There are other statutes giving specific stop and search powers:
- Misuse of Drugs Act 1971 – reasonable grounds to be in possession of controlled drug.
- Criminal Justice and Public Order Act 1994 - reasonable belief that serious violence may take place in an area for up to 24 hours.
- An officer can stop anyone on their way to a ‘rave’ and direct them not to proceed.
- Terrorism Act 2000 - Powers to stop and search persons and vehicles to prevent certain acts of terrorism.
S. 2 of PACE
Police must give his or her name and police station and explain object of the search.
Unlawful Entry and Searches
Where the police exceed their powers, the occupier of the premises or any other person affected can make a civil claim for damages under the tort of trespass and tort of damage to goods (if any goods were damage during the search). If any evidence is discovered during the unlawful search, the defence can try to have the evidence excluded.
Road Checks
Where it is reasonably suspected that a person who has committed a serious arrestable offence is in a particular area, S4 of PACE allows for road checks to be made in the area. But this must be authorised by a high ranking officer.
- A police officer patrolling the streets late at night, in an area well known for drugs, sees a youth with long hair and scruffy clothes looking very happy. Explain whether or not you think he should search the youth for drugs.
- The police have received reliable reports that a large gang of right-wing extremist will attack people taking part in an Asian outdoor festival. A group of skinheads allege police harassment when they are stopped and search for no apparent reason. Are the police acting lawfully?
- Priscilla was stopped and searched in the street by a police officer. The officer did not tell Priscilla why she was being stopped. During the search the police officer insisted that Priscilla take off her sweatshirt. Explain to Priscilla what her rights are.
There are two basic types of arrest:
- Arrest with warrant and arrest without a warrant under PACE. A warrant is an order from magistrates’ court authorising an officer to arrest an offender. If an officer wants to arrest someone without a warrant, they must have reasonable suspicion.
What is an arrestable offence?
All offences which the sentence is fixed by law (e.g. life imprisonment for murder); any offence for which the maximum sentence for adult is at least 5 years. This includes a wide range of offences such as theft (max. 7 years), ABH (max. 5 years), rape (max. life), robbery (max. life). It does not mean the offender will be sentenced to 5 years imprisonment. It only means that the maximum sentence is 5 years or more,
Section 24 of PACE
- An ordinary citizen can arrest without a warrant any person who has committed an arrestable offence or any one whom he has reasonable grounds for suspecting has committed an arrestable offence. The key factor is there must have been an arrestable offence committed.
- Police officer can arrest without a warrant a person whom they reasonably suspect has committed or is committing, or is about to commit an arrestable offence. This means that the arrest will be lawful even if it is shown later that no arrestable offence was committed.
- Private citizens may arrest where there has been an indictable offence and there is reasonable ground to suspect the person to be guilty of the offence or where an indictable offence has been committed. However, the arrest may only take place if it is inconvenient to get hold of an officer and it is necessary for these powers to be used to prevent a person:
- causing physical injury to himself or any other person
- Suffering physical injury
- Causing loss or damage to property
- Making off before a constable can assume responsibility for him.
There are some limitation for a citizen to arrest a suspect. The example below will explain the limitation to arrest:
- A store detective believes he has seen Patrick take a bar of chocolate, put it in his pocket and walk past the checkout without paying for it. If Patrick has taken the chocolate, then he has committed the offence of theft – an arrestable offence which the store detective may arrest him lawfully for. However, if the store detective is mistaken and arrests him, Patrick can sue in the civil courts for false imprisonment. But in this situation, a police officer may still arrest Patrick lawfully, even if Patrick did not steal the chocolate. However, the police must have had reasonable grounds for believing there had been a theft.
- R v Self (1992) – An off-duty police officer was wrongly suspected of theft. A store detective and a shop assistant caught hold of him and, in the struggle to get free, he kicked them. The court held that the off-duty police officer was within his rights to use force to try to escape, as there was no lawful arrest.
One of the new powers contained in the Serious Organised Crime and Police Act 2005, includes:
- Allowing police to take digital photographs of suspects on the street where they have been arrested, detained or given a relevant fixed penalty notice, rather than back at the police station. This will greatly reduce the ability of suspects to deny that they were the person in question.
- Allowing the police to take, retain, speculatively search and share footwear impressions. Footwear impression found at the scene of a crime can play an important role identifying the perpetrator.
Section 25 of PACE
- Police officer may arrest for non-arrestable offences if they believe that an offence has been committed and they:
- Do not know the defendant’s name or address
- Believe the arrest is necessary to protect the defendant or others from injury
- Believe the arrest is necessary to protect the defendant or others from injury or to protect property.
- Need to prevent an offence against public decency or obstruction of highway
- Need to protect a child or other vulnerable people.
Once again, the power to arrest rests on having reasonable grounds for belief and Code C governs arrest. The defendant will not only be told that they are under arrest and the ground for their arrest but they must know why they have been arrested and must be taken to a police station as soon as the arrest has been made.
When making the arrest, the police must use reasonable force. This means force must be justified and not excessive.
Arrest for breach of peace
Police may arrest for breach of peace. For breach of peace, the following must apply:
- There must be a sufficiently real and present threat to the peace.
- The threat must come from the person to be arrested.
- The conduct of that person must clearly interfere with the rights of others
- The conduct of the person arrested must be unreasonable.
- McConnell v Chief Constable of the Greater Manchester Police (1990) – Carpet shop manager asked McConnell to leave but he refused to do so. An officer had to take McConnell outside but he attempted to re-enter. He was arrested for breach of peace.
- A breach of the peace is behaviour that is likely to frighten ordinary members of the public.
- It covers a wide range of things - from rowdy behaviour to drunken singing. The police can arrest you to prevent any further breaches of the peace. In this case you would not go to court.
- Other examples of breach of peace include:
- Harassment
- Riot
- Putting victim in fear of violence
- Violent disorder (e.g. chasing someone with a knife)
-
Arrest with warrant: The police may make an application to a magistrate for a warrant to arrest a name person. A warrant is statement of offence giving the police rights to arrest the person named in the warrant. Such a warrant is issued under S. 1 of Magistrates’ Court Act 1980 which requires written information, supported by evidence on oath showing that a person has committed (or is suspect of committing) an offence. A warrant will only be granted if the offence is punishable by imprisonment.
-
Manner of Arrest: Whenever making an arrest, the police must at the time of or as soon as practicable after tell the person arrested they are under arrest and the reason for it, even if it is perfectly obvious they are being arrested. There is no set of words to be used, as portrayed in TV dramas. Saying something like: ‘You are nicked for theft’ is sufficient.
