AS Law Student Answers
(Module 2568: Machinery of Justice)
Police officers on patrol believe that a man that they see, Shane, is a suspect wanted for burglary. Outline the powers of the police to stop and search and if necessary to arrest the man.
The police have the power to stop and search both people and vehicles in a public place under sections 1 to 7 of the Police and Criminal Evidence Act 1984 (PACE). They can only do this if they have reasonable grounds for suspecting Shane of carrying some stolen goods or prohibited articles like drugs or offensive weapons. In Shane’s case this can also include articles for use in connection with burglary or theft. However, there are safeguards built in to ensure no one is being picked on or harassed in any way. The police must give their name and station and the reason for the search, otherwise it is unlawful as was shown in Osman 1999 where Mr Osman was found not guilty of assaulting an officer because the officer did not give a reason for the search.
Since Shane is on the street, only his outer clothing can be searched and the police must make a written report as soon as possible after the search. Code of Practice A states that the police must not act just because of a person’s characteristics, such as their race, hairstyle or manner of dress. Even if Shane had previous convictions for possessing an unlawful article, this alone cannot be used as a reason to stop and search him. In practice, the police do often have stereotypes of what a criminal type is and often stop people for the simple reason that they look like they did something wrong. Despite the MacPherson Report, following the death of Stephen Lawrence, Home Office statistics show that black people are still five times more likely than other groups to be stopped and searched.
Section 24 of PACE allows the police to arrest someone if they are in the act of committing, or have committed, an arrestable offence or if they have reasonable grounds for suspecting that person to be committing, or have committed, an arrestable offence. Besides the private citizen having some of these rights of arrest as well, the police have an additional power to arrest someone who is about to, or is suspected of being about to, commit an arrestable offence. Section 25 allows the police to arrest someone like Shane if they cannot discover his name and address, such as if he refuses to speak or runs off, or if they have reasonable grounds for believing that the name and address given by Shane is false.
Shane has been arrested by the police and the taken to the police station. Discuss the extent of any protections he enjoys while at the police station
In order to protect someone like Shane when detained at a police station, there are a lot of rights he enjoys that come under PACE, the Criminal Justice and Public Order Act 1994 (CJPOA) and Code of Practice C. Firstly, he should not be held for longer than 24 hours (36 if a serious arrestable offence) but this can be extended to 96 hours by the Magistrates court if necessary although he has a right to challenge this. The detention must be reviewed by the custody officer within 6 hours of detention and thereafter every 9 hours. The custody officer must release him if there are no grounds for keeping him and he/she must record all events that take place such as interviews or visits to Shane’s cell by police officers. Under Code of Practice C, the custody officer must also inform Shane of his right to have someone informed of his arrest, such as a relative or friend (Section 56 of PACE), although this can be withheld for up to 36 hours if it is a serious arrestable offence or if there are reasonable grounds for believing that person may interfere with the evidence they need on Shane. Shane must also be told of his right to free legal advice from the duty solicitor at the station or to a solicitor of his own choice. The case of Samuel 1988 shows that if denied access to a lawyer then any evidence gathered at an interview may not be admissible in court. The custody officer must also inform Shane of his right to consult with the Codes of Practice so that Shane can read more about his rights.
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If questioned, then any interviews must be tape-recorded and if possible video-taped. Shane has the right to have a solicitor present at any interview unless he chooses not to have one or if difficult to get one before the interviewing starts. If Shane is under 17 or if mentally ill, he has a right to have an “appropriate adult” present during all interviews (Aspinall 1999). Under Section 76 of PACE, he should not be forced or tortured against his will to give evidence and he must also be given enough breaks for meals, refreshments and sleep. Under CJPOA 1994, Shane no longer has a right to silence and if he refuses to say anything then this may be mentioned in court and may harm his defence. One other point is in regard to searches and finger-prints etc. The custody officer needs to record and keep until his release anything Shane has on him. A non-intimate search and a strip search can only be made in private and by a member of the same sex. A high-ranking officer can authorise an intimate search of Shane’s body parts by a doctor or nurse if they believe he is concealing something such as a weapon or drugs. Shane also must allow for fingerprints and non-intimate body samples such as saliva and hair to be taken but intimate body parts such as semen, blood etc. can only be done by a doctor or nurse. This could be used to check on information held on other crimes, but they must be destroyed if Shane is found not guilty in court or if not charged with anything. Finally, if Shane has a complaint about any police behaviour, then it is possible for him to go to the Police Complaints Authority.
Tyrone, aged 16 has missed the last bus home and has to work home. It is 2am and a police officer driving past in a police car sees Tyrone and stops. The police officer tells Tyrone to empty his pockets’ Tyrone is tired and becomes annoyed at this. He refuses to do so and keeps on walking. The police officer then grabs Tyrone and pushes him into the police car. Tyrone is taken to the local police station. Advice Tyrone on whether the police officer acted lawfully within his power. (June 2001)?
In order to stop, investigate and reduce crime, the police needs certain powers and parliament has given them the power to stop, search, arrest and detain suspects at the station. The powers of the police are written under the Police and Criminal Evidence Act of 1984. The Code of Practice is also written under the 1984 Act. However, there are guidelines the police are entitled to follow in order to safeguard the Human Rights Act of 1996 and to make sure ordinary citizens are not unnecessarily harassed.
From the experience of Tyrone, I feel that the actions of the police were unlawful despite Tyrone’s stubbornness to surrender due to his anger. Though he is young and it as 2pm at night, the officer still acted unlawfully. There are several reasons to explain why the officer’s actions were wrong. Firstly, the police are meant to give some identification and the officer did not state his name or the station. In addition to that, he did not state the reason for the stop and search even though there were reasonable grounds to suspect Tyrone of committing a crime or about to commit an offence. Secondly, the assault Tyrone received from the officer is unlawful because he was not about to commit an offence or in attempt to escape from a crime. Even though it was late at night, he has the right to refuse such an unlawful arrest because the officer did not provide reasons.
Lastly, the police have the powers to stop and search Tyrone if they believe he is about to commit a crime but only his outer clothing could be searched in public places. In the case of Tyrone, the officer forced him into the car due to his refusal and that is a violation of right to privacy and to life. Tyrone could sue the officer to court for an unlawful arrest and be found not guilty like the case of Osman Vs DPP. Osman was found not guilty by the Queen’s Bench Divisional Court of assaulting the police officer because he was unlawfully arrested as no reasons were provided. In conclusion, the officer’s actions towards Tyrone was in breach of the Code of Practice stated in the PACE Act 1984.
Homer Simpson, aged 35, has been arrested for the murder of Ned Flanders. Explain and comment on how Homer’s rights are protected during his detention
The police must respect Homer’s civil rights. Homer has the right to be respected by the police. Section 56 of the Police and Criminal Evidence Act 1984 allows Homer the right to inform someone about his detention. He can contact anyone who he wants to know about his detention, by telephone. The interviews with Homer by the police officer must be recorded on tape or on video, as stated in the PACE code of conduct. Code E states that evidence must be recorded on tape or video of a suspect’s interview.
The code of conduct code D states that the police should deal with detention, treatment and questioning of a suspect. Homer has the right to be treated properly without violating or neglecting his rights. In section 58 of PACE Homer the right to legal advice, to consult a solicitor. This can be given for free or he can decide to get a suitable solicitor of his choice. The custody officer must get him to sign if he wishes to have legal advice. He would be told about his legal advice and also get a written notice. Since Homer’s offence is indictable (murder), he only has the right to see his solicitor for up to 36 hours. This is because the access to a solicitor can lead to interference or harm to evidence or to other persons.
During Homer’s interview with the police, he has the right to have his solicitor present at the interview. Homer has the right to be checked by a doctor to indicate if he is suffering from any mental illness. He has the right to know why he has been arrested and detained. If the police fail to inform him of all the procedures, which is unlawful, the act can be said to be a breach of PACE. Due to the fact that Homer has being arrested for a serious arrestable offence (indictable), after 36 hours the police may apply to the magistrates to extend the length of his detention, but the maximum time he can be detained is 96 hours. After 96 hours he must be either charged with the offence or be released. Homer has the right to see or be made aware of his legal rights. Any intimate searches on him (such as urine tests, body samples etc.) should be done by the same sex to avoid harassment. Finally, if there is a breach of civil liberties, such as an unlawful execution of police methods and procedures, then civil proceedings may be brought against the police by Homer.
Explain the powers the police have to detain, search and interview an individual at the police station
On procedures of arrest, it must be made clear to the suspect that they are being arrested, as well as the reason for the arrest. Reasonable force may be used if necessary in order to make the arrest (section 117 Police and Criminal Evidence Act). If the arrest has been made by warrant, then it should be shown on demand, and the police may need to search the suspect arrested for any evidence or anything which the person may use to escape. Police are only required to ask the person to remove their outer clothing, if the search has been made in public.
Once arrested, a custody officer must tell the detainee of his rights. These include having someone informed of his arrest (section 56 of Police and Criminal Evidence), being told that independent legal advice is available for free (section 58 of Police and Criminal Evidence Act), and being allowed to consult privately with a solicitor. Also, being allowed to consult the Code of Practice. For most offences the police may only detain a person for a maximum of 24 hours. If the person is not then charged with an offence, the police must release them. For serious arrestable offences the police may detain the suspect for an initial period of 36 hours and may then apply to the Magistrates’ Court for permission to detain them for up to 96 hours.
The police may question a detained person. Such interviews are tape – recorded. At the start of an interview a suspect must be cautioned ‘You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.’ This caution emphasises the right of silence has been eroded as the Criminal Justice and Public Order Act (1994) allows adverse inferences to be made during trial where the suspect has been failed to mention facts in the police interview, or failed to give an explanation of his presence at a particular place. Suspects under the age of 17, as well as those who are mentally disordered or handicapped, should have present an appropriate adult during the interview.
While a person is detained, the police may take fingerprints and non – intimate body samples such as hair and saliva. This can be done without the person’s consent and carried out by a person of the same sex as the suspect. A registered medical practitioner or nurse can take intimate samples, such as blood, semen and body tissue or fluids. Although if the person has been fund not guilty, or has not been charged, any samples or fingerprints which were taken must be destroyed. Where a sample is not destroyed, it can be used as evidence, unless the trial judges exclude it (section 78 of Police and Criminal Evidence Act).
Yesterday, Moll was arrested on suspicion of murdering Dolly. On arriving at the police station, when Moll asked for a lawyer; she was told by a detective that she would see a lawyer in court. Moll was detained at the police station and questioned by a team of detectives from 6.00pm until 1.00am. At 5.00 am this morning, Moll was told that her sister Peach had made a statement admitting that she and Moll had killed Dolly.
A little later, Moll asked detectives who would be charged if she made a statement admitting sole responsibility for the death. Detective Smiley replied that decisions to charge were only made by senior officers after considering all the evidence, including any admissions. Moll then stated that she had accidentally shot Dolly and that Peach had nothing to do with the death. Moll and Peach have now both been charged with murder. Advise Moll whether her own statement will be admissible against her on this charge.
The legal Issues that this question raises are as follows:
- Police & Criminal Evidence Act (PACE) & Codes of Practice.
- Its provisions on arrest.
- Its provisions on detention.
- Treatment of suspects in custody.
- Admissibility of evidence / confession.
Points to note
S.24 deals with arrest without warrant where it is for an arrestable offence i.e. it is an offence for which the sentence is fixed by law S.21 (1)(a). S.24 (6) “Where a constable has reasonable grounds for suspecting an arrestable offence has been committed, he may arrest without warrant anyone whom he has reasonable grounds for suspecting to be guilty of the offence” (Chapman v DPP 1988)
- S.28 A person arrested should be informed that he is under arrest as soon as practicable after his arrest (Hawkins 1988). If this is not complied with then it looks at first instance as if the arrest is not lawful.
- S.28(3) the arrested person must be told the grounds for arrest as soon as possible. S.28(5) gives exceptions to this rule. S.58 Access to legal advice “a person arrested and held in custody...shall be entitled, if he so requests to consult a solicitor at any time”.
Delay in allowing legal advice is allowed only if it is a serious arrestable offence and the delay is approved by someone of superintendent level or above. S.58(8) - Delay may be authorised, if such a request would lead to harm to evidence, or will abet others suspected of the offence or will hinder the recovery of any property obtained as a result of such an offence. The accused must be told the reason for the delay in allowing legal advice. S.40 shows the rules relating to continuing detention. Detention of a suspect is to be reviewed after 6 hours of detention; then further reviews are to be made not later that 9 hours after the first and then every 9 hours onwards until the time of maximum period of arrest. S.40 (4) allows for exceptions where it is not practicable to review the detention.
S.76 is regarding the admissibility of confessions. If, in any proceedings where the prosecution proposes to give in evidence a confession made by the accused person, it is represented to the court that the confession was or may have been obtained
- either by oppression of the person who made it or
- in consequence of anything said or done which was likely, in the circumstances, existing at the time, to render unreliable any confession which might be made in consequence thereof. The court shall not allow the confession to be given in evidence against him.
It is necessary to look at the reliability of the confession and not necessarily the precise manner in which it is obtained. If it does not seem reliable then it should not be allowed as evidence unless the prosecution can prove beyond a reasonable doubt it wasn't obtained this way (i.e. by oppression). S.78 - If the confession is obtained in a way that would make the proceedings unfair it may not be admissible.
Applying the Law to the Question
Was Moll's initial arrest legal? - If it was, then her subsequent detention is also legal; if not, then it is not. It would seem that as a serious arrestable offence (that of murder) had been committed, her arrest is initially all right, if the officer who arrested her had reasonable grounds for doing so. Was Moll told of the reason for her arrest and the fact that she was under arrest? If not told as soon as practicable, then there is a breach of S.38 of PACE. Moll, once at the police station, requested to see a lawyer; she has not been given one, and her request was not denied by a senior officer nor was any reason given for the delay, nor was the reason noted in the custody records. So, there seems to have been a reasonable request for a lawyer. There has been delay, and so the codes have not been complied with. Moll was questioned for at least 7 hours, and as PACE says there should be a review every six hours, this is again another breach of PACE. Again, there are reasons when it is all right not to do so e.g. when it is not practicable to do so, however this does not seem to be the situation here.
Looking now at Moll's confession and whether or not her confession will be admissible against her. Moll can try to say that it is not admissible, as the officers failed to be honest and upright with her in telling her that her sister had made a confession to get her to confess. In Mason (1988) the conviction was quashed when D made a confession after police told him they had evidence they did not have. Her confession may therefore be inadmissible. Moll could try to say that there was oppression on her (S.76) to make the confession. Moll can try to say she only made the confession as she was tired and wanted to get out of jail and that it was not the truth. As she was denied access to a solicitor, this may make her confession inadmissible (Samuel 1988). In conclusion, Moll may stand a good chance of having her confession declared inadmissible due to the many breaches of PACE.
Here's what a teacher thought of this essay
A competent response. This student understands the main provisions of PACE well. 4 Stars