identification parade. W itnesses would therefore be unable to request that certain body postures are adopted at the tim e of the view ing, although para 3 under A nnex A provides that all those being filmed shall, as far as possible, be in the sam e positions or carrying out the sam e activity. This seem s to im ply that the video recording might inclu de the p articip an ts m aking certain m o vem ents w here this w as requested in ad van ce. A n o th er co n seq u en ce o f seein g a film , rath er than p a rticip a tin g in an identification parade, is that the w itness does not have to w alk along or am ong the participants and this is particularly beneficial where nervous witnesses are involved. W itnesses should view the set of images at least twice and may request as m any other replays as necessary or m ay ask for a particular picture to be frozen. The Code of Practice em phasises that there is no limit to the num ber of times that the tape can be viewed in whole or part. The suspect, a friend, the solicitor or the appropriate adult, where applicable, must be given a reasonable opportunity to see the film prior to it being show n to witnesses. If there is any reasonable objection to it, then all practicable steps should be taken to accom m odate these objections. W here this is not possible, the identification officer m u st exp lain the reasons and record this on the relevan t form s accordingly. The suspect's solicitor shall, where practicable, be given reasonable notice of the time and venue that a video identification is due to occur, so that a representative may attend on the suspect's behalf. If no solicitor is instructed, then the suspect must be informed, but the suspect should not be present at the showing of the video to witnesses. W here the suspect's representative does not attend, the entire view ing procedure m ust also be recorded on video. T he id en tificatio n officer m ust, inter alia, preserve the overall security o f the tapes and ensure that no officer involved in the investigation is allowed

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to see the contents of the video film before it is shown to witnesses. A video film must be destroyed if the suspect is not charged with a recordable offence, or is not informed that he or she may be prosecuted for a recordable offence or is not actually prosecuted for such an offence, or is not cautioned, reprim anded or w arned for a recordable o ffe n ce, u n less in form ed co n se n t is g iv en for the im ages to b e retain ed for the purposes of the prevention or detection of crim e, the investigation of offences or the conduct of prosecutions. The overall flexibility and other advantages of using video film in the identification of suspects has increased its usage as time has progressed. The use of video film has replaced other form s of identification to a large extent, as the technology has becom e m o re w id e s p re a d .16 H o w ev er, v id eo reco rd e d in terv iew s m u st n o t be used for identification purposes (see N ote for G u idance 2D of C ode F). The im portance of com plying w ith the correct procedures w hen con du cting video identification was illustrated in R v M arcus (2004). In this case, the defendant m atched the description of a m an allegedly involved in several street robberies, although he said he was innocent. The street robber was described as black, aged betw een 30 and 40, and had a greying beard as well as greying hair around the temples. A video identification w as agreed to by the defence, but no im ages could be found of anyone who had greying hair in the sam e places as the defendant. The defence therefore agreed to the use of red m asking on all the images. However, the police used a parallel procedure, w ithout informing the defence, where unmasked images were used but only one had the greying beard and te m p le s, and th at h ap p en ed to be the d e fe n d a n t's im ag e. Fo u r o u t o f five w itn esses id en tified the d efen d an t w here the u n m asked im ages w ere used. The defendant's conviction w as overturned on the grounds that this evidence should have been excluded at the trial as the identification procedure evaded the protections under Code of Practice D, and was therefore unlawful.

Confrontation Paragraph 3.23 of Code D provides that a suspect may be confronted by a w itness if neither an identification parade, a group identification, a video identification nor a video identification using still images is practicable. A confrontation does not require the consent o f the suspect, although in R v Jones and Nelson (1999), it was held that it was a breach of the relevant Code of Practice to threaten the use of force in order to effect a con fro n tation . If a su sp ect in sists on this m ethod of id en tificatio n in the p resen ce o f h is or her solicitor, then there is no need to hold any o th er form o f id e n t if ic a t io n p r o c e d u r e .17 T h e p r o v is io n s g o v e r n in g th e p r o c e d u r e s fo r a confrontation are to be found under Annex D to Code D, w hich are summ arised as follows. M o st o f the p ro c e d u re s stated u n d er A nnex D larg e ly ech o the p ro v isio n s applicable to the other methods of identification mentioned above. These include the measures that have to be taken where the police release photographs or video films to

16 Levenson, H, Fairweather, F and Cape, E, Police Powers: A Practitioners' Guide (3rd edn, London: Legal Action Group, 1996). 17 See R v Miller (1991), cited in ibid.

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the media and the suspect or the solicitor being provided with a first description given by witnesses prior to the identification taking place. However, there is no provision here which requires the suspect to be informed of the 13 points applicable to the other identification procedures covered under paras 3.17 and 3.20, above. The procedure governing the actual confrontation of a suspect by a witness is the responsibility of the identification officer and no officer may take part in the proceedings who is involved in the investigation. In R v Ryan (1992),18 it was held that there had been a m ajor breach of para 2.2 of the earlier edition of Code D where the investigating officer accompanied a w itness to a confrontation, although, in this case, the evidence was allowed, because the interests of the defendant had been sufficiently protected by his solicitor. A confrontation should norm ally take place in a police station either in an ordinary room or one equipped with a screen in order to prevent witnesses being seen. W here a screen is used, either the suspect's solicitor, friend or appropriate adult must be present or the confrontation m ust be video recorded. U nless it w ould cause unreasonable delay, a con fro n tatio n m u st take p lace in the p resen ce o f the su sp e ct's solicito r, interpreter or friend, during which the suspect should be confronted independently by each w itn ess, w ho sh all be asked: 'Is this the p e rso n ?' It h as b een asserted that confrontation is the least satisfactory method in identifying suspects.19

Fingerprinting The issue of fingerprinting in its entirety is covered under ss 27, 61, 63A and 64 of PACE, together with s 4 o f Code D. Normally, consent is required before a person can be fingerprinted. If this is done at a police station, the consent m ust be in w riting, whereas it can be given orally if perform ed elsewhere. The latter will include victims of crim e, who provide their fingerprints in order that these may be elim inated from others found at the scene of the crim e, although these m ay be destroyed once they are no longer needed. However, if the person consents to their retention, this cannot be withdrawn later. Fingerprints may be taken w ithout consent under the circum stances discussed below and the taking of fingerprints may also include taking a palm print where appropriate.20 Collectively, this is now regarded as recording the 'skin patterns' of a person's fingers or palms. Before the police take a p erson's fingerprints, they have a duty to inform that person of the reasons for taking them , w hether or not they are taken with consent. W hether or not consent is given, the person w hose fingerprints are to be taken m ust be informed that those prints may be the subject of a speculative search against other fingerprints. This means that a check may be made against other fingerprints held in records to w hich the p o lice have access, althou g h this only ap p lies to su sp ects. W henever a person has been inform ed of the possibility o f a speculative search, a record shall be m ade accord ingly. All the p o lice d u ties to inform p ersons o f the

18 Cited in op cit, Zander, fn 10 and, also, op cit, Levenson, Fairweather, and Cape, fn 16. 19 Clark, D, Sevan and Lidstone's The Investigation of Crime: A Guide to the Law of Criminal Investigation (3rd edn, London: Butterworths, 2004). 20 Code D, para 4.1. See also R v Tottenham Justices ex p L (A Minor) (1985) for a definition of a palm print.

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re le v a n t rig h ts an d p ro c e d u re s m u st b e g iv e n in th e p re se n c e o f th e a p p ro p ria te ad u lt w h e re a p p lica b le . S e c tio n s 2 7 a n d 61 o f P A C E p r o v id e t h a t fin g e r p r in t s m a y b e ta k e n w it h o u t c o n s e n t fr o m a n y o n e o v e r th e a g e o f 1 0 u n d e r th e c ir c u m s ta n c e s lis t e d b e lo w . R e a s o n a b le fo rc e m a y b e u se d if n e c e s s a ry u n d e r s 117 o f P A C E in o rd e r to o b ta in f i n g e r p r in t s a n d a r e c o r d m u s t b e m a d e o f th e c ir c u m s ta n c e s u n d e r w h ic h th is o c c u r re d , in c lu d in g th o s e p re s e n t. W h e re fin g e rp rin ts a re ta k e n w ith o u t c o n s e n t, a reco rd m u s t b e m a d e a s s o o n a s p o ssib le , c o n ta in in g th e re a so n s, w h ic h m u st in clu d e a n y o f th e fo llo w in g : (a) w h e re a p o lic e in s p e c to r o r a b o v e (o r a c o u rt) a u th o ris e s su ch a c tio n a s a re s u lt o f h a v in g re a so n a b le g ro u n d s to b e lie v e th a t the fin g e rp rin ts w ill ten d to c o n firm o r d is p ro v e th e s u s p e c t's a lle g ed id entity. In o th e r w o rd s, to a sce rta in th a t p e rs o n 's tru e id e n tity ; (b) w h e re a p e rso n is a rreste d fo r a re c o rd a b le o ffe n c e an d d e ta in e d at a p o lic e sta tio n , o r h a s e ith e r b e e n ch a rg e d o r in fo rm e d h e o r s h e w ill b e re p o rte d fo r a 're c o rd a b le o ffe n c e '.21 T h is w ill a p p ly w h e re th a t p e rs o n 's fin g e rp rin ts h a v e n o t a lre a d y b e e n ta k e n in c o n n e ctio n w ith th a t o ffe n c e and w ill also a p p ly w h e re a s u s p e ct h a s been c a u tio n e d , re p rim a n d e d o r w a rn e d fo r a re c o rd a b le o ffe n ce;

21

'Recordable offences' are those offences which may be held on national police records and include all offences which can attract a term of im prisonm ent, whether or not this is the sentence actually passed on conviction, as well as a number of other offences which are not im p riso n a b lc. T h e se m isce lla n e o u s o ffe n ces arc as fo llo w s: lo itc r in g /s o lic itin g for prostitution; im proper use of public telecom m unications system ; tam pering with motor vehicles; sending letters, etc, with intent to cause distress or anxiety; giving intoxicating liquor to child under five; exposing children under 12 to risk of burning; failing to provide for safety of children at entertainments; drunkenness in public; failing to deliver up authority to p o ssess p ro h ibited w eapon or am m u n ition ; p o ssessio n o f an assem b led shotgu n by unsupervised person under 15; possession of an air w eapon or am m unition for an air weapon by unsupervised person under 14; possession of an air weapon in public by an unsupervised person under 17; trespassing on land during daytime in search of game; refusal by such a trespasser to provide nam e and address; five or more persons found armed in daytime in search of game and using violence or refusing to provide name and address; being drunk in the high w ay or in p u blic; o b stru ctin g a co n stab le or local au th o rity officer insp ecting prem ises for use as a registered clu b; perm itting d run kenn ess on licensed premises; Tailing to leave licensed premises when requested; allowing prostitutes to assemble on licensed prem ises; perm itting licensed prem ises to be used as a brothel; allow ing a c o n sta b le to rem ain on lice n sed p re m ise s w hen on d u ty ; s u p p ly in g in to x ic a n ts or refreshments to a constable or bribing a constable; making a false statement when applying for a sex establish m ent licence; falsely claim ing a professional qualification ; taking or destroying gam e or rabbits by night; w earing a police uniform w ith intent to deceive; unlawful possession of a police uniform; causing harassment, alarm or distress; failing to give no tice o f a pu blic p rocession ; failin g to com p ly w ith con d itio n im posed on a pu olic procession; taking p art in a prohibited public procession; failing to comply with a condition imposed on a public assembly; taking part in a trespassory assembly and failing to comply with directions; failing to provide a roadside specimen of breath; kerb-crawling, persistently soliciting w omen; in connection with sporting events, allow ing alcohol to be carried on public vehicles; being drunk on such a vehicle; allowing alcohol to be carried in some other vehicles; trying to enter a designated sports ground while drunk; unauthorised drinking or supplying alcohol at a designated sports ground; throwing m issiles, indecent or racialist chanting, and going on to the playing area; taking/riding a pedal cycle without consent; and purchasing or hiring a crossbow (or part) bv a person under 17 and unsupervised possession by a person under 17. (See English, J and Card, R, Butterworths Police Law (8th edn, London: Butterworths, 2003).) Note that, as of 1 December 2003, the offence of 'begging' has also been made a recordable offence (see (2003) 167 JP 49, 6 December).

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(c) w here a person has been convicted o f a recordable offence, bu t has not, as yet, been in police d etention for that offence, nor had his or her fingerprints taken. In those circum stances, s 27 o f PACE em pow ers the police to require that person to attend a police station in order to b e fingerprinted w ithin one m onth o f conviction. A t least seven d ays' notice m ust be given and a constable m ay arrest w ithout w arrant any person w ho fails to com ply w ith this requirem ent (see C h apter 3); (d) w here a p erso n has eith er b e e n con v icted of, or cau tion ed , o r rep rim an d ed or w arned for a recordable offence and that p erson's fingerprints have been taken bu t w ere incom plete or o f in sufficient quality. In those circu m stan ces, s 27 o f PACE also applies. Increasingly, fingerprints are now taken using electronic m eans. W here this is used, both the m ethod and the devices em ployed m ust be approved by the H om e Secretary.

Photographs The provisions governing the photographing o f identifying m arks on suspects have b e e n c o v e re d e a rlie r in C h a p te r 5. T h e p h o to g ra p h in g o f s u s p e c ts u n d e r o th e r conditions is covered under s 64A o f PACE and s 5(A ) and (B) and N otes for G uidance in C od e D. Sectio n 64A o f PA C E (ad d ed by s 92 o f the A n ti-terro rism , C rim e and Security A ct 2001) is as follow s: Photographing of suspects etc 64A(1) A person who is detained at a police station may be photographed -

(a) with the appropriate consent; or (b) if the appropriate consent is withheld or it is not practicable to obtain it, without it. (2) A person proposing to take a photograph of any person under this section (a) may, for the purpose of doing so, require the removal of any item or substance worn on or over the whole or any part of the head or face of the person to be photographed; and (b) if the requirement is not complied with, may remove the item or substance himself. (3) Where a photograph may be taken under this section, the only persons entitled to take the photograph are (a) constables; and (b) persons who (without being constables) are designated for the purposes of this section by the chief officer of police for the police area in which the police station in question is situated; and section 117 (use of force) applies to the exercise by a person falling within paragraph (b) of the powers conferred by the preceding provisions of this section as it applies to the exercise of those powers by a constable. (4) A photograph taken under this section -

(a) may be used by, or disclosed to, any person for any purpose related to the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution; and (b) after being so used or disclosed, may be retained but may not be used or disclosed except for a purpose so related.

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(5) In subsection (4) (a) the reference to crime includes a reference to any conduct which (i)

constitutes one or more criminal offences (whether under the law of a part of the UK or of a country or territory outside the UK); or (ii) is, or corresponds to, any conduct which, if it all took place in any one part of the UK, would constitute one or more criminal offences; and (b) the references to an investigation and to a prosecu tion include references, respectively, to any investigation outside the UK of any crim e or suspected crim c and to a prosecution brought in respect of any crim e in a country or territory outside the UK. (6) References in this section to taking a photograph include references to using any process by m eans of w hich a visual im age m ay be produced; and references to photographing a person shall be construed accordingly. S e c t io n 5 (A )(b ) a n d (B ) to C o d e D m a k e s th e f o llo w in g p r o v is io n s in r e s p e c t o f p h o to g ra p h in g d e ta in e e s a t p o lic e sta tio n s. It w ill b e n o tice d th a t so m e o f th e se co d e s also a p p ly to p h o to g ra p h s ta k e n o f id e n tify in g m a rk s u n d e r s 5 4 A o f P A C E , e sp e c ia lly su b -p a ra g ra p h s (c) a n d (d ), a s w e ll as (B ) a n d th e n o te s fo r g u id a n c e th a t follow . S o m e a n n o ta tio n s h a v e b e e n m a d e in s q u a re b ra c k e ts w h e re a p p ro p ria te . 5(A)(b) Photographing detainees at police stations 5.12U nder PACE, section 64A, an officer may photograph a detainee at a police station: (a) with their consent; or (b) without their consent if it is; (i) withheld; or (ii) not practicable to obtain their consent (see N ote 5E), paragraph 5.6 applies to the retention and use of photographs taken under this section as it applies to the retention and use of photographs taken under section 54A, see Note 5B. 5 !3 T h e officer proposing to take a detainee's photograph may, for this purpose, require the person to rem ove any item or substance worn on, or over, all, or any part of, their head or face. If they do not com ply with such a requirement, the officer may remove the item or substance. [Note: Reference to any item or substance worn may include head or face coverings such as masks, and may also include face paint.] 5 .1 4 If it is established the detainee is unwilling to co-operate sufficiently to enable a suitable photograph to be taken and it is not reasonably practicable to take the photograph covertly, an officer may use reasonable force: (a) to take their photograph without their consent; and (b) for the purpose of taking the photograph, remove any item or substance worn on, or over, all, or any part of, the person's head or face which they have failed to remove when asked. 5.15 For the purposes of this Code, a photograph may be obtained without the person's consent by m aking a copy of an im age of them taken at any tim e on a cam era system installed anywhere in the police station.

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(c) Inform ation to be given 5.16 W hen a person is searched, examined or photographed under the provisions as in paragraph 5.1 and 5.12, or their photograph obtained as in paragraph 5.15, they must be informed of the: (a) purpose of the search, examination or photograph; (b) grounds on which the relevant authority, if applicable, has been given; and (c) purposes for which the photograph may be used, disclosed or retained. This information must be given before the search or examination com mences or the photograph is taken, except if the photograph is: (i)

to be taken covertly;

(ii) obtained as in paragraph 5.15, in which case the person m ust be inform ed as soon as practicable after the photograph is taken or obtained. [Note: these are alternatives to using force where possible in order to obtain photographs.] (d) Docum entation 5.17 A record must be made when a detainee is searched, examined, or a photograph of the person, or any identifying marks found on them, are taken. The record must include the: (a) identity, su b ject to parag rap h 2.18, of the o fficer carry in g o ut the search, examination or taking the photograph; (b) purpose of the search, examination or photograph and the outcome; (c) detainee's consent to the search, examination or photograph, or the reason the person was searched, examined or photographed without consent; (d) giving of any authority as in paragraph 5.2 and 5.3, the grounds for giving it and the authorising officer. 5.18 If force is used when searching, exam ining or taking a photograph in accordance with this section, a record shall be made of the circumstances and those present. (B) Persons at police stations not detained 5.19W hen there are reasonable grounds for suspecting the involvement of a person in a criminal offence, but that person is at a police station voluntarily and not detained, the provision of paragraphs 5.1 to 5.18 should apply, subject to the modifications in the following paragraphs. 5.20 Reference to the 'person being detained' and to the powers mentioned in paragraph 5.1 w hich apply only to detainees at police stations shall be omitted. 5.21 Force m ay not be used to: (a) search a n d /o r examine the person to: (i)

discover whether they have any marks that would tend to identify them as a person involved in the commission of an offence; or (ii) establish their identity, see N ote 5A. (b) take photographs of any identifying marks, see paragraph 5.4; or (c) take a photograph of the person. 5.22 Subject to paragraph 5.24, the photographs or images, of persons not detained, or of their identifying marks, must be destroyed (together with any negatives and copies) unless the person:

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(a) is charged with, or informed they may be prosecuted for, a recordable offence; (b) is prosecuted for a recordable offence; (c) is cautioned for a recordable offence or given a warning or reprimand in accordance w'ith the Crime and Disorder Act 1998 for a recordable offence; or (d) gives informed consent, in writing, for the photograph or image to be retained as in paragraph 5.6. 5.23 When paragraph 5 .22 requires the destruction of any photograph or image, the person must be given an opportunity to witness the destruction or to have a certificate confirming the destruction provided they so request the certificate within five days of being informed the destruction is required. 5.24Nothing in paragraph 5.22 affects any separate requirement under the Criminal Procedure and Investigations Act 1996 to retain material in connection w'ith criminal investigations.

The Notes for Guidance which follow clarify a num ber of points that are relevant to the above codes. Exam ples are given regarding w hat constitutes the prevention of crim e, the investigation of offences and the conduct of prosecutions. These include com paring the photograph w ith others taken previously that are held in records, establishing precisely w ho is arrested (and w hen and where this took place), where other suspects are arrested or are likely to be, confirm ing the real identity of a person, assisting in identification procedures, identifying a person released w ithout charge who may have to be identified later; confirm ing a person's identity when executing an arrest w arrant and, in other circum stances, w here a person's photograph is not on record, or where their photograph is on record, but their appearance has changed and they have not yet been released or brought before a court. However, it is stated that there is no pow er to arrest a person convicted of a recordable offence for the sole purpose of taking their photograph. The pow er to take any photographs will only apply w hen the person is in custody follow ing the exercise o f another power. An exam ple given is where the person has been arrested for fingerprinting under s 27 of PACE. The Notes for Guidance then go on to give som e exam ples as to when it would not be p ra ctica b le to o btain a p e rso n 's co n se n t to b ein g search ed , exam in ed or photographed regarding an identifying mark, or being photographed in the general sense. These include instances where the person is intoxicated or otherw ise unfit to give consent; or where there are reasonable grounds to suspect that the person would react violently once they knew w hat w as intended and would distort their face or conceal the mark; or if there is insufficient time for the parent or guardian of a juvenile suspect to be contacted. A further exam ple is given, although this applies only to the taking of photographs in a general sense and that is where, in order to obtain a suitable photograph, it is necessary to take it covertly. T he N otes for G u idance also m ake reference to para 2.12 of Code D, w hich states that: 2.12 If any procedure in this Code requires a person's consent, the consent of a: •

mentally disordered or otherwise mentally vulnerable person is only valid if given in the presence of the appropriate adult;

•

juvenile, is only valid if their parent's or guardian's consent is also obtained unless the juvenile is under 14, when their parent's or guardian's consent is sufficient in its own right ... [Note: This part of para 2.12 then goes on to make provisions regarding identification procedures under s 3.]

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T h e actu al sh o w in g o f p h o to g rap h s to w itn e sse s o f crim e m u st co n fo rm to the procedures under Annex E to Code D, w hich are summ arised as follows. W hilst the actual show ing of photographs may be done by a police officer of any rank or even a civilian em ployee w ithin the police service, a police officer o f at least the rank of sergeant must supervise and direct the showing of photographs. The first description of the suspect given by the w itness must be recorded and this has to be confirm ed before the photographs can be show n. If there is any doubt, the show ing m u st be postponed. Only one w itness at a time should be show n the photographs and that person must be given as m uch privacy as practicable; during this process, each witness shall not be allowed to com m unicate with any other witnesses in the case. The witness must be told that the person seen may or may not be among the photographs show n and he or she should be left to make any selection without any help; therefore, there m ust be no prom pting or guidance. If no positive id entification can be m ade, the w itness should say so; and if a w itness selects a photograph but is unable to confirm the identification, that person should be asked how sure they are. No less than 12 photographs at a time may be shown, w hich should all be of a sim ilar type as far as possible, and a record of the showing must be kept, including com m ents m ade by the witness, whether or not an identification is made. If a w itn ess m akes a p o sitiv e id en tification from p h o tog rap h s (or a pho to fit, identikit or sim ilar picture), then, unless the person identified has been cleared of s u sp ic io n by the p o lic e , an y o th e r w itn e ss e s in v o lv ed sh a ll n o t be sh o w n the photograph or other picture. W here this occurs, all witnesses, including the one who identified the alleged suspect, should be asked to attend an identification parade or take part in group or video identification if possible, unless there is no dispute about the suspect's identification. The suspect and that person's solicitor must be informed prior to an identification parade if a w itness has already been show n any pictures beforehand. Any photographs used must not be destroyed, regardless of whether or not an identification has been made, as they may be required by the court. W hen photographs taken by the police are circulated to persons outside the police service, provided those p h otog rap hs are used reasonably for the prevention and d ete ctio n o f crim e, such actio n is n o t u n law fu l. In H ellew ell v C h ie f C on stable o f D erbyshire (1995), the court ruled that the police had a public interest defence to an action brought against them for breach of confidence. In this case, the claim ant had numerous previous convictions, and most of them were for theft. The police circulated the claim an t's photograph to local traders, although not for public display, but to enable staff to identify troublemakers.

TAKING FORENSIC SAMPLES FROM SUSPECTS Introduction The taking of forensic samples from suspects is an important aspect of police duties in the detection of crime. One of the m ost well known is the police power under the Road Traffic A ct 1988 to require a person to provide a specim en of breath, urine or blood in cases of suspected drink-driving. The power to take sam ples from suspects under the com m on law was significantly extended by PACE; as a result of am endm ents under the Crim inal Justice and Public Order A ct 1994, arising from the developm ent of DNA profiling in particular, the legal rules regarding the taking and retention of samples are

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c o n ta in e d u n d e r th e am e n d e d p ro v isio n s o f ss 62, 63, 63 A , 64 and 65 o f P A C E, augm ented b y s 6 of C ode D (ss 63B and 63C o f PACE w ill b e discussed below under the h ead in g 'N ew p ow ers to take sam p les'). Foren sic sam p les are eith er classed as in tim ate or n o n -in tim ate . T h o se w h ich are n o n -in tim ate m ay b e tak en b y fo rce if necessary, w hereas intim ate sam ples cannot, although any refusal to provide the latter m ay resu lt in the co u rt d raw in g in fe re n ce s w h ich m ay c o rro b o ra te any ev id e n ce against that person.22

Intim ate samples T h e definition of an intim ate sam ple m eans blood , sem en or any other tissue fluid, urine, pubic hair, a dental im pression and a sw ab taken from a perso n 's body orifice except the m outh.23 An intim ate sam ple m ay be taken from a suspect w here a police inspector or above has authorised it and has reasonable grounds for suspecting that the p erso n has been inv olv ed in a reco rd able o ffen ce, h as reaso n ab le gro u n d s for believing that the sam ple w ill either confirm or disprove the su sp ect's involvem ent in th a t o ffe n c e and th a t p e rs o n h a s g iv e n th e a p p r o p ria te w ritte n c o n s e n t.24 T h e authorisation m ay be given orally initially, but this m ust be put into w riting as soon as possible. W here the required consent is given, the suspect m u st be inform ed that the authorisation to take the sam ple has been m ade, together w ith the grounds and the n atu re o f the o ffe n ce, w h ich m u st b e d u ly co n firm e d in the cu sto d y record . T h e authorisation, the grounds and confirm ation o f the consent m ust be recorded as soon as practicable in the custody record after the sam ple has been taken. A suspect w ho is m entally disordered or otherw ise m entally vulnerable, or a juvenile, m ay request the presence of an appropriate adult o f the opposite sex. W here a ju venile is concerned, u n less he o r sh e o b je cts, an a p p ro p ria te a d u lt m u st b e p re se n t if any c lo th in g is rem oved and the appropriate ad ult m ust agree to bein g absent if this is requested. U nd er the original s 62 o f PACE, the taking o f intim ate sam ples applied only to s e r io u s a rre s ta b le o ffe n c e s . T h e d o w n g ra d in g to re c o rd a b le o ffe n c e s (see fn 21) significantly increases the size and scope o f the use o f this pow er: This means that offcnces such as assault and m ost burglaries, which had previously been excluded from the power, will now be subject to it and the range of offences in which samples can be taken is equivalent to that for taking fingerprints, the difference being, at least in respect of intimate samples, that written consent must be obtained. Indeed, the objective is to create a data bank of DNA profiles of all those convicted of recordable offences, similar to that which exists for fingerprints 25

22 23

24

25

Op cit, Clark, fn 19. The exclusion of swabs and saliva samples, etc, taken from the mouths of suspects from the ambit of intimate samples was effected through the Criminal Justice and Public Order Act 1994, ss 58(2) and 59. 'Appropriate written consent' is defined under PACE, s 65, as: (a) in relation to a person who has attained the age of 17 years, the consent of that person; (b) in relation to a person who has not attained that age, but has attained the age of 14 years, the consent of that person and his parent or guardian; (c) in relation to a person who has not attained the age of 14 years, the consent of his parent or guardian. Op cit, Clark, fn 19.

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An intimate sample, with the appropriate authority and consent, may be taken from a person w ho is not in police custody, but from w hom at least two non-intim ate sam ples have been taken, but have proved insufficient. This pow er may be used on persons on remand, in prison or on bail, and this rem oves the need for the police to request an intimate sam ple where a non-intim ate sample will be sufficient. Since they will be able to request intimate sam ples w hen the person is no longer in police detention, there is no need to requ est them u n n ecessarily as a safe m easure w hilst d etained by the p olice.26 N ote for G u idan ce 6C un der C ode D states that these provisions do not prevent the taking of intim ate sam ples in order to enable persons to be elim inated from suspicion of having com mitted certain crim es. W here a person attends a police station voluntarily in order for this to be done, that person should be advised of the e n title m e n t to fre e le g a l a d v ic e and the s a fe g u a r d s re g a rd in g the ro le o f the ap p rop riate ad ult should be observed w'here ap p licable. A ll sam p les taken from persons not suspected of a crim e m ust usually be destroyed at the conclusion of the proceedings, unless they were used to investigate an offence where som eone has been convicted and sam ples were also taken from that convicted person. This is to assist in a later investigation should there be an alleged m iscarriage of justice. Prior to the police requesting an intim ate sam ple, the suspect m ust be warned that refusal w ithout good cause27 m ay harm that person's defence. Note for Guidance 6D provides that the follow ing form of w ords may be used: You do not have to provide this sample/allow this swab or impression to be taken, but 1 must warn you that if you refuse without good cause, your refusal may harm your case if it comes to trial.

A record of the above warning must be made after it is administered. If the suspect is in police detention and not legally represented, that person must be rem inded of the en titlem en t to free legal advice, w hich should, in turn, be entered in the custody record. The suspect should also be told that any sam ple taken m ay be the subject of a speculative search and this fact m ust be duly recorded as soon as practicable in the custody record. Only urine sam ples may be obtained by the police. Dental im pressions may only be obtained by dental practitioners and all other samples m ust be taken by m e d ic a l p r a c titio n e r s , n u rs e s o r r e g is te r e d h e a lth c a r e p ro fe s s io n a ls su c h as paramedics.

Non-intimate samples The definition of non-intim ate sam ples includes non-pubic hair, a sam ple taken from a nail or under it, a swab taken from any part of the body including the m outh (but excluding any other body orifice), saliva, a skin impression such as a footprint or any sim ilar impression of part of a person's body, except part of the hand (because this will usually be a finger or palm print). It should be noted that dental impressions, whilst technically falling under an im pression of part of a person's body, are expressly classed as intimate samples.

26 27

Wasik, M and Taylor, R, Blackstone's Guide to the Criminal justice and Public Order Act 1994 (London: Blackstone, 1995). According to Clark (op cit, fn 19), the term 'good cause' may include religious objections, a p aren t's Delligerence at the prosp ect of h avin g on e's child treated in this manner, drunkenness or general indignation. Ultimately, it is for the jury to decide.

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N o n -in tim a te sa m p le s can b e tak e n w ith o r w ith o u t the a p p ro p ria te w ritte n consent (see fn 24 for w hat constitutes 'appropriate w ritten consent'). W hether or not consent is given, the police should tell the suspect that the sam ple m ay b e the subject o f a specu lativ e search, w hich m ust then b e w ritten in the custod y record after the sam ple has been taken. If the appropriate consent is not given, a non-intim ate sam ple m ay be taken using reasonable force if necessary.28 This w ill apply w here the suspect is being held in police custody on the authority of a court, and w here an officer o f the ran k o f in sp ector or above au th orises the taking o f a sam p le w ithout the su sp ect's consent. T his will occur w here that officer has reasonable grounds for suspecting the suspect's involvem ent in a recordable offence and has reasonable grounds to believe that the sam ple will tend to confirm or disprove his o r her involvem ent in the offence. T h e au th o risatio n m ay be giv en orally initially, b u t m u st be con firm ed in w riting. H o w ever, a n o n -in tim a te sam p le m ay not b e tak en w ith o u t co n se n t if it is a skin im p re ssio n a lre a d y tak e n fro m the sam e p a rt o f the b o d y and it h as n o t p ro v ed insufficient. A n o n -in tim ate sam p le m ay also be taken w ith o u t con sen t, w h eth er or n o t the person is in police d etention or held in police custod y on the authority of a court, if that person has been charged o r reported for a recordable offence and either a n on­ intim ate sam ple has not been taken d uring the investigation or one has been taken, but is unsuitable or insufficient. A non-intim ate sam ple m ay also be taken w ithou t consent w here a person has been convicted of a recordable offence. Section 10 o f the C rim inal Ju stice A ct 2003 h as am ended s 63 o f PACE and inclu ded tw o fu rther grou nd s for taking non-intim ate sam ples w ithout consent, nam ely: The first is that the person is in police detention in consequence of his arrest for a recordable offence. The second is that (a) he has not had a non-intimate sample of the same type and from the same part of the body taken in the course of the investigation of the offence by the police, or (b) he has had such a sample taken but it proved insufficient.

W here applicable, d ep ending on w hether or not such action w as taken during police d ete n tio n o r custod y, the su sp e ct m u st be in fo rm ed o f the a u th o risa tio n an d the grounds or reasons for it w hich, in turn, should be recorded in the custod y record as soon as practicable. A ny n o n -p u b ic h air requ ired as n o n -in tim ate sam p les m ay be p lu ck ed or cut. W here it is necessary to pluck hair for D N A purposes, the suspect should be given a choice as to w hich part o f the body it should be taken from and, norm ally, hairs should be rem oved individually, unless the suspect expresses a contrary w ish. In any event, no m ore should be taken than the police consid er to be reasonably necessary. A ny constable m ay require a person no t in police detention or custody to attend a police station to hav e a non-intim ate sam ple taken w here that person has been charged o r reported for a recordable offence and w here eith er no sam ple w as taken during the investigation or one w as taken, bu t has proved to be unsu itable or insufficient. The sam e provision also applies w here a person has been convicted o f a recordable offence and either no sam ple has been taken or one w as taken, but is insufficient or unsuitable.

28

PACE, s 117. Where force is used to obtain a non-intimate sample, a record must be made of the circumstances which must also include a record of all those present.

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This requirem ent m ust be exercised w ithin one m onth, w here applicable, from either the date that the suspect w as charged or reported, or from the date o f the appropriate officer29 being inform ed o f the unsuitability or insufficiency of the sam ple for analysis or from the date of conviction. The actual period o f notice under w hich the person m ay be required to attend a police station for this purpose is at least seven days and anyone w ho fails to m eet this requirem ent m ay b e arrested w ithout w arrant. It has been subm itted that the above pow er to require the attendance of a suspect also applies to the taking o f intim ate sam ples: Although the procedure seems primarily to be directed at the new powers to take non­ intimate samples without consent, there is nothing in the sub-section to limit it to non­ intimate samples, so it would seem also that a person can be required to attend for the purposes of an intimate sample being taken under the new s 62(1 A) of PACE (where two or m ore non-intim ate sam ples have proved insufficient). H ow ever, this pow er is exercisable only if the suspect gives consent and this cannot be overridden by s 63A, but the power to require attendance may still be useful to the police, since the suspect may, in fact, consent, either because he hopes the sample will clear him or because his refusal permits inferences to be drawn against him under s 62(10).30

The destruction of intimate and non-intim ate samples S a m p le s n eed no t b e d estro y ed if th ey w ere tak en fo r the p u rp o se o f a c rim in a l investigation for w hich som eone has been convicted and from w hom a sam ple w as taken. The retention of sam ples under this provision is designed to allow all sam ples in a case to be available for any later m iscarriage o f ju stice investigation. Sam ples and any inform ation derived from them m ay not be used against any person w ho w ould o th e rw ise b e e n title d to h av e h is o r h er sa m p le d estro y ed . In a d d itio n , sa m p le s (in clu d in g fin g e rp rin ts) m ay b e re ta in e d , b u t o n ly a fte r they h a v e fu lfille d th eir p u rp o se and m u st n o t b e used excep t in the p rev en tion o r d etectio n o f crim e, the investigation o f an offence or the conduct of a prosecution (s 64(1A ) o f PACE). In R (on the A p p lication o f S) v C h ie f C on stable o f South Yorkshire and R (on the A pp lication o f M arper) v C h ief C onstable o f South Yorkshire (2004), the H ou se o f L ords held that the retention o f fingerprints and D N A sam ples under s 64(1A ) o f PACE did not interfere w ith A rt 8(1) or 14 o f the European C onvention on H um an Rights. Lord Steyn stated that the policy o f ch ief co n stab les in retain in g fin g erp rin ts and sam p les, ex ce p t in exceptional circum stances, w as therefore law ful.

29

30

The 'appropriate officer' can have one of two meanings, depending upon which provisions apply in each case. Where a person has been either charged or reported for a recordable offence and has not had a sample taken in the course of the investigation or did have one taken, but it was insufficient or unsuitable for analysis, the appropriate officer will be the investigating officer in the case. Where a person has been convicted of a recordable offence and either a sample has not been taken since the conviction or he has had one taken before or after conviction, but the sample has proved to be unsuitable or insufficient for analysis, the appropriate officer will be the police officer in charge of the police station where the criminal investigation was conducted. Op cit, Wasik and Taylor, fn 26.

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New power to take samples Section 57 of the Crim inal Justice and Court Services Act 2000 inserted a new s 63B and s 63C into PACE. The police now have the power to test persons in police detention for the presence of certain drugs. The main purposes behind this pow er are to assist in the m onitoring of drug m isuse and to provide assistance to the courts when m aking bail d ecisions. This pow er, so far, ap p lies only to heroin, cocain e and 'c ra c k ' cocaine ('sp ecified ' Class A drugs), although there is provision for the H om e Secretary to include other controlled drugs if necessary at a later date. A sam ple of urine or a non-intim ate sam ple such as a saliva swab may be taken from a person in police detention in order to ascertain w hether that person has any of these 'specified' Class A controlled drugs in his or her body. However, there are several conditions that m ust be fulfilled. The detained person m ust be charged with any of the follow ing offences under the T h eft A ct 1968: theft; robbery; burglary; aggravated burglary; taking a conveyance w ithout consent; aggravated vehicle taking; obtaining p rop erty by d ecep tion; and going equipped for stealin g, or any of the follow ing offences under the M isuse of Drugs A ct 1971: the production or supply of controlled d rugs; sim p le p o ssessio n ; or p o ssessio n w ith in ten t to supply. A ltern atively, the detained person m ay be charged w ith another offence, but m ay still fall w ithin the scope of this power. This will apply if an inspector or above has reasonable grounds for su sp e ctin g th at the m isu se o f any o f the sp e cifie d C lass A d ru g s cau sed or contributed to the offence, and subsequently authorises the drug test accordingly. The detained person must be at least 14 years old31 and will only be obliged to provide a body sample where this is requested by the police, including where an authorisation has been made by an inspector or above. A warning must then be given that a failure to p ro v id e a sam p le w ith o u t good cau se is an o ffen ce p u n ish ab le on su m m ary conviction, to a maxim um of three m onths' im prisonm ent32 a n d /o r a level 4 fine on the standard scale (currently £2,500). Force may not be used to obtain a sample. Where the detainee is under 17 years old, an appropriate adult must be present. Section 57 of the Crim inal Justice and Court Services A ct also am ended s 38 of PACE ('duties of custody officer after charge'). As discussed in Chapter 5, the custody officer is under a duty to release a suspect once charged, unless certain conditions are present. Section 57 inserted an additional ground for detaining suspects after charge where a drug test is required, although this is restricted to a time limit of no more than six hours from the time that the charge was made. This pow er is currently being exercised by a selected num ber of police stations within a limited range of police areas for the m ain age groups. The H ome Secretary will be empowered to change a num ber of these provisions where appropriate. These include extending, where necessary, the range of specified Class A drugs as mentioned above, and he m ay extend the drug testing provisions to persons arrested, but not charged, with a relevant offence. The H ome Secretary will also be under a duty to m ake regulations regarding the taking of sam ples from detained persons, including provisions as to who m ay perform this procedure. The procedures under ss 63B and

31 32

This was reduced from 18 to 14 years by s 5 of the Criminal Justice Act 2003, although currently some police areas are still piloting this drug testing power, based on the original minimum age criteria of 18. Due to be increased to 51 weeks by the Criminal Justice Act 2003.

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63C o f PACE are covered in C ode C under paras 17.1-17.14, as w ell as N otes for Guidance 17A -G . In addition, A nnexes I and J to Code C list the police areas currently participating in this schem e. A nnex I lists 19 police forces where the pow er to test persons for specified Class A drugs has been brought into force, but only for 18 year olds and above. A nnex J lists seven of these police forces w hich are also using this pow er for 14 year olds and over.

INDEPENDENT CUSTODY VISITORS This chapter w ould not be com plete w ithout m en tioning an im portant safeguard regarding the general treatment of persons who are detained by the police. Section 51 of the Police Reform Act 2002 has placed the inspection of custody facilities at police stations on a statutory footing. For m any years, volunteers who are not part of the police service or any other aspect o f the crim inal ju stice system have been visiting custody suites in order to inspect the conditions under w hich detainees are held, as well as report on their treatm ent. Previously, this was done on an optional basis by police authorities, but it is now a m andatory requirem ent which will be supported by a code of practice in order to ensure greater uniformity. This code of practice m ust be issued by the H om e Secretary, and may be revised where necessary. Before issuing or revising this code, the H ome Secretary is under a duty to consult with representatives of police authorities, chief officers of police, and any other persons as he thinks fit. P olice au th orities are under a duty to m ake arrangem en ts for d etainees to be visited by independent custody visitors, and to keep these arrangem ents under review. They m ust be independent of the relevant police authority and the chief officer of police for that area. Police authorities may confer independent custody visitors with such pow ers as are considered necessary in the exercise of their functions, w hich in particular may include the following: •

To require access to be given to each police station.

•

To exam ine records relating to the detention of persons.

•

To m eet d etainees for the pu rposes of a discu ssion about their treatm ent and conditions while detained.

•

To in s p e c t th e fa c ilitie s in c u s to d y s u ite s in c lu d in g , in p a r tic u la r , c e ll accom m odation, w ashing and toilet facilities, and the facilities for the provision of food.

Provision may be m ade regarding the denial of access by an independent custody visitor to a detainee on the authority of an inspector or above in specific circumstances. However, the grounds for such action m ust be in accordance with the code of practice.

C H A PT ER 7 PO LIC IN G BY C IV ILIA N S

INTRODUCTION The use of civilian em ployees in assisting the police has been an ongoing process for many years. One of the most com m on and long-standing exam ples of this trend is the perform ance of adm inistrative and general office duties by civilian staff. As time has progressed, they have becom e involved in more specialised and direct support roles w ithin the police service, such as Scenes o f Crim e O fficers (SOCO s). H owever, the Police Reform A ct 2002 has made very significant changes to the police service as a whole, som e of w hich have already been discussed earlier in this book. The part of the 2002 Act that will be the focus of this chapter is Pt 4, Chapter 1 and Scheds 4 and 5, for it is these parts of the Act that created the concept of the 'extended police family'. Am ong many other things, the Governm ent W hite Paper entitled Policing a Neiv Century: A Blueprint fo r Reform 1 proposed a new dim ension in the civilianisation of certain aspects of police work. It is im portant at this stage to distinguish this concept from the special constabulary, mentioned in Chapter 1. As discussed in that chapter, the special constabulary is the voluntary, unpaid section of the police service, where suitable men and w om en are sworn in or attested as constables in the sam e w ay as regular police officers. Although their training and overall scope is subject to certain lim itations com pared to their full time counterparts, special constables often fulfil an im portant role in m any front-line police duties, and this w as acknow ledged in the G ov ern m ent W hite Paper. Its m ain em ph asis on 'sp e cia ls', how ever, w as centred around their recruitm ent and retention, as increased num bers o f unpaid volunteers w ithin a high cost public service is alw ays an attractive proposition. Concern was expressed regarding the dim inishing num ber of specials overall, and proposals were put forw ard that w ere designed to enhance recruitm ent and retention rates; these included more effective m anagem ent of specials and a greater use of their time and skills. With very m inor exceptions, specials wear the sam e uniform and carry the same basic equipm ent as regular police officers; they also have full police pow ers both on and off duty. The only slight difference is that specials may only exercise these powers within their own police area and also within im m ediately adjoining police areas. This is in contrast to regular police officers, who have nationw ide jurisdiction, although if specials are deployed outside their normal police area on mutual aid, they have full police powers within that area. The special constabulary w as instituted as far back as 1831 - just two years after the M etropolitan Police in London were created. Since then, the specials have played an important role in the policing of this country, especially at crucial times in our history.2 The special constabulary could therefore be described as part of the police family but not an 'extended' part of it, unlike the civilians described in the Police Reform A ct 2002.

1 2

Cm 5326, Home Office, 2001. These include the Chartist march on London in 1848, the Trafalgar Square riots of 1887, the Railway Strike of 1911, the General Strike in 1926, and both World Wars, to name but a few.

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T h e in tr o d u c to r y p a g e s o f th e G o v e r n m e n t W h ite P a p e r c o n ta in e d a b ro a d statem en t o f the intention to create the exten d ed police fam ily b y saying: Front line policing can be strengthened by enhancing the role of police support staff, and by giving them new powers which will allow them to take over tasks currently carried out by police officers for example in custody suites. Other support staff ('Community Support Officers') will be empowered to carry out basic patrol functions. They will provide a visible presence in the community with powers sufficient to deal with anti­ social behaviour and minor disorder. Staff from outside the police service may also be given limited powers subject to the necessary training and police accreditation.3 A fu rth er in d ication as to the form ation o f the exten d ed police fam ily w as giv en later in the W h ite P ap er reg ard in g 'sp e cia list civ ilian in v e stig ato rs', w here it stated: Money laundering, fraud, intellectual property theft, and other crimes are becoming increasingly sophisticated. Information technology and communications systems are both the means of crime and its object - and at the same time vital investigative tools in the fight against criminals. Too few officers currently have the necessary skills to deal with the most complex IT based crime. Even with more specialist detectives w'e will not be able to guarantee an adequate capacity in the most specialised fields. We must be able to attract career specialists in these areas to work as part of police investigative teams. Chief officers can already appoint civilians from these backgrounds, but they are unable themselves to exercise police powers necessary to pursue an investigation; and they have limited career opportunities open to them. Civilian investigators must be able to function as a full member of a police investigating team. They should have the capacity to supervise and direct police officers in relevant parts of an investigation, acting under the Senior Investigating Officer. Given the right skills, such staff should also be able to take on the role of Senior Investigating Officer themselves in time. To be fully effective, they would need to be given certain police powers. These would include, for example, authority to search and seize evidence, to interview suspects and witnesses, to execute warrants and to present evidential summaries as expert witnesses.4 In co n n ectio n w ith the ab o v e, p articu lar referen ce w as later m ad e reg ard in g scen es o f crim e officers: More than three-quarters of Scenes of Crime Officers arc now support staff rather than police officers. Since most of their work is carried out on the basis of consent, they arc normally able to conduct their business effectively without the need for formal powers. It would be sensible, however, to provide for the occasions when this is not the case, to ensure that they have the necessary powers of entry, search and seizure to enable them to preserve evidence which might otherwise be lost.5 O n 2 4 Ju ly 2002, the P olice R eform A ct receiv ed the R oy al A ssen t, an d p a rt o f its long title is thus: '. . . to p ro v id e for th e exercise o f p o lice p o w ers b y p erso n s w h o are n o t p o lice o fficers . . . ' T h is p a rt o f the A ct p u t into effect the co n cep t o f th e e xten d ed po lice fa m ily , w h ic h c a m e in to fo r c e o n 2 D e c e m b e r 2 0 0 2 . Its p r o v is io n s w ill n o w b e d iscu ssed .

3 4 5

Op cit, fn 1,3. Op cit, fn 1,44. Op cit, fn 1,81.

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CIVILIANS GIVEN POLICE POWERS Part 4, Chapter 1 and Scheds 4 and 5 to the Police Reform Act 2002 have created five m ain classes of designated civilians who have been given a range of police powers, and these com prise the extended police family-6 These are as follows: •

com m unity support officers;

•

investigating officers;

•

detention officers;

•

escort officers;

•

accredited civilians.

(See the diagram in A ppendix 13.) Section 38(1) of the 2002 A ct em pow ers chief officers o f police in England and Wales to designate any person em ployed by his or her police authority to perform one or more duties of any of the first four listed above. In other words, with the exception of accredited civilians, a person may be appointed to perform more than one set of duties. For instan ce, a person m ay be d esignated as an esco rt officer as w ell as a detention officer, although som e designated civilians may only perform one function. It is very im portant to note that all designated and accredited civilians are subject to the provisions of the PACE Codes of Practice.

Community support officers Com m unity support officers (CSOs) are the most visible of all the designated civilians working as part of the extended police family, and possibly the m ost controversial. Currently, m ost police forces in England and Wales em ploy CSOs, and their num bers are destined to increase significantly over the next few years and possibly beyond. It is im p o rtan t to n ote that C SO s are not the sam e as com m u n ity or neigh b ou rh o od wardens, or sim ilar classes of persons who are engaged in com m unity safety duties, for instance. The latter could be included as part of a com m unity safety accreditation schem e and becom e accredited civilians, although others m ay not. This will be covered later in this chapter. All CSOs are em ployees of the police authorities within the police areas where they perform their duties, and are under the direction and control of the relevant chief officer of police for that area. Section 38(4) of the 2002 Act states that no one m ay be designated to perform any of these duties unless the chief officer o f police is satisfied that they are suitable cand id ates w ho are capable of effectively perform in g these duties, and have received the appropriate training. The 2002 Act contains a range of police pow ers that may be conferred on CSO s at the discretion of their chief police officers. This means that all or som e of them may be conferred on CSOs depending on local needs. This provision w as questioned in Parliament when the Police Reform Bill

6

A substantial increase in the powers of CSOs was effected by the Anti-social Behaviour Act 2003 which, in turn, amended the Police Reform Act 2002. These changes have been incorporated in the list of their powers accordingly. See Jason-Lloyd, L, 'Community support officers: more powers in the pipeline' (2003) 167 jP 34, 23 August. See also Jason-Lloyd, L, 'A new dimension in policing' (2002) 166 jP 4 5 ,9 November.

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was being debated. It w as argued that this could cause confusion in different areas if C SO s had v ary in g p o w ers. Som e asserted that a m ore co n siste n t ap p roach w as desirable where all CSOs had the sam e powers, regardless as to where they worked. Section 38(7) states that C SO s (or other d esignated civ ilians) m u st not engage in conduct that is outside the scope of their em ploym ent and that they shall be subject to any restrictions and conditions regarding their designation. This prohibits them from exceed in g their p ow ers, and in clu d es n ot p lacing th em selves on duty w hen not working, as police officers do in appropriate circum stances. Section 38(8) covers the use of reasonable force and states that w hen a C SO (or other d esignated civilian) exercises any pow er which is also a police power, and the use of reasonable force is part of it, that CSO may also use reasonable force where necessary. Section 38(9) also addresses the use of force and provides that where a pow er to enter prem ises is part of a C SO s d u ties (or o th er d esignated civ ilian s), this m u st only be exercised in the com pany and under the supervision of a police officer. The exception to this rule is where it is necessary for the CSO (or other designated civilian) to force entry in order to s a v e life o r lim b o r p r e v e n t s e r io u s d a m a g e to p ro p e rty . In an y o f th e s e circumstances, it is not necessary to be accom panied by a police officer. A lthough s 38 is addressed to all designated civilians, Sched 4, Pt 1 of the 2002 Act s p e cific a lly ad d resses the p o w ers and d u ties o f C SO s. B efore listin g th ese, it is important to mention that not all these pow ers m ay necessarily be conferred upon any designated civilian, including CSOs. The pow ers listed under this part of the 2002 Act m ay be g iv en in w h o le or p a rt at the d iscre tio n o f each c h ie f o ffic e r o f p o lice. Furtherm ore, they may also im pose restrictions and conditions on any of these powers, such as where and when they may be used.

Schedule 4, Pt 1, para 1: poivers to issue fixed penalty notices U nder para 1(2) of Sched 4, Pt 1 of the 2002 Act, the offences to which CSOs have the pow er to issue fixed penalty notices are as follows where there is reason to believe that the offender is aged at least 10 years:7 (a) The powers of a constable in uniform, or an authorised constable, to give a penalty notice under Chapter 1 of Part 1 of the Criminal Justice and Police Act 2001 (fixed penalty notices in respect of offences of disorder).8 (aa) The power of a constable to give a penalty notice in respect of failure to secure a pupil's regular attendance at school. (b) The power of a constable in uniform to give a person a fixed penalty notice for riding a bicycle on a footway. (c) The power to give a fixed penalty notice in respect of dog fouling. (ca) The power of an authorised officer of a local authority to give a notice under s 43(1) of the Anti-social Behaviour Act 2003 (penalty notices in respect of graffiti or flyposting). (d) The power to give a fixed penalty notice in respect of litter.

7 8

This was reduced from 18 to 16 years by s 87(2) of the Anti-social Behaviour Act 2003, then reduced to 10 vears by the Penalties for Disorderly Behaviour (Amendment of Minimum Age) Order 2004 (SI 2004/3166). These offences are listed under paragraphs (a)-(r) at the end of Chapter 3 (police powers of arrest).

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The issuing of a fixed penalty notice regarding any of the above offences is, of course, contingent on the person providing his or her correct nam e and address. In the event of a failure to do so, there are m easures designed to deal with those who either refuse to provide these particulars or give false details. These measures are covered below. D esignated CSO s may be given further pow ers to require a suspect's nam e and address, and the offences to w hich they relate are to be found under para 2(6)(b)(i) and (ii) as follows: (e) an offence which appears to have caused injury, alarm or distress to any other person, or which involves any other person's property being lost or damaged; (f) an offence under s 32(2) of the Anti-social Behaviour Act 2003.

The broad description of offences under (e) can include a very wide range of crimes such as crim inal dam age, non-fatal harms against the person, public order offences, and even h om icid es! The offence un der (f) is related to s 30(4) of the A nti-social B eh a v io u r A ct 2003 w h ich e m p o w e rs d e sig n a te d C S O s (and p o lic e o ffic e rs in uniform ), inter alia, to disperse groups of persons acting in an anti-social manner. U nder s 32(2) of the 2003 Act, it is an offence to contravene a direction by a CSO (or the police) to disperse (see further below). It should be noted that under para 2(6), all the offences (a) to (f) are regarded as 'relevant offences'.

Paragraph 2: power to detain, etc As mentioned above, a designated CSO may require a person to give his or her name and address if any of the relevant offences have been com m itted. If the person refuses to give those particulars, or the CSO has reasonable grounds to suspect that those details are false, the CSO may require that person to wait with him or her for up to 30 minutes for a police officer to arrive (sub-para (3)). Alternatively, sub-para (4) provides that a person liable to be d etained under that pow er m ay be given the option to accom pany the C SO to a police station. A nyone w ho fails to provide a nam e and address or gives false particulars, or m akes off w hen subject to the 30 minute detention power or makes off w hen accom panying a CSO to a police station, com m its an offence; this is punishable by a m axim um level 3 fine (£1,000). Up until recently, six police forces have been piloting the use of the C SO s d etention pow er un der a tw o-year evaluation scheme. The Police Reform Act 2002 (Com m encem ent No 10) O rder 2004, now enables designated CSOs in all police areas to exercise the detention power, as well as use the accom panim ent to the police station option.

Paragraph 3: power to require name and address of persons acting in an anti­ social manner Designated CSOs have the pow er of a police officer in uniform to exercise the power under s 50 of the Police Reform Act 2002. Paragraph 3(1) of Sched 4 enables a CSO who has reason to believe that a person has been or is acting in an anti-social m anner to require that person to provide their nam e and address. U nder s 50(2) o f the Police Reform Act, failure to provide these details or the giving of false particulars is an offence punishable by a m axim um level 3 fine. A person w ho refuses to give their nam e and address or gives false particulars m ay also be subject to the 30 m inute detention power, or the option to accom pany a designated CSO to a police station. A

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further offence will be com mitted if that person makes off either when being detained or w hen accom panying the CSO to a police station.

Paragraph 4: power to use reasonable force to detain a person A designated CSO may use reasonable force to prevent a person m aking off w ho is either being detained under the 30 minute detention pow er or is accom panying the CSO to a police station.

Paragraphs 4A and 4B: power to disperse groups and remove young persons to places of residence Designated CSO s (as m entioned above) have the pow ers o f a uniform ed constable un der s 30 o f the A nti-social B eh aviou r A ct 2003 to d isperse groups and rem ove persons under 16 years old to their places of residence. Paragraph 4B gives designated CSOs the power of a constable to rem ove children to their place of residence who are in contravention of a local child curfew. Both 4A and 4B are also mentioned in Chapter 3 (police pow ers of arrest).

Paragraph 5: alcohol consumption in designated public places Section 12 of the Crim inal Justice and Police A ct 2001 states that where a police officer reasonably believes that a person is, or has been, consum ing intoxicating liquor in a designated public place, or intends to do so, that police officer may require a person not to con su m e the d rink in that p lace, to su rren d er it, and the officer m ay then d isp o se o f it. F a ilu re to co m p ly w ith any o f th e se re q u ire m e n ts is an o ffe n c e punishable by a m axim um level 2 fine (£500), although there m ust be prior warning that failure to com ply w ith any requirem ent is an offence. Paragraph 5 o f Sched 4 enables designated CSO s to im pose the sam e requirem ents as the police as well as dispose of the alcoholic drink. H ow ever, there is one fundam ental difference: any fa ilu re by a p e rso n to co m p ly w h en d irected by a p o lice o ffic e r c o n stitu te s an arrestable offence, whereas this is excluded from the specific provisions of para 5 of Sched 4. This anomaly, and m any others, will be discussed towards the end of this chapter.

Paragraph 6: confiscation of alcohol This power was originally given to the police under s 1 of the Confiscation of Alcohol (Young Persons) A ct 1997.9 This pow er is sim ilar to that con tain ed in s 12 o f the C rim inal Justice and Police A ct 2001, except that it applies to the confiscation and disposal of alcoholic drink from persons under 18 years old and persons w ho are n e a rb y (th is is up to the ju d g e to d ecid e) and o v er 18. T h ere is the a d d itio n a l

9

See Jason-Lloyd, L, 'The Confiscation of Alcohol (Young Persons) Act 1997: an overview' (1997) 161 JP 3 7 ,1 3 September and 'The Confiscation of Alcohol (Young Persons) Act 1997: implications for the police service' (1997) LXX The Police Journal 4, October-December.

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requirement that the person provides their name and address, and it is an offence if the person fails to do this or surrender the alcohol. The maximum penalty for this offence is a fine not exceeding level 2. Although the police have a power of arrest for this offence, this has been expressly removed by para 6 and thus it is not available to CSOs.

Paragraph 7: confiscation of tobacco, etc Section 7(3) of the Children and Young Persons Act 1933 enables police officers in uniform to confiscate and dispose of tobacco and cigarette papers from persons under 16 years old in public places; this power is extended to designated CSOs.

Paragraph 8: entry to save life or limb or prevent serious damage to property The high visibility of CSOs on the streets will inevitably lead to them being called upon to deal with m any m atters concerning public safety that do not necessarily involve law enforcement. The provision under para 8 mirrors s 17 of PACE, which enables the police to enter and search any premises in order to save life or limb, or to prevent serious damage to property. Designated CSOs have also been given the same powers, including the power to use reasonable force in the execution of this duty and, furthermore, they do not have to be accompanied by a police officer at the time.

Paragraph 9: seizure of vehicles used to cause alarm, etc In response to increasing concerns regarding persons who engage in anti-social and dangerous behaviour, s 59 of the Police Reform Act 2002 has given a power to the p o lic e in o rd e r to d ea l w ith m o to r v e h ic le s th a t are d riv e n c a re le s s ly and inconsiderately, or driven off the road, and which cause, or are likely to cause, alarm, distress or annoyance to the public. U nder this power, w here a police officer in uniform reasonably believes that a motor vehicle is being used in this manner, he or she may stop the vehicle if it is moving, and seize and remove it. The latter may be effected by entering premises, unless this is a private dwelling house, and reasonable force may be used if necessary in effecting any of these powers. Under sub-s (4), a warning must usually be given before a motor vehicle may be seized, although there are exceptions to this rule as stated in sub-s (5). These powers are subject to regulations made by the Home Secretary under s 60 of the Police Reform Act 2002. Anyone who fails to stop when directed to do so by a police officer in uniform commits an offence punishable by a maximum level 3 fine (£1,000). Paragraph 9 of Sched 4 empowers designated CSOs to exercise nearly all of the above powers of a police officer. The exception is that when exercising the power to enter premises, a CSO may only do this when in the presence of a police officer.

Paragraph 10: abandoned vehicles Paragraph 10 of Sched 4 enables designated CSOs to exercise the power of a constable to remove, or arrange the removal of, abandoned vehicles. This power exists under various regulations made under s 99 of the Road Traffic Regulation Act 1984.

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Paragraph 11: power to stop vehicle for testing Paragraph 11 of Sched 4 gives designated CSOs the power of a constable in uniform to stop a vehicle in order to test it. This power originates from s 67(3) of the Road Traffic Act 1988.

Paragraph 11A: power to stop cycles Under para 1(b), mentioned above, a designated CSO may issue a fixed penalty notice in respect of persons riding on the footway. Shortly after this provision was put into force, it was discovered that they had no power to actually stop cycles being ridden in o rd e r to issu e su ch a n o tice . S u b se q u e n tly , th is new p ara 11A w as in serted empowering CSOs initially to stop cyclists riding on the footway in order to use their powers under para 1(b).

Paragraph 12: power to control traffic for the purposes of escorting a load of exceptional dimensions Designated CSOs are empowered to regulate road traffic and pedestrians when in the process of escorting vehicles or trailers that are carrying abnormal loads. This includes powers to direct vehicles and pedestrians to stop, or direct vehicles to proceed in or keep to a particular line of traffic. Under ss 35 and 37 of the Road Traffic Act 1988, failure to com ply with such directions by the police is an offence punishable by a maximum level 3 fine. This will also apply where the directions are made by a CSO. Designated CSOs performing their duties under para 12 of Sched 4 are the exception to the rule that CSOs may only perform duties within their own police area. As their traffic escort duties may take them outside their particular areas, sub-para (3) states that: T h e powers conferred by virtue of this paragraph may be exercised in any police area in England and Wales.'

Paragraph 13: carrying out road checks In Chapter 2 (police powers of stop and search), coverage was made regarding s 4 of PACE in respect of road checks (or road blocks) by the police. Paragraph 13 of Sched 4 confers the same powers to designated CSOs, including the general power to stop vehicles under s 163 of the Road Traffic Act 1988. However, it should be noted that the powers under s 4 of PACE do not extend to searching the vehicle or its occupants. The police may only do this under specific powers that have not been conferred upon CSOs.

Paragraph 14: cordoned areas CSOs may be used in a number of situations in order to assist the police in dealing with terrorism. Those CSOs designated for this purpose are authorised under para 14 of Sched 4 to exercise all the powers of uniformed constables to give orders, make arrangements or impose prohibitions or restrictions, within areas cordoned-off under s 36 of the Terrorism Act 2000. The complete range of powers to impose cordons were covered under Chapter 2 (police powers of stop and search), although note that the

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powers under para 3 of Sched 5 to the 2000 Act (entry, search and seizure within premises) do not apply to CSOs.

Paragraph 15: power to stop and search vehicles, etc, in authorised areas Further anti-terrorism duties may be designated to CSOs by para 15 of Sched 4 of the Police Reform Act 2002. This confers upon them the pow ers of uniformed police officers of stop, search and seizure under ss 44(1 )(a), (d), (2)(b) and 45(2) of the Terrorism Act 2000. The full scope of police powers under ss 44-47 of the 2000 Act was given in Chapter 2, although there are some important restrictions on the use of these powers by CSOs compared with police officers. First, CSOs must confine their searches to property carried in or on vehicles, or carried by persons either in vehicles or on foot; in other words, they must not search persons, but only items such as bags and cases. Secondly, CSOs must be under the supervision of a police officer when exercising their powers of stop, search and seizure.

Investigating officers Schedule 4, Pt 2 In the introduction to this chapter, the intended role for civilian investigating officers (IOs) was briefly discussed. These are now part of the extended police family, and the powers and duties of this class of designated civilians under the Police Reform Act 2002 are specified under Pt 2 of Sched 4 below. It is important to note that these powers may only be exercised within the IO's police area.

Paragraph 16: search warrants Designated IOs have the power of a police officer to apply to a justice of the peace for a warrant to enter and search premises in accordance with s 8 of PACE. Any warrant issued must include the IO who applied for it and the premises in question must be within the police area where the IO is based. The power under s 8(2) of PACE to seize and retain anything relating to the search also applies to a designated IO as it does to a police officer. IO s are also subject to the following provisions under PACE, as are the police, regarding safeguards and procedures in the exercise of their powers: s 15 (safeguards); s 16 (execution of warrants); s 19(6) (protection for legally privileged m aterial from seiz u re ); s 20 (e x te n sio n of p ow ers of seizu re to com p u terised information); s 21(1) and (2) (provision of record of seizure); ss 21(3) to (8) and 22 (access, copying and retention).

Paragraph 17: access to excluded and special procedure material D esignated IOs have the sam e pow ers as police officers in relation to access to excluded material or special procedure material under s 9(1) of and Sched 1 to PACE. IOs are also subject to the following duties and safeguards under PACE: s 15, s 16, s 19(6), s 20, s 21(1) and (2), s 21(3)-(8) and s 22.

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Paragraph 18: entry and search after arrest The pow ers and duties of police officers to enter and search prem ises w ithout warrant under s 18 of PACE are also conferred on designated IO s (see Chapter 4). They are also subject to the following controls and obligations under PACE: s 19(6), s 20, s 21(1) and (2), s 21(3)-(8) and s 22.

Paragraph 19: general power of seizure When lawfully on prem ises, designated IO s will have the sam e pow ers of seizure as a p o lice o fficer u n d er s 19 o f PACE, and w ill also h av e the p o w er to requ ire any com puterised information to be produced in a form where it can be removed and is visible and legible. In the exercise of these powers, IOs are under a duty to com ply w ith the fo llo w in g p ro v isio n s o f PACE: s 19(6) (p ro tectio n of leg ally p riv ileg ed material), s 21 and s 22.

Paragraph 20: access and copying in the case of things seized by constables D esignated IOs are u n d er the sam e d u ties as a p o lice o fficer w ith regard to the following provisions under PACE: s 21(3), (4) and (5).

Paragraph 21: arrest at a police station for another offence Section 31 of PACE enables a constable to arrest a person for a further offence where that person is already detained at a police station having been arrested for an offence. This power m ay be exercised by designated IOs to w hom the provisions of s 36 of the C rim inal Justice and Public O rder A ct 1994 m ay apply (consequences of failure by arrested person to account for objects, substances or marks).

Paragraph 22: poiver to transfer persons into custody of investigating officers This provision enables a custody officer to transfer a suspect in police detention to an IO w ho is investigating the offence. The suspect will then be in the designated IO 's lawful custody and the IO will be under a duty to prevent the suspect's escape, in w hich reasonable force m ay be used if necessary. In addition to these pow ers and duties, an IO also will be subject to the sam e responsibilities in relation to the detained person as a police officer under s 39(2) and (3) of PACE.

Paragraph 23: poiver to require arrested person to account for certain matters A designated IO has the pow er of a constable, under ss 3 6 (l)(c) and 37 (l)(c) of the Crim inal Justice and Public O rder A ct 1994, to request a suspect to account for the presence of an object, substance or mark, or for his or her presence at a particular place (see also para 21 above).

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21 9

Paragraph 24: extended powers of seizure In C hapter 4, the relatively new extended pow ers o f seizure w ere discussed. This is the p o w e r to 's e iz e and s ift' u n d e r P t 2 o f the C rim in a l Ju s tic e and P o lice A ct 2001. D e s ig n a te d IO s m a y a lso e x e r c is e th is p o w e r as w e ll as p o lic e o ffic e r s w h e re appropriate. This also applies to s 56 o f the 2001 A ct (retention of property seized by a constable).

Paragraph 24A: persons accompanying investigating officers Paragraph 19 of Sched 1 to the Crim inal Justice A ct 2003 inserted this new para 24A into Sched 4, Pt 2 to the Police Reform A ct 2002. T his w as necessary in view of the enhanced role of certain civilians, as w ell as IOs, in the execution of search w arrants and the seizure of property. The text o f para 24A is as follows: (1) This paragraph applies where a person ('an authorised person') is authorised by virtue of section 16(2) of the 1984 Act to accompany an investigating officer designated for the purposes of paragraph 16 (or 17) in the execution of a warrant. (2) The reference in paragraph 16(h) (or 17(c)) to the seizure of anything by a designated person in exercise of a particular power includes a reference to the seizure of anything by the authorised person in exercise of that power by virtue of section 16(2A) of the 1984 Act. (3) In relation to any such seizure, paragraph 16(h) (or 17(e)) is to be read as if it provided for the references to a constable and to an officer in section 21(1) and (2) of the 1984 Act to include references to the authorised person. (4) The reference in paragraph 16(i) (or 17(f)) to anything seized by a designated person in exercise of a particular power includes a reference to anything seized by the authorised person in exercise of that power by virtue of section 16(2A) of the 1984 Act. (5) In relation to anything so seized, paragraph 16(i)(ii) (or 17(f)(ii)) is to be read as if it provided for (a) the references to the supervision of a constable in subsections (3) and (4) of section 21 of the 1984 Act to include references to the supervision of a person designated for the purposes of paragraph 16 (or paragraph 17), and (b) the reference to a constable in subsection (5) of that section to include a reference to such a person or an authorised person accompanying him. (6) Where an authorised person accompanies an investigating officer who is also designated for the purposes of paragraph 24, the references in sub-paragraphs (a) and (b) of that paragraph to the designated person include references to the authorised person. Investigating officers are not solely confined to the police service. Section 38(3) o f the Police Reform A ct enables the Director G eneral o f the N ational Crim inal Intelligence Service or the Director G eneral o f the N ational C rim e Squad to designate persons as investigating officers as em ployees o f their Service Authority.

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Detention officers Schedule 4, Pt 3 The next tw o classes of designated civilians to be covered in this com m entary are detention officers and escort officers. A lthough s 38 of the Police Reform A ct provides that both may be em ployed by police authorities, s 39 enables police authorities to enter into a contract with com panies who m ay supply the services of detention officers and escort officers (see A ppendix 13). W here designated accordingly by the relevant chief officer of police, these civilians may have the sam e pow ers and duties as those who are directly employed by the police authorities. Section 38(1) states that a civilian may be designated to perform one or more functions listed in sub-para (2), nam ely that of a com m unity support officer, investigating officer, detention officer or escort officer. It has been stated that in the case of the last two, a designated civilian may perform the duties of both.10 First, the role of detention officers (DOs) will now be exam ined under Sched 4, Pt 3 to the Police Reform Act 2002.

Paragraph 25: attendance at police station for fingerprinting D esig n ated D O s h av e the p ow er o f a p o lice o fficer to requ ire the atten d an ce o f suspects at a police station w ithin the relevan t police area, in order to have their fingerprints taken in accordance with s 27(1) of PACE.

Paragraph 26: non-intimate searches of detained persons Designated DOs have the pow er of police officers to carry out non-intim ate searches of detained persons under s 54 of PACE, including the seizure and retention of anything discovered in the course of the search. However, the provisions under s 54(6C) and (9) of PACE apply to DOs as well as to police officers regarding certain safeguards in the exercise of these searches. R easo n able force m ay be used w here n ecessary w hen conducting these powers.

Paragraph 27: searches and examinations to ascertain identity As seen in that part of Chapter 5 w hich dealt with the searching of detained persons, s 54A o f PACE e m p o w e rs th e p o lic e to e x a m in e a n d / o r s ea rch d e ta in e e s for identifying marks. This pow er may be exercised with or w ithout the detainee's consent and reasonable force may be used w here necessary. U nder para 27 of Sched 4, this pow er is also conferred upon designated DOs.

10 See Jason-Lloyd, L, Quasi-Policing (London: Cavendish Publishing, 2003), p 64.

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Paragraph 28: intimate searches of detained persons Chapter 5 also dealt with the police power to carry out intimate searches of detained suspects under s 55 of PACE (except instances where only medical personnel may conduct the search). Designated DOs have been given this power, which includes all the relevant safeguards under PACE, including the power to use reasonable force where necessary.

Paragraph 29: fingerprinting without consent D esig n ated DO s h av e the p o w er o f a co n sta b le , u n d er s 61 o f PACE, to take fin gerp rin ts w ithout con sent using reasonable force if necessary. They are also authorised to exercise the requirement under s 61(7A)(a) of PACE to inform a suspect, prior to taking his or her fingerprints, that he or she may be the subject of a speculative search.

Paragraph 30: warnings about intimate samples Designated DOs have the power of a constable to give the following information to detained suspects prior to the taking of intimate samples under s 62(7A)(a) of PACE: (7A) If an intimate sample is taken from a person at a police station (a) before the sample is taken, an officer shall inform him that it may be the subject of a speculative search.

Paragraph 31: non-intimate samples Police powers and duties under s 63 of PACE regarding the taking of non-intimate samples, is also given to designated DOs. This includes, inter alia, using reasonable force if necessary where consent is not given, as well as informing suspects that the non-intimate sample may be the subject of a speculative search.

Paragraph 32: attendance at police station for the taking of a sample Police powers under s 63A(4) of PACE may be given to designated DOs. As seen in Chapter 6, this is the power to require a person who is not in police detention to attend a police station in order to have a sample taken.

Paragraph 33: photographing persons in police detention Section 64A of PACE makes provision for a person detained at a police station to be photographed, with or without their consent. Those persons may also be required to remove anything that is worn which conceals all or part of the face or head. In the event of a refusal to comply with this requirement, the person proposing to take the photograph may remove the item or substance. If necessary, reasonable force may be used in the exercise of these powers. Paragraph 33 of Sched 4, Pt 3 to the Police Reform Act confers police powers on designated DOs in order that they may perform these duties under s 64A of PACE.

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Escort officers Schedule 4, Pt 4 As mentioned above, escort officers as well as detention officers may either be directly em ployed by police authorities or their services m ay be con tracted -out by private s e c to r o r g a n is a tio n s . W h ic h e v e r a p p lie s , th e y h a v e th e sa m e p o w e rs a n d responsibilities, and must be suitable persons to perform these tasks, including being properly trained for this purpose. The pow ers and duties that may be conferred upon designated escort officers (EOs) under Sched 4, Pt 4 are as follows.

Paragraph 34: poiver to take arrested person to a police station A designated EO has the pow er to take a person to a police station w ho has been arrested elsew here. This may not have to be done im m ediately if, for instance, the arrested person is needed som ew here else for investigative purposes before being taken to a police station. In the exercise of this power, designated EOs are treated as having arrested persons in their lawful custody and are under a duty to prevent their escape. EOs also have the power to conduct non-intim ate searches of arrested persons and seize and retain anything found. Reasonable force may be used where necessary in the exercise of these pow ers. D esignated EO s are, how ever, subject to the sam e safeguards and restrictions under PACE that apply to the police in respect o f the searching of suspects.

Paragraph 35: escort of persons in police detention Custody officers at police stations may authorise a detainee's transfer to other police stations or elsew here. The detainee m ay then be placed into the law ful custody of designated EOs, w ho will be subject to the sam e pow ers and duties as m entioned above un der para 34 regarding search es and p reventing the escap e o f d etainees, including the use of reasonable force, as well as ensuring their proper treatment. EOs conducting these transfers are not confined to destinations within their police area.

Accredited civilians Community Safety Accreditation Schemes Sectio n 40 o f the P olice R eform A ct 2002 in tro d u ces th is new sch em e, w h ich is designed to extend limited police pow ers to persons already engaged in com m unity safety duties. These include local authority street and neighbourhood wardens, as well as football stewards and security guards within the private security industry, to name but a few. Even persons already exercising official pow ers, such as environm ental health officers, may be included.11

11

This is according to Cm 5326, Policing a New Centun/: A Blueprint fo r Reform (London: The Stationery Office, 2001).

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W here it is considered appropriate, in order to contribute to com m unity safety' and security, as well as com bating crim e and disorder, public nuisance and other form s of an ti-so cial behav iou r, a ch ief o fficer o f p olice m ay estab lish a com m u n ity safety accreditation schem e (this provision becam e effective from 2 Decem ber 2002). Prior to starting such a schem e, the ch ief police officer m ust consult w ith his or her police authority and every local authority within the relevant police area. The exception to this rule is the Com m issioner of Police of the M etropolis, who m ust consult with the M etropolitan Police Authority, the M ayor of London and every local authority within the metropolitan police district. Details regarding any accreditation schem e which is either operating or proposed w ithin a police area m ust be included w ithin every police plan subm itted by each police authority. The subm ission of an annual police plan to the H om e Secretary is incum bent upon police authorities under s 8 of the Police A ct 1996. Initially, this is drafted by its chief officer of police and any changes are made in consultation with him or her. Section 40(7) of the Police Reform A ct states that every police plan m ust set out whether a com m unity safety accreditation schem e is m aintained within the police area in question and w hether any changes to that schem e are proposed. If no accreditation schem e exists, there is the requirem ent to provide details of any proposed scheme. The p o lic e p lan m u st also in clu d e the ex te n t o f any p o lice p o w ers co n ferred up on designated persons w ho are em ployed by that police authority, and the extent to w h ich an y e x is tin g or p ro p o se d a c c re d ita tio n sch e m e w ill s u p p le m e n t th o se arrangem ents. T he em p lo yers o f civ ilian s w ho are p art o f a com m u nity safety accred itation schem e will be expected to supervise them ; therefore, sub-s (8) provides that these em p lo y ers m u st carry on b u sin ess related to or w ith in the relevan t p o lice area. However, som ew hat controversially, the em ployers of civilians operating w ithin an accred itatio n schem e w ill also be expected to han d le com p lain ts regarding their alleg ed m isco n d u ct. C o n sid e ra b le co n cern w as exp ressed reg ard in g th is la tter provision as the Bill was proceeding through Parliament. It was strongly asserted that accredited civilians should be brought w ithin the rem it o f the Independent Police Com plaints Com m ission, as are those directly em ployed by police authorities, as well as contracted out escort and detention officers. S e c tio n 41 o f the P o lic e R e fo rm A ct 2 0 0 2 s ta te s the p ro c e d u re s re g a rd in g accreditation under com m unity safety accreditation schem es, once a chief police officer has entered into such arrangem en ts w ith an em ployer. A ccred itation shall not be granted to anyone unless the chief officer of police is satisfied that the em ployer of that ind iv id u al is a fit and proper person to su p erv ise him in the carry in g out of his accredited functions. It is also a requirem ent that the individual is a suitable person to be accred ited , and is capable o f exercising any pow ers conferred on him self; that person m ust therefore be adequately trained for this purpose. It is subm itted that these provisions generally fall in line w ith the licensing requirem ents for certain private security operatives under the Private Security Industry A ct 2001. This is one of several exam ples where the Police Reform A ct 2002 and the Private Security Industry Act 2001 are closely linked. C h ie f p o lice officers m ay ch arg e ap p rop riate fees for gran tin g accred itatio n s a n d /o r for con sid erin g app licatio n s for accred itation or any renew als of existing arran g e m en ts. In d iv id u al o p e ra tiv e s m u st n o t e n g ag e in c o n d u ct o u tsid e their em ploym ent under an accreditation schem e, and an accreditation shall cease if the

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operative leaves their em ploym ent, or accreditation arrangem ents are term inated or expire. The pow ers, in w hole or part, that may be conferred on accredited civilians are provided under Sched 5 to the Police Reform Act 2002 (see below). As is the case of designated civilians who are directly employed by police authorities, the conferring of pow ers from the follow ing m enu is at the discretion of the relevant chief officer of police, who may also attach restrictions and conditions regarding the exercise of these p ow ers accordingly. It w ill be ap p aren t that w here accred ited civ ilians are given special p o w ers, these are sig n ifican tly lim ited com pared to those o f com m u nity support officers. One of the distinctions betw een the two is the om ission of the power for accredited civilians to use reasonable force when exercising pow ers attributable to those of a police officer. N either are they given the lim ited detention and other powers held by CSO s, w hen requests for nam es and addresses are not com plied with. The pow ers that may be given to accredited persons under Sched 5 follow below .12 A s the o ffences to w'hich they relate echo those ap plicable to the pow ers o f C SO s stated above, full references have not been given.

Schedule 5, paragraph 1: poiver to issue fixed penalty notices A n accred ited civ ilian sh all have the p ow er to issu e the fo llo w in g fixed p enalty notices, w ithin the relevant police area, where that civilian has reason to believe that a person has com m itted or is com m itting any of the follow ing offences: (a) The power of a police officer in uniform to give a person a fixed penalty notice for riding on the footway. (aa) The powers of a police officer to give a penalty notice under Chapter 1 of Part 1 of the Criminal Justice and Police Act 2001 in respect of disorder, except the offences of being drunk, or drunk and disorderly in a public place [see the list of these offences in (a)-(r) at the end of Chapter 3 of this book], (ab) The power of a police officer to give a penalty notice for a person's failure to secure regular attendance of a pupil at school. (b) The power of an authorised local authority officer to issue a fixed penalty notice in respect of dog fouling. (c) The power of an authorised officer to give a fixed penalty notice regarding litter. (ca) The power of an authorised local authority officer to give a penalty notice in respect of graffiti or fly-posting.

Paragraph 2: poiver to require giving of name and address W here an accredited civilian has reason to believe that a person has com mitted any of the fixed penalty offences mentioned in para 1 above, or that person has com mitted an offence which has caused injury, alarm or distress to any other person, or the loss of, or any dam age to, any other person's property, the accredited civilian may require that person to give their nam e and address. However, certain conditions may be attached

12 This commentary has been reproduced from pp 67-68 of Jason-Lloyd, L, Quasi-Policing (London: Cavendish Publishing, 2003).

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to the accreditation regarding som e of these offences. Failure to provide a nam e and address is an offence punishable by a fine not exceeding level 3 on the standard scale (£1,000).

Paragraph 3: power to require name and address of a person acting in an anti­ social manner A police officer in uniform has pow ers under s 50 of the Police Reform Act to require the nam e and address of a person reasonably believed to have been acting, or who is acting, in an anti-social manner. This pow er may be given to accredited civilians, and failure to provide a nam e and address also attracts a maxim um penalty of a level 3 fine.

Paragraph 4: alcohol consumption in designated public places Accredited civilians have the powers of a constable under s 12 of the Crim inal Justice and Police A ct 2001 to d irect persons in designated p u blic places n ot to consum e anything reasonably believed to be intoxicating liquor, and to confiscate the drink and dispose of the alcohol accordingly. Failure to com ply w ithout reasonable excuse is an offence, w hich m ust be com m unicated to the person, and if com mitted is punishable by a fine not exceeding level 2 on the standard scale (£500).

Paragraph 5: confiscation of alcohol Accredited civilians have the pow ers of police officers under s 1 of the Confiscation of A lcohol (Young P ersons) A ct 1997. This reflects the sam e pow ers conferred upon designated CSO s in para 6 of Sched 4, Pt 1. It also echoes the absence of an arrest p o w er in the ev en t o f n o n -co m p lian ce , u n like the p o lice w here they m ay arrest w ithout w arrant.

Paragraph 6: confiscation of tobacco, etc This paragraph reflects the sam e pow ers conferred on designated CSOs under para 7 of Sched 4, Pt 1. This is the pow er under s 7(3) of the Children and Young Persons Act 1933, e n a b lin g a co n sta b le in u n ifo rm to co n fisca te and d isp o se o f tobacco and cigarette papers from persons under 16 years old in public places.

Paragraph 7: abandoned vehicles T h e p ro v isio n s u n d e r th is p a ra g ra p h are a lm o st id e n tic a l to th o se re la tin g to designated CSO s under para 10 of Sched 4, Pt 1. In this instance, accredited civilians have the pow er to remove abandoned vehicles or arrange their removal under s 99 of the Road Traffic Regulation Act 1984.

Paragraph 8: power to stop vehicle for testing Accredited civilians have the pow er of a constable in uniform to stop a vehicle under s 67(3) o f the R oad T raffic A ct 1988 in o rd er for the v eh icle to be tested . T hese

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provisions also reflect those applicable to designated CSOs under para 11 of Sched 4, P tl.

Paragraph 8A: power to stop cycles A ccredited civilians have identical pow ers under this paragraph to those held by designated CSOs under para 11A of Sched 4, Pt 1. This is the power of a police officer in uniform to stop a cycle under s 163(2) of the Road Traffic Act 1988 in respect of the offence of riding on a footway (s 72 of the H ighway Act 1835).

Paragraph 9: poiver to control traffic for purposes of escorting a load of exceptional dimensions This pow er is the sam e as that conferred upon designated CSO s under para 12 of Sched 4, Pt 1. It may also be applied anywhere in England and Wales provided the load is being escorted to or from the police area w here the accredited civilians are based.

Offences against (and by) designated and accredited civilians Section 46(1) of the Police Reform Act states that it is an offence to assault a designated or accredited civilian in the execution of his or her duty; this also applies to anyone who is assisting an officer. This offence is punishable by a m axim um of six m onths' im prisonm ent,13 or a fine not exceeding level 5 on the standard scale (£5,000), or both. Resisting or w ilfully obstructing any of the above is an offence under s 46(2), and this is punishable by a term of im prisonm ent not exceeding one m on th,14 or a fine not exceeding level 3 (£1,000), or both. A lthough no specific power of arrest has been given to any of the above if they are assaulted, it may be possible to use the pow ers under para 2(6)(b)(i) and (ii) of Sched 4 and para 2(3)(b)(i) and (ii) of Sched 5. In addition, they m ay be able to make a citizens' arrest for a com m on assault w hich is made an arrestable offence under s 10 of the Domestic Violence, Crim e and Victims A ct 2004 as m entioned below under the section headed 'Som e operational concerns'. Section 46(3) m akes it an offen ce for any one to im p erso n ate a d esign ated or accredited person, or suggest that they are such an officer, w ith intent to deceive. Furtherm ore, an offence m ay be com m itted by a designated or accredited civilian if that person, with intent to deceive, m akes any statem ent or does any act that suggests he or she has pow ers that they do not possess. All the offences under s 46(3) are subject to a m axim um sentence of six m onths' im prisonm ent15 or a fine not exceeding level 5 on the standard scale, or both.

13 Due to be increased to 51 weeks by the Criminal Justice Act 2003. 14 The Criminal Justice Act 2003 is due to increase this to 51 weeks. 15 Due also to be increased to 51 weeks by the Criminal Justice Act 2003.

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Some operational concerns'6 H aving read the p rev iou s ch ap ters o f this b ook, the d iscern in g read er w ill have realised that there are a num ber of anom alies in the powers of those w ho are part of the extend ed p olice family. This is esp ecially the case w ith C SO s and accred ited civilians. Som e of these anom alies will now be discussed. Paragraph 2(6)(b)(i) and (ii) of Sched 4 and para 2(3)(b)(i) and (ii) of Sched 5 to the P olice R eform A ct state a very broad criteria u n d er w hich d esignated C SO s and accredited civilians may require a person's nam e and address. This is in respect of an offence which appears to have caused injury, alarm or distress to any other person, or which involves any other person's property being lost or damaged. No precise list of these offences has been given under the Act, although potentially this could include quite a large number. As mentioned above, these include a range of offences in respect of non-fatal harm s against the person, crim inal dam age, public order offences, and even fatal harm s against the person, to nam e but a few. M any offences that com e under this broad category fall under the heading of arrestable offences as detailed in C hapter 3. This inclu des com m on assault, w hich w as recently m ade an arrestable offence by s 10 of the D om estic Violence, Crim e and Victim s A ct 2004. As already discussed in that chapter, the pow er to m ake arrests for these offences, subject to certain o p eratio n al con strain ts, also ap p lies to ord in ary citizen s, hence the term 'citizens' arrest'. Although CSOs and accredited civilians have the power to dem and a p erso n 's nam e and address w hen such crim es have been com m itted, it w ould be so m e w h a t rid ic u lo u s to tak e su ch a ctio n if a p a rtic u la rly s e rio u s o ffe n c e w as com mitted. A more appropriate course of action would be to call for police assistance, but that is not alw ays im m ed iately forthcom ing. So w hat can C SO s or accredited civilians do if immediate action is required, especially if it will be som e time before the police arrive? An obvious answer would be to use their citizen's power of arrest if the offence was arrestable. However, it appears that situations such as this are not catered for as part of their training. According to the Home Office, this is because designated civilians are not intended to becom e involved in situations with mem bers of the public w hich are overly confrontational. It is respectfully subm itted that this approach is m ore id e a lis tic th an re a lis tic . M e m b e rs o f the p u b lic w o u ld e x p e ct C S O s and accred ited civ ilian s to take p o sitiv e actio n in the ev en t of a serio u s crim e bein g com m itted, and it w ould therefore be logical for them to resort to their pow ers as citizens to take the necessary steps to apprehend the suspect. However, would this mean that they will com m it an offence under s 46(3)(c) of the Police Reform A ct 2002, nam ely exceeding their powers as CSO s or accredited civilians? It would appear that their instincts, as well as their overriding duty in such circumstances, would be to use their citizen's powers under s 24 of and Sched 1A to PACE and s 3(1) of the Crim inal Law Act 1967, as would m any other citizens. This would certainly fall in line with public expectations, therefore why not give them appropriate awareness of the use of citizen's pow ers as part of their training?16 Even if they were instructed to use these pow ers only in exceptional circum stances, this would fill a significant gap in their ability to protect the public.

16 See Jason-Lloyd, L, 'Community support officers: their powers and limitations' (2002) 166 JP 49, 7 December.

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Paragraph 2(6)(b)(i) and (ii) of Sched 4 and para 2(3)(b)(i) and (ii) to the Police Reform Act 2002 are also rather anom alous by virtue of their wording. They refer to offences causing injury, alarm or distress to any other person, or loss or dam age to any other person's property. W hy should this apply only to third parties who are subjected to these offences and not to CSO s and accredited civilians as w ell? The restriction imposed by the words 'other person' means that the officers cannot act on their own a cco rd if they are v ictim s o f su ch crim e s (u n less u sin g th eir c itiz e n 's p o w ers). Fortunately, this restriction m ay not preclu d e the in tervention of another C SO or accredited civilian who is in close proxim ity at the time of the incident. In addition, if a m em ber of the public is nearby and is affected by the conduct in question, that person m ay constitute the required third party and thus enable the CSO or accredited civilian to use his or her powers. It is, however, rather unfortunate that such an indirect route m ay have to be followed in order to enable such officers to act on their own accord w hen they are the victim s of an assault or dam age to their uniform, etc. There is also the com m on law pow er available to citizens to deal with or prevent a breach of the peace. As stated in Chapter 3, the exercise of this power can take more than one form in order to deal with or prevent violence or dam age to property. This also does not appear to be on the training agenda for CSOs. If ordinary citizens may use this, and other powers, then why not those persons who are specifically employed to perform com m unity protection duties? With regard to para 2 of Sched 4, the pow er of designated CSOs to detain appears to be straightforward until one analyses the wider aspects of this procedure. Failure by a person to give a designated CSO a correct name and address, w hether by itself or as part of the process in issuing a fixed penalty notice, constitutes an offence punishable by a maxim um level 3 fine (£1,000). It also enables designated CSO s to detain that person for up to 30 m inutes in order for the police to arrive. At the tim e of w riting this book, six police forces have recently com pleted a two year pilot schem e regarding the limited detention power among their CSOs. This power is now available to designated CSOs in all the police areas where they have been deployed. However, the lim itation of this pow er to 30 m inutes has been criticised. Although para 4 states that reasonable force m ay be used to com pel the d etained p erson to rem ain w ith the C SO , w hat happens if the time expires before the police arrive? It appears that the CSO will have to let that person free, although there have been suggestions that he or she may be asked again for their correct nam e and address, and detained for up to a further 30 m inu tes if that requ irem ent is not m et. T his is one o f m any p o in ts that requires clarification in the future. Further grey areas are disclosed when considering whether this detention pow er is actually an arrest. This w as the subject of extensive debate in Parliam ent, although the matter rem ains unclear.17 There is no mention of the need for a caution to be given to the detained person, nor is a designated CSO allowed to search that person. The absence of a pow er to do the latter is potentially dangerous to CSOs as detained persons may be carrying w eapons.18 A nyone who m akes off whilst being detained com m its an offence punishable by a m axim um level 3 fine.

17 See for instance, Hansard, House of Commons, Standing Committee A, 20 June 2002, col 253 and Hansard, House of Lords, 7 March 2002, col 445. 18 Consideration is now being given to allow CSOs to search those whom they detain in the Serious Organised Crime and Police Bill (see also the Government White Paper Policing: Modernising Police Powers to Meet Community Needs (Home Office, 2004)).

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Curiously, if a CSO exercised his or her citizen's pow er of arrest in appropriate cases, the 30 m inute tim e constraint would not apply. The only duty in this context would be to deliver the arrested person into the custody of a police officer as soon as possible. It is interesting to note that a power of detention rather than a power of arrest is not unique to designated CSO s. For instance, the police have a pow er to detain persons for up to four hours (extendable to six hours) under s 21A of the Football Spectators A ct 1989 in order to ascertain whether that person is subject to a football b a n n in g o rd e r; and u n d e r p a ra s 2 - 6 o f S ch ed 7 to the T e rro rism A ct 2 0 0 0 , an exam ining officer (nam ely a police, im m igration or custom s officer) may detain and question a person for up to nine hours, to determ ine if he or she is a terrorist. As an alternative to detaining a person, a CSO may give the recalcitrant individual the option to accom pany the officer to a police station. Under para 4, reasonable force may be used to ensure that the person rem ains with the CSO when going to a police station and it is an offence to m ake off before reaching that destination.19 However, under the current rules, CSOs do not have the power to arrest a person who m akes off, irrespective of whether he or she was being detained or accom panying the officer to a police station. Therefore, how can this law be enforced? Escape from lawful custody is a com m on law offence for w hich the m axim um penalty is open-ended; therefore, this is an arrestable offence. However, whilst this gives ordinary citizens a pow er of arrest, are CSOs made aware of this during their training? This would seem doubtful. In any event, the practice of accom panying an officer to a police station by sim ply walking there is one that many believe had ceased a long time ago. As time has progressed, arrested suspects have generally proved to be less co-operative w hen being detained, and vehicular assistance is the norm. This is not only necessary for safety reasons, but one also has to consider such things as w eather conditions and the distance to the nearest police station. There may even be human rights implications where a person under legal restraint in this respect may be virtually marched in full view of the public when being taken to a police station by a CSO. With regard to accredited civilians, they have no pow ers of detention; nor may they use reasonable force in the exercise of any of their powers and duties. This places them in an even greyer area than CSOs. D espite their powers to require nam es and addresses and to issue penalty notices to persons, these powers are likely to have little im pact if those persons do not co-operate. W here accredited civilians and CSO s are assaulted, resisted or w ilfully obstructed, despite the crim inal sanctions attached to these offences under s 46(1) of the Police Reform Act 2002, no powers of arrest have been given to them in order to bring the culprits before the courts. In terms of physical protection, CSO s have the option to w ear protective vests, but are not issued with batons, handcuffs or incapacitant sprays such as CS gas. W ith regard to the o th er d esig n ated civ ilian s, n am ely in v e stig atin g o fficers, detention officers and escort officers, these too may possibly encounter grey areas and gaps in their powers. However, they are not generally as visible as CSOs in terms of their public profile, and in m any cases police assistance will often be at hand. Other grey areas are identifiable regarding the pow ers held by those w ithin the extended police family, but hopefully this discussion will suffice in giving an insight into some potential legal and operational problem s. The extent to w hich these anom alies are

19

Punishable by a maximum level 3 fine.

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lik e ly to im p e d e th e fu n ctio n s o f all cla sse s o f c iv ilia n s w ith in th e e x te n d e d p o lice fam ily rem ains to b e seen . W h atev er the o u tco m e, it seem s u n lik ely that po licing w ill ev er rev ert to b ein g th e so le d o m in ion o f th o se w h o hold the office o f con stable. A s one co m m en tato r h as stated : A further feature of the Police Reform Act 2002 lies in what has been called the 'extended police family'. Given the nature of the roles that the legislation creates, it is perhaps more accurate to refer ... to an extended policing family as some of the people endowed with powers of enforcement and regulation under the Act will not be employed by the police at all, though they will have policing responsibilities.20 H o w ever, it is to b e h op ed that the stru ctu re o f p olicin g in this co u n try w ill n o t b e any m o re c o m p le x and fra g m e n te d th an it a lre a d y is, a lth o u g h an altern a tiv e h a s b e e n s u g g e ste d .21 A s fa r as p o lice p o w e rs are co n ce rn e d , th e G o v e rn m e n t h as p ro p o sed c erta in ch a n g es th at it sta te s are in te n d e d to clarify, sim p lify and m o d e rn ise p o lice p ow ers. T h e se w ill b e b riefly d iscu ssed in C h ap ter 9.

20 Sampson, F, Blackstone's Police Manual Vol 4: General Police Duties (Oxford: OUP, 2005). 21 See Jason-Lloyd, L, 'Police reform - a better way?' (2003) 167 JP 43, 25 October.

C H A PT ER 8 PO LIC IN G AN D T H E H U M A N R IG H TS A C T 1998

INTRODUCTION On 2 O ctober 2000, the H um an Rights A ct 1998 cam e into force. In effect, this A ct incorporates the European Convention on Hum an Rights1 into our own dom estic law and, for the first time, enables those rights to be directly enforceable in the courts of the UK. It is not the purpose of this chapter to provide a com plete coverage of the entire issue of the Convention or every aspect of the 1998 Act. Instead, the ongoing effects of the H um an Rights A ct on som e of the key policing issues covered in this book will be focused on. Com prehensive reading is already available on the broader aspects of the C o n v en tio n and the 1998 A ct, and som e o f th ese are referred to in the relevan t footnotes where appropriate. Som e of the contents of this chapter are speculative as only time will disclose the exact path that the 1998 A ct will eventually take policing and, indeed, other criminal justice institutions into the future. In this context, it was rightly stated prior to the implementation of the Hum an Rights Act that: '... the effect of the Convention in dom estic law after the Hum an Rights Act 1998 will depend on the inventiveness of law yers and the attitude of the ju diciary.'2 A num ber o f cases co n cern in g the effects o f the 1998 A ct hav e alread y b een exp lain ed in p rev io u s ch ap ters w h ere ap p ro p riate. T h e p u rp o se o f th is ch a p te r is to p ro v id e a w id er p ersp ectiv e on this in creasin g ly im p o rtan t asp ect of the law, and the w ay it has affected policing in this country, as well as how it may determ ine its future direction.

THE HUMAN RIGHTS ACT 1998 This statute w as enacted on 9 N ovem ber 1998 and its long title states that it is: An Act to give further effect to rights and freedoms guaranteed under the European Convention on Human Rights; to make provision with respect to holders of certain judicial offices who become judges of the European Court of Human Rights and for connected purposes.

The m ain effects of the 1998 Act are threefold. First, when deciding cases before them, all courts and tribunals are now required to take into account the Convention, as well as the decisions made by its institutions. These include the European Court of Human Rights, the C ouncil o f Europe and, w hen it existed , the European C om m ission of H um an Rights. Secondly, our national cou rts should read, if at all possible, both p rim a ry and s e c o n d a ry le g isla tio n in a m an n e r w h ich is c o m p a tib le w ith the Convention. This may enable our national courts in certain instances to even override seco n d ary le g isla tio n o r bin d in g d ecisio n s o f h ig h er cou rts for the p u rp o ses of protecting hum an rights under the Convention (although the High Court and above

1 2

The full title is 'The European Convention on Human Rights and Fundamental Freedoms' but, for the sake of brevity, it will be referred to as 'the Convention'. Wadham, J and Mountfield, H, Blackstone's Guide to the Human Rights Act 1998 (London: Blackstone, 1999).

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c a n n o t o v e r rid e p rim a ry le g is la tio n b u t, u n d e r th e 1998 A ct, m ay n o tify the G o v ern m en t o f any in co m p a tib ility w ith the view to the relev an t statu te b ein g amended). Thirdly, public authorities are under a duty to act in accordance with the Convention and failure to do so could lead to civil action being taken against them. T h e m e ch an ism s w ith in the 1998 A ct, h o w ev er, fall sh o rt o f cre a tin g a sp e cia l constitutional court or hum an rights com m ission, although it has been stated that none of these possibilities have been com pletely ruled out.3

HUMAN RIGHTS UNDER THE CONVENTION The Convention itself is a docum ent form ulated by the Council of Europe in the wake of the devastation caused by the Second World War and the atrocities arising from years of fascist tyranny in Europe. Its purpose then, as now, was to proclaim a series of universal hum an rights w hich militate against a repetition of those events w hich had caused such im m easurable suffering. A lthough the UK ratified the Convention in 1951, it w as not until 1966 that this cou n try allow ed its ow n citizen s to take action in appropriate cases. Originally, petitions were confined to challenges by States against other States regarding alleged violations under the Convention. The statem ents of individual hum an rights under the Convention are contained w ithin its 'A rticles', augm ented by a num ber of 'Protocols', which have been added since its form ulation. Towards the end of 1998, no fewer than 40 States had signed the Convention and this necessitated substantial reform s of its institutions, including the European C ou rt of H um an Rights in Strasbo u rg, w hich now d eals w ith all cases a lle g in g v io la tio n s o f the C o n v e n tio n . P rev io u sly , an in stitu tio n kn o w n as the European Commission of H um an Rights played a major part in dealing w ith petitions originally made but, since N ovem ber 1998, this body no longer exists for the purposes of considering the adm issibility of applications made after that date. U nder the new Protocol 11, this function is now being perform ed by sections of the European Court of Hum an Rights. Schedule 1 to the 1998 Act contains the Articles and Protocols which have been adopted w ithin UK law. Those relevant to the main policing issues covered in this book will now be discussed. Article 2 of the European Convention on H um an Rights covers the right to life and reads as follows: 1

Everyone's right to life shall be protected by law. No one shall be deprived of his life, save in the execution of a sentence of a court following his conviction of a crime for which the penalty is provided by law.

2

Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.

3

Ashcroft, P, Barrie, F, Bazell, C, Damazer, A, Powell, R, Tranter, G and Gibson, B, Human Rights and the Courts: Bringing justice Home (Winchester: Waterside, 1999).

C h a p te r 8: P o licin g an d th e H u m a n R ig h ts A c t 1 9 9 8

23 3

For general purposes, A rticle 2 should be read in conjunction w ith the Sixth Protocol, w hich is on e o f those P rotocols ad opted b y the U K u n d er the 1998 A ct and w hich reads as follow s: Abolition of the death penalty The death penalty shall be abolished. No one shall be condemned to such penalty or executed. Death penalty in time of war A State may make provision in its law for the death penalty in respect of acts committed in time of w ar or of imminent threat of war; such penalty shall be applied only in the instances laid down in the law and in accordance with its provisions. The State shall communicate to the Secretary General of the Council of Europe the relevant provisions of that law.

O n 30 Septem ber 1998, s 36 o f the C rim e and D isorder A ct 1998 abolished the sentence o f d eath fo r th e tw o la st re m a in in g c iv ilia n o ffe n c e s w h ich , te c h n ic a lly at le a st, attracted the d eath penalty. T h ese are treason and p iracy w ith v io len ce. H ow ever, certain offences com m itted under m ilitary law in tim es o f war, such as m utiny and assisting the enemy, still attract capital punishm ent. The p assing of these provisions under our dom estic law has, inter alia, enabled the UK to ratify the Sixth Protocol to the Convention. W hilst the Sixth Protocol has no direct relevance to the exercise of police pow ers, Art 2 o f the C onvention does have im plications w here the use of force falls into the realm s o f lethal force. W here, particularly, the deliberate use of lethal force is used, the European C ou rt o f H um an R ights,4 in M cC ann v UK (1995),3 has stated that it w ill subject such actions to the 'm o st careful scru tiny'. It stated earlier that the use o f such force m u st b e 's tric tly p ro p o rtio n a te ' w h en d efe n d in g an y p erso n from u n law fu l violence or in order to effect a law ful arrest or to prevent a law fully detained person from escaping, or to quell a riot or insurrection (A rt 2(2)(a), (b) and (c)).6 The Court w ent on to say that it will consider 'n ot only the actions o f the organs o f the State w ho actually ad m inister the force, b u t also the surrounding circum stances, including such m atters as the planning and control o f the actions under exam in atio n'.7 H ow ever, in A ndronicou and C onstantinou v Cyprus (1997), it w as held that there w as no violation o f A rt 2(2) w here the police had shot dead a gunm an and his hostage, believing that the form er w as m ore heavily arm ed than he was. T he C ourt paid particular attention to the issue o f 'plann in g and con trol', w hich featured prom inently in M cCann v UK, and concluded that the force used by the police w as 'strictly p roportionate' in relation to the situ a tio n , sin ce they had em p lo y ed a ctio n s w h ich m in im ised the risk to b oth

4 5

6 7

Henceforward, this will be referred to simply as 'the Court'. This case was featured in a well known investigatory TV programme entitled 'Death on the Rock', which was so named because its subject was the fatal shooting of three members of the Provisional IRA by soldiers from the Special Air Service in Gibraltar. By a majority of 10 to nine, the Court held that there had been a violation of Art 2. Article 2(2)(a) does not apply to the defence of property (see Baker, C, Human Rights Act 1998: A Practitioner's Guide (London: Sweet & Maxwell, 1998)). When commenting on the possible effects of the Human Rights Act, Lord Lester stated: 'I have no doubt that if the M cCann case could have been dealt with by our own courts, using the criteria of the Convention, it might well have led to a different outcome in Strasbourg' (cited in Cheney, D, Dickson, L, Skilbeck, R, Uglow, S and Fitzpatrick, J, Criminal Justice and the Human Rights Act 1998 (2nd edn, Bristol: Jordans, 2001)).

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parties. T he C ou rt stated that the police had good reason to believe that the gunm an w as heavily arm ed, notw ithstand ing that they w ere m istaken, although som e concern w as expressed regarding the deploym ent o f m achine guns in a confined area. D espite regrets expressed by the C ou rt regarding the extent o f the fire pow er used, the decision th at th ere w as no b re a ch w as carried b y fiv e v o tes to four. T h e term 'a b s o lu te ly n ecessary', used in A rt 2(2) in relation to the use o f lethal force, is extrem ely im portant in testing w hether or not such action falls under the three m ain exceptions m entioned above, w hich fall u n der the general description o f : '... curbing violence or the control of prisoners or crim inals - generally, m aintaining law and order.'8 In Stew art v UK (1984), a teenager w as accidentally killed by a plastic baton round fired into a crow d of rioters b y s e c u r it y fo r c e s . T h e C o m m is s io n s ta te d th a t th e fo r c e u s e d w a s 's t r i c t l y p ro p o r tio n a te to th e a c h ie v e m e n t o f th e p e rm itte d p u rp o s e ' an d th e re fo re w as 'absolu tely necessary'; as such, A rt 2 had not been violated. The C om m ission w ent on to state, inter alia, that due regard m u st be paid to all the relevant circum stances, w hich inclu des the risk to life and lim b and the aim w hich is b ein g pu rsu ed. T h e further point w as m ade that these provisions also apply to lethal force w here the actual killing was not intended. In view of the increasing level of violence faced by the police in this country, and especially w here firearm s are used in the com m ission o f crim e, the police service has re-exam ined its procedures regarding the use o f firearm s in particular, in order to be dou bly sure that the 'p lan n in g and con tro l' elem en t, as stated in M cC an n v UK, is com plied w ith, since it w as this elem ent that m ade the U K liable. A t present, s 3 of the Crim inal Law A ct 1967 is relied upon, w hich allow s the use o f lethal force based on the honestly held belief o f the person using it; in other w ords, the 'reasonableness' of such action is tested subjectively: The test in Article 2 is different and imposes a higher standard. The standard in the Convention is whether the use of the force was 'absolutely necessary'. On the basis of that test, the determination of whether the force used was reasonable must be objectively assessed by deciding whether the force used was disproportionate to the apparent threat that it was intended to prevent.9

A ccording to one com m entator, it has been suggested that: '... the application o f A rt 2 in A ndronicou suggests that even in respect o f trained law enforcem ent officers, som e ind ulgence should be granted to "h e a t o f the m o m en t" reactions, along the lines of Palm er v R (1971).'10 Reference to the latter case is particularly im portant in view of the speech m ade by Lord M orris o f Borth-Y-Gest, in w hich he said: If there has been an attack so that defence is reasonably necessary, it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If a jury thought that, in a moment of unexpected anguish, a p erson attack ed had only done w hat he honestly and instinctively thou gh t w as necessary, that would be most potent evidence that only reasonable defensive action had been taken.

8 9 10

Op cit, Wadham and Mountfield, fn 2. Op cit, Wadham and Mountfield, fn 2.

[1998] Crim LR 825.

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235

Article 3 of the Convention may also be relevant regarding any future challenges to the legitim acy of certain police powers. U nder the heading of 'Prohibition of torture', it goes on to provide: 'N o one shall be subjected to torture or to inhuman or degrading treatment or punishm ent.' Although torture can be clearly disregarded from the ambit of police activities in this country,11 inhum an and degrading treatm ent are m atters closely linked with other relevant A rticles under the Convention, particularly Art 5 (see below) and cover, inter alia, generally oppressive conduct. As discussed earlier in this book, there are m any safeguards designed to prevent oppressive conduct and also to alleviate unnecessary em barrassm ent on the part o f suspects and others w hose liberty has been interfered with in the exercise of police powers and duties. The Codes of Practice, in their entirety, contain provisions w hich are designed to m inim ise these intrusions on the liberty of citizens, whether in the course of temporary detention (stop and search), m aking arrests or the detention of persons in police custody. In short, the Codes endeavour, as m uch as possible, to preserve the dignity of those w hose personal liberties have been lawfully impeded for any of these purposes. Indeed, as time has progressed, the Codes appear to have been increasingly mindful of these necessities. In M cFeeley v UK (1980), it was held that intim ate searches were not sufficiently hum iliating so as to constitute a violation of A rt 3 (neither was the wearing of a prison uniform) and, with reference to the searching of suspects in general, it has been stated that: The right to bodily integrity and, generally, the freedom against compulsory physical interference is protected by the right to privacy in Article 8, as well as the guarantees against degrading and inhuman treatment under Article 3 ... There is a need for a balance to be drawn between physical interference with the person by State agents for legitimate purposes, such as the gathering of evidence or prevention of crime, and the individual's interest in preserving bodily integrity. In England, that balance is present in the legislation and probably conforms to Convention requirements.12

W ith regard to the exercise of police stop and search pow ers, para 3.1 o f Code o f Practice A makes the point that: 'Every reasonable effort must be made to m inim ise the em barrassm ent that a person being searched may experience.' There then follows a series of provisions, already discussed in previous chapters, which are designed to achieve this end and to avoid unnecessary inconvenience and antagonism . The latter is reinforced under N otes for Guidance 10-14 to Code A, regarding the authorisations applicable to stop and search in order to prevent serious violence and acts of terrorism. In b o th in sta n ce s, a u th o risin g o ffice rs are urged to set the m in im u m tim e and geographical param eters in order to avoid the m istrust of the police by the com m unity as a whole (Notes for Guidance 12 and 13). PACE itself makes its own contribution to preventing treatment that may be construed as degrading by placing restrictions on the extent of rem oval of any clothing in public. Section 2 confines this to no more than the removal of an outer coat, jacket or gloves. The avoidance of degrading treatment is also implicit in s 30(l)(b) of PACE, which provides that an arrested person should be taken to a police station as soon as practicable after an arrest (subject to 'street bail'),

11

See Selmouni v France (2000), where severe beatings in a police cell were held to amount to torture. 12 Op cit, Cheney et al, fn 7 (emphasis added).

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although appearing in handcuffs in public w ould not constitute degrading treatm ent.13 C o d e B a lso c o n ta in s s a fe g u a r d s w h ic h , it is s u b m itte d , sh o u ld fall w ith in th e m inim um requirem ents laid dow n by the C on vention. Paragraph 6.10, for instance, requ ires that an y p o lice search o p e ratio n shou ld cau se no m ore d istu rb an ce than necessary. C od e C co n tain s an ab u n d an ce o f safeg u ard s ag ain st in h u m an and d eg rad in g treatm ent, som e o f w hich overlap w ith the provisions under A rt 5 of the Convention, for instan ce, the requ irem ent u n d er para 1.1, w'hich states that all person s held in police custody m ust be dealt w ith and released w ithout delay. C od e C also provides that d etained p erso n s are entitled to ad eq u ate food and d rink, to ilet and w ashing facilities, clothing and, w here necessary, m edical attention, as w ell as exercise where possible. Police cells m ust m eet certain m inim um standards o f physical com fort and this includes the provision of bedd ing, w hich m ust also b e o f a reasonable standard. There is also the right no t to be held incom m unicad o, unless the crim inal investigation o r p e rso n s in v o lv e d cou ld b e e n d an g ered w ere co n ta ct to b e m ad e w ith p e rso n s outside the police station. In any event, this only applies to serious arrestable offences. T he m an y p ro v isio ns u n der C o d es C and D d esigned to p rotect sp ecial groups h a v e a ls o b e e n d is c u s s e d in p re v io u s c h a p te r s . T h e a v o id a n c e o f in h u m a n o r d egrad ing treatm ent being inflicted on particularly vulnerable persons, such as those w h o are m e n ta lly d is o rd e r e d o r o th e r w is e m e n ta lly v u ln e r a b le , is m a d e v e ry p o s itiv e ly u n d e r th e re le v a n t C o d e s o f P ra ctic e . T h is in c lu d e s p ro v isio n fo r the appropriate adult in cases w here such persons are detained by the police, w hich also extend s to other vulnerable suspects, including juveniles. A rticle 5 o f the C onvention, headed 'R igh t to liberty and security', reads as follow s: 1

Everyone has the right to liberty and security of person. No one shall be deprived of his liberty, save in the follow ing cases and in acco rd an ce w ith a p ro ced u re prescribed by law: (a) the lawful detention of a person after conviction by a competent court; (b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to securc the fulfilment of any obligation prescribed by law; (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; (d) the detention of a m inor by lawful o rd er for the p u rp o se of ed ucation al supervision or his lawful detention for the purpose of bringing him before the competent legal authority; (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; (f)

2

13

the law fu l a rre s t o r d e te n tio n of a p e rso n to p re v e n t h is effectin g an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

Op cit, Cheney et at, fn 7.

C h a p te r 8: Policing and the H u m an R igh ts A c t 1998

3

Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4

Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

5

Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.

2 37

Arrest procedures under PACE and other statutes appear to com ply with Art 5, since they usually require reasonable suspicion, but the position is less certain in respect of the com m on law pow er to arrest for a breach of the peace. In Steel v UK (1998), it was held that whilst the definition of a breach of the peace did not contravene Art 5, an arrest for this purpose may violate it if the arrest is disproportionate to the anticipated risk and affects an individual's right to freedom of expression under Art 10 (see also M cLeod v UK (1999), below). Som e concern has been expressed regarding the issue of police stop and search powers which involve the tem porary detention of suspects. It has been suggested that this form of tem porary d etention m ay fall w ithin the am bit o f A rt 5 (l)(b ), w here detention is p erm itte d :'... in order to secure the fulfilm ent of any obligation prescribed by law .'14 H ow ever, further concern has been expressed as to w hether s 60 o f the C rim in al Ju stice and P u blic O rd er A ct 1994 (see C h ap ter 2) com p lies w ith A rt 5, although this argum ent is based on the interpretation of A rt 5(l)(c), which m akes the essential requ irem ent for reasonable su sp icio n .15 The relevan ce of A rt 3 to police powers of stop and search with regard to the conduct of such procedures has already been noted above. With regard to Art 6, its relevance to the exercise of police powers (the right to a fair trial) is largely confined to A rt 6(3)(b) and (c), w hich provides that everyone charged with a crim inal offence has the right 'to have adequate tim e and facilities for the preparation of his d efen ce' and 'to defend him self in person or through legal assistan ce of his ow n choosing or, if he has not su fficien t m eans to pay for legal assistance, to be given it free w hen the interests of justice so require'. As discussed earlier in this book, there are m any safeguards which are designed to ensure adequate provision for legal representation at police stations. A potential difficulty m ay lie in justifying the grounds under which this can be delayed against the decision in Bonzi v Switzerland (1978), where it was stated that access to legal advice is an essential part of a person's defence. Article 8 covers the right to respect for private and family life and states that: 1

14 15

Everyone has the right to respect for his private and family life, his home and his correspondence.

Op cit, Cheney et al, fn 7. Op cit, Ashcroft et al, fn 3.

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2

There shall be no interference by a public authority with the exercise of this right, except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.

W hilst it has been stated that 'in England, the pow er to search prem ises under Pt II of PACE 1984 probably conform s to Convention requirem ents',16 further opinion offers the following caveat in relation to search warrants: ... an obvious case where this Article may affect the work of magistrates is in relation to applications for search warrants. The relevant UK law' (principally contained in the PACE 1984) con tains safegu ard s that should com p ly w ith A rticle 8. H ow ever, magistrates will need to continue to be meticulous w'hen dealing with such applications. If valid reasons do not exist or are not properly recorded, challenges under the Convention might be hard to defend.17

In M cLeod v UK, w hich was discussed in Chapter 3, the Court held that A rt 8 had been v io lated w here p o lice o fficers en tered the a p p lica n t's hom e w ith o u t reaso n ab le grounds to apprehend a breach o f the peace. Other police activities may also be subject to challenge under Art 8. For instance, Pt III of the Police A ct 1997 governs the procedures to be adopted regarding covert su rv eillan ce op eration s. Su ch activ ities cou ld be challeng ed on the ground s that judicial scrutiny does not alw ays occur prior to such action. In R v Khan (1995), police officers placed a listening device in prem ises occupied by the defendant, who was suspected of im porting heroin. During his trial for this offence, it was submitted that the incrim inating conversation recorded on tape as a result of police 'bu gging ' the prem ises should be ruled inadm issible, since this had been obtained as a result of tresp ass and crim in al d am age. W h ilst ad m ittin g the lack o f sta tu to ry g u id an ce g o v e rn in g p o lice a ctio n in th is re sp e ct, the trial ju d g e p ro ceed ed to ad m it this evidence. The Court of Appeal upheld this decision, but also com mented on the lack of statutory regulation regarding this form of covert surveillance by the police. This view was later upheld by the Flouse of Lords. This case then reached the European Court of H u m an R ig h ts (K han v U K (2 0 0 0 )), w h e re it w as a lle g e d th a t th e re had b e e n infringem ents of Art 6 (the right to a fair trial), Art 8 (right to respect for private and family life) and Art 13 (the right to an effective remedy). The Court ruled that there had been no violation o f Art 6 due to the applicant having had am ple opportunity to challenge the use of the evidence in all the dom estic courts, and he had already done so. On the issue of Art 8, there was a violation as the covert surveillance w as unlawful due to the absence of statutory authority to conduct it. In addition, there had been a violation of Art 13 due to a lack of sufficient independence in the police com plaints system (as mentioned in Chapter 1). On the issue of telephone tapping, in H uvig v France (1990) and Kruslin v France (1990), v io latio n s ag ain st A rt 8 w ere held to hav e occu rred d ue to a n u m b er o f procedu ral d eficiencies w hich con stituted insufficient safeguards against possible abuse. These included failure to set a time lim it on the tapping operation or to specify the offence likely to ju stify such action, or to specify any m easures regarding the

16 Op cit, Cheney et at, fn 7. 17 Op cit, Ashcroft et al, fn 3.

C h a p te r 8: Policing and the H u m an R igh ts A c t 1998

239

destruction of the recordings. The scope of the interception of com m unications by law e n fo rc e m e n t b o d ie s in th is c o u n try h a s b e e n e x p a n d e d b y th e R e g u la tio n o f Investigatory Pow ers Act 2000. A m ong other caveats, one com m entator had this to say regarding this statute in relation to the H um an Rights Act 1998: Since the definition of intrusive surveillance confines it to covert surveillance of residential premises or private vehicles, the Bill is likely to fall foul of Article 8, since the ECHR has, in a number of cases, extended the notion of private life beyond the home. Furthermore, wiring up an informant or undercover officer to obtain information from a suspect in their own home is treated as directed surveillance, requiring only internal authorisation, which, again, may well not satisfy Convention requirements.18

Conclusion The H um an Rights A ct 1998 has created much challenge and subsequent controversy throughout the entire panoply of the crim inal justice system , and it is hoped that the continuing reform s o ccurring in the w ake of its im plem entation w ill significantly improve our quality of justice. As far as the police are concerned, continuing changes in their powers, duties and procedures must be com m ensurate with this aim, and it is hoped that futu re reform s w ill assist in m ain tain in g their cred ib ility in ord er to preserve the cherished concept of policing by consent. W hatever future changes are in store for them , it is very im portant that these am ount to positive and constructive measures, w ithout constituting unnecessary obstacles in their increasingly difficult and im portant tasks in society. But, as alw ays, much depends not only on new rules in dealing with suspects or other persons dealt with by the police, but, equally, on the m anner in w hich individual police officers exercise their pow ers and duties in the future. The tasks ahead of them will continue to be challenging indeed.

18 Cape, E, 'Regulating police surveillance' (2000) 150 NLJ 452.

C H A PT ER 9 PO LIC E PO W ER S IN TH E FU T U R E?

Predicting the future direction of police pow ers is a daunting task to say the least. M uch depends upon the continuing effects of the H um an Rights A ct 1998, the general political clim ate, and the views of the judges in specific cases brought before them. Other influences also account for changes in police pow ers such as those exerted by various pressure and interest groups, and the w ork of prom inent academ ics, to nam e bu t a few. A s this bo o k is b e in g com p ile d , m ajor ch an g es are b e in g con sid ered regarding the overall structure of policing and police powers. With regard to the latter, the C on su ltation D ocum ent P olicing: M odernising Police Pow ers to M eet Com m unity N eeds1 proposes m any significant changes in the way in w hich police pow ers are effected. M any of these are very controversial and this has already attracted extensive co m m e n t.2 O n the o th er h a n d , ce rta in a sp e cts o f p o lice p o w ers are in need o f streamlining and rationalisation, as many readers of this book may readily testify! The C o n su ltation P aper asserts that the p olice m u st have the pow ers need ed to deal effectively and proportionately with crim e and disorder whilst m aintaining 'the crucial balance between the pow ers of the police and the rights of the individual'. According to the Paper, there are a num ber of sp ecific police pow ers w hich m ay need to be extended as well as those requiring 'clarification, sim plification and m odernisation'. A full sum m ary of these powers is provided under s 8 of this Paper, which is reproduced as follows: Section 8 Section 2

Sum m ary

Arrest - concept of seriousness

•

Redefine the framework of arrest powers so that a police officer can arrest for any offence subject to the necessity test as set out at paragraph 2.6 above.

•

Revise the seriousness criterion and the concepts of the 'arrestable' and 'serious arrestable offence'.

•

Introduce a new requirement for an offence to be triable either way or on indictment before the 'trigger' powers following arrest can be applied.

•

Set clear criteria for the exercise of a citizen's power of arrest.

•

Abolish the capacity to arrest in relation to a breach of the peace.

Section 3

Search warrants - raising capacity

•

Search warrants authorising any premises occupied or controlled or accessible by a named individual.

•

Warrant focusing on the person and his or her whereabouts rather than on a specific single address.

•

The officer applying to the court would have to satisfy the court that a 'multipremises' warrant was necessary.

1

H o m e O ffice , A u g u s t 20 0 4 .

2

S e e , fo r e x a m p le , Ja s o n -L lo y d , L, 'M o d e rn is in g p o lic e p o w e rs - a re s p o n s e ' (2 0 0 4 ) 168 JP 4 2 , 16 O cto b er.

242

A n I n t r o d u c t io n to P o lic in g a n d P o lic e P o w e r s

•

The lifetime of the warrant would be a m atter for the court based on the application setting out the period considered necessary and relevant.

•

The court would be required to sanction m ultiple use of the w arrant w ithin the agreed timeframe.

•

Accessing telephone and electronic com munication in application for and granting of warrants.

Section 4 •

W orkforce m odernisation

Powers to direct traffic - in response to specified situations rather than routinely.

•

Custody area - extending key involvement around custody and identification roles.

•

Begging - providing CSO s and accredited persons w ith new pow ers to issue a warning.

•

Enforcing byelaws - subject to central or local determination.

•

Searching the person for weapons and dangerous articles - a new power subject to suitable training and procedures.

•

Remove the absolute requirement for civilian staff to wear a uniform.

•

Raising CSOs' enforcement powers for certain licensing offences.

•

Working with stakeholders on police charging for services.

•

Designate chief officers as a 'corporation sole' for the purposes of health and safety legislation.

Section 5

Increasing prevention and detection powers

Drug-related crime •

Testing people on arrest (rather than charge) for certain 'trigger' offences.

•

Enhancing the ability to encourage drug-m isusing offenders leaving custody to undergo appropriate drug treatment.

•

Court to draw inferences from refusal to submit to a search.

•

Power to apply to the courts for extended detention after charge.

Road/driver offences •

Create a new offence of using or keeping an incorrectly registered vehicle.

•

C onfer on the Secretary o f State a pow er to fund A N PR through fixed penalty generated revenue.

•

provide civilian staff access to PNC data for supporting roadside enquiries.

M isuse offireiuorks •

Create a pow er of stop, search, seizure and confiscation in relation to: —

Possession of fireworks by a person under 18 in a public place;

—

Category IV fireworks unless authorised.

Protests outside homes •

C reate a new offence o f harassm ent, causin g alarm or d istress to com plem ent existing powers under the Criminal Justice and Police Act 2001.

•

Extend the period to three months for a person subject to a direction on returning to premises.

C h a p t e r 9 : P o lic e P o w e r s in th e F u tu r e ?

•

243

Extend the Protection from H arassm ent Act 1997 to cover harassm ent of two or more people who are connected, such as em ployees of the same company, even if each individual is harassed on only one occasion.

Dealing with protests outside Parliament •

Ensure that legislation to deal with dem onstrations outside Parliament is effective and introduce new legislation if necessary.

Section 6

Identification

•

Power to take fingerprints of a suspect elsewhere other than a police station for the purpose of confirming the identity of a suspect.

•

Taking of footwear impressions with or without the suspect's consent.

•

Power to take a visual image of an arrested person elsewhere other station.

•

Power of retention of moving images.

•

Clarify the ability to take a penile swab with consent.

•

Establish a missing persons database for the purposes of identification

•

Power to use fingerprints/D N A taken covertly for speculative searches to confirm or disprove a person's involvement in an offence.

than a police

only.

S e c tio n 7 F o r fe itu r e o f e le c tr o n ic d e v ic e s u sed to s to re o r h a n d le in d e c e n t photographs o f children •

Removing indecent photographs of children from circulation.

•

Need for increased powers on forfeiture.

•

Maintaining co-operation from people and organisations.

M a n y o f the a b o v e p ro p o sa ls h a v e n o w b e e n in c lu d e d in the S e rio u s O rg a n ise d C rim e an d P o lice B ill. T h e fo llo w in g e x a m p le re g a rd in g p o w e rs o f a rre st w ill p e rh a p s g iv e a g e n era l 'fla v o u r ' o f w h a t is to co m e : S e rio u s O rg a n ise d C rim e an d P o lice Bill P a rt 3 P O L IC E P O W E R S E T C P o w e rs o f a rrest 101 Powers o f arrest (1) For section 24 of PACE (arrest w ithout warrant for arrestable offences) substitute'24 Arrest w ithout warrant: constables (1) A constable may arrest without a w arrant(a) anyone who is about to com m it an offence; (b) anyone w'ho is in the act of com mitting an offence; (c) anyone whom he has reasonable grounds for suspecting to be about to commit an offence; (d) anyone whom he has reasonable grounds for suspecting to be com mitting an offence. (2) If a con stable has reasonable grounds for su sp ectin g that an offence has been com m itted, he m ay arrest w ithout a w arrant anyone w'hom he has reasonable grounds to suspect of being guilty of it.

244

A n I n t r o d u c t io n to P o lic in g a n d P o lic e P o w e r s

(3) If an offence has been committed, a constable may arrest without a w arrant(a) anyone who is guilty of the offence; (b) anyone whom he has reasonable grounds for suspecting to be guilty of it. (4) B ut the p o w er o f su m m ary a rre st c o n fe rre d by su b se c tio n (1), (2), or (3) is exercisable only if the constable has reasonable grounds for believing that for any of the reasons m entioned in su bsection (5) it is necessary to arrest the person in question. (5) The reasons are(a) to enable the nam e of the person in question to be ascertained (in the case where the constable does not know, and cannot readily ascertain, the person's name, or has reasonable grounds for doubting whether a name given by the person as his name is his real name); (b) correspondingly as regards the person's address; (c) to prevent the person in question(i)

causing physical injury to him self or any other person;

(ii) suffering physical injury; (iii) causing loss of or damage to property; (iv) com mitting an offence against public decency (subject to subsection (6)); or (v) causing an unlawful obstruction of the highway; (d) to protcct a child or other vulnerable person from the person in question; (e) to allow the prompt and effective investigation of the offence or of the conduct of the person in question; (f)

to p re v e n t any p ro s e cu tio n fo r the o ffen ce from b e in g h in d e re d by the disappearance of the person in question.

(6) Subsection (5)(c)(iv) applies only where m em bers of the public going about their normal business cannot reasonably be expected to avoid the person in question. 24A Arrest w ithout warrant; other persons (1) A person other than a constable may arrest without a w arrant(a) anyone who is in the act of com mitting an offence; (b) anyone whom he has reasonable grounds for suspecting to be com mitting an offence. (2) Where an offence has been committed, a person other than a constable may arrest w ithout a w arrant(a) anyone who is guilty of the offence; (b) anyone whom he has reasonable grounds for suspecting to be guilty of it. (3) But the power of arrest conferred by subsection (1) or (2) is exercisable only if(a) the person making the arrest has reasonable grounds for believing that for any of the reasons mentioned in subsection (4) it is necessary to arrest the person; and (b) it appears to the person making the arrest that it is not reasonably practicable for a constable to make it instead. (4) The reasons are to prevent the person in question(a) causing physical injury to him self or any other person; (b) suffering physical injury';

C h a p te r 9: Police P o w ers in the F u tu re?

245

(c) causing loss of or damage to property; or (d) making off before a constable can assume responsibility for him.' (2) Section 25 of PACE (general arrest conditions) shall cease to have effect. (3) In section 66 of PACE (codes of practice), in subsection (l)(a) (i)

omit 'or' at the end of sub-paragraph (i),

(ii) at the end of sub-paragraph (ii) insert 'or (iii) to arrest a person'. (4) Any rule of common law conferring power to arrest a person without a warrant is abolished. (5) The sections 24 and 24A of PACE substituted by subsection (1) are to have effect in relation to any offence whenever committed.

The above extract from the Serious Organised Crim e and Police Bill contains a num ber of significant changes to police arrest powers. It also enhances the concept of a citizen's arrest power, notw ithstanding the abolition of the com m on law pow er to arrest for a breach of the peace. Interestingly, it is intended that there will be a PACE code of practice regarding arrests. W hilst other police pow ers have been covered under the cod es, the m ak in g o f arrests h as alw ays b een exclu d ed . N ow it seem s that this om ission will be rem edied in the not too distant future. As mentioned above, Pt 3 is just one aspect of the Bill that is intended to stream line police pow ers as well as create the Serious Organised Crim e Agency. O th er so u rces o f p o lice p o w ers u n d er PACE that are earm ark ed for ch an g e include: s 1 (powers of constables to stop and search); s 8 (power to authorise entry and search o f p re m is e s); s 15 (sea rch w a rr a n ts-s a fe g u a rd s ); s 16 (e x e c u tio n o f warrants); s 36 (custody officers at police stations); s 39 (responsibilities in relation to p e r s o n s d e ta in e d ); s 61 ( f in g e r p r in t in g ) ; s 63A ( fin g e r p r in ts an d s a m p le s : su p p lem entary pro v isio n s); s 64 (d estru ction o f fin gerp rin ts and sam p les); s 64A (photographing o f suspects, etc); s 65 (fingerprints and sam ples - supplem entary); Sched 1 (special procedure), as well as important changes under the Police Reform Act 2002 regarding the use of civilians. In addition to the above changes, the Drugs Bill was introduced in Parliam ent just before Christm as 2004. A large proportion of this Bill will directly affect police powers that in clu d e the fo llo w in g e x am p les: an am e n d m en t to s 55 o f PACE (in tim ate searches) requiring a suspect's consent before a drugs only intimate search is carried out; the insertion of a new s 55A into PACE enabling the police to authorise an X-ray a n d /o r ultrasound scan of persons suspected o f swallowing Class A controlled drugs; an am endm ent to s 152 of the C rim inal Justice A ct 1988 enabling the extension of police detention pow ers of suspected drug offenders; the am endm ent of s 63B of PACE perm itting 18 year olds and over to be tested on arrest for specified Class A drugs, and the in tro d u ctio n o f a d iscretio n ary p o w er to requ ire p erso n s tested p o sitiv e for specified Class A drugs to attend assessm ents o f their drug m isuse. It appears that som e of these provisions will be piloted or introd uced piecem eal before national implementation. At the time of w riting, the Serious Organised Crim e and Police Bill and the Drugs Bill are still in their early parliam entary stages. If they are enacted, the Royal Assent m ay not occur until about m id- to late 2005 and, o f course, parts o f them m ay be subject to change beforehand. M any of the proposed changes are unlikely to com e into force im m ediately and som e m ay not be fully im plem ented for several m onths, or even longer. It is therefore not expected that this book will becom e significantly out of date too soon after publication!

A P P E N D IC E S

Appendix 1: the Metropolitan Police Service

248

A n In tro d u c tio n to P o lic in g a n d P o lic e P o w e r s

A p p e n d ix 2: th e p o lic e ra n k stru c tu re W ith in L o n d o n

O u ts id e L o n d o n

C h ie f C o n sta ble

H

EH

C o m m is s io n e r

D epu ty C h ie f

D

C o n sta ble

C o m m is s io n e r

t

A s s is t a n t C h ie f C o n sta ble

eputy

A s s is ta n t C o m m is s io n e r

D e p u ty C h ief

A s s is ta n t

S u p e r in t e n d e n t

C o m m is s io n e r

f t

■ ■

C'OMM.WDI K

n

S u p e r in t e n d e n t

C h ie f C h ie f In s p e c to r

E l

S u p e r in te n d e n t

Km i

In spec to r

A

■ ■

■ ■

PI

SUPERINTENDENT

f l C h ie f In s p e c to r S ergeant

ft

K S

I n spec to r

C o n sta ble S ergea n t

C o n sta ble

249

A p p e n d ic e s

A p p e n d ix 3: th e h e a d q u a rte r s c o m m a n d s tru c tu re o f a p o lic e fo rc e C h ie f C o n s t a b l e

D e p u t y C h ie f C o n s t a b l e

A s s is t a n t C i iie f

A s s is t a n t C h ie f

C o n sta ble

C o n sta ble

( O p e r a t io n s )

(S u p p o r t )

C r im in a l

T r a in in g ,

I n v e s t ig a t io n

r e c r u it m e n t

D epa rtm en t (C I D )

a n d d is c ip l in e

T r a f f ic c o n t r o l ,

M an ag em en t

p u b l ic o r d e r ,

s e r v ic e s a n d

d o g s, h o r ses

GENERAL ADMINISTRATION

P o l ic e d iv is io n s

T e c h n ic a l

AN D SUB-DIVISIONS

su ppo rt a n d

(LOCAL POLICE STATIONS -

c o m m u n ic a t io n s

'BA SIC COM MAND U N ITS') T

he

LOCAL COMMAND STRUCTURE OF

a

POLICE FORCE

(A BASIC COMMAND UNIT)

C h ie f S u p e r in t e n d e n t

S u p e r in t e n d e n t D e t e c t iv e S u p e r in t e n d e n t

C h ie f I n s p e c t o r D e t e c t iv e C h ie f I n s p e c t o r In spec to rs D e t e c t iv e I n s p e c t o r P o l ic e Pa t r o ls D e t e c t iv e s e r g e a n t s C r im e D e t e c t iv e c o n s t a b l e s

p r e v e n t io n a n d c o m m u n it y

O p e r a t io n a l

o f f ic e r s

c iv il ia n s

G en era l a d m in is t r a t io n

250

A ppendix 4: som e sources o f police pow ers PO LIC E AN D C R IM IN A L

H O M E O F F IC E C O D E S

MENTAL HEALTH

PUBLIC O RD ER ACTS

EV ID E N C E ACT 1 9 8 4

O F PR A C TIC E

ACT 1 9 8 3

1 9 3 6 AND 1 9 8 6

T E R R O R ISM ACT 2 0 0 0

ROA D TRAFFIC ACT 1 9 8 8

CRIM IN A L LAW ACTS

M ISU SE OF D RUG S

POLICE A C TS 1 9 9 6

ACT 1 9 7 1

AND 1 9 9 7

AVIATION SECU RITY

MOSS V MCLACHLAN

CRIM E AND D ISO RD ER

(1 9 8 5 )

ACT 1 9 9 8

SAWKINS (1 9 3 5 )

A N TI-SO C IA L BEHAVIOUR SPO RTIN G EVENTS

CR O SSBO W S ACT 1 9 8 7

(CON TROL OF ALCOHOL,

CHILDREN

DONNELLY V

ACT 2 0 0 3

ETC) ACT 1 9 8 5

ACT 1 9 8 9

JACKMAN

key:

(1 9 7 0 )

CRIM IN A L JU STICE AND PUBLIC ORDER

E xam p les o f police pow ers originating from statute

ACT 1 9 9 4 POLICE REFORM ACT 2 0 0 2

E xam p les o f police pow ers originating from the com m on law

and Police P o w e rs

PUBLIC STORES ACT 1 8 7 5

THOMAS V

to Policing

ACT 1 9 8 2

An Introduction

FIREARM S ACT 1 9 6 8

1 9 6 7 AND 1 9 7 7

Appendix 5: police powers to stop, detain and search under PACE

PUBLIC PLACE

REASONABLE GROUNDS TO SUSPECT THAT THE FOLLOWING ARE BEING CARRIED

PROHIBITED ARTICLES

ARTICLES FOR USE IN CAUSING CRIMINAL DAMAGE

STOLEN PROPERTY OFFENSIVE

ARTICLES FOR USE IN

WEAPONS

THEFT, DECEPTION, ETC BLADES OR SHARP OBJECTS

THE POLICE MAY: BE

1 STOP A PERSON ON FOOT OR A MOTOR

ABORTED AT ANY TIME IF

VEHICLE SUSPECTED OF CARRYING ANY

THE THIRD STAGE PROVES

OF THE ABOVE; AND

THE

FIRST

TWO

MAY

TO BE UNNECESSARY

2

d e t a in ; a n d

3

SEARCH

252

A n I n t r o d u c t io n to P o lic in g a n d P o lic e P o w e r s

A pp en d ix 6: ss 60 and 60A A o f the C rim in al Ju stice and P u b lic O rd er A ct 1994

Section 60 Inspector or above reasonably believes that:

In c id e n ts o f s e r io u s It is expedient to give an v io le n c e m ay o ccu r in A N D authorisation under s 60 any locality in his area. to p re v e n t th e ir occurrence.

OR

That persons are carrying dangerous instrum ents or offensive w eapons in any locality in his police area without good reason.

That officer may give written authorisation (specifying the grounds) for uniformed police officers to stop /search vehicles or persons within that specified locality for up to 24 hours. (If authorisation given by an inspector, a superintendent or above must be informed as soon as it is practicable to do so.) ^ An authorisation under s 60 a n d /o r s 60AA empowers any uniformed police officer:

Section 60 only

Section 60 and/or s 60AA

To stop any pedestrian and search him or a n y th in g c a rrie d by h im fo r o ffe n s iv e weapons or dangerous instruments ...

To require any person to remove any item which the police officer reasonably believes is b e in g w o rn w h o lly or p a rtly for the purpose of concealing his identity.

A N D /O R

vp

To stop any vehicle and search it, its driver and any passenger for offensive weapons or dangerous instruments. A u n ifo rm ed p o lice o ffic e r m ay, in the exercise of these powers, stop any person or vehicle and make any search he thinks fit, whether or not he has any grounds for su sp ectin g that the p erson or v eh icle is carrying weapons or articles of that kind. A uniformed police officer may seize any dangerous instrument or article reasonably suspected to be an offensive weapon. The driver of a vehicle stopped under s 60 shall be entitled to a written statem ent that the v e h icle w as sto p p ed if ap p lied for within 12 months, or immediately. A p e rso n search ed u n d er s 60 sh a ll be entitled to a written statem ent that he was searched if applied for w ithin 12 months, or immediately.

A uniformed police officer may seize any item reasonably believed to be intended to be w orn w holly or m ainly for the above purpose (although no special search power is a v a ila b le for the p u rp o se o f fin d in g masks, etc). s l/ Failure to remove an item as above when required by a uniformed police officer is an arrestable offence under s 24(2) of PACE. v l/ The above power to require the removal of disguises can be authorised under s 60AA alone if an inspector or above reasonably believes the com m ission of offences may take place and it is exped ien t to give an au th orisation to prevent or control such activities in his or her police area.

A n auth orisation under s 60 a n d /o r 60A A m ay be extended for a further 24 hou rs, but only by a sup erintend ent or above.

A p p e n d ice s

25 3

Appendix 7: police powers to stop/search under ss 44-47 of the Terrorism Act 2000 C o m m a n d e r /a s s is ta n t c h ie f c o n s ta b le or a b o v e m ay a u th o ris e th e fo llo w in g if e x p e d ie n t to p re v e n t a cts o f terrorism

The power for police officers in u n ifo rm to s t o p /s e a r c h pedestrians and anything carried by them for articles connected with terrorism (whether or not grounds for suspicion)

At any place within their police a rea n o t e x c e e d in g 28 d ay s

The power for police officers in uniform to stop /search vehicles and persons in them for articles c o n n e cte d w ith te rro ris m (w h e th e r o r n o t g ro u n d s for suspicion)

be cancelled at any time

H o m e S e c re ta ry m u st be inform ed of any authorisation as so o n as is re a s o n a b ly practicable, where it m ay then either:

cease to have effect if not confirmed by the Home Secretary within 48 hours

continue in force for original period, but not exceeding 28 days

be confirmed and will then either:

continue in force, but for a shorter period than that originally specified

254

A n In tro d u ctio n to P o licin g an d P o lice P o w e rs

Appendix 8: police cordons (ss 33-36 of the Terrorism Act 2000) Superintendent or above may authorise a cordon to be imposed within a specified area if expedient to do so in connection with an investigation into terrorism

Police officers below the rank of superintendent may authorise a cordon if the matter is of great urgency, but must inform a superintendent or above as soon as is reasonably practicable, who may either confirm or cancel it

▼

Y

Initial authorisation must not exceed 14 days (renewable for overall period not exceeding 28 days)

Police officers at the scene have powers to:

order persons to leave the cordoned area, including persons in buildings

order persons in charge of vehicles to remove them

reposition any vehicle

prohibit or restrict any vehicular or pedestrian access

Sched 5, para 3 to the Terrorism Act 2000

Superintendent or above (or officer of lower rank in an emergency) may authorise police officers within the area of a cordon to do the following if reasonable grounds for believing material likely to be of substantial value to a terrorist investigation is likely to be found on premises within the cordoned area (excluding items subject to legal privilege, excluded or special procedure material)

t Search premises specified in the authorisation and any person found there

T Seize and retain anything found if reasonable grounds for believing it is likely to be of substantial value to the terrorist investigation and it is necessary to prevent it from being concealed, lost, damaged, altered or destroyed (except items subject to legal privilege)

Appendix 9: powers of arrest under ss 24,116 and Scheds 1 A and 5 of the Police and Criminal Evidence Act 1984

AL L CITIZENS

PO LIC E ONLY

MAY ARREST ANYONE:

Suspect caught in the act

Actually com m itting an arrestable offence or there are reasonable grounds for suspecting to be com m itting an arrestable offence.

These conditions apply also to the police.

OR Suspect caught after the act

Suspect caught before the act

Anyone who is guilty of having committed an arrestable offence or there are reasonable grounds for suspecting this.

No pow er for an ordinary citizen to arrest under PACE although s 3 of the Crim inal Law Act 1967 gives both citizens and the police power to use reasonable force to prevent crim e, etc.

These conditions apply also to the police

Or only reasonable grounds to suspect that an arrestable offence has been comm itted in the first place.

May arrest anyone about to com m it an arrestable offence or has reasonable grounds for suspecting they are about to do so.

256

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Appendix 10 A R R ESTA BLE O FFEN C ES (s 2 4 and S ch ed 1A o f P A C E) Offences where sentence fixed by law; offences where a person 21 years or over (due to be reduced to 18) may be given a five year term of im prisonm ent on a first conviction; also offences under: the Custom s and Excise Acts; the Official Secrets Acts of 1920 and 1989; s 36 of the Crim inal Justice Act 1925 (untrue state­ m ent for procuring a passport); s 14(1) of the W ireless Telegraphy Act 1949 (triable either way offences under that Act); s 1(1) of the Prevention of Crime Act 1953 (carrying offensive weapons); s 2 of the Obscene Publications Act 1959 (publication of obscene m atter); s 12(1) or 25(1) of the Theft A ct 1968 (taking motor vehicle without consent and going equipped for stealing); s 19 of the Firearms Act 1968 (carrying firearm /im itation firearm in public place); s 5(2) of the M isuse of Drugs Act 1971 (posses­ sion of cannabis or cannabis resin); s 3 of the Theft Act 1978 (making off without paym ent); s 1 of the Protection of Children Act 1978 (indecent photographs/pseudo-photographs of chil­ dren); s 1(1) or (2) or 6, 1(5), 9 or 13(l)(a) or (2) or 14 of the Wildlife and Countryside Act 1981 (various offences regarding wild birds, w'ild animals and plants); s 39(1) of the Civil Aviation Act 1982 (trespass on aerodrome), O rder in Council under s 60 of the Civil Aviation Act 1982 (prohibited behaviour in an aircraft towards or in relation to a crew member, or passengers being drunk on an aircraft); s 21C(1) or 21D(1) of the Aviation Security Act 1982 (unauthorised presence in a restricted zone or aircraft); s 1 of the Sexual Offences Act 1985 (kerb-crawling); s 19 of the Public Order Act 1986 (publishing, etc, material likely to stir up racial or religious hatred); s 39, 139(1), 139A(1) or (2) of the Crim inal Justice Act 1988 (com mon assault, and offensive w eap ons/ knives, etc, in schools); s 103(l)(b), 170(4) or 174 of the Road Traffic A ct 1988 (driving whilst disqualified, failing to stop /rep ort a personal injury road traffic accident or false state­ ments and withholding material information); s 14J or 21C of the Football Spectators Act 1989 (contravention of banning order or notice); the Football (Offences) Act 1991 (pitch-invasion, inde­ cent or racialist chanting, throwing m issiles); s 60AA(7), 166 or 167 of the Crim inal Justice and Public Order Act 1994 (failure to remove disguise, ticket or taxi touting); s 89(1) of the Police Act 1996 (assault on police); s 2 of the Protection from Harassm ent Act 1997 (harassment); s 32(l)(a) of the Crime and Disorder Act 1998 (racially or religiously aggravated harassm ent); s 12(4) or 46 of the Crim inal Justice and Police Act 2001 (failure to surrender alcohol and placing advertisem ents for prostitution); s 143(1) of the Licensing Act 2003 (failure to leave licensed prem ises, etc); and ss 6 6 ,6 7 ,6 9 ,7 0 and 71 of the Sexual Offences Act 2003 (expo­ sure, voyeurism , intercourse with an animal, sexual penetration of a corpse, or sexual activity in public lavatory). Also, conspir­ ing, inciting, aiding, abetting, counselling or procuring any of the above, including attempting except those offences that are triable sum m arily only.

A p p e n d ice s

257

C R IM E S W H IC H A R E ALWAYS S E R IO U S A R R E S T A B L E O F F E N C E S (s 116 and Sched 5)

Can be transformed into serious arrestable offences under s 116 of PACE if: serious harm to State security or public order; death or serious injury to any person; serious inter­ ference with the adm inis­ tration of justice; or sub­ stantial financial gain or loss; or the m aking of threats w hich if carried out would be likely to lead to any of the above consequences.

Treason, murder, manslaughter, kidnap­ ping, s 170 of the Custom s and Excise M anagem ent Act 1979 (importing indecent or obscene articles), s 2 of the Explosive Substances A ct 1883 (causing explosion likely to endanger life or property), s 16, 17(1) or 18 of the Firearms Act 1968 (pos­ session of firearms with intent to injure, use of firearm s/im itatio n firearm s to resist arrest, and carrying firearms with criminal intent), s 1 of the Taking of H ostages Act 1982 (hostage-taking), s 1 of the Aviation Security Act 1982 (hijacking), s 134 of the Crim inal Justice Act 1988 (torture), s 1 or 3A of the Road Traffic Act 1988 (causing death by dangerous driving or causing death by careless driving when under the influence of drink or drugs), s 1, 9 or 10 of the Aviation and M aritime Security Act 1990 (endangering safety at aerodromes, hijack­ ing ships, or seizing or exercising control of fixed platform s), A rts 4 and 5 of the C hannel Tunnel (Security) O rd er 1994 (hijacking Channel Tunnel trains, or seizing or exercising control of the tunnel system), s 1 of the Protection of Children Act 1978 (indecent photographs / pseudo-photographs of children), s 2 of the Obscene Publication s A ct 1959 (publication of obscene matter), ss 327-29 and para 1 of Sched 2 to the Proceeds of Crime Act 2002 (drug trafficking offences and certain money laundering offences), ss 1, 2, 4, 5, 6, 8 ,3 0 and 31 of the Sexual Offences Act 2003 (rape, assault by penetration, causing a per­ son to engage in sexual activity without consent involving penetration, rape of child under 13, assault of a child under 13 by penetration, causing or inciting a child under 13 to engage in sexual activity involving penetration, sexual activity with a person with a mental disorder where the touching involved penetration, causing or inciting a person with a mental disorder to engage in sexual activity involving penetra­ tion) and s 5 of the Domestic Violence, Crime and Victims Act 2004 (causing or allowing the death of a child or vulnerable adult).

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Appendix 11: examples of 'any person' arrest powers

Section 3(4) of the Theft Act 1978 X M a k in g o ff w ith o u t p a y m e n t.

Section 25(1) of the Theft Act 19682 G o in g e q u ip p e d fo r s te a lin g , etc.

Section 91 of the Criminal Justice Act 1967 A rre st o f a p e rs o n w h o is d ru n k an d d is o rd e rly in a p u b lic p lace.

Section 6 of the Vagrancy Act 1824 It shall be lawful for any person w hatsoever to apprehend any person who shall be found offending against this Act, and forthw ith to take and convey him or her before som e justice of the peace, to be dealt with in such m anner as is herein­ before directed, or to deliver him or her to any constable or other peace officer of the place where he or she should have been apprehended, to be so taken and conveyed as aforesaid ... O th e r e x a m p le s o f 'a n y p e r s o n ' a r r e s t p o w e rs c a n b e fo u n d u n d e r s 1 o f th e L ic e n s in g A c t 1902 a n d s 11 o f th e P re v e n tio n o f O ffe n c e s A ct 1851.

1 2

This offence was made an arrestable offence under Sched 1A to PACE by virtue of s 48 of the Police Reform Act 2002. This offence is also an arrestable offence under Sched 1A to PACE.

A p p e n d ice s

25 9

Appendix 12: police detention - the basic rules Arrival of suspect (usually the 'relevant tim e')

Suspect informed of right to have the services of a solicitor

Suspect informed of right to have som eone informed of their arrest

Suspect informed of right to consult Codes of Practice

First review by an inspector must occur within six hours after authori­ sation of detention and at nine hourly intervals afterwards

M ay be delayed up to 36 hours by inspector if a serious arrestable offence

Suspect searched

Custody officer authorises detention, and suspect interviewed a n d /o r further inquiries made

At the end of 24 hours after the 'relevant tim e'

If suspect is charged, subsequent reviews will be made by the custody officer

M ay be delayed up to 36 hours by superintendent if a serious arrestable offence

Suspect must either be charged, released outright, or given conditional/ unconditional bail (may be done before expiry of detention time)

\

If not charged, either:

\

Extension up to 36 hours by a superintendent if arrestable or serious •arrestable offence

Further extension up to 96 hours by , m agistrates but only if serious arrestable offence

If charged, either Outright release

Outright release

C onditional/unconditional bail to return to police station at a later date

C onditional/ unconditional bail to appear in court at a later date

If not charged On return to police station

Detention in police custody until first court appearance

260

An Introduction to Policing and Police Pow ers

A ppendix 13: the basic structure of the extended police fam ily

U nder the direction and control of chief officers of police

OR

U nder the em ploy­ m ent, direction and control of the Director-

Supervision and com plaints handled by em ployers

C hief officers of police m ay confer lim ited powers

A ccredited civilians

INDEX A bandoned v e h ic le s ...........................215,225

A dd resses See N am es and ad dresses

A bode, rem oval of young persons to norm al place o f ........... 91, 214

Adverse inferences from s ile n c e .......................................... 170-71

Access to legal advice accredited representatives...................... 134 adverse inferences from silence.............................................. 170 change of mind by su sp e ct.................................................171 choice of solicito rs.............................134,146 confessions, oppression and........................................147 con fid en tiality............................................ 133 custody re c o rd s..........................................177 d e la y ............................................. 133,145-47, 170-71 detention................................. 132-35,144-49 duty solicitor s c h e m e .......................134,171 evidence, interference w ith ..............145-47,170-71 fair t r i a ls ....................................................... 237 identification p arad es............................... 189 informing suspects of rig h ts............................................ 133-34 intimate sa m p le s........................................203 PACE and c o d e s ................................ 133-35, 145-47,170-71 probationary or non-accredited representatives........................................ 134 reasons for refusal of, records of...................................................133 solicitors arrival at station, o f ...............................177 meaning o f ...............................................134 removal o f..........................................176-77 tape re c o rd in g ............................................ 179 telephone, advice b y ................................. 133 terrorist o ffe n c e s ...............................133,147 volunteers at police stations.......................................... 133 vulnerable p e rs o n s ...........................153,171 warrants of further d eten tion............................. 148-49 young offenders.......................................... 152

Alcohol Com m unity Safety Accreditation S ch em es........................ 225 community support o ffic e rs ...............................214-15 confiscation o f .............................214-15, 225 detention, visits to drunk people i n ......................................166 drink d riv in g ........................................95, 201 police in terv iew s........................................ 171 public places, consumption in d esig n ated ................................. 214, 225 sentencing............................................ 214, 225 sporting events.............................................. 46 stop and search.............................................. 46 young offenders........................ 2 1 4-15,225 A m algam ation o f fo r c e s ................................. 3 A nti-social b e h a v io u r.............................59-60 abode, removal to norm al place o f ...............................91, 214 a r r e s t ..........................................................89-91 Community Safety Accreditation S ch em es........................ 225 d efinition......................................................... 90 dispersal, power o f ............. 9 0 -9 1 ,2 1 3 -1 4 harassment, alarm or d istre ss..........................................90, 214 motor v e h icle s......................................60,214 names and addresses, requiring...........................5 9,213-14, 225 n o tic e ................................................................ 90 sentencing........................................59,90-91 stop and s e a r c h ..................................... 59-60 Appropriate ad u lt.........................150-51,173 approved social w o rk e rs .........................151 cautioning..................................................... 170 con fessio n s................................................... 186 custody officers and records........................................152-53 definition.................................................150-51 fingerprinting.............................................. 196 group identification....................................192 intimate samples and search es.................................. 138,202 mental d isabilities.............................151,186

A ccou ntab ility........................................7, 8,11 Accredited c iv ilia n s ............................... 222-26 See also Community Safety Accreditation Schemes Accredited representatives........................ 134

227

262

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notices issued to .......................................... 156 PACE and c o d e s .................... 153,155,173 parents .......................................... 1 51-52,173 young offenders............... 150-5 1 ,1 5 3 ,1 7 3 Armed fo r c e s ........................................................3 Arrest p o w e r s .............................................61-94 aiding and abetting, counselling or p ro cu rin g ...................... 68 anti-social behaviour............................. 89-91 'any person' arrest pow ers..................91-92 arrestable offences...........................6 3 -7 2 ,8 2 bail....................................................... 8 1-8 2 ,8 4 , 86,159 breach of the peace...................... 63, 74-76, 237,245 burglary............................................................72 cau tion s................................................... 79,169 citizen's a rre st................................. 6 9-7 0 ,9 1 , 2 2 7-29,245 civilians, policing b y .......................... 86, 227 clothing, removal o f ................................... 87 com plaints....................................................... 84 cross-border enforcement.................... 86-87 custody o ffic e rs .................................... 130-31 definition...................................................61-76 d e te n tio n ......................................82,142—13, 145,147—49 discretion...................................................83,8 4 drug arrest referral schem e........................................ 164 entry, powers o f ................................... 82,218 escort o ffic e rs.............................................. 222 evidence, exclusion of improperly obtained ........................ 84-85 false im prisonm ent............................... 78,8 4 fines, non-payment o f ................................. 86 fingerprinting...............................................196 fixed penalties, powers to is s u e ................................. 92-94 further offences, for one or m ore.......................................... 82 general arrest conditions . . . 63, 7 2 -7 4 ,9 2 grounds for a r r e s t................................. 77-78 handcuffs.................................................79,236 h arassm en t..................................................... 59 incommunicado, right not to be h e ld .......................................... 135 information that must be given on a rrest............................. 77-78, 79 inhuman or degrading treatment or torture........................ 235-36 investigating officers................................. 218

liberty and security, right t o ........................................7 8 ,2 3 6 -3 7 local child curfews..................8 7 -8 8 ,8 9 -9 0 making off without p aym ent.............................. 91-92 names and a d d re sse s.................................74 Northern Irelan d ...................................86-87 o b stru ctio n .............................................. 50-51 offensive w eapons..................................... 117 PACE and c o d e s......................62-74, 77-94, 235-37,245 Philips C o m m issio n .............. 61-62,71 photographs................................................ 200 police stations arrests made elsewhere than a t .......................... 81-82 designated stations, taking t o ........................................... 8 1 ,8 7 release of suspects before taking t o .............................81,8 4 political uniforms, w ea rin g .......................................................62 p ro ced u re.............................................. 77-87 raves and prohibited assem blies.................................................. 58 reasonable suspicion........... 6 2 ,8 2 -8 3 ,2 3 7 reasons for a rr e s t...................................78,7 9 recordable o ffe n c e s..................................... 62 restraint, act o f ....................................... 79-80 road b lo c k s .....................................................41 samples, refusal to g i v e ............................ 62 schools, searches for offensive weapons in............................ 117 Scotland ........................................................... 86 s e a r c h e s ............................................39, 82-83, 85, 87,96, 112-15,218 sentencing......................................... 6 3 -6 4 ,6 9 serious arrestable offences . . . . 71-7 2 ,9 6 , 147-19,241 Serious Organised Crime and Police Bill...................................243-45 sexual o ffen ces..............................................92 stop and s e a r c h ......................................50-51 street b a il............................................81 -8 2 ,8 4 strip s e a r c h e s ................................................ 39 terro rism .................................................63, 83 truants, power to re m o v e ............................................88-90 use of fo r c e ...............................7 0 -7 1 ,7 9 ,8 7 vicarious liability......................................... 69 voluntary attendance at a police station........................7 9 -8 0 ,8 2

Index warrant, with and w ithout...........................6 2 -6 3 ,6 8 -6 9 , 84-87,91 warrants of further d eten tion..............................147-49 A ssa u lt....................................................2 3-25,44, 50, 226, 229 A ssociation of C hief Police O fficers (A C P O )............................... 7 A tte s ta tio n ............................................................ 1

Bail a rrest.................................................81-82, 84, 86,159 c o n d itio n a l................................................... 159 custody officers and records................................1 31-32,159 detention............................. 1 4 1,149,156-58 offences, list o f ...................................... 158-59 p o lic e ......................................................142,159 street.............................................8 1 -8 2 ,8 4 ,1 4 2 warrants of further d eten tio n .................................... 149 B a tte ry ............................................................ 23-25 Bladed a r tic le s ................................. 34 ,4 7 -5 1 , 1 1 1 ,117-18 Blind and visually-im paired p e rs o n s ....................................................153-54 Breach o f the peace a rrest................................................... 63, 74-76, 237,245 community support officers........................................................228 definition..........................................................74 demonstrations travelling to................................................. 76 detention................................................. 75,158 entry, pow'ers o f ...................................... 75-76 freedom of expression............................... 237 m iner's s trik e ................................................. 76 PACE and codes.............................................76 public o r d e r ................................................... 74 reasonable grounds to believe...............................................74-75 searches................................. 9 6,113-14,121 se iz u re ............................................................ 122 British Transport P o lice..................................89 Bugging c e lls ................................................... 238

263

Cash and valuables, safety o f..........................................................137 C au tio n in g ...............................................161,169 administration of caution s...................... 162 adverse inferences from silence.............................................. 169 appropriate ad ult........................................170 a r r e s t ....................................................... 79,169 co n d itio n al............................................ 162-64 co-operate, failure t o ................................. 170 d e te n tio n ................................... 156,161-64, 168-70 identification.................................................189 National Standards for C au tio n in g ........................................ 161 new cautions.................................................169 PACE and codes...........................7 9,1 6 8 -6 9 public interest...............................................161 record s............................................................162 reprimand and warning scheme for young offenders......................................161 tape re co rd in g ............................................ 179 victims, views o f ........................................162 volunteers at police stations.......................................... 169 vulnerable p e rs o n s................................... 170 words of c a u tio n s ........................................79 Central Police Training and D evelopm ent A u th o rity .................... 12-14 C e n tra lis a tio n ............................................ 3 ,4 -7 C hief c o n sta b le s ........................................ 10-11 accountability................................................. 11 annual reports................................................. 11 appointm ent.....................................................5 codes of practice.............................................11 constitutional and legal status o f ...................................... 10-11 direction and control of services, responsibility f o r .................... 10 fair t r i a ls ......................................................... 12 Home S e cre ta ry ................................. 5 ,1 1 ,1 2 local policing p la n s ......................................10 mutual aid ...................................................6 ,1 2 police auth orities............................................ 5 rem ov al..............................................................5 re p o rts...............................................................11 r o le ..................................................................... 11 su sp e n sio n .................................................5 ,1 2 vicarious liab ility ............................................ 9

264

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,,

C h ief o ffic e rs ........................................ 3 4 211 See also Chief constables C h ild re n ..........................................................243 See also Local child curfews; Young offenders Citizen's a r r e s t................................. 69-70, 91, 227-29,245 City of London P o lic e ...............................3, 7 Civilians, policing b y ...........................209-30 See also Community support officers (CSOs) a r r e s t ..............................................................I l l assault on designated and accredited civ ilia n s...............................226 civilian enforcement officers......................................................... 86 Community Safety Accreditation Sch em es..................222-26 designated and accreditcd civilians, offences a g a in st......................................226 detention officers........................ 220-21, 229 escort o ffice rs......................................222, 229 extended police family concept......................................6,1 7 , 209-10, 230 impersonating designated and accredited civ ilia n s...................... 226 Independent Police Complaints C o m m ission.......................................... 6 ,19 investigating o fficers.. . . 210,217-19, 229 operational concerns...........................227-30 police auth orities........................................5-6 Scene of Crime O ffic e rs ..................209,210 special constabulary, distinguished f r o m ............................... 209 specialist inv estigato rs.............................210 Clothing a r r e s t ................................................................ 87 detention, conditions o f ...........................165 identification p arad es...............................190 inhuman or degrading treatm ent...................... 235-36 police c o r d o n s .............................................. 58 religious susceptibilities.............................50 removal o f .................................3 7 ,3 8 ,5 0 -5 3 , 5 8 ,8 7 ,1 3 7 , 165 search es..................................... 5 3 ,8 3 ,8 7 ,1 3 7 s e iz u re ............................................................137

stop and search ................................... 37,38, 5 0 -5 2 ,2 3 5 -3 6 terrorist offences..........................................53 Codes See PACE and codes C o m m issio n ers...................................... 3, 8,14 Com m on Council of the City o f L o n d o n ........................................7 Com m unity liaison o ffic e rs ...................... 106 Com m unity Safety Accreditation S c h e m e s .................. 222-26 abandoned vehicles................................... 225 a lco h o l............................................................225 anti-social behaviour................................. 225 community support o ffic e rs ......................................224 com plaints.....................................................223 co n su lta tio n .................................................223 cycles, power to sto p ................................. 226 fixed penalty n o tices................................. 224 Independent Police Complaints C o m m ission............................................ 223 loads, power to stop traffic to e sc o rt........................................216 motor v e h icle s ................................... 225-36 nam es and addresses, power to require giving o f ................................. 2 24-2 5 ,2 2 7 police a re a s ...................................................223 policc p lan s...................................................223 private security industry, licensing o f .............................................. 223 tobacco, confiscation o f.............................225 tra in in g ......................................................... 223 young offenders, confiscation of alcohol and tobacco from ................................... 225 Com m unity support officers ( C S O s ) ................................... 211-17 a lco h o l..................................................... 214-15 anti-social behaviour dispersal powers a n d ............... 213,214 motor vehicles used to cause alarm, etc, seizure o f ........................................215 names and addresses, power to req u ire...........................213-14 place of residence, removal of young people to .................................................214

Index arrest powers of citizen's..................228-29 assaults o n ..................................................... 229 breach of the p e a c e ................................... 228 chief o ffic e rs ................................................. 211 Community Safety Accreditation Sch em es.........................224 confiscation of alcohol and tobacco...............................................215 cycles, power to stop................................. 216 designated public places, seizure of alcohol consumed in .......................................... 214 detention...............................213 -1 4 ,2 2 8 -2 9 entry, powers o f ................................. 212,215 escapes from lawful custody, power to deal w'ith.............................................. 229 false particulars, sentencing for g iv in g .................... 213-14 fixed penalty notices, issue o f ............. 9 4 ,2 1 2 -1 3 ,2 2 8 football banning o r d e r s ...........................229 loads, power to stop traffic to e s c o rt........................................216 local child curfew s............................... 88,214 making off whilst being detained, sentencing for........................ 213, 228,229 motor v e h icle s ......................................215-17 names and addresses, power to re q u ire .........2 1 3 -1 5 ,2 2 7 ,2 2 8 place of residence, removal of young people t o ................................................... 214 policc authorities, employees o f.............................................211 police c o r d o n s ......................................216-17 police station, accompanying CSO to the...............................2 1 3-14,229 pow ers................................... 211-17,227-28 protective equipm ent for.......................................... 229 road checks, carrying o u t ............................................ 216 search es.................................................217,228 seizure of v e h icle s......................................215 sentencing.............................213-17, 219,228 stop and s e a r c h ..........................................217 terrorist o ffe n c e s................216-17, 219,229 tobacco, confiscation o f............................. 215 tra in in g ..........................................................227

265

use of reasonable force.................... 212,214, 215,228, 229 young p e o p le ........................................ 214-15 C om plaints...............................................8 ,1 8 -2 5 a r r e s t ................................................................ 84 code of c o n d u ct......................................21-22 Community Safety Accreditation Sch em es........................ 223 development of complaints system ............................. 18-19 disciplinary p ro ceed in g s........................... 21 Independent Police Complaints C om m ission........................................ 19-21 Poiicc Appeals T ribu n al...................... 21-22 Police Complaints A u th o rity .............................................18-19 Police Com plaints B o a rd ...........................18 police in terv iew s........................................ 176 tape re co rd in g ......................................179-80 Com puters, seizure of inform ation o n .................... 123-26, 218 Conditions of detention . . 157,165-70, 236 cells number of persons i n ...........................165 young offenders......................................165 clothing, issue of replacem ent........................................ 165 custody o ffic e rs .......................................... 130 custody suites, inspection o f .................................................6 drunk persons, visits t o ...........................166 healthcare professionals.................... 166-68 infectious diseases or conditions.............................................168 m e a ls .............................................................. 165 medical attention, provision of........................................ 166-67 medical exam inations............................... 167 medication, self-administration o f .................... 167-68 mental disabilities, assessm ent of persons w ith .............................................167 PACE and codes....................................165-68 police in terv iew s........................................ 184 restrain ts.................................................165-66 treatment of detained p erso n s............................. 166-70 use of reasonable fo r c e ............................. 166 visits in c e lls .................................................166 young offenders.......................................... 165

266

A n I n t r o d u c t io n to P o lic in g a n d P o lic e P o w e r s

C o n fe s sio n s .............................................183-86 access to legal advice..................................147 appropriate ad ult........................................ 186 inducem ents................................................. 184 juries, warning to ........................................ 185 mental disabilities independent persons, presence o f ....................................185-86 protection for persons w i t h ............................... 185-86 o p p re s sio n .................................. 147,183-85 PACE and codes................................. 183-86 unreliability................................................... 184 Confiscation of alcohol or to b a c c o ............................. 127-28, 214-15, 225 C o n fro n ta tio n ........................................ 194-95 Consent, policing b y ...........................1, 3 ,1 8 C o n sta b le s ...................................... 2 ,1 4 ,1 5 , 28 Constitutional and legal status o f the p o lic e ................................. 8 -17 chief c o n sta b le s .......................................10-11 d ism issa l............................................................ 9 duties of officers........................................ 9-10 general operational p o licin g..............14-15 Her M ajesty's Inspectorate of Constabulary'..................................13-14 Home S ecreta ry ...................................... 11-13 independence................................................... 8 off-duty officers, duties o f .................... 9-10 officers of the Crown or state, a s ................................................. 8 ,9 special con stabu lary............................. 16-17

d eten tio n ............................. 129-32,141-12, 144,155-57 intimate searches..................................138-39 investigating officers..................................130 PACE and codes....................................129-30 r a n k .................................................................129 release of su sp ects...................................... 131 Custody records access to legal advice..................................177 appropriate ad ult........................................ 152 b a i l ............................................................ 131-32 charge, w ith o u t....................................131-32 custody o ffic e rs ....................................131-32 d eten tion ................................................. 132-32 intimate samples and searches.................... 138-39, 202-04 PACE and codes....................................131-32 sa m p le s................................................... 202-04 search es.......................................... 115,136-37 sig n in g............................................................ 132 vulnerable p e rs o n s ....................................152 Cycles, power to sto p .........................216, 226

Dam age to p ro p erty ........................................ 23 D am ag es..........................................................9 ,2 3 D eaf persons and persons w ith hearing l o s s ...................................... 154 Death penalty, abolition o f .........................233 Declarations of in co m p atib ility .......................................... 232 D efinition of police o fficers.................... 9-10

Cordons See Police cordons

D e l a y ................................................. 133,145-47, 170-71,174

Costs, police officer's liab ility f o r ........................................................9

Dental im p re s sio n s ...................................... 203

Crack houses, power to c lo s e ..............121-22 Cross-border enforcem ent, arrest a n d .................................................86-87 Crossbow s and parts o f devices, searches f o r ............................. 46 Custody officers appropriate ad ult........................................ 153 arrested persons.................................... 130-31 b a i l .......................................................... 131,159 conditions of detention............................. 130 custody re c o rd s .................................... 131-32

D e te n tio n ................................................... 129-64 See also Detention officers; Detention time limits access to legal ad v ice............... 132,133-35, 145-47 a r r e s t ................................................................ 82 b a il................................................... 141,156-58 breach of the p e a c e ............................. 75,158 bugging cells.................................................238 cau tio n in g ....................................156,161-64, 168-70 charges......................................................155-61 court, duty to take charged person b e fo re................ 160-61

Index fitness to be charged .. ...................... 156 questioning a ft e r ......... ...................... 160 release, w ith o u t........... ............... 156-58 w ith o u t.......................... ............... 141-50 w ritten ............................. ...................... 156 community support officers........... ................213-14, 228-29 conditions o f .................... ...................... 157, 165-70,236 court, duty to take charged person before ............... 160-61 Crown Prosecution S e n d ee ............................. ............... 155-56 custody officer.................. ............... 129-32, 141-4 2 ,1 5 5 -5 7 custody re co rd s............... ............... 131-32 designated police stations............... ...................... 129 detention officers............. ................ 220-21 disruptive or abusive persons, removal o f . .. ...................... 136 drug te s tin g ...................... . . . . 206-07, 245 escapes, power to deal w ith.................... ...................... 229 escort o ffic e rs.................... ...................... 222 false im prisonm ent......... ...................... 158 fingerprinting.................... ................ 220-21 ...................... 156 fitness to be charged goods, o f ............................. ........................ 57 identity, searches and examination to e sta b lish .................... ............... 139-41 incommunicado, right not to be held . . . 132,13 5 ,1 4 5 -4 7 independent custody v is ito r s ........... ...................... 207 inhuman or degrading treatment or to rtu re... ............... 235-36 intimate search es............. ............... 137-39 investigating officers----- ...................... 218 liberty and security, right to ............................. . . . . 141,236-37 local authority accom m odation........... ...................... 158 notices issued to suspects...................... ............. 132,156 PACE and c o d e s ............. ............. 129,132, 1 4 1-42,155-56 consultation of, right o f ........................ ...................... 132 court, duty to take charged person b e fo re ............. 160-61

267

disruptive or abusive persons, removal o f ........................ 136 lan g u ag e s...............................................132 questioning a ft e r ................................. 160 unco-operative detainees.............................................. 136 young offenders................................... 158 physical condition of suspects.............................................. 136 police stations, designated....................129 posters advertising rights...................... 132 private and family life, right to respect f o r ...............................238 questioning after charge........................ 160 reasonable ground for suspicion or b e lie f...........3 1-3 2 ,1 5 8 , 213 re le a s e ..........................................141,156-58 requisitions...................................................156 rights of arrested persons, initial and con tin uing...........................132 risk assessm ent......................................141-42 se a rch e s.............................3 1 -3 2 ,3 6 -3 7 ,4 4 , 5 7 ,1 3 6 -4 1 ,2 3 7 strip s e a r ch e s .............................................. 137 subsequent d eten tio n .........................155-61 terrorist o ffe n c e s ................................. 57,229 time lim its .............................................142-45, 147-48,154 unco-operative d etainees........................ 136 vulnerable persons, safeguards for....................................150-55 young offenders.......................................... 158 Detention o fficers.......................... 220-21, 229 designation o f .............................................. 220 fingerprinting, attendance at police station f o r ...................... 220,221 identity, examinations to a sce rta in .............................................. 220 intimate samples, warnings o n .............................................221 intimate search es........................................ 221 PACE and codes.................................... 220-21 photographs.................................................221 powers o f....................................................... 220 sa m p le s..........................................................221 search es................................................... 220-21 use of reasonable fo rc e ....................220, 221 D etention time l i m i t s ...........................173-74 access to legal advice................................. 144 a rre st...................................................... 142-43, 145,147-48 charge, with or w ith o u t.................... 142-45

268

A n I n t r o d u c t io n to P o lic in g a n d P o lic e P o w e r s

prevention and detection p o w ers.................................... 242 reasonable suspicion........................... 55,206 schools, searches i n .................................... 118 s e a r c h e s .............................................5 5 -5 6 ,9 5 , 105, 111, 118,121-22 s e iz u r e ............................................... 2 8 ,3 2 ,4 6 , 55-5 6 ,1 2 6 testing in d eten tion.....................206-07,245

continued detention, authorisation o f ...................................... 145 extension of norm al periods................................145,149 extradition and deportation............................................... 143 PACE and codes....................................142—15 police b a i l ......................................................142 postponement of review s.........................144 relevant tim e................................................. 142 representations.................................... 144,145 review officers, custody officers a s ..................................144 re v ie w s ................................................... 143-44 street b a il........................................................142 telephone re v ie w s...................................... 144 terrorist o ffe n c e s ........................................ 149 vulnerable persons and young offenders............................. 145,154 warrants of further d eten tion ..................134,147-59 young offenders.......................................... 154

Duty solicitor s c h e m e ......................... 134,171

Electronic devices used to store indecent photographs of children, forfeiture o f ......................... 243 Em ergencies............................... 2 ,6 -7 ,1 0 2 -0 3 Entry, powers of See also Search warrants, powers of entry and arrest ............................................................... 82 breach of the p e a c e ................................75-76 drug houses, power to close................................................. 121-22 private and family life, right to respect fo r ....................................76 seiz u re......................................................122-23

D isciplinary p ro ceed in g s............................. 21 D is g u is e s ............................................ 4 7 -5 2 ,1 2 7 D ispersal, power o f ................90-91, 213-14 DNA p ro filin g ............................... 201-02,205 D rink See Alcohol

E q u ip m e n t.......................................................... 13

D riving o ffe n c e s...........................95,201, 242

Escort o ffic e rs ........................................ 212,215, 222, 229

Drug arrest referral s c h e m e ...................... 164

European Com m ission o f Hum an R ig h t s ............................. 231,232

Drug houses, powers to enter and c lo s e ............................... 121-22 anti-social behaviour...........................121-22 closure notices and o rd e rs ................121-22 crack h o u ses.......................................... 121-22 Human Rights Act 1 9 9 8 ................... 121-22 reasonable b e lie f .........................................121 securing p re m ise s......................................122 sentencing..................................................... 122 use of reasonable fo r c e .............................122

European Convention on Hum an R ig h ts ............................... 231-39 European Court of Human R ig h t s .................... 231, 232-33 Evidence access to legal advice . . . . 145-47,170-71 a r r e s t..........................................................84-85 improperly obtained, exclusion o f....................................2 3 ,8 4 -8 5 interference w ith ................145—47,170-71 m iscond u ct..................................................... 23

Drugs

See also Drug houses, powers to enter and close cash, seizure o f ............................................ 126 controlled drugs............................................ 55 Drugs B i l l .....................................................245 intimate search es................................. 137-38 PACE and c o d e s ................................... 55-56, 206-07,245

Excluded m a te ria l.........................98-100,103, 122-23, 217 'Extended police f a m i l y '.........................6 ,1 7 , 209-10, 230

268

Index

269

Fair trials............................................ 1 2 ,2 3 7 ,2 3 8

Greater London A u th o rity ......................... 7-8

False im prisonm ent................................. 23,44, 78, 84,158

Group id e n tifica tio n ........... 1 8 7 -8 8,191-92 appropriate adult.........................................192 consent.............................................................191 moving and stationary groups....................................192 PACE and cod es...........................................191 photographs................................................. 192 v e n u e ........................................................191-92 video re co rd in g ...........................................192

Fatalities, police m isconduct a n d ............................................ 23 Fines, im prisonm ent for non-paym ent o f ................................... 86 F in g erp rin tin g..........................................195-96 appropriate ad ult........................................196 a r r e s t ..............................................................196 consent.............................................195-96,221 convictions, a fte r ........................................197 electronic means, b y .................................197 PACE and c o d e s ................................. 195-96, 220,221 palm p rin ts...................................................195 re te n tio n .............................................. 195,205 searches.......................................... 195-96,221 F ire a rm s ..................................................... 28,234 F ire w o rk s......................................................... 242 Fixed penalties, powers to is s u e ................................. 228-29 a r r e s t ......................................................... 92-94 Community Safety Accreditation S ch em es........................ 224 community support o ffice rs............. 94, 212-13, 228 names and addresses, g iv in g ................................... 213 Football bann in g o rd e rs .............................229 Force See Use of reasonable force Freedom o f expression................................. 237

General operational p o licin g .....................................................14-15 co n stab les.................................................14,15 entry requ irem ents......................................15 nationality....................................................... 15 probationary p e r io d .............................14-15 p rom otion....................................................... 14 rank structure..........................................14-15 Sheehy Report, rank structure a n d .............................14-15 sp ecialism s..................................................... 15 tra in in g ............................................................15 G ra ffiti.................................................................. 35

H and cu ffs.................................................79, 236 H arassm ent anti-social behaviour....................................90 a r r e s t .................................................................59 homes, in ........................................ 59, 242-43 protestors, b y ............................... 59, 242-43 sen tencing........................................................59 stop and search...............................................59 H ealthcare professionals.......................166-68 H elping police with their inquiries See Volunteers at police stations Her M ajesty's Inspectorate of C o n sta b u la ry .................................... 13-14 High Com m ission, em bassy or consulate, right to com m unicate w i t h ....................................152 Home O ffice and Secretary...........................4, 6 -7 ,1 1 -1 3 Central Police Training and Development B o a rd ......................... 12-13 chief c o n sta b le s ..................................5,1 1 -1 2 circulars, issuance o f ....................................12 codes of practice............................................. 11 commissioners, appointment of...........................................14 constitutional and legal status of p o lic e .................................... 11-13 equipm ent........................................................13 inquiries......................................................12-13 inspectors of constabulary, appointment of...........................................12 Metropolitan Police ..................7 -8 ,1 1 -1 2 National Policing P la n ................................12 performance ta r g e ts .................................... 12 Police Act 1 9 9 6 ............................................. 12

270

A n I n t r o d u c t io n to P o lic in g a n d P o lic e P o w e r s

police auth orities....................................... 4-5 riot control e q u ip m en t...............................13 stop and search..............................................53 terrorist offences............................................53 veto on chief constables, powers of.......................................................5 Hum an Rights Act 1998...................... 231-39 death penalty, abolition o f ......................233 declarations of incom patibility....................................... 232 drug houses, power to c lo s e ...............................121-22 European Commission of Human R igh ts........................ 231, 232 European Convention on Hum an R ig h ts ........................ 231-39 European Court of Human R igh ts..................2 31,232-33 fair t r ia ls ............................................ 237, 238 firearms, use o f............................................234 freedom of expression...............................237 inhuman or degrading treatment or torture...................... 235-36 legislation, compatibility w ith ........................ 231-32 liberty and security, right to ........................................78, 236-37 life, right t o .......................................... 232-34 PACE and codes..................................... 28,29 private and family life, right to respect f o r ................7 6,120-21, 237-39 surveillance.......................................... 238-39 use of lethal force, right to life and .............................233-34

cau tion s....................................................... 189 consultation o n ................................... 188-89 d e scrip tio n s........................................186-87 fingerprinting......................................220-21 group id en tificatio n .........1 8 7 -8 8,191-92 identification officers . . . . 1 8 6 -9 0,193-95 known su sp e cts................................. 187-88 media, use o f.................................................187 PACE and codes.................................... 186-90 photographs...................................... 187, 201 records..........................................................187 video identification........... 1 8 7 -8 9,193-94 vulnerable suspects....................................187 Identity, searches and exam ination to e s ta b lis h ............. 139-41, 198,220 Im personating accredited or designated c iv ilia n s ..................................226 Incom m unicado, right not to be held a r r e s t .............................................................. 135 attempts at contact, number o f ................................................. 135 delay..........................................................145-47 d ete n tio n .............................................132,135, 145-47 inhuman or degrading treatment or torture............................... 236 PACE and c o d e s ...................... 135,145-47 requests, records o f ....................................135 telephone c a lls .............................................135 terrorism, delay a n d ..................................147 vulnerable p e rs o n s ....................................153 young offenders...........................................153 Independent custody v is ito r s .................. 207

Identification p a ra d es........................ 187-91 access to legal advice.................................189 c lo th in g ......................................................... 190 number of persons o n ...............................189 objections t o .................................................189 PACE and codes................................. 190-91 photographs or video reco rd in g ......................................191 records............................................................191 street identification....................................191 voice identification...........................190-91 Identification procedures___ 186-201,243 See also Identification parades access to legal advice................................. 189 availability of su sp e cts.............................187

Independent Police Com plaints Com m ission civilian em ployees....................................6 ,1 9 Com m unity Safety Accreditation S ch em es.........................223 composition o f ............................................... 19 criminal charges...................................... 20-21 disciplinary p ro ceed in g s........................... 21 informal reso lu tio n ......................................20 investigations................................................. 20 legal status o f ................................................. 19 local resolution...............................................20 Infectious diseases or c o n d itio n s ............................................... 168 Inform ants, identity o f ............................... 105

Index Inhum an or degrading treatm ent or to rtu r e .........................235-36 In q u irie s ....................................................... 12-13 Inspectors of constabulary, appointm ent o f ............................................ 12 Interpreters...............................................152-54 Interview s See Police interviews Intim ate sam ples access to legal advice.................................203 appropriate adult....................................... 202 authorisation................................................ 202 consent...................................................202-03 custody re c o rd s................................. 202-03 definition.......................................................202 dental im pressions..................................... 203 d estru ctio n .................................................. 205 detention o fficers........................................ 221 PACE and c o d e s ...................... 202-03,221 police station, attendance at a ...............................204-05 reasonable suspicion.................................202 refusal, adverse infcrenccs f r o m ..................................... 203 volunteers at police stations..........................................203 vulnerable suspects................................... 202 Intim ate searches appropriate adult........................................138 au th o risatio n ......................................137-38 custody officers and records......................................138-39 detention.............................................. 137-39 d r u g s ..................................................... 137-38 fingerprinting...............................................221 inhuman or degrading treatment or torture...............................235 m eaning.................................................138-39 medical practitioners and nurses.................................................138 PACE c o d e s ................................. 3 8 ,1 3 7 -3 8 place o f..............................................................39 reasonable grounds to believ e...................................................137 same sex, officers o f ................................. 138 s eiz u re ...................................................138-39 stop and search.............................................. 38 strip se a rc h e s ..........................................38-39 vulnerable p e rs o n s ................................... 138 young offenders.......................................... 138

271

Investigating officers (IO s )......................210, 217-19, 229 access and copying of items s e iz e d ....................................... 218 accompanying investigating officers, p ersons..................................... 219 account for certain matters, power to require persons t o .......................... 218-19 a r r e s t .......................................................218-19 com puters, seizure of information o n ....................................... 218 custody of investigating officers, transferring persons i n t o ............................................218 custody o ffic e rs ..........................................130 d eten tio n .......................................................218 entry and search after arrest, powers o f ...................................218 excluded and special procedure material, access to .................................................... 217 motor vehicles, power to stop and s e a r c h .....................................217 National Crime S q u a d ............................ 218 National Criminal Intelligence S e rv ice ...............................219 PACE and codes................................... 217-18 powers o f .............................................. 217-19 search w a rra n ts............................... 217,219 seiz u re........................................217, 218, 219 use of reasonable fo r c e ............................ 218

Journalistic m aterial...............................99-100 Juveniles See Local child curfews; Young offenders

K n iv e s ........................................ 47 -5 1 ,1 1 1 ,1 1 7

Large, recapturing people unlaw fully a t ........................ 112-13 Legal advice See Access to legal advice Legal p riv ile g e .................................9 7-98,123, 125-27 Liberty and security, right to....................................78,141, 236-37 Life, right t o .............................................. 232-34

272

A n I n t r o d u c t io n to P o lic in g a n d P o lic e P o w e r s

Loads, pow er to stop traffic to escort............................................ 216 Local child c u r fe w s ................................. 87-88 a g e .................................................................... 88 a r r e s t.......................................... 8 7 -8 8 ,8 9 -9 0 community support o ffic e rs.............................88, 214 n o tic e s ..............................................................87 use of fo r c e .....................................................88 Local policing p la n s........................................10 Local resolution o f com p lain ts.................................................20

M aking off without p ay m ent........................ 91-92,213, 228, 229 M eals in d e te n tio n ........................................165 M edical attention in detention, provision o f .................... 166-67 M edical exam in atio n s................................. 167 M edication in detention, self-adm inistration o f ...................... 167-68 M ental d is a b ilitie s ............... 150-5 1 ,1 5 3 -5 4 appropriate adult...................... 151,185-86 assessm ent o f ......................................153,167 con fessio n s............................................ 185-86 definition....................................................... 150 detention, conditions o f ...........................167 searches, powers of entry a n d ......................................112-13 M etropolitan Police See also Metropolitan Police Authority accountability.............................................. 7 ,8 com m issioners........................................3 ,7 ,8 Home S e cre tary .............................7 -8 ,1 1 -1 2 international o b lig a tio n s......................8 ,1 2 M etropolitan Police C o m m ission er............................................7 Metropolitan Police C o m m itte e ............................................ 7 ,1 2 origins o f ....................................................... 2-3 M etropolitan Police A u th o rity ..................................................... 7-8 accountability...................................................8 composition o f ............................................ 7 -8 duties o f ..............................................................8 Greater London A uthority...................... 7 -8

Home S e cre tary .......................................... 7-8 independence...............................................7-8 m agistrates...................................................7-8 Receiver, abolition o f ......................................8 M iner's s t r i k e ................................. 2 ,6 ,4 1 , 76 M isconduct................................................... 23-25 M odernisation........................................ 241,242 M otor vehicles See also Motor vehicles, searches of a b a n d o n ed ..........................................215,225 alarm, used to c a u s e ................................. 215 anti-social behaviour...........................60,215 Com m unity Safety Accreditation Sch em es..................225-26 community support o ffic e rs ......................................215 investigating officers................................. 217 se iz u re ............................................................215 s to p p in g .......................................... 60,2 2 5 -2 6 testing, power to stop f or . . . . 216,225-26 M otor vehicles, searches o f.........................217 See also Road blocks arrest ............................................................... 41 community support o ffic e rs ......................................219 definition of vehicles.............................35-36 Endorsabie Fixed Penalty tic k e ts .......................................... 45 entry, powers o f .......................................... 112 information to be g iv e n .............................40 moving vehicles, stopping..................40-41 PACE and codes......................................40-42 persons in vehicles........................................40 raves and prohibited assem blies............................................ 58-59 reasonable suspicion...................... 4 0 ,4 1 -4 2 records.......................................... 4 0 ,4 2 ,4 5 -4 6 removal or retention of v ehicles...................................................60 seiz u re ..............................................................60 stop and search........................ 2 9 -3 0 ,3 5 -3 6 , 40-42, 51-52, 112,219 terrorist o ffe n c e s .......................... 5 2 -5 4 ,2 1 9 types of vehicles......................................35-36 unattended v e h ic le s ................................... 40 use of f o r c e ..................................................... 60 Vehicle Defect Rectification Scheme N o tic e .......................................... 45 M utual a i d ...................................................2 ,6 -7

Index Names and addresses anti-social behaviour................59, 214,2 2 5 a r r e s t ..............................................................74 Com munity Safety Accreditation S ch em es. . . . 224 -2 5 ,2 2 7 community support officers.............................2 1 3 -1 5 ,2 2 7 ,2 2 8 f a l s e .................................................................. 59 fixed penalty notices, issue o f..................................................... 213 sentencing for failure to p ro v id e........................ 5 9 ,2 1 3 -1 4 ,2 2 5 stop and s e a r c h ................................... 42, 50 young offenders........................................215 N ational Crim e Squad Her M ajesty's Inspectorate of C o n stab u lary ............................................ 14 investigating officers...............................218 mutual aid ......................................................... 6 Serious Organised Crime Agency, replacement b y ............................................ 6 Serious Organised Crime and Police B ill.............................................. 6 N ational Crim inal Intelligence Service (N CIS) co m p o sitio n .....................................................6 Her Majesty's Inspectorate of C o n stab u lary............................................ 14 investigating officers.................................219 mutual aid ......................................................... 6 Serious Organised Crime Agency, replacement b y ............................................ 6 Serious Organised Crime and Police B i l l ...............................6 N ational Policing P lan................................... 12 Northern Irelan d ................................... 7, 86-87

O ath or declaration of o ffic e ..............................................................1 O b stru ctio n ..........................................25, 50-51, 53-54, 57 O ff-duty officers, duties o f ................................................... 9-10

273

O ffensive weapons authorisation of sea rch es.......................... 47 bladed a r tic le s .............................................. 34 definition...................................................33-34 intended to cause injury, which a r e ...............................33-34 lawful au th ority............................................ 34 made or a d a p ted ................................... 33-34 PACE and c o d e s ............. 3 3 -3 4 ,3 5 ,4 7 -4 8 public place, definition o f ........................................34,35 reasonable e x c u s e ........................................34 schools...................................................35, 111, 117-18,127 searches.................................................47, 111, 117-18,127 self-defence.....................................................34 se iz u re ........................................................... 127 stop and search ...................... 3 3 -3 4 ,3 5 , 37, 4 6-51,117 O fficers o f the Crown or State, police a s ......................................8 ,9

PACE and c o d e s ........................................27-36 access to legal ad v ice___ 133-35,145^17, 170-71 appropriate adult..................... 153,155,173 arrest............................................ 6 2 -7 4 ,7 7 -9 4 , 235-37,245 breach of the p e a c e ......................................76 cautions............................................ 79,168-69 changes t o .............................................. 28, 29 con fessio n s............................................ 183-86 con fron tatio n ........................................ 194-95 co n sta b le s....................................................... 28 custody officers and records........................................129-32 d ete n tio n .................................. 129,132,136, 1 4 1 -4 2 ,155-56, 158,160-61 conditions o f......................................165-68 drug te s tin g ..................................... 206-07 officers.................................................220-21 time lim its.......................................... 142-45 warrants of further detention...........................147-49 drugs......................................................... 55-56, 206-07,245 entry, powers o f ........................ I l l , 115-17 fingerprinting.......................195-96,220,221 group identification....................................191

274

A n i n t r o d u c t i o n to P o lic in g a n d P o lic e P o w e r s

Hum an Rights A ct 1998 ......................28,2 9 identification .................... 139-41,186-91, 193-94, 220 importance o f ..........................................27-28 incommunicado, right not to be h e ld ......................... 135,145—47 intimate samples and se a rch e s............................ 3 8,137-38, 202-03, 221 investigating officers.......................... 217-18 motor vehicles, searches o f............................................40-42 offensive w eapons........... 3 3 -3 4 ,3 5 ,4 7 -4 8 photographs............................... 197-201, 221 police in terv iew s................................. 170-83 prohibited or stolen a rtic le s............................................ 33 public place, definition o f .............................................. 35 raves and prohibited assem blies...................................................59 reasonable b e lie f ................................... 30-33 review of P A C E ............................................ 28 sa m p les.......................................... 201-03, 221 schools, searches for offensive weapons in.............................118 s e a r c h e s ................................... 38-42, 53-56, 82-83,95-111, 115-21,136, 138,220 seiz u re ..................................................... 122-24 special procedure m aterial...............................................100-01 stop and s e a r c h ....................2 7 -5 6 ,2 3 5 -3 6 strip sea rch es.................................3 8 -3 9 ,1 3 7 tape recording of interviews...............................29,1 7 7 -8 0 video taping of interviews...............................29,1 8 1 -8 3 volunteers at police s ta tio n ......................................79-80 vulnerable p e rs o n s .............................150-55 Peace See Breach of the peace Personal liability o f police o ffic e rs ........................................8-9

consent.................................................200, 221 detention officers........................................ 221 group identification.................................... 192 identification ........................ 140,187,191, 198,201 PACE and c o d e s .................... 197-201,221 record s............................................................ 199 re te n tio n ........................................................198 use of reasonable fo r c e ............................. 221 volunteers at police stations................................ 199-200 vulnerable p e rs o n s ....................................200 young offenders.......................................... 200 Police and Crim inal Evidence Act 1984 See PACE and codes Police A ppeals T rib u n a l.........................21-22 Police a u th o ritie s .......................................... 4 -6 annual re p o r ts ............................................ 4 -5 ccntral governm ent....................................4 -7 chief constables, appointment, suspension and removal o f ..................................................... 5 civilian staff........................................5-6,211 codes of practice............................................. 11 community support o ffic e rs ...................................... 211 c o m p o sitio n ..................................................... 4 custody suites, inspection o f ................................................. 6 expenditure........................................................5 Home Secretary.......................................... 4 -5 inspectorate of constabulary rep o rts................................. 5 mutual aid ..........................................................6 National Crime Squad (N C S).................................................6 National Criminal Intelligence S e rv ice ....................................6 plans................................................................ 5 -6 remedial actions...............................................5 re p o rts................................................................ 5 size o f .............................................................. 4 -5 Police Com plaints A u thority................18-19

Philips Com m ission.................... 2 7 ,6 1 -6 2 ,7 1

Police Com plaints Board................................18

Photographs arrest ............................................................ 200 children, devices used to store indecent photos o f ...................... 243 circulation o f.................................................201

Police cordons authorisation................................................... 57 clothing, removal o f ....................................58 community support o ffic e rs.............................216-17

Index

275

duration o f ..................................................... 57 premises, searches o f....................................58 scenes, preservation of c rim e ........................................................58 seiz u re .............................................................. 58 sentencing for failure to comply w ith ....................................57-58 stop and s e a r c h ...................................... 57-58 terrorist o ffences....................................57-58, 103,216-17

con fro n tatio n ............................................... 195 designated, taking to.................... 8 1 ,8 7 ,1 2 9 d eten tio n ........................................................129 fingerprinting................................... 220, 221 intimate sa m p le s..................................204-05 police in terv iew s..................................173-77 release of suspects before taking t o ..................................81,8 4 sa m p le s........................................204-05, 221 search es................................................... 114-15

Police interviews access to legal advice, delays f o r ........................................... 170-71 adverse inferences from silence, draw'ing.......................................171 appropriate adult........................................ 173 com plaints......................................................176 conditions in interview room s...................................... 184 delay..................................................... 170,174 detention time lim its........................... 173-74 general conduct o f ................................ 170-81 identification of o ffic e rs ........................... 174 intoxicated p e rso n s.................................... 171 oppression............................................... 171-72 PACE and codes....................................170-76 police stations, a t ..................................173-77 records................................... 172-7 4 ,1 7 6 -7 7 rest p erio d s................................................... 174 solicitors, role o f....................................176-77 silence, confirmation or denial of previous..............................171 statem ents......................................................172 confirmation or denial of previous................................ 171 sig nificant................................................. 171 w ritten................................................. 174-76 tape reco rd in g ....................29 ,1 7 2 ,1 7 8 -8 1 video identification....................................194 video reco rd in g ........................ 172,181-83 volunteers at police stations...........................................174 vulnerable p e rs o n s ........................ 171,173 writing, records i n ................................178-79 young offenders...........................................173

Private and fam ily life, right t o ....................................76,120-21, 237-39

Police stations See also Detention; Volunteers at police stations a r r e s t.............................................81-8 2 ,8 4 , 87 com munity support officers, accompanying people t o ................................. 2 1 3-14,229

Probationary or non-accredited rep resen ta tiv es...........................................134 Probationary p erio d ..................................14-15 Production o rd ers..................1 0 0 -0 1,104-05 Prohibited a r t ic le s ....................................33-35 See also Offensive weapons authorisation of s e a rch es...........................47 definition................................................... 33-35 g r a ffiti.............................................................. 35 PACE and codes.............................................33 stop and search ...................... 3 3 -3 5 ,3 7 ,4 2 , 46-5 1 ,1 1 7 types o f ......................................................34-35 van d alism ........................................................35 P rom otion ............................................................ 14 Public o r d e r .......................................... 3, 74,112

R an k ........................................................ 14-15,129 Raves and prohibited a s se m b lie s ............................................... 58-59 a r r e s t .................................................................58 detention............................................... 158,213 motor vehicles, sto p p in g .................... 58-59 PACE and cod es.............................................59 seizure of sound systems or vehicles................................................. 127 sentencing................................................. 58-59 travelling to......................................................58 Reasonable suspicion or b elief....................................62, 82-83, 237 breach of the p e a c e ................................74-75 definition..........................................................30 detention........................................31-3 2 ,1 4 9

276

A n I n t r o d u c t io n to P o lic in g a n d P o lic e P o w e r s

drugs drug houses, power to c lo s e ................................................... 121 search es....................................................... 55 testing in d eten tio n ...............................206 generalisations and stereoty p ing........................................30-31 intelligence and information, based o n .............................31 intimate samples and search es.................................. 137,202 motor vehicles, searches o f............................................ 40-42 objectivity, guidance o n ......................30-32 PACE and codes..................................... 30-33 questioning......................................3 1 -3 3 ,3 6 refusal to answer questions...................... 3 2 -3 3 ,3 6 schools, searches for offensive weapons in............................ 117 s e a r c h e s ..........................................40-42, 55, 8 2 -8 3 ,9 7 ,1 0 9 , 113,117,119, 137,202 seiz u re .........................................122-23 stop and search .................. 2 9 -3 3 ,3 6 -3 8 , 4 4 ,4 7 -4 9 terrorist o ffe n c e s .............. 3 0 -3 1 ,3 3 ,1 0 2 truants, power to rem ove.......................... 89 warrants of further d eten tio n ................................... 149 Receiver, abolition o f ........................................8 Records See Custody records Reprim and and w arning system for young o ffe n d e rs .................161,163-64 R e stra in ts................................ 7 9 -8 0 ,1 6 5 -6 6 Riot control e q u ip m en t................................. 13 Road b lo c k s ................................................ 40-41 arrest for failure to stop a t ........................ 41 authorisation o f ............................................ 41 failing to stop a t ............................................ 41 m iner's s trik e .................................................41 Road checks, carrying o u t.......................... 216

Sam p les...........................................201-07 See also Intimate samples a r r e s t ................................................................62 authorisation................................................ 204

consent............................................................ 204 custody re c o rd s .......................................... 204 DNA p ro filin g ...........................201-02, 205 definition of non-intimate sam p les...........................203 d estru ctio n ................................................... 205 detention officers........................................ 221 d rin k-d rivin g............................................... 201 grounds for taking......................................204 h a ir ...................................................................204 PACE and codes...............................201,221 police station, attendance at a ...................... 204-05, 221 refusal to g iv e ................................................. 86 re te n tio n ........................................................205 use of reasonable fo rc e .....................204, 221 Scene of Crim e O ffic e r s .....................209,210 School p r e m is e s .............................................115 age of criminal responsibility................................ 117-18 arrest.................................................................117 d efen ces..........................................................117 d r u g s .............................................................. 118 offensive weapons on . . . . 35, 111, 117-18 PACE and cod es.......................................... 118 public place, a s ...............................................35 reasonable grounds for b elief......................................................117 Sco tlan d ..........................................................117 searches for bladed articles or offensive weapons o n ................................... 35, 111, 117-18,127 stop and search.............................3 5 ,4 7 ,1 1 7 use of reasonable fo r c e ............................. 118 S c o tla n d ................................................. 7, 86,117 Search warrants, powers of entry a n d ...........................................95-110 ap p lica tio n s................................. 9 7 ,1 0 5 -0 6 breach of the p e a c e ...................................... 96 capacity, ra isin g ....................................241-42 community liaison o ffic e r s ........................................ 106 corro bo ration............................................... 105 dawn r a id s ....................................................108 d r u g s ............................................ 95,105, 111 endorsem ents.........................................110-11 excluded material, meaning o f ........................................ 98-100 execution o f............................................. 107-11 general power to o b ta in ............................. 95 informants, identity o f ..............................105

Index inquiries, m aking........................................105 investigating officers........................ 217,219 journalistic material.............................99-100 legal privilege, items subject t o .............................................. 97-98 PACE and c o d e s ..................9 5 -9 8 ,1 0 0 -1 0 personal records............................................ 99 premises, definition o f ...............................96 private and family life, right to respect fo r .................................238 p ro ced u re.............................................. 104-05 production o rd e rs....................100-01,105 reasonable grounds for b e lie f ............................................97,109 safeguards.............................................. 106-07 seize and sift pow ers............. 108,110,219 serious arrestable o ffe n c e s....................................................... 96 serious fraud...................................................95 special procedure material, access t o ...........................100-01 stolen g o o d s ...................................................95 time for execution of w arran ts.............................................. 108 use of reasonable f o r c e .................... 109, 111 Searches See also M otor vehicles, searches of; Search warrants, powers of entry and; Searches, powers of entry w ithout warrants and; Stop and search; Terrorism, powers of entry and search in prevention of a r r e s t............................................8 2 -8 3 ,8 5 ,8 7 cash and valuables, safety o f .....................................................137 c lo th in g ............................................8 3 ,8 7 ,1 3 7 com munity support officers . . . . 217,228 cross-border enforcem ent.......................... 87 custody re c o rd s................................... 136-37 d etention................................ 136-41,220-21 detention o ffic e r s ............................... 220-21 d r u g s ................................................ 55-56,118 escort o ffic e rs .............................................. 222 fingerprinting.............................. 195-96,221 identity, to establish............................. 139-41 intimate s e a r c h e s ................................. 38-39, 137-39,235 PACE and c o d e s ................................... 82-83, 136-37,220 personal property, seizure o f ...................................................137

277

police c o r d o n s ...............................................58 reasonable grounds to believ e...............................................82-83 records..................................................... 136-37 schools, searches for offensive weapons in ........... 35, 111, 115 117-18,127 se iz u re ..................................................... 136-37 strip s e a r c h e s ...............................................137 use of reasonable fo rc e .................. 137,220 Searches, powers o f entry w ithout warrants and..............95,111-22 age of criminal responsibility.................................... 117-18 a r r e s t ............................................ 112-15,218 authorisation...........................................114-15 breach of the p e a c e ..................113-14,121 communal parts of p rem ises...............................................113 com pensation............................. 115-16,119 custody re c o rd s .......................................... 115 drink driving offences..................................95 drug houses, powers to entrv and close..................................121-22 d r u g s .............................................I l l , 121-22 fishing e x p e d itio n s......................................82 hot pursuit, being i n ........................... 112-13 interim possession orders, failure to comply w ith........................... 112 investigating officers..................................218 kn iv e s...................................................111,117 mental patients, recapturing.........................................112-13 motor vehicles, failure to s t o p .......................................... 112 notice of powers and rig h ts .............. 114-15 offensive w 'eapons...........................I l l , 117 PACE and cod e s........................ I l l , 115-21 police station, bringing suspect to t h e .................................... 114-15 private life, right to respect for........................... 120-21,238 public order offences................................. 112 reasonable grounds for belief................................. 113,117,119 recapturing persons unlawfully at l a r g e ......................... 112-13 registers, maintenance of search............................................... 119-20 saving life of l im b ........... 11 3-14,212,215 se iz u re ............................................................ 115 sq u attin g ........................................................112 te rro rism ................................................. 95, 111

278

A n I n t r o d u c t io n to P o lic in g a n d P o lic e P o w e r s

use of reasonable force . . 114,118-19,215 young offenders, recapturing...............................................112 Security industry, licensing o f private....................................223 S eizu re.......................................................... 122-28 access to seized articles............................. 124 alcohol, confiscation from young people o f .................... 127-28 breach of the p e a c e ....................................122 cash, su sp ect................................................. 126 clo th in g ..........................................................137 community support o ffic e rs ......................................215 computers, information held o n .......................123-24, 125-26, 218 consent..................................................... 122-23 copying of seized articles.........................124 designated areas, confiscation of drink in .........................128 d isg u ises........................................................127 drug trafficking c a sh ..................................126 entry, powers o f ....................................122-23 excluded m a te ria l...................................... 123 general pow ers...................................... 122-23 identity, items used to c o n c c a l................................................. 127 intimate search es..................................138-39 investigating officers............. 217, 218,219 legal privilege, items subject t o .......................... 9 8 ,1 2 3 ,1 2 5 -2 7 motor v e h ic le s .............................................127 alarm, used to c a u s e ............................. 215 seizure o f ..................................................... 60 offensive and dangerous w e a p o n s ............................. 127 PACE and codes....................................122-24 police c o r d o n s ...............................................58 raves, sound systems or vehicles used f o r ............................... 127 reasonable grounds for b e lie f .............................................122-23 re te n tio n ................................................. 124-25 schools for blades or offensive weapons, searches fo r...............................................127 searches......................................... 127,136-37 seize and sift p o w er............... 108,110,123, 125-27, 219 seizure................................. 6 0 ,1 0 8 ,1 1 0 ,1 2 3 , 125-27,219

special procedure m aterial..................................................... 123 stop and search...............................................51 terrorist offences...........................5 4,101-03, 123,127 S e lf-d e fe n ce ........................................................34 Serious fra u d ..................................................... 95 Serious Organised Crim e A g e n c y ........................................ 6,245 Sexual offences, arrest fo r............................. 92 Sheehy R ep o rt.............................................14-15 Silence, right t o ........................................ 170-71 Solicitors See Access to legal advice Special constabularies civilian officers, distinguished fr o m ............................... 209 constitutional and legal status of p o lic e .........................16-17 d em o n stratio n s.............................................16 expenses and reimbursement of e a rn in g s ................................................. 16 grade structure...............................................17 history o f ..........................................................16 industrial disputes........................................ 16 numbers o f ..................................................... 17 powers o f ......................................16-17, 209 tra in in g ..........................................................209 w'ars, during w 'orld...................................... 16 Special procedure m a te ria l......................................100-01,103, 123, 217 Sporting events, searches for alcohol a t .................................................46 Squatting............................................................112 Stereotyping and g e n era lisa tio n s...................................... 30-31 Stolen See Prohibited articles Stop and sea rch .......................................... 27-60 additional p o w e rs................................. 47-52 a lco h o l..............................................................46 anti-social behaviour.............................59-60 a r r e s t..........................................................50-51 assault on police officers....................44, 50 au th o risatio n ...........................4 7 -4 9 ,5 1 -5 3

Index bladed a r tic le s .............................47-5 1 ,1 1 7 clothing, removal o f ............. 3 7 ,3 8 ,5 0 -5 2 , 235-36 completion of p ro ce d u re .......................... 42 consent............................................................. 43 Criminal Justice and Public Order Act 1994......................47-52 crossbows or parts of devices, searches f o r .............................. 46 d e te n tio n ........................................3 1 -3 2 ,3 6 , 44,237 duration o f ................................................ 37 goods o f .......................................................57 d isg u ises...................................................47-52 duration of au th o risatio n ..................................... 51,53 dw ellings.................................................. 3 5,3 7 d ru gs....................................................... 28,32, 4 6 ,5 5 -5 6 false im prisonm ent..................................... 44 firearm s........................................................... 28 generalisations and stereotyping........................................ 30-31 geographical area...................................47,4 8 goods, searches for unaccom panied.......................... 56-57 hair, searches o f ............................................38 h arassm en t.....................................................59 Her M ajesty's stores, searches fo r................................................ 46 Home S ecreta ry ............................................53 identity, con cealin g...............................47-52 informal police p ro ced u res..........................................42-44 information to be given to su sp ects..................................... 37 inhuman or degrading treatment or torture...................... 235-36 intimate search es..........................................38 investigating officers.................................217 knives......................................................... 47-51 liberty and security, right t o .......................................................237 m otor vehicles....................................... 29-30, 3 5 -3 6 ,4 0 -4 2 , 5 1 -5 2 ,2 1 7 nam es of suspects, taking t h e ............................................4 2 ,5 0 obstruction of the police......................50,5 7 offensive w e a p o n s............... 3 3 -3 4 ,3 5 ,3 7 , 46-5 1 ,1 1 7 PACE and c o d e s ..................27 -5 6 ,2 3 5 -3 6 persons, o f................................................ 36-39

279

place o f..............................................................37 Philips Royal C om m ission .............................................. 27 police c o r d o n s ........................................57-58 p ro ce d u re....................................................... 36 public/police encounters....................45-46 public place, definition o f...........................35 questioning.............................................. 31-33 raves and prohibited assem blies............................................ 58-59 reasonable grounds for su sp icio n ............... 2 9 -3 3 ,3 6 ,3 7 -3 8 , 4 4 ,4 7 -4 9 r e c o r d s .....................................................39,42, 45-4 6 ,5 1 refusal to answer questions........................................3 2 -3 3 ,3 6 sch o o ls.............................................. 35 ,4 7 ,1 1 7 se iz u re .............................................................. 51 sporting events, searches for alcohol a t.............................................. 46 stolen and prohibited a r tic le s ................................... 3 3 -3 5 ,3 7 ,4 2 , 46-5 1 ,1 1 7 terrorism............................................ 3 0 -3 1 ,3 3 , 3 8 ,4 2 ,4 8 , 5 2 -5 4 ,5 6 -5 8 threats to public safety, dealing w ith ........................................47-52 use of fo rc e ............................... 3 7 ,4 1 -4 2 ,5 7 voluntary...................................................43-44 warrant cards, production o f ..................................... 36-37 Street b a i l ................................... 81-82, 84,142 Street id e n tifica tio n ...................................... 191 Strip searches......................................3 8 -3 9 ,1 3 7 Structure o f policing in England and W ales....................................3-8 Su rv eillan ce...............................................238-39 Suspicion See Reasonable suspicion or belief

Tape recording of interview s...................................... 172,178-81 access to legal advice..................................179 after the interview, action.........................180 cau tion s.......................................................... 179 com plaints...............................................179-80 cop ies.............................................................. 178

280

A n i n t r o d u c t i o n to P o lic in g a n d P o lic e P o w e r s

equipment, failure o f................. 178-79 exclu sio n s.....................................................178 identification of persons p re s e n t.....................178,179 objections....................................................... 179 PACE and codes...........................2 9,1 7 7 -8 0 recording master ta p e s............................ 178 rest b reak s.....................................................180 sealing master ta p e s ............... 178,180-81 s e c u r ity ..........................................180-81 terrorist o ffe n c e s ........................................178 unwrapping ta p e s..................................... 179 Telephone access to legal advice b y .......................... 133 detention time lim its................................. 144 incommunicado, right not to be h e ld ..........................................135 ta p p in g ......................................... 238-39 Terrorism, powers of entry and search in prevention o f ...................... 9 5 ,101-04, 111 au th o risatio n ........................ 5 2 -5 4 ,1 0 2 -0 3 charge, officers in ........................................104 clothing, removal o f ...................................53 d eten tion.........................................................57 em erg en cies........................................102-03 excluded material, access to .....................................................103 failure to stop a vehicle, sentencing fo r............................................54 goods, searches for unaccom panied.................................56-57 headgear, removal o f................................... 53 Home S ecretary ............................................53 legal privilege.............................................. 127 motor vehicles, searches o f............................................52-54 obstruction, sentencing a n d ...........................53-54, 57 PACE and c o d e s ..................5 3 -5 4 ,1 0 1 -0 4 persons, searches o f..................................... 54 police c o r d o n s ............................................ 103 private property............................................54 production o rd e rs ..................................... 104 reasonable b e li e f ........................................102 religious sensibilities, removal of headgear a n d ............................................53 search w a rra n ts................................. 101-04 seizure............................................ 54 ,1 0 1 -0 3 , 123,127

special procedure material, access t o .................................103 stop and search ...............................3 0 -3 1 ,3 3 , 3 8 ,4 2 ,4 8 , 5 2 -5 4 ,5 6 -5 8 use of reasonable fo rc e ........................5 4 ,5 7 vessels, ships or aircrafts, searches o f.................................................. 57 warrants, w ith o u t....................................... 95 written orders........................................102-03 Terrorist o f f e n c e s ............................................ 95 See also Terrorism, powers of entry and search in prevention of access to legal a d v ic e ...................... 133,147 a r r e s t ......................................................... 63,8 3 community support officers...............................216-17, 219,229 delay................................................................ 147 detention............................................. 149,229 motor vehicles, stop and search o f ............................ 57-5 8 ,2 1 9 police c o r d o n s..................................... 216-17 reasonable ground for suspicion or b e lie f......................3 0 -3 1 ,3 3 stop and s e a r c h ..........................................219 tape re co rd in g ............................................ 178 video reco rd in g.......................................... 182 Tobacco, confiscation o f ....................215,225 Training Central Police Training and Development A u th o rity ............................................ 12-14 Community Safety Accreditation Sch em es........................ 223 community support o ffic e rs ..................................... 227 general operational p o lic in g ....................................................... 15 special constables....................................... 209 T respass................................................................ 23 Truants, power to rem ov e......................88-90

Uniform s, w earing p o litic a l........................ 62 Use of reasonable force a r r e s t .......................................... 7 0 -7 1 ,7 9 ,8 7 community support officers...........................212, 214, 2 15,2 1 9 ,2 2 8

Index con fro n tatio n ...............................................194 detention................................... 166,220,221 drug houses, power to c lo s e ........................................ 122 entry, powers o f ............... 114,118-19,215 escort o ffic e rs.............................................. 222 identity, searches and examination to e sta b lish .............................................. 220 investigating officers................................. 218 life, right t o ............................................ 233-34 local child curfew s........................................88 motor vehicles, searches o f .................................................60 photographs................................................. 221 sa m p le s................................................. 204,221 schools, searches for offensive weapons in.............................118 s e a r ch e s ........................................54, 57,109, 111, 114,118-19, 1 3 7,215,220 stop and s e a r c h ...................... 37,4 1 —42, 57 terrorist o ffe n c e s ................................... 5 4,5 7 truants, power to r e m o v e ...................................................89

V andalism ............................................................35 Vehicles See M otor vehicles Vicarious lia b ility ........................................9, 69 Video id en tificatio n ............. 1 8 7 -8 9,193-94 con fro n tatio n ...............................................195 consent............................................................193 group identification....................................192 identification o ffic e r s .........................193-94 identification p arad es................................191 o b je c tio n s ...............................................193-94 PACE and codes....................................193-94 police interviews, use o f ...........................194 Video recording o f in te rv ie w s.............................1 72,181-83 master tapes, recording and sealing o f ....................................181-82 PACE and codes.......................... 2 9 ,1 8 1 -8 3 terrorist o ffe n c e s ........................................ 182 volunteers at police stations.......................................... 183

281

Volunteers at police s t a tio n s ................79-80 access to legal advicc..................................133 a r r e s t ................................................... 7 9 -8 0 ,8 2 cautioning......................................................169 intimate sa m p le s........................................ 203 PACE and codes......................................79-80 photographs........................................ 199-200 police interv iew s................................174,183 safeguards....................................................... 80 street b a il..........................................................82 video reco rd in g .......................................... 183 V ulnerable persons See also Appropriate adult; Mental disabilities; Young offenders access to legal a d v ic e ....................... 153,171 blind and visually handicapped p e rso n s.................... 153-54 caution in g......................................................170 custody re c o rd s .......................................... 152 deaf persons and persons w'ith hearing loss...............................................154 d etention...................................... 145,150-55 extension to detention periods....................................154 High Commission, embassy or consulate, right to com municate w ith..................................152 identification.................................................187 incommunicado, right not to be h e l d ................................153 inhuman or degrading treatment or torture............................... 236 initial a c tio n .......................................... 152-55 interpreters.............................................152-54 intimate searches and sa m p le s....................................138,202 PACE and codes....................................150-55 photographs.................................................200 police in terv iew s............................... 171,173 risk assessm ent.............................................152 safeguards for........................................ 150-55 social w orkers............................................... 151 special g r o u p s ......................................152-53

W a le s ....................................................................... 7

V isits to c e l l s ................................................... 166

Warrant card s................................................. 9-10

Voice id e n tifica tio n ............................... 190-91

Warrants of further d e te n tio n .................... 134,147-49

282

A n i n t r o d u c t i o n to P o lic in g a n d P o lic e P o w e r s

access to legal a d v ic e ...................... 148,149 a p p lica tio n s.......................................... 148-49 authorisation.................................................148 b a i l ...................................................................149 charges............................................................ 149 inform ation................................................... 148 magistrates, applications t o ..................................148—19 PACE and codes....................................147-49 reasonable grounds for b e li e f ................................................... 149 serious arrestable offences................147-49 W eap o n s.......................................... 1, 3,2 8 , 234 See also Offensive weapons Young o ffe n d e r s .............................................150 See also Local child curfews access to legal advice..................................152 age of criminal responsibility....................................117-18 alcohol consumption o f ....................2 14-15,225 confiscation o f ..................................127-28 public places, consumption in designated............................... 214,225 anti-social behaviour....................................91

appropriate a d u l t ........... 15 0 -5 1 ,1 5 3 ,1 7 3 care,in ...................................................150-51 community support o ffic e rs.............................214-15 d eten tion .......................... ........................ 158 conditions o f ............... ........................ 165 dispersal, power o f ......... . 90-9 1 ,2 1 3 , 214 extension to detention periods----- ........................ 154 incommunicado, right not to be held .. ........................ 153 intimate search es........... ........................ 138 nam es and addresses .. ........................ 215 parents................................. .........151-53,173 p hotographs.................... ........................ 200 place of abode, removal of young persons to norm al............................................ 91,214 police in terv iew s........................................ 173 recap tu rin g ................................................... 112 reprimand and warning s c h e m c ............................. 163-64 tobacco, confiscation o f............................. 215 truants, power to rem ove.................... 88-90 welfare of, persons responsible f o r ..................................152-53