There are also general arrest conditions under section 24 of the Police and Criminal Evidence act 1984, these conditions must be met when a constable reasonably suspects an offence has been committed which is not an arrestable offence . For example a police constable could have lawfully arrested in Walters V W H Smiths and Son’s Ltd (1914). One of the conditions under section 24 of this act is that of ‘identity’. A police constable has the power to arrest someone if he/she has reasonable grounds for having reservations about the person’s identity. The same principle also apply to a persons address, as a police constable has the power to arrest someone if he or she has reason to believe that a person has given an address that is not ‘satisfactory for service’ (Bevan, P235). Under the general arrest conditions section 25 of the PACE a police constable also has the power to arrest someone if they have reasonable grounds for believing that the arrest will prevent the person from causing arm to themselves or others around them. However, a police constable must use his objective mind when arresting someone in this case and should only arrest someone ‘if it appears to them that service of summons is impracticable or inappropriate because any of these conditions is satisfied’ (Bevan , P 235). A police constable should not use his subjective thinking and relate one case to another from past experience, as it was in Monaghan V Corbett (1983).
The power of arrest is not only restricted to police officers, it may also be carried out by a person performing a citizen’s arrest. However one carrying out a citizen’s arrest must have reasonable grounds to believe that someone has committed or are in process of committing an arrestable offence. Police officers have additional powers to this as they can arrest when they have reasonable grounds to believe that someone is about to commit an arrestable offence. Given that a citizens arrest was carried out in ‘Walters v WHSmith and Son LTD (1914)’ it was made unlawful, had the arrest been carried out by a police constable it would have been lawful (Bevan, 1991; 231). There are many requirements established in order for an arrest to be bona fide. Sub section 28 and 30 of PACE makes an arrest is unlawful unless the suspect is told that they are under arrest. Even if the arrest is obvious, the suspect must still be informed that he has been arrested and the grounds of the arrest otherwise it will result in the same case as ‘Christie v Leachinsky (1947)’ (Bevan, 1991; 251). The police officer must then take the arrested person to a designated police station as soon as practicable. The force used whilst exercising such powers under PACE should be reasonable. Unreasonable force could cause injury to the suspect and raise many issues under article 2 and 3 of the Human Rights Act. As section 3 of the Criminal Law Act 1687 states:
‘ a person must use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large’ (Bevan, 1991; 271)
If such force is unreasonably used then the arrest could result in being unlawful as it was in Simpson v Chief Constable of South Yorkshire (1991).
The powers appointed to the police in relation to the detention are generally set out in PACE. The provisions provided by PACE must be met in order for detention to be lawful. A person is usually in police detention if he/she has been taken to the police station after been arrested for an offence or secondly if he/she is arrested at the police station after attended voluntary at the police station (Bevan, 1991; 284). The period of detention without charge should not normally exceed 24 hours, if it is then decided that there is insufficient evidence to charge someone they must then release them. Reviews of ones detention must be made on a regular basis the first time period usually been after 6 hours. The maximum period of which one can be detained for is 96 hours, an exception this is made for those detained under to Terrorism Act 2000.
It is only since 1984 when the Police and Criminal Evidence was introduce that the police have had additional powers to stop and search, previous to this the stop and search powers were very inconsequential. A police constable must have reasonable grounds for suspecting that he will find stolen or prohibited articles before carrying out a stop and search, without such suspicion a stop and search will be unlawful (see Hernimen V Smith (1938)). PACE code A defines ‘reasonable suspicion’, in the context of a stop and search as follows:
“Reasonable grounds for suspicion depend on the circumstances in each case. There must be an objective basis for that suspicion based on fact, information, and/or intelligence which are relevant to the likelihood of finding an article of a certain kind or, in the case of searches under section 43 of the Terrorism Act 2000, to the likelihood that a person is a terrorist… Reasonable suspicion can sometimes exist without specific information or intelligence and on the basis of some level of generalisation stemming from the behaviour of a person…” ()
Subsequently to this, reasonable suspicion can be seen complex within itself. Hence the fundamental issue that police officers should understand this and know how to apply it to everyday policing situations. Therefore codes of practice elaborates on these requirements, and a police constable is required to think objectively in order to reach such suspicion, ‘requiring facts and circumstances which would lead to an impartial third party to form the belief or suspicion in question’(Bevan, 1991; 8).
Part one of PACE empowers a police constable to search someone without initially arresting them. However they do not have the power to remove ones clothing other than an outer jacket and gloves. A police constable also has the right to search a vehicle attended or unattended. However, if a vehicle is unattended and the police damage the car whilst carrying out a search they will be liable for the damage caused and must compensate for such damages. A police constable can only stop and search a vehicle when in uniform as they do not have the authority to carry out a search when wearing civilian clothing. One of the most likely places to be stopped and searched is whilst driving a vehicle. Powers set out by PACE and other statutes also empowers the police to enter and search ones dwelling.
Section 163 of the Road Traffic Act 1988 gives a police constable the power to stop and search any vehicle. These forms of stops are called ‘road checks’ and ‘mean the obstruction of a road in order to stop all vehicles passing along it or vehicles selected by any criterion (s4 (2), art 6(2))’ (Beven, 1991; 80). A police constable does not need to have any reasonable grounds to carry out a road check, therefore, this means that they can randomly stop vehicles. Usually a superintendent must authorise a road check however an officer at a lower level may do so ‘if it appears to him that it is required as a matter of urgency’ (Stone, P79). A road check may be carried out in four circumstances. The first is if a person has committed a serious arrestable offence, secondly if a person as witnessed an offence, thirdly if a person intends to commit a serious arrestable offence, and lastly if a person is unlawfully at large. Such checks are set up regularly especially when a major crime has been committed or if someone is unlawfully at large. Road checks can also be used for general road traffic purposes, for example to check a car of its roadworthiness or just to warn motorists that there has been an accident ahead. Section 1 of the Road Traffic Act 1988 states that a person driving a vehicle must stop the vehicle on being required to do so by a constable in uniform. This is a controversial matter as the Lodwick V Senders 1985 case ‘gives a constable a power to require the driver to stop (as was stated in R v Waterfield (1963))and does not simply impose a duty on the motorist to stop (as was suggested in Steel v Goacher (1983))’ (Stone, P79). However, Section 163 sub section 3 of the Road Traffic act 1988 makes it an offence for driver not to stop whilst driving his car when required to do so by a police officer in uniform. The police officer must also specify how long the check will take; this must not exceed seven days.
There are various additional statutes that give the police stop and search powers. Some of the most frequently exercised powers used in order to carry out a stop and search include the Misuse of Drugs Act 1971, Sporting Events Act 1985, and police powers in relation to breath tests. When a motorist is stopped they have the duty to remain at a stand still unless decided otherwise by the police constable. Under the Road Traffic Act 1988 a constable can only detain a vehicle rather than a person if they have reasonable grounds to believe it has been stolen. However, under the Road Safety Act 1967, which has been incorporated into the Road Traffic Act 1988, a police constable has the power to detain a person in order to carry out a breath test. The a driver may only be detained for a reasonable time period, if the driver shows to have a positive breath test then he/she may be detained at the police station. However the police officer should carry out this procedure in a lawful manner and inform the driver of the arrest, otherwise it could result in an unlawful arrest as it was in Alderson v Booth (1969).The police can also stop and search a vehicle travelling to an from a sporting event under the Sporting Events Act (1985). This act basically makes it an offence to be in possession of alcohol when driving certain vehicles to and from sporting events.
Section 60 of the Criminal Justice and Public Order Act 1994 also empowers an authorising police officer to stop to stop and search any person or vehicle. They may do so if they have reasonable grounds to believe that serious violence may take place or if a person is carrying dangerous or offensive objects. The defined time period is 24 hours unless the rank of superintendent extends this time period for a further 24 hours. A police constable also has the power to stop and search and person, vehicle, ship, or aircraft in order to prevent acts of terrorism under section 44 of the Terrorism Act 2000.
Section one of PACE a police constable has the power to search any person or vehicle if they have reason to believe that they will find any articles that are stolen, prohibited, or contain blades or sharp parts (see Maddox v Storer 1963) (Bevan, 1991; 57). A police constable also has the right to seize any items found; these powers may be exercised at any time or place. This could include ones dwelling, vehicle, garden, or any public place. Under section one of PACE such items seized in a stop and search can later be used as evidence in court. They may enter and search any premises for many different reasons. Some of the reasons may include; carrying out a search warrant, arresting someone, save life or damage to ones property, recapturing someone at large etc… (See Rynaston v DPP 1987). Section 18 of PACE gives a police constable the power to carry out a stop and search when authorised by an inspector or someone higher in the hierarchy level. Once a search is authorised a police constable may search any premises occupied or controlled. They have the power to do this if they have reasonable grounds to believe that there is someone on the premises who is under arrest for an arrestable offence, or if there is evidence connected to a same or similar offence. Once on the premises a constable has the power to seize or preserve such evidence.
Section 60 of the Criminal Justice and Public Order Act 1994 gives any police constable the power to search someone upon arrest. They have the power to do so if they have reasonable grounds for believing that person arrested could cause harm to themselves or others around them, or they have any items that could assist them in escaping, or are carrying any items that could be later used as evidence. They have the power to seize any articles found if they have reason to believe they could cause harm. This section of the Criminal Justice and Public Order act also give a police constable the power to search the premises where the arrested person was at the time of arrest. A police constable may search the premises if he/she has reasonable grounds to believe that evidence for the arrest is on the premises. If the premise consists of two or more dwellings a police constable only has the power to search the premises that the person was on just before or at the time of arrest. If a police constable has reasonable grounds to believe that other premises contain evidence relating to the offence for which arrested they must get an authorised search warrant. Section 8 of the Police and Criminal Evidence Act gives a police constable the power to acquire a search warrant. They can only do so if a serious arrestable offence has been committed and they have reasonable grounds for believing that material is on a premise that could be of significant usefulness to an investigation and could also be used as evidence. A search warrant is only necessary in a case where such entry onto a premise will not be granted without a warrant (see Hope v Evered 1886) (Bevan, 1991; 96).
PACE authorizes a police constable to conduct a vehicle stop and search; nevertheless, they also have the responsibility to carry out a search in a professional and ethical manner under the Codes of Practice (code a). A police constables reasonable suspicion should not be based on personal factors alone. They should take into account the nature of the article been suspected of being carried, the time and place, and the behaviour of the person concerned with. Such suspicion can also be based on dependable information given to the police service. If a reasonable ground of suspicion does exist a police constable has the right to detain someone to search them. However, they do not have the right stop or detain someone in order to find grounds for a search. A person being search can either be under arrest or a free person. The traditional view to this is that there is ‘no half way house’. A police constable also has the power to question someone before a search. They should make all efforts to reduce the embarrassment caused by the search. This could be achieved by carrying out the search in a secluded area. The co-operation and force used by a police constable should also be carried out courteously. A police constable should only use force as a last resort, fundamentally if a person is unwilling to co-operate, and the force used should be carried out professionally. A police constable can detain a vehicle rather than a person if there are grounds to believe that it has been stolen. The time of the search should also be reasonable. Under section 3 of the Police and Criminal Evidence act 1984 a police constable must make a record of all searches carried out, this must be done as soon as possible. This is significant as a driver of a vehicle is entitled o a copy of this record up to a twelve month after the search is carried out.
A police constable must carry out all searches of premises complying with the codes of practice, under code B. The entry and search must be carried out within one month from the date of the issued warrant. When carrying out a search warrant a police constable must also identify himself to the occupier of the premises and give them a copy of the search warrant. If the occupier is not present a copy of the search warrant must still be left on the premise where the occupier can see. The police also have the right to use reasonable force in order to carry out the search, this could mean the breaking of entry into a premises. Again the police must make a record of the search including fundamental information. For instance; a list of the items seized, when and where the search was carried out, the names of the officers who executed it etc…
When the police have the right to search a person or a dwelling they generally have the analogous right to seize whatever the search was originally intended to yield. Section 19 of the Police and Criminal Evidence Act 1984 states that a police constable may seize anything found on a premises or person at the time of carrying out a stop and search. A police constable must have reasonable grounds for believing that the items seized can be used as evidence relating to an investigation or offence. They may also seize items used as evidence in order to prevent them being damaged or destroyed. This may include things like clothes worn by the person in question, or items carried by them. The only items that may not be seized are those ‘subject to legal privilege’ (Bevan, 1991; 145). However they must not seize evidence for longer than required, as it was in Ghani v Jones 1970. Under the power of search section 8 (art 10) a police officer may seize anything found under the powers of seizure s 8(2); s 19 (art 21). The police may also seize something even if they do not have the power to do so if it is attached to something of which they have the power to do so.
The implementation of PACE could be perceived as been one of the most effective and influential pieces of legislature introduced for a long time. However some of the powers provided to the police through this legislation can be deemed to be excessive or insufficient in allowing the police to carry out their work effectively. As with many other pieces of effective legislation there are still many flaws found within them. As previously mentioned ‘reasonable suspicion’ plays a fundamental role in relation to the police powers. Hence the reason why it is so distressing that the concept is so vague and insufficient. There are no set rules or regulations that form ones reasonable suspicion; it is generally base it upon ones intuition. However critics would argue against this and deem that those who use such powers have an ‘objective’ basis to there reasonable suspicions. The use of ones intuition to form reasonable suspicion could result in an unlawful use of the police’s powers, as it was in Black v DPP (1995) (Fenwick, 1999; 14). When using the police powers of stop and search ones reasonable suspicion can also be used excessively. Consequential to this more people of a particular age group, sex, colour, might be targeted to be stopped and searched. In particular young black males driving a vehicle, and wearing hats. Stone (2004) recognized this in the “MacPherson report on the Stephen Lawrence inquiry (1999) Cm 4262, this as one example of ‘institutional racism’” (81).
The provisions relating to stop and search powers are debatable by many. There are significant reservations about the efficiency of the powers provided; but overall they are a very good way of bringing ‘crime to light’ (Bevan, P. 45). The stop and search powers that the police service have are proven to be beneficial in some ways however, insufficient in others.
“For example, a timely study has revealed that arrests resulting from stops accounted for between 20 per cent and 59 per cent of all arrests for offences in connection with the possession of stolen or prohibited articles. (Willis, P18). The success rate of these stops in terms of charges and convictions is however much lower” (see police and people in London, Smith 1983). (Cited in Bevan, P 46)
Stop and searches can be seen as effective mechanisms for both detecting and clearing up crime. However, the powers provided can also be seen as being excessive as they intervene with the public’s liberty and pride.
The Sporting Events Act 1985 also seems to give a rather excessive power to the police. This Act seems unusual because it gives the police the power to stop and search certain vehicles for articles which can normally be freely and legally carried. It is an extreme power for the 21st century as it was established in 1985at the height of football hooliganism. Not only does it seem extreme that the police can stop and search people for items normally legal it also seems to be an insufficient power in the fact that there is no specific power given to the police to seize any goods found. The police may seize the alcohol under different acts of parliament but the power given seems to be rather inadequate in the fact that the police can actually stop and search for certain goods under one power but not seize them under the same power.
As previously mentioned the police powers have been extended in relation to terrorism since the Terrorism Act 2000 was established. This in itself has helped to protect society from those who are suspected of been terrorists; many problems have also arisen from it too. Code A of PACE states that officers must not discriminate in any way whilst exercising powers given to them. However it seems difficult to carry this out in relation to the Terrorism Act 2000, as a police officer might need to take into consideration ones ethnic background when deciding who to stop. For instance, many international terrorist groups are related with particular ethnic groups, such as Muslims. (). Not only can they be seen to be discriminating by stopping certain ethnic groups the police can also be seen to be discriminating when asking people from ethnic backgrounds to remove items of their clothing. Using the Muslim example again the police could request that they move there headscarf’s whilst carrying out there powers of stop and search. This is lawful but not seen as respectful to there religion. Overall the powers given to the police service in relation to arrest, search, seizure, and detention are respectable. There are some errors with flaws but this can also be seen in many other pieces of legislature. Evidence shows that the police service makes a lot of discretionary decisions due to the ambiguity of rules and regulations. On the balance of evidence it can therefore be said that the police powers need to be more comprehensible in order to form a wider understanding.
Bibliography
Bevan, V and Lidstone, K (1991) The Investigation of Crime, A Guide to Police Powers. London: Butterworths.
Stone, R (2004) Textbook on Civil Liberties and Human Rights. 5th Edition. Oxford: University Press.
Feldman, D (2002) Civil Liberties and Human Rights England and Wales. Second Edition. Oxford: University Press.
Fenwick, H (1999) Civil Liberties and Human Rights Third edition. London: Butterworths.
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