Evaluate police powers of arrest, detention and search.

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Joseph Whitelegg        Unit 17 – Task 1        43006701

Evaluate police powers of arrest, detention and search.

Much of the domestic law outlining governmental powers of detention and investigation now derive from a single piece of legislation called the Police and Criminal Evidence Act 1984 (PACE). The Home Secretary at the time, Leon Brittan, described PACE as

a long overdue reform and modernisation of the law governing the investigation of crime. The government’s aim has throughout been to ensure that the police have the powers they need to bring offenders to justice, but at the same time to balance those powers with new safeguards to ensure that these powers are used properly, and only where and to the extent that they are necessary.”

PACE deals with a large range of police powers and also includes various police ‘codes of practice’ specifying how particular powers ought to be used in respect of powers of search without arrest, the treatment and questioning of detained persons, the searching of premises and seizure of property and the tape-recording of interviews with detained persons.

The most common power of arrest without a warrant relates to situations in which it is feared that a breach of the peace is occurring or is about to occur:

A constable has the power to arrest where there is reasonable apprehension of imminent danger of a breach of the peace. There is a breach of the peace whenever harm is actually done or is likely to be done to a person or in their presence to their property or a person is in fear of being so harmed through an assault, an affray, a riot, an unlawful assembly or other disturbance.’

Many arrests are carried out in pursuance of a warrant of arrest granted by a magistrate under the terms of s1 of the Magistrates’ Courts Act 1980. The issue of a warrant for a person who has, or is suspected of having committed an offence empowers the police to arrest. However should the warrant prove, on later examination, to be invalid the arrest enacted under it would be unlawful.

There is a sharp distinction between arrestable offences under s24 of PACE and non-arrestable offences under s25. Arrestable indictable offences are the more serious crimes such as murder, rape, kidnapping, and causing serious bodily harm.

The Court of Appeal in Castorina v Chief Constable of Surrey stated that a trial court in assessing the lawfulness of an arrest under s24 of PACE should ask itself three questions: Did the arresting officer suspect that the person arrested was guilty of the offence; were there reasonable grounds for that suspicion; and did the officer exercise his discretion in order to make the arrest.

Under s25 one such circumstance may be that a police officer could not know or easily find out the name or address of the person arrested which would of course make the issue of an arrest warrant problematic.

The power of arrest provisions of PACE have most recently been amended by the Serious Organised Crime and Police Act 2005. The 2005 reforms were an element of what Tony Blair described as his government’s “war on crime, a policy which he portrayed as battling the emphasis on the interests of those accused or suspected of crimes with more on the victims of crime and ordinary “law-abiding-citizens”.

The Home Office had previously indicated in a consultation paper that the PACE regime should be amended by ‘Moving towards a straightforward, universal framework which focuses on the nature of an offence in relation to the circumstances of the victim, the offender and the needs of the investigation’. They proposed that this end could best be achieved by abolishing the distinction between arrestable and non-arrestable offences.

This policy was enacted in PACE s.24A. The amended legislation extends police powers of arrest for any offence in the following terms: A constable may arrest without a warrant: anyone who is about to commit an offence; anyone who is in the act of committing an offence and anyone whom they have reasonable grounds for having committed an offence or suspecting to be about to commit an offence. These allowances provide that the power may only be used if the police officer has reasonable grounds to believe that the arrest is necessary.

An arrest has occurred when an individual has been deprived of their liberty and English common law requires that ‘Everyone who is arrested shall be informed promptly, in a language which they understand, of the reasons for their arrest and of any charges against them’. Under the Human Rights Act 1998 every British citizen is ‘entitled to their freedom and is only required to submit to the arrest of their freedom if they know in substance the reason why it is claimed that the arrest is imposed.’

The period of time that a person can continue to be deprived of their physical freedom is referred to in PACE as the police powers of detention. PACE was significant in amending the police’s powers to detain arrested persons for questioning prior to them being charged or released. PACE’s predecessor was the Magistrates Court Act 1980 and s.43 of that Act, despite having a twenty-four hour limit on the detention of a person responsible for non-serious crimes, did not place specific limits on the duration of a detainee arrested for serious crimes’ detention. This was viewed as ‘notoriously inadequate’ as the distinction between a ‘serious’ and a ‘non-serious’ offence was not identified by the Act and therefore there was no restriction on the length of time that a person could be detained for.

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This was strictly addressed under s.30 of PACE which clearly divides powers of detention into distinct time periods. Section 30 requires any arrested person to be brought as soon as practicable to a police station. On arrival at the police station, or twenty-four hours after their arrest (whichever time is earlier), the detention clock begins to run. Section 41 authorises an initial detention period of twenty-four hours. If the arrest has been for an indictable (serious) offence, that period may then be extended under s.42 to forty-eight hours by a senior police officer but only if there are reasonable ...

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