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Police Powers

Previous: Judicial review

Introduction

There are currently 43 police authorities in the UK, with ~130,000 officers. While it might be more efficient to have 1 police force, people generally appear not to like the idea of a state-controlled centralised force. The organisation, structure and powers of police forces is very political, therefore change occurs frequently.

Organisation

The Police Act 1996 put a Chief Constable in charge of each police force: the most senior officer, in charge of the direction and control of that police force. The Act also created Police Authorities consisting of 17 members – 9 councillors and 8 chosen others and required that the Home Secretary provide half of a force’s funding. Police authorities and the Home Secretary’s powers have now been replaced.

The Police Reform Act 2002 gave more power to the Home Secretary, allowing the suspension of Chief Constables; a power rarely exercised. The Chief Constable of Humberside Police was suspended following murders by Ian Huntley: the Cambridgeshire Police had not been informed of Huntley’s past convictions on request. The 2002 Act also provided for the use of Community Support Officers: staff who could be on half the wage of Constables and carry out less important roles. Investigation Officers, such as forensic scientists, were also permitted by the Act, as was the contracting out of Escort Officers to external companies. The Independent Police Complaints Commission was established by this Act.

The Police Reform and Social Responsibility Act 2011 followed the 2010 general election to implement the Convervative-Liberal Democrat coalition’s manifestos. Each force was to have a Police and Crime Commissioner, to be first elected in November 2012 according to s 50. In s 5, this Commissioner must make a plan with targets; regard the plan under s 8 and then produce an annual report under s 12 for a wage of £65,000 – £100,000 per year, depending on the size of the force. The Commissioner was also given the power to appoint and dismiss their force’s Chief Constable following a consultation with that force’s Police and Crime Panel, established by schedule 6 of the act and consisting of 10 councillors and 2 others. Finally, under s 26, a Commissioner has the power to impose a discretionary Community Charge Tax and the Home Secretary’s funding was also provided for in s 24 of the Act. The first Commissioner election in November 2012 was a disaster however, with fewer than 15% of the electorate voting.

Most recently, the Crime and Courts Act 2013 created the British version of the FBI, with the National Crime Agency. Under s 4, a plan with national targets is to be made, and any Chief Constable can be required to carry out tasks for the Agency under s 5. The Agency has 4 divisions: economic crime, organised crime, border control and child exploitation. The National Crime Agency replaced the Serious Organised Crime Agency, which had bben  the product of the merging of The National Criminal Intelligence Service and the National Crime Squad.

Judicial scrutiny

As the police are part of the executive, it is right that the judiciary must be able to review the use of their (extensive) powers. Scrutiny can occur in a number of different ways.

Tort claims may be made against the police, usually via the tort of trespass to the person. Hsu v Commissioner of Police of the Metropolis [1997] set 3 types of damages available against the police: ordinary damages for compensatory purposes; aggravated damages for high handed actions, double ordinary damages, and exemplary damages for the most serious of claims;  to a maximum of £50,000.

According to The Times in January 2014, 179 crimes had been committed by Police Offciers in the past 3 years. Criminal prosecution is a possibility, therefore.

Judicial review is yet another way of review police powers. R v Metropolitan Police Commissioner, ex p Blackburn [1968] required that the police enforce gambling laws, against policy, though R v Chief Constable of Sussex, ex p International Traders Ferry [1999] did not require constant supervision of a protest by police as a decision to only supervise on set days was not irrational.

Complaints can be made against the police via the Independent Police Complaints Commission. An investigation will then be required. Investigation may be carried out by a Chief Constable; supervised by the IPCC, managed by the IPCC or carried out by the IPCC themselves. The biggest criticism of the IPCC is that it is severely under-resourced.

If someone is detained unlawfully by the police, an application to obtain a writ of Habeas Corpus will be given priority by the court and may require immediate release if there are no sufficient grounds for detention.

Finally, there may be reports made regarding the police, such as that produced by the Steven Lawrence Enquiry in 1999, which accused the police of being institutionally racist.

Assaults on officers and obstructions on duty

It is an offence to assault an officer in the execution of duty or to wilfully obstruct an officer in the execution of duty.

Execution of duty

If an officer is not acting within the scope of his duty, a resulting assault on that officer will not be a criminal offence. As such, in Kenlin v Gardiner [1967], there could be no conviction of a 14 year old boy for hitting a police officer in self-defence to escape unlawful detention by a police officer. He was not under arrest.

Donnelly v Jackman [1970] ruled that tapping a suspect on the shoulder to get their attention is within the execution of an officer’s duty, however according to Bentley v Brudzinski [1982], putting a hand on the suspect’s shoulder is outside of an officer’s duty.

Assault

As held in Forbes [1865], it is no defence to say that you were unaware that you were mugging a plain clothes police officer to a conviction for assaulting a police officer in the execution of duty.

Obstruction

What is an is not a wilful obstruction of an officer in the execution of his duty? According to Rice v Connolly [1966], refusing to answer questions is not an obstruction. Although in Dibble v Ingleton [1972], drinking whisky to cover up drink-driving was said to be an obstruction. It is an obstruction, according to Johnson v Phillips [1975] to disobey an order by police to save life or limb, even if that order would require breaking the law. Similarly, in Lewis v Cox [1985], continually opening a police van’s door to talk to arrested friends was an obstruction, despite no intent to obstruct. Finally, in Sekfali v DPP [2006], it was ruled an obstruction to run away from questioning despite no physical contact.

Arrest

More than 1.4 million people are arrested each year: the start of a legislative process to bring someone to judicial proceedings. In order to make an arrest, an officer must have a legal power to arrest; a reasonable suspicion (objective and subjective); a suspected offence; grounds to arrest and must the correct procedure.

It is an offence to try to escape from lawful custody (following arrest). As such, in Timmis [1976], going to a public house following a positive breathalyser result allowed a charge of the common law offence of escaping lawful custody. One must know that they are under arrest though: in R v Dhillon [2006], Dhillon was not guilty of escaping lawful custody after leaving a hospital on his own following an X-ray. Section 3 of the Criminal Law Act 1967 allows the police to use reasonable force in the circumstances to prevent crime or to lawfully arrest those unlawfully at large.

Powers of arrest are usually provided by statute. The different powers are detailed below.

Arrest with a warrant

Section 1 of the Magistrates’ Courts Act 1967 provides that a Justice of the Peace may issue a warrant for the arrest of an individual who has committed, or is suspected to have committed, an offence capable of warranting a prison sentence. Of course, this power is only useful when the arrest is not time-critical.

Arrest without a warrant – Constables

Section 24 of the Police and Criminal Evidence Act 1984 (‘PACE’) gives constables powers of arrest without a warrant.

  • s 24(1) – A constable may arrest anyone (a) about to commit an offence, (b) committing an offence, (c) reasonable grounds for suspecting about to commit an offence or (d) reasonable grounds for suspecting committing an offence
  • s 24(2) – Can arrest anyone suspected of committing a suspected offence
  • s 24(3) – Can arrest anyone suspected or known of committing known past offence
  • s 24(4) – Must have a reasons for s 24(5) in order to exercise s 24(1-3) powers
  • s 24(5) – Must have at least 1 of the following reasons for arrest: (a) to get name, (b) to get address, (c) to prevent damage/injury/offence/highway obstruction, (d) to protect a child/vulnerable person, (e) to allow effective investigation of an offence/person, or (f) to prevent disappearance.

The general powers of arrest a therefore very broad. According to Hayes v Chief Constable of Merseyside Police [2011], it is allowable for an Officer to arrange to meet a suspect and then arrest them at that meeting – no false imprisonment.

Arrest without a warrant – other persons

Section 24A of PACE does allow people other than constables to arrest someone who is committing an indictable offence or has committed an indictable offence. There is no power to arrest someone who is about to commit an offence or to arrest someone who may have committed a past offence.

  • s 24A(1) – A person other than a constable may arrest without a warrant anyone who (a) is committing an indictable offence or (b) he has reasonable grounds to believe is committing an indictable offence
  • s 24A(2) – Where an indictable offence has been committed, a person other than a constable may arrest anyone (a) who is guilty of that offence or (b) who he has reasonable grounds to believe is guilty of that offence
  • s 24A(3) – Only arrest where (a) reasonable grounds to believe that the arrest is necessary with reason from s 24A(4) and (b) not reasonably practicable for a constable to make the arrest instead
  • s 24A(4) – Reasons: to prevent the person (a) causing physical injury, (b) suffering physical injury, (c) causing loss or damage to property or (d) making off before constable can assume responsibility

This section wishes to limit the circumstances in which one citizen may arrest another. A citizen may not, for example, know what is classed as an indictable offence, therefore could easily the subject of a false imprisonment claim. For the purposes of s 24A, either-way offences are classed as indictable offences.

Arrest without a warrant – breach of breach

According to Howell [1982], a common law breach of peace means the use or threat of violence against a person, or against property in the presence of its owner. In Foulkes v Chief Constable of Merseyside Police [1998], it was unlawful for a police officer to arrest Foulkes as there was no threat of violence or damage in him refusing to leave his own property after his wife and children barricaded themselves inside.

Reasonable suspicion

Reasonable suspicion has 2 elements: an objectively verifiable ground and a subjective belief. In Hussein v Chong Fook Kam [1970], it was said that gossip is enough to form a reasonable suspicion and that an evidential assumption is not required. In Castorina v Chief Constable of Surrey [1988], having only one likely suspect, contrary to authoritative reassurance, is enough to form a reasonable suspicion for a lawful arrest. In O’Hara v Chief Constable of Royal Ulter Constablary [1997], it was ruled lawful to arrest someone on the grounds of another police officer’s information. This case also ruled on the requirement of both a subjective an objective suspicion. Although, a reasonable suspicion may not be found by a family link and a vague proximity to a terrorist, as held in Raissi v Commissioner of Police of the Metropolis [2008].

Procedural formalities

Section 28 of PACE helps to prevent the police abusing their powers of arrest. It requires that:

  • s 28(1) – Must be told of arrest as soon as practicable
  • s 28(2) – Must be told of ground of arrest as soon as practicable

This prevents the police from arresting citizens for no reason. Alderson v Booth [1969] ruled that asking someone to go to the police station does not satisfy the requirement of s 28(1). Taylor v Chief Constable of Thames Valey Police [2004] required that the ground of arrest is told in simple, non-technical language; a requirement fulfilled on the facts of the case.

Detention following arrest

Section 30 of PACE requires that (1) an arrested citizen is taken to a designated police station as soon as practicable, but (3) to any police station for fewer than 6 hours if a designated police station is not available. An officer (7) must release a detainee en route to the station if the grounds for the arrest cease to exist. Where consent was given, in Dallason v Caffery [1965], it was acceptable to check an alibi en route to a police station.

Where an arrest is made by a citizen, as was the case in John Lewis Ltd v Tims [1952], reasonable time is allowed to decide what to do with the detainee. 1 hour was deemed to be reasonable.

Detention

Following an arrest and the bringing of the detainee to a police station, the detainee may then be detained further under PACE.

Responsibilities and time limits

  • s 36 gives responsibility of detainee to custody officer
  • s 37 requires release if insufficient evidence and no need for further questioning
  • s 38 requires charge if sufficient evidence
  • s 39 requires that the detainee’s rights are secured and any relevant codes of practices are implemented
  • s 40-44 allows for a maximum detention of 24 hours in custody without charge. Release is then required unless the offence is classed as a serious offence, in which case the time limit is 36 hours. With successive hearings, magistrates may extend this period to 72 and 96 hours respectively.
  • s 46 requires that, if a detainee is charged, the grounds of a charge are reviewed after 6 hours then every 9 hours. The detainee must appear in the magistrates’ court within 2 days of the charge.

Suspected terrorists may be detained for a longer period of time. The Terrorism Act 2000 allowed for 48 hours of detention with the permission of a superintendent, with an extension up to 7 days with the permission of a judge. Following extensions to 14 and 28 days following 9/11 and the London bombings respectively, the limit has now been put back to 14 days by the Protection of Freedoms Act 2012.

In Roberts v CC Cheshire Police [1999], Roberts’ grounds for charge were reviewed initially after 8 hours, not 6, therefore a claim for false imprisonment for 2 hours was successful.

Treatment in custody

Code C, attached to PACE in 2012, requires that in custody, cells are heated, ventilated, lit and have clean bedding. 2 light meals and 1 main meal are to be provided in each 24 hour period of detention, and detainees are to be inspected every hour, unless under the influence of alcohol or drugs, where inspections should be carried out every half-hour. A detainee must also be informed of their rights upon arrival by the custody officer. There are two key rights: the right to notification, provided by s 56 of PACE and the right to consult a solicitor, provided by s 58 of PACE.

  • s 56(1) – A detainee may have 1 person notified of their situation and location if that person would likely take in interest in the situation.
  • s 56(2) – Notification may be delayed for up to 36 hours by an inspector if the offence is indictable and there are grounds for that delay.
  • s 56(5) – The grounds for delay are: (a) interference with evidence or injury, (b) alert of other suspects or (c) hinderance of property recovery.
  • s 56(6) – The delay and its reason must be recorded on the detainee’s custody record.
  • s 58(1) – A solicitor may be consulted by the detainee at any time
  • s 58(5-9) – A superintendent may authorise a delay of up to 36 hours for the same reasons as in 56(5) if the delay is backed up in writing and the detainee told of the reasons for the delay.

Samuel [1988] ruled that a solicitor may be nominated unless there is factual evidence that the solicitor is corrupt, or would be tricked by the detainee into tipping off other suspects. That solicitor may accompany the detainee in questioning.

Confessions

Prior to PACE, confessions were obtained through inappropriate techniques. Section 76 attempted to change this.

  • s 76(1) – May use confessions as evidence in trial
  • s 76(2) – If if confession said to be (a) obtained by oppression or (b) unreliable, prosecution must prove beyond reasonable doubt that confession was legitimate
  • s 76(4) – Confession exclusion does not affect facts discovered as a result of the confession
  • s 76(8) – Oppression includes torture, inhuman or degrading treatment and the threat of violence

Fulling [1987] said that using mind games to obtain a confession was not unlawful, however, in R v Paris [1992], asserting the suspect’s guilt more than 300 times in 1 interview in order to obtain a confession was classed as oppressive.

The Criminal Justice and Public Order Act 1994 limited a detainee’s right to silence in s 34-39, allowing inference from silence where the detainee fails to account for evidence, a presence in a particular location or in general questioning during a trial.

Admissibility of improperly obtained evidence

Section 78(1) of PACE gives a court discretion to exclude evidence if that evidence would make the proceedings unfair. Sang [1980] said that generally, evidence will not be excluded. The exception can can be found in Mason [1987], where evidence which had been fabricated by the police was excluded. Following the general rule, in Christou and Wright [1992], evidence obtained by a fake jewellery store which the police had set up and manned was not excluded. Similarly, in Bailey [1993], evidence obtained by recording the conversations of 2 suspects placed in the same cell was not excluded. Tricks are allowed, lies will cause evidence to be excluded.

Entry

There a number of ways in which police officers can enter premises for certain purposes.

A police officer may have implied consent to enter premises, just as a postman does, and may ask for someone’s attention while on those premises, for example. If that consent is revoked, an officer will be required to leave just as any other citizen would. As such, in Davis v Lisle [1936], there was no assault an officer in the execution of his duty when an occupier used force to remove an officer from his premises once the officer had refused to accept that his licence to be on the premises had been revoked. However, in Robson v Hallett [1967], it was an assault on an officer in the execution of his duty to assault an officer before giving him time to leave.

Entry to effect arrest

Section 17 of PACE gives officers a number of reasons to enter premises without the consent of the occupier.

  • s 17(1) – A police constable may enter to (a) execute a warrant, (b) arrest someone for an indictable offence, (c) arrest under statute, (d) recapture or (e) save life or limb, or prevent serious property damage
  • s 17(2) – Must have reasonable grounds for believing person on premises
  • s 17(3) – Must be in uniform
  • s 17(4) – Only search to extent required for purpose of entry

In O’Loughlin v CC Essex [1998], it was also ruled that an officer must explain their reasons for entry.

Entry to prevent a breach of the peace

The police may take steps to prevent breaches of the peace. As such, in Thomas v Sawkins [1935], 30 police officers were not trespassing in attending a meeting to discuss a campaign against the police. Furthermore, in McLeod v Metropolitan PC [1994], it was allowable for a police officer to supervise the removal of property from a house where there was the potential for violence. This decision was overruled in McLeod v UK [1998] however, as the suspected violent person was not at home during the removal; only their 70 year old mother: art 8 was breached proportionally to art 2 on the facts.

Entry following arrest

Section 18 of PACE permits an officer to enter a property in a number of circumstances.

  • s 18(1) – May enter and search property controlled by detainee after arrest for indictable offence if reasonable grounds to believe evidence relating to (a) that offence or (b) any other similar or connected offence
  • s 18(2) – May seize and retain
  • s 18(4) – Must be authorised by inspector unless (5) before taking suspect to station or necessary for effective investigation
  • s 18(7) – Must record in writing ground for search and nature of evidence sought

Badham [1987] said that a note in a notebook is not a sufficient record for a search to be lawful.

The most controversial powers of the police are those of search. It is a significant violation of someone’s rights to be searched or to have their property searched, therefore police powers must be balanced with individual rights and freedoms. As a preliminary limitation, in Jackson v Stevenson [1879], is was said that an officer may not search someone to try to find grounds for arrest.

PACE s 1-3 provides powers for officers to stop anyone in certain circumstances and then search them.

  • s 1(1) – A constable may exercise power (a) wherever express or implied permission or (b) in any other place which people have access to and is not a dwelling
  • s 1(2) – A constable may (a) search any person, vehicle or item in vehicle and (b) detain a person or vehicle for that purpose
  • s 1(3) – Must have reasonable grounds to suspect the finding of stolen or prohibited articles
  • s 1(4) – May not search someone in a garden or yard of a dwelling unless reasonable grounds to believe (a) does not reside there or (b) does not have permission to be there
  • s 1(6) – May seize articles
  • s 1(7) – Prohibited if offensive weapon or made/adapted for offence – (8) burglary, theft or others
  • s 2(2) – Before search, reasonable steps to bring to attention (i) evidence that constable if not in uniform and (ii) matters specified in s 2(3)
  • s 2(3) – Matters for attention are (a) name of officer and police station, (b) object of search, (c) ground of search, and (d) right to record of search
  • s 2(6) – Leave note on unattended vehicle stating searched with name of officer and police station, and compensation procedure
  • s 2(8) – Reasonable time to detain
  • s 2(9) – Can only require removal of outer jacket, coat and gloves
  • s 3(1) – Must record in writing any search unless not practicable
  • s 3(6) – Record must state object, ground, datetime and ethnicity
  • s 3(7) – Right to copy of record of search

The extensive procedure outlined above must be followed in all cases for the search to be lawful. In Osman v DPP [1999], it was ruled unlawful for an officer to search without giving the suspect his name and police station name.

PACE is not the only source of stop and search powers: the Misuse of Drugs Act 1971 s 23 allows searching for controlled substances, used 1/3m times per year and the Criminal Justice and Public Order Act 1994, s 60 allows (1) an inspector to authorise random stop and search powers in a locality for up to 24 hours if he has a reasonable belief of (a) impending violence, (aa) a violent weapon following past violence or (b) weapons in an area without good reason. Under s 60(4), this can be extended to 48 hours by a superintendent and under s 60(6) seizure may occur. If someone refuses to be searched, they may be convicted under s 60(8).

Suspected terrorists may also be stopped and searched under the Terrorism Act 2000, or which s 43(1) provides that a constable may stop and search someone whom he reasonably suspects to be a terrorist to discover evidence on the person. Sections 44-46 allowed random stop and search powers to be given to police an a designated locality by the Secretary of State for the Home Department; however, following R (Gillan) v Commissioner of Police of the Metropolis [2006], where the House of Lords declared the law compliant with the ECHR, the Government legislated to provide additional controls on the Home Secretary’s powers. The UK was then prepared to accept the inevitable ECtHR ruling in Gillan v UK [2010] that said s 44-47 was not complaint with the ECHR. The result was s 47A which provides that (1) a senior officer may give authorisation in a specified area if there is a reasonable belief of (a) an impending act of terror and (b) necessity in an area no greater than necessary for a time no longer than necessary. S 47A(2-3) provides that any person, vehicle, passenger or item carried may be searched under the Act.

In July 2013, the Government initiated an enquiry into the effectiveness of stop and search, and on 30th April 2014, Theresa May (Home Secretary) announced that Code A, which supplements PACE, will be revised to, inter alia, redefine what is meant by reasonable suspicion in an attempt to reduce the number of unlawful searches.

Search upon arrest

Section 32 of PACE allows for the searching of a person and sometimes their property once they have been arrested.

  • s 32(1) – May search the person arrested if reasonable grounds to believe danger to self or others
  • s 32(2) – May also search for items or evidence relating of offence, escape items and property of location during or immediately before arrest for evidence
  • s 32(3) – Only search to extent required and only remove outer jacket, coat and gloves
  • s 32(8) – Seize if reasonable grounds

Search of detained persons

Section 54 of PACE allows for the searching of detainees upon their arrival at a police station.

  • s 54(1) – Custody officer shall ascertain all possessions
  • s 54(3) – May seize items
  • s 54(4) – May only seize if (a) believes may be used for physical injury, property damage, evidence interference or escape, or (b) reasonable grounds to believe evidence
  • s 54(5) – Give reason for seizure unless won’t understand or likely violence
  • s 54(9) – Same sex search

Intimate searches

Section 55 of PACE allows for intimate searches to take place; perhaps the most serious infringement on the rights of individuals under PACE.

  • s 55(1) – An Inspector must have reasonable grounds to believe either hidden articles which could cause injury or class A drugs
  • s 55(3) – Confirm in writing
  • s 55(8) – Carry out at station or medical centre
  • s 55(10) – Record on custody record
  • s 55(12) – Seize if injury, property damage, evidence interference or escape

Search of premises under warrant

Section 8 of PACE allows for warrants to be applied for and issued by Justices of Peace

  • s 8(1) – Justice of Peace must be satisfied of reasonable grounds to believe that (a) indictable offence committed, (b) material of likely substantial value to investigation which is, (c) relevant, (d) not subject to legal privilege and (e) no other type of entry possible
  • s 8(IA) – Specific premises or all premises warrant
  • s 8(IC) – Multiple occasions
  • s 8(2) – Seizure
  • s 8(3) – Can’t communicate, not practicable, will not be granted entry, immediate entry for investigation

Both the police and magistrates must follow this section precisely and rigorously. In R (Redknapp) v Commissioner of the City of London Police [2008], Redknapp was acquitted on the ground that the Justices were not rigorous in their application of s 8. This rendered the search unlawful. Furthermore, in R v Atkinson [1976], it was ruled that Flat 30 may not be searched with a warrant erroneously stating flat 45 may be searched. The Theft Act 1968 provides an alternative way to obtain a warrant.

Safeguards on warrants

Section 15 of PACE attempts to ensure the fairness of the use of warrants.

  • s 15(1) – This section applies to warrants under any enactment
  • s 15(2) – On application, a constable must state the (a) ground, enactment and warrant type which the application concerns, (b) the premises to be searched and (c) the articles sought
  • s 15(3) – Must make application ex parte and (4) on oath
  • s 15(6) – Warrant must (a) Specify the name of applicant, date, enactment, premises and (b) identify the articles/persons to be sought as far as is practicable
  • s 15(7) – Two copies of any warrant.

Execution of warrants

Section 16 of PACE provides yet further safeguards on the use of warrants.

  • s 16(1) – Warrants must be executed by Constables
  • s 16(2) – Constables may be accompanied by others (2A) with the same powers of search a seizure as the constable (2B) under supervision
  • s 16(3) – Warrant expire 3 months after issue
  • s 16(4) – Reasonable hour execution unless would frustrate
  • s 16(5) – Must (a) identify self, (b) produce warrant and (c) give copy
  • s 16(6) – Copy to ‘occupier’ or (7) leave copy in prominent place
  • s 16(7) – Only search to extent of warrant and (9) endorse items found/seized
  • s 16(10) – Return warrant after execution

The safeguards under s 15 and s 16 must also be followed for a search to be lawful. In R v CC Lancashire, ex p Parker [1993], it was ruled unlawful only to bring part of a warrant to a search. Similarly, not to specify the name of a known occupier was unlawful in R (Van der Pijl) v Crown Court at Kingston [2012]. In DPP v Meaden [2004], it was acceptable for police to put all occupants of a house in a clean room before proceeding to search the rest of a house; an assault on an officer managing the containment was not quashed.

Excluded materials

Excluded materials, according so sections 9-14 of PACE are medical records, journalistic material and legal materials. Warrants may only allow their seizure with the permission of a circuit judge under schedule 1 of PACE.

Seizure

As have been mentioned throughout this page, the police have many different powers of seizure provided by PACE, including:

  • s 1(6) – Stop and search
  • s 8(2) – Under warrant
  • s 18(2) – Search of property following arrest
  • s 32(8) – Search upon arrest
  • s 54(3) – Search in detention

However, Section 19 of PACE also provides a general power of seizure for police.

  • s 19(1) – If lawfully on premises
  • s 19(2) – May seize items if reasonable grounds for believing obtained by offence or necessary to prevent concealment
  • s 19(3) – May seize if reasonable grounds for believing evidence for offence being investigated or to prevent concealment
  • s 19(4) – Paper copy of electronic data if offence and necessary

Surveillance devices

Prior to the Human Rights Act 1998, there was no right to a private life, therefore in R v Khan [1996], the police were entitled to obtain evidence regarding drug trafficking offences using concealed surveillance devices. With the incoming Human Rights Act, prior to the result of Khan’s ECtHR appeal, the Police Act 1997 allowed a Chief Constable in s 93 to authorise surveillance only if necessary for the prevention or detection of serious crime (substantial financial gain, 3 years in prison, violence or many people involved). In Khan v UK [2000], the successful claim was then irrelevant due to the new statutory basis. The Regulation of Investigatory Powers Act 2000, part 1 set up a tribunal to adjudicate of the exclusion of evidence obtained using surveillance devices.

Fingerprinting

Section 61 of PACE allows for fingerprinting, usually with consent. For persons aged <14, a guardian’s consent is required and for persons aged 14-17, the consent of the person and their guardian is required. Consent is not required where a person’s name is not known or where the person has ben arrested and detained for a recordable offence, or convicted of a recordable offence.

DNA samples

Sections 62-65 of PACE provides for the attainment of intimate samples with consent. The prosecution may wish to tell a court in trial that such a sample was refused by the defendant. Non-intimate samples, including mouth swabs, may be taken without consent where there is detention, a charge, or a conviction.

With the advent of more advanced technology, the Government now employs the use of a national DNA database which is effective at combatting crime, although citizens are generally opposed to it. Especially criminals, oddly. S and Marper v UK [2008] was a ECtHR case which was very critical of the lack of controls on the Government’s use of their national database. While the Labour Government ignored this criticism, the Protection of Freedoms Act 2012 put some time limit controls on the storage of DNA on a national database:

  • Adults convicted of a recordable offence may have their DNA stored indefinitely
  • Those under 18 and convicted of a recordable offence may have their DNA stored for a time proportional to the seriousness of the offence
  • DNA data must be destroyed if there is no conviction
  • If charged, but not convicted of a qualifying offence (serious violence, terror or sexual assault), DNA data may be retained for 3 years, with a further extension possible under the authorisation of a District Judge.

The ECtHR has yet to rule on the legality of these new controls.

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