Friday, May 27, 2011

Police Power

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Police Power

• The police must respect individual’s civil rights.

• People are entitled to be allowed to move freely and to have their person and their property respected. However, there must be sufficient powers for the police to investigate crime.

• Parliament gave them special powers which can be used in certain circumstances.

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• Includes right to stop and search them, to arrest and interview people when necessary and to take fingerprints and samples (blood) for scientific analysis.

• Law on police powers � Police and Criminal Evidence (PACE) Act 184.

• Five codes

1. Code A � Powers to stop and search.

. Code B � Powers to search premises and seize property.

. Code C � Detention, treatment and questioning of suspects.

4. Code D � Rules for identification procedures.

5. Code E � Tape-recording of interviews with suspects.

Serious arrestable offences

Automatically considered as ‘serious arrrestable offences’ � Section 116 PACE � treason, murder, manslaughter, rape, other serious sexual offences, hijacking, kidnapping, hostagetaking, drug trafficking, some firearms offences and causing explosion likely to endanger life and property, offences lead to serious consequences such as serious harm to the state or public order, death, serious injury, substantial financial gain or serious financial loss.

Power of arrest

Without a warrant

Section 4 PACE

1. Power of arrest � police and private.

. Arrestable offence

• Offence � sentence is fixed by law.

• Offence � max sentence given to an adult is at least five years’ imprisonment. Not that max sentence will be given, merely that the max sentence is five years or more.

• Offence which Parliament has specifically made an arrestable offence. Max sentence is six months’ imprisonment.

. Arrestable by police and private citizens

• Who is in the act of committing an arrestable offence.

• Who he has reasonable grounds for suspecting to be committing an arrestable offence.

• Who has committed.

• Where an arrestable offence has been committed, anyone whom he has reasonable grounds for suspecting to be guilty (even if he didn’t do it).

4. Arrestable by police only

• Who is about to commit.

• Whom he has reasonable grounds for suspecting to be about to commit.

• Reasonable grounds for suspecting that an arrestable offence has been committed (even if no offence has been committed).

• Reasonable grounds for suspecting the person arrested.

5. No matter how suspicious the suspect is, private citizens cannot lawfully carry out an arrest.

6. R V Self (1)

Off-duty policeman was suspected of theft by a store detective when the officer was seen to pick up a bar of chocolate in the shop and leave without paying. The store detective helped by another person arrested the police officer by catching hold of him. The officer struggled to get free, kicking the two. He was charged with theft and assault with intent to resist arrest. At the trial, he was acquitted of the theft but convicted of the assaults. Court of Appeal � he held that the offence of theft had not been proved, no arrestable offence and so the arrest was not lawful. In view of this he could not be guilty of assault with intent to resist arrest since a person is entitled to resist and unlawful attempt to arrest them.

Section 5 PACE

1. Power of arrest � police only.

. Any offence

• Suspect’s name and address cannot be discovered.

• Reasonable grounds for believing that the name and address given by the suspect are false.

. Necessary to prevent suspects who committed non-arrestable offences that refuse to co-operate with police run off.

4. Also implied to offence

• Physical injury to himself and others.

• Suffering physical injury (suicide attempts).

• Causing loss of or damage to property.

• Committing an offence against public decency.

• Causing an unlawful obstruction of the highway.

• Children � child abuse.

• Other vulnerable person.

1. Section 46A PACE - Police to arrest without a warrant anyone who having been release on police bail, fails to attend at the attend at the police station at the set time.

. The Criminal Justice and Public Order Act 14 � Police t arrest variety of new offences including collective and aggravated trespass, in connection with offences committed in preparing for or attending a ‘rave’, or intentional harassment.

. Common Law � Arrest when there has been, or is likely to be a breach of peace.

1. McConnell v Chief Constable of the Greater Manchester Police (10)

Manager of carpet store had asked McConnell to leave but he refused. A police officer had then taken McConnell outside but McConnell attempted to reenter, so he was arrested for conduct whereby a breach of peace might be occasioned. McConnell sued the police for false imprisonment arguing that the arrest was unlawful as a breach of the peace could not occur on private premises. Court of Appeal held that the arrest was lawful.

. Bibby v Chief Constable of Essex Police (000)

Court of Appeal summarized the conditions for common law power

ɨ Sufficiently obvious, real threat to the peace.

ɨ Threat must come from the person to be arrested.

ɨ Conduct must clearly interfere with the rights of others and its natural consequences must be ‘not wholly unreasonable’ violence from a third party

ɨ Conduct must be unreasonable.

Arrest with a warrant

1. The person is not co-operative / difficult to arrest.

. Warrant � issued by magistrate by virtue of section 1 of Magistrates’ Court Act 180.

. Requires written information, supported by evidence on oath showing that a person has committed or suspected of committing.

4. Granted if the offence involved is a punishable by imprisonment. Not granted if it is punishable by fine.

Manner of arrest

1. Tell the person arrested that they are under arrest and the reason.

. ``1No set form of words.

. May use reasonable force.

4. Criminal Justice Act 167 s. covers other arrests.

The right to search an arrested person

1. Search that person for anything which might be used to help an escape / evidence relating to the offence.

. Extent

• Public Requires suspect to remove outer coat, jacket and gloves only.

• Private Intimate / strip search allowed.

Powers of detention

1. Most offences

Arrest  Detained 4 hours.

. Serious arrestable offences

Arrest  Detained 6 hours  Max 6 hours (Apply for permission from Magistrates’ Court).

. At the initial period, detainee should be either charged or released.

4. When arrested, detainee permitted to legal representation. Can oppose application for extension of detention � with valid grounds.

5. Prevention of Terrorism (Temporary Provisions) Act 18

6. Arrest  Detained 48 hours  5 days (Permission from Home Secretary).

7. Whilst in detention Custody officer will have to review 6 hours after the detention � intervals hours � to ensure that there are grounds for continuing the detention � or order an immediate release � must record all events that occur, visits to cell, interviews.

Rights of a detained person.

Told their rights by the custody officer.

1. The right to have someone informed of the arrest

• Section 56 PACE

• The arrested person can nominate any friend, relative or any other person who they think is likely to be interested in their welfare.

• Person nominated by detainee must be told of the arrest and where there person is being held.

• Immediately but in serious arrestable offence cases, senior police officer may authorize that there be a delay up to 6 hours � reasonable grounds for believing that telling the named person will lead to interference; harm to evidence or other person,.

• Code C PACE � allowed to speak on the telephone ‘for reasonable time to one person’.

• Under 18, police must contact a person ‘responsible for his welfare’ and inform the arrest.

. The right to legal advice.

• Section 58 PACE

• Detainee may either contact their own solicitor or they can use the system of duty solicitors which is provided free for anyone under arrest.

• When authorizing the detention, custody officer must get suspect to sign the custody records and said that whether he / she wishes to have legal advice.

• Posters ‘prominently displayed’ advertising the right to free legal advice.

• Also told orally by custody officer.

• Possible for senior police officer to authorize a delay to a suspect’s right to see a solicitor � serious arrestable offence to 6 hours � reasonable grounds for believing that giving access to a solicitor will lead to interference, harm to evidence and others.

• Rare occasions that such delay was justified, must based on specific aspects of the case, not a general assumption that access to solicitor might lead to the alerting of accomplices.

• R v Samuel (188) � Man, 4 � mother had been informed that son was under arrest some hours before he was refused access to a solicitor. Court of Appeal felt that if anyone was likely to be alerted then it would already have happened, that there was no reason to deny Samuel his ‘fundamental freedom’ of consulting a solicitor. His final interview had taken place after his solicitor had been refused access, the evidence was inadmissible in court. Samuel was not convicted with robbery.

. Allowed to consult the code of practice.

Powers to stop and search

1. Sections 1 to 7 PACE � vehicles and people.

. Public place � not only means in the street, but also extends to areas such as pubs, car parks and even private gardens, if the police officers has good reasons for believing that suspect does not live at that address.

. Must have reasonable grounds for suspecting that the person is in possession of (or the vehicle contains) stolen goods or prohibited articles.

4. Prohibited articles � offensive weapons and articles for use in connection with burglary or theft.

5. Give his name and station and the reason for the search.

6. Osman v DPP (1) � Officers did not give their names and station. QBD Court held the search of Mr Osman unlawful. He could not be guilty of assaulting the police in the execution of their duty. Police must make a written report immediately.

7. Home Office statistics show the increasing use of the power to stop and search.

8. Code A � Contains details and guidance on when these powers should be used. Stresses that police must not act just because of a person’s characteristics (Paragraph 1.7).

Other powers to stop and search.

Misuse of Drugs Act 171 � Police search for controlled drugs.

Prevention of Terrorism (Temporary Provisions) Act 18 � To stop and search where there is reasonable suspicion of involvement in terrorism.

Section 60 of the Criminal Justice and Public Order Act 14 � Additional power of the right to stop and search in anticipation of violence � only when authorized by a senior police officer who reasonably believes that serious violence may take place in any locality in his area. Once it has been authorized, a police officer acting under it does not have to have reasonable suspicion about the individual he stops.

Section 60(5) � A constable in the exercise of those powers, stop any person or vehicle and make any search he thinks fit whether or not he has any grounds for suspecting that the person or vehicle is carrying weapons or dangerous articles.

Infringement of civil liberties � Rights to stop and search without any reason to suspect the individual who is stopped. Such rights are at least, of limited duration as the senior police officer authorizing stop and search powers can only do so for a period of 4 hours.

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