This essay intends to examine the due process controls over the police powers of arrest, which are governed by the Police and Criminal Evidence Act 1984[1] and its Codes of practise.[2] It shall also examine the rights of suspects

This essay intends to examine the due process controls over the police powers of arrest, which are governed by the Police and Criminal Evidence Act 1984 and its Codes of practise. It shall also examine the rights of suspects’ whether they are sufficiently protected and whether the police are adequately aided in their investigations of crime. But firstly a brief examination of the court proceedings shall be acknowledged.

Many people can be present at a Crown court proceeding but the usual persons involved are:

the judge, who is the sole evaluator of the case before them, they should listen impartially to the defence barrister and in turn to the prosecution. The opinion formed during the proceeding must be unbiased and independent.
the usher, whose job role involves passing papers or other objects around the courtroom and calling defendants into the courtroom.
the stenographers’ who is also known as the court reporter records the minutes of each and every proceeding.
a clerk communicates with other parts of the court and calls out the name of the defendant and administers their oath.
A solicitor who shall be a representative of the Crown Prosecution Service working alongside the barrister to prosecute.
and a number of barristers, who defend or prosecute for their clients.

At the back of the courtroom, a "dock" has been created for the defendant to be heard. A custody officer is also present with the defendant at the time.

A typical Crown court room looks like the diagram below:

The significance of the layout of the courts is to uphold the aims of the criminal justice system through enforcement. By forming a room where the judge is above and central declares elevation and authority, this allows for the judge to promote the rule of law and ensure due process. They provide control in the proceedings and so enforce proper treatment of suspects and therefore success in prosecuting criminals and acquitting the innocent, pledging equality and justice for all. As the judge acknowledges equality and justice he maintains public confidence in the fairness and effectiveness of the criminal justice system. Being in a court room declares authority, respect and power, restricting anti-social behaviour.

A numerous amount of cases were heard at the Crown court. They consisted mainly of potential robbery, assault, theft, being in possession of an unlawful offensive weapon and using or threatening to use unlawful violence. Amongst these cases there were some that were anonymous as the judge failed to mention the offenders crime. All the cases heard were either a continuation from a previous trial or adjourned to another date. This formed contradiction on the due process and adversarial model of justice as the presumption of innocence was clearly lacking, potential innocent parties were being remanded in custody without sufficient evidence to show beyond reasonable doubt the defendant is the offender accused of the crime. In some cases the judge specifically said that the offence committed was just not a high priority case and so the defendant should remain in custody until the specified date decided by the judge who has complete and utter control of all proceedings before him. At times it seemed there was no equality between the defendants nor a balance of instruction, it seemed the judge had disregarded all legal controls of due process purely on the basis that he was above the law, this clearly declared infringement of a number of human rights and many concepts of the constitutional law.

On the other hand if models of the criminal justice would like to be perceived then one should observe the Magistrates Courts as they clearly implement the due process, bureaucratic, power and justice models of criminal justice. As Holroyd J once stated, ‘it is a maxim of the English law that 10 guilty men should escape rather than one innocent man should suffer.’

The terminology used at the Crown court proceedings were very difficult to comprehend and follow so surely it would be just as challenging for a layperson or even a defendant to understand the concept of justice altogether?

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In order for the police to provide the public with a sense of law and order, the police must recognise and demonstrate the rule of law, i.e. that nobody is above the law, not police officers or any member of the public. However it seems at the moment, the police are more concerned with receiving powers and safeguards in order to exercise their service; this sometimes means being discrete or evident about any legal violations, this is of course highly dependent upon the circumstances.

Where the concept of rule of law is present, there shall be due process controls in the jurisdiction. For due process to be detected there must be rules protecting the defendant against error, incorporate the principles of the defendants rights, fairness and equality in the law as well as restraint against arbitrary power, a presumption of innocence beyond reasonable doubt and proportionality of obligations, in order for justice to be adequately served. PACE and its Codes of Practice, amongst other Acts ensure all of the above conditions in order for the police to achieve uniformity. PACE itself offers informal guidance to the police on how to exercise their powers, Code G governs powers relating to arrest.

The term arrest means to be deprived of liberty, for the police to use whatever degree of lawful force that is reasonably necessary and proportionate in order to assist in the investigation or prevention of a crime. The right to liberty is subject to a lawful arrest, but the exercise of an arrest is an obvious and significant interference to this right yet it is also deemed necessary as it is required in order to preserve one’s safety.

An arrest usually occurs for civil or criminal wrongs but can also be made for breach of peace.An arrest can occur by either a warrant from a magistrate court or without a warrant. A lawful arrest occurs where it is clear the suspect probably committed the offence and there is sufficient evidence to verify this. But it must also be proportionate top the offence breached and there must be guidelines of how to protect the suspect in case of error. Two elements in s24 of PACE declare the justification of arrest. The two elements required to be satisfied are; the police must believe one of the grounds in s24(1)-(3) has been completed and the police officer must have reasonable grounds to believe that it is necessary to arrest the defendant for any of the reasons found in s24(5) and (6). One element justifies the grounds for an arrest, whilst the other portrays the arresting powers upon a test of necessity, is there reasonable suspicion for the officers to arrest? If so, it seems it is far too easy for an officer to justify himself.

When the power of arrest is exercised it is essential that it is exercised in a non-discriminatory and proportionate manner. It must be justified, otherwise due process controls shall be omitted and a clear miscarriage of justice shall prevail as the rights of the suspect shall disappear amongst their individual human rights. Whilst the officer proceeds with an arrest they are required to fulfil conditions laid out in s28(3), failure to do this makes the arrest unlawful. Remedies for a wrongful arrest include complaint to the police, evidence obtained from a wrongful arrest may be excluded at the courts discretion, one could sue for wrongful arrest in court or judicial review.

Once an arrest has taken place the officer must caution the suspect as soon as it is feasible and take the suspect in for questioning. Questioning must not occur prior to the arrest or en route to a police station. On arrival a custody officer must ensure the suspect is informed of all their rights, this ensures equality before the law and protection of innocence and human rights.this gives the criminal justice system the ability to provide due process controls on the police questioning of the suspects.

Conclusively in order for the police to work effectively they must have legitimatising powers to enforce the law, but clearly there is a fine line between working and abusing powers. In order to work efficiently officers must act as they wish without fear of legal repercussions. But they must also be held accountable for any transgressions. This is usually done in one of two ways; through the courts and through an independent body of complaints. Methods of accountability allow for one to scrutinise general polices, guidelines and rules that govern police powers. Courts allow for the police to be held accountable for their activities, as actions can be brought against them for wrong occurred to the suspect, these maybe actions due to civil or criminal wrongs, where civil damages would be awarded. However where there has been a criminal wrong it is likely an officer will be prosecuted after it has arisen out of serious complaints; criminal charges could be incurred or disciplinary action. As there is an internal body that governs police complaints it was believed that a form of ‘silence’ and discretion was available to the force, which enforced the belief that the police would not be held accountable for any misconduct and nor would the controls of due process be affirmed.

As mentioned above police have the discretion to choose whether or not to arrest based on their suspicions, each county has a different police form to the next, where one considers burglary, (the door of a house left wide open) the other may not.

The effectiveness of the police is found in crime rates, however if the rates are high, does this mean they are working adequately or simply arresting unnecessarily? The British Crime Survey indicates that police are three times less likely to record crimes, this collides with some of the concepts of due process as how can someone be held accountable for something if they refuse to direct the truth. Are the police actually being held accountable for their actions? Surely not, because if they did all crimes would be reported and due process would be in balance as no person should be above the law.

hereafter referred as PACE.

PACE also introduced the Codes of Practise to cover police powers in stop and search, questioning of suspects and detention in police custody.

R v Hobson (1823) 1 LEW CC 261

the Public Order Act 1986, Criminal Justice and Public Order Act 1994, Criminal Justice Act 2003 and the Serious Organised Crime and Police Act 2005 all have contributed to increasing powers given by PACE to the police.

through Codes of Practise A-G.

found in article 5 of the European Convention of Human Rights and the Human Rights Act 1998.

R v Howell [1981] 3 ALL ER 878

Magistrates Court Act 1980 s1.

statutory arrest is governed through s110 and 111 and schedule. 7 of the Serious Organised Crime and Police Act 2005, it amends s24, s24A and Code G of PACE.

Exceptions found under s44-47 of the Terrorism Act 200

Also found in s110 of the Serious Organised Crime and Police Act 2005

of PACE and Code G, 3:3

Christie v Leachinsky [1947] AC 573

However the Police Complaint Authority has been viewed as not providing adequate remedies, Govell v UK [1999] EHRLR 101

as seen in s78 of PACE 1984.

Thompson v Metropolitan Police Commissioner [1997] 2 ALL ER 762.

this includes (as seen in Code C) the right to inform someone they have been arrested, to contact and consult with a solicitor, to access PACE and its Codes and the right to be silent- an indefinite right.

as seen in the HRA 1998, i.e. articles 5,6,8 and 3.

Khan v UK (2000) 31 EHRR 45

BCS, Crime in England and Wales, 2010- 11