If the search is in public, the police can only request that the suspect removes his or her outer coat, jacket and gloves.
The code of practice A contains details and guidance on when these powers should be used. In particular it stresses that police officers must not act just because of a person’s characteristics.
Paragraph 1.7 of code A says:
‘Reasonable suspicion can never be supported on the basis of personal factors alone. For example, a person’s colour, age, hairstyle or manner of dress, or the fact that he is known to have a previous conviction for possession of an unlawful article, cannot be used alone or in combination with each other as the sole basis on which to search that person. Nor may it be found on the basis of stereotyped images of certain persons or groups as being more likely to be committing offences.’
Despite the guidance of code A, there is still evidence that certain types of people, especially black youths, who are eight times more likely to be stopped and searched. It was found that police in England and Wales carried out 713,683 stop and searches in 2001/02, which was an increase of 4% from the previous year, according to Home Office figures. Officers in London stopped 30% more Afro-Caribbean people and 40% more Asian people, compared to and increase of 8% for white people.
Nationally, barely one in ten stops lead to an arrest, meaning those officers’ suspicions of more then 70,000 black and 35,000 Asian people were not borne out.
There are three other acts that give the police the power to stop and search, the first act is the Misuse of Drug Act 1971, which allows the police to search for controlled drugs, while the Prevention of Terrorism act 1989, gives power to stop and search where there is reasonable suspicion of involvement in terrorism.
Also section 60 of the Criminal Justice and Public Order Act 1994 gives the police the additional power to stop and search in anticipation of violence. This can only occur where it has been authorised by a senior police officer that has reason to believe that serious violence may take place in his area.
If a stop and search has been authorised, police officer acting under it does not have to reasonable suspicion about the individual he stops. Section 60(5) says that:
‘A constable may, 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.’
What is an arrestable offence? An arrestable offence is, any offence which the sentence is fixed by law (e.g. murder), an offence which has a maximum sentence that could be given to an adult is at least five years in prison, or any other offence which Parliament has specifically made and arrestable offence; for example, taking a motor vehicle without consent has been made an arrestable offence.
Section 24 of PACE allows the police and private citizens to arrest without a warrant if, D is in the act of committing an arrestable offence, or if an officer has reason to believe that D is committing an arrestable offence and when a arrestable offence has been committed.
If an arrestable offence has been committed then the officer can arrest anyone whom he has reasonable grounds for suspecting to be guilty of it.
However the police also have the right to arrest anyone who is about to commit an offence, anyone whom he or she has reasonable grounds to suspect to be about to commit an arrestable offence, and where there are reasonable grounds for suspecting that an arrestable offence has been committed, and there are reasonable grounds for suspecting the person arrested.
Private citizens do not have these rights, so that if there has not been an arrestable offence, no matter how suspicious the situation is, a private citizen cannot carry out a lawful arrest. This was seen in the case if R v Self 1992, where an 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 left without paying. The store detective and another person arrested the police officer by catching hold of him. The officer struggled to get free and in the process kicked both men. At his trial he was acquitted of the theft but convicted of the assaults. He appealed and the Court of Appeal held that, as the offence of theft had not been proved, there was no offence, and so the offence was held to be unlawful. In view of this he could not be guilty of assault with intent to resist arrest, since a person is entitled to resist an unlawful attempt to arrest them.
Under section 25 of PACE, the police have the power to arrest anyone for any offence where the suspects name and address cannot be discovered, where there are reasonable grounds for believing that the name and address given by the suspect are false.
This is a necessary power for the police, because if it did not exist then defendants who commit non-arrestable offences can refuse to co-operate with the police and run off, leaving the police powerless to act. Section 25 also allows the police to arrest if the arrest is reasonably believed to be necessary to protect a child, or a vulnerable person, from the person who is arrested. All these allow an arrest as a precautionary measure. But the power of arrest depends on having reasonable grounds for belief. The defendant must be told that they are under arrest and the grounds on what they are being arrested on (section 28), it is important that the defendant knows why he or she is being arrested.
The Criminal Justice and Public Order Act 1994 gives an extra power of arrest to PACE. This is now section 46A of PACE and gives the police the right to arrest without a warrant, anyone who has been released on bail, but fails to show up at the police station at their set time. This new act also gives police the power to arrest for new offences such as collective and aggravated trespass, in connection with offences committed in preparing for or attending a ‘rave’, or intentional harassment.
The police may make an application to a magistrate for a warrant to arrest a named person. Such a warrant is issued under section one of the Magistrates Court Act 1980. This act requires written information, supported by evidence on oath showing that a person has committed, or is suspected of committing an offence.
The police may question any person, who has been arrested and detained by the police. All interviews at a police station must be tape-recorded and trials are being conducted on the feasibility of videoing rather than just audiotaping. A problem in many cases is that the questioning of a suspect begins before they have reached the police station, for example, in the police car, and these informal interviews are not recorded. In order to protect suspects from post interviews, and the police fabricating any evidence of the confession made outside of the police station, the Runciman Commission recommended that if a confession was allegedly made outside of the police station, then the question should be put to the suspect at the beginning of any tape-recorded interview.
When being interviewed the suspect has the right to have a solicitor if he or she chooses, the suspect can also be interviewed without having a solicitor present if they require. However if the solicitor cannot arrive at the police station immediately, then the interview, which is one of an urgent need, can begin.
If the suspect is under the age of 18 or is mentally handicapped then there must be an ‘appropriate adult’ present during all interviews. Research suggests that many mentally vulnerable individuals are not being given this protection; the Runciman Commission recommended that the police should give clear guidelines on identifying which suspects need an appropriate adult.
In R v Aspinall 1999, the Court of Appeal ruled that a defendant who suffered from schizophrenia should have an appropriate adult present when interviewed by police. This was so even though the defendant appeared able to understand the police questions. The interview was, therefore, not admissible as evidence.
The law gives some suspects the protection on the way they should be treated whilst being detained and questioned. Section 76 of PACE states that the court shall not allow statements that have been obtained through oppression to be used as evidence. Oppression is defined as including torture, inhuman or degrading treatment and the use or threat of violence. Code C also gives protection to suspects who are being questioned in regard to the physical conditions of the interview. For example, the code says that interviews must be adequately lit, heated and ventilated and that suspects must be given adequate breaks for meals, refreshments and sleep.
In theory the custody officer who is supposed to keep accurate records, should monitor the treatment of a suspect during their detention period. This should include the length and timing of interviews and other matters, such as visits of police officers to the defendants cell, so that any breaches of the rules will be obvious. However, research by Sanders and Bridges suggests that a substantial minority of custody records (10%) are falsified.
