Police Powers

Ranks of police officer

 Constable
 Sergeant
 Inspector
 Chief Inspector
 Superintendent
 Chief superintendent

All of these may be ‘detective’ (part of Criminal Investigation Department) + follow the same ranking

PACE 1984 + Codes of Practice

 COP = framework for operation of PACE + bind police officers + are admissible in evidence + must be
accounted for by courts
o Breaches of COP may result in evidence being ruled inadmissible, where challenges made
under s 76 PACE (challenging admissibility of confession evidence) + s 78 PACE (challenging
prosecution evidence)
 Notes for Guidance (NFG) = guidance as to how COP should be followed

Police Powers

When advising on police powers, apply mnemonic:

1. Power identified
2. Authority – legal authority granting power
3. Criteria to be met to carrying out power
4. Exercise – how and has the power been exercised correctly?

Stop and search

… for stolen or prohibited articles

 Authority = s 1 PACE: may search any person or vehicle for stolen or prohibited articles or fireworks
o Stolen articles acquired as a result of offences of theft or burglary
o Prohibited articles (s 1(7), (8)) = offensive weapons or articles made, adapted or intended for
use in connection with offences under Theft Act 1968 or Criminal Damage Act 1971
 Criteria –
o Officer at least rank of constable
o In public place; and
 Public place
 Place to which public has access
 In private garden + person does not live there + not there with occupier’s consent (s
1(4), (5) PACE)
o Constable / other officer has reasonable grounds for suspecting that he will find stolen /
prohibited articles (s 1(3) PACE)
 COP A 2.2 – two-part test:
 Officer must have genuine suspicion
 Must be an objective basis for that suspicion, based on facts, information
and/or intelligence about (the behaviour of) the person concerned
  COP A 2.2B – race, religion, age, appearance or previous convictions cannot be used
alone or in combination as the reason for search

 COP A 2.6 – grounds may arise where reliable information that members of a gang
habitually carry knives/weapons/controlled drugs and wear distinctive clothing /
means of identification to indicate their membership
 COP A 2.6B – RS may arise from behaviour, e.g. on street at night trying to hide
something
 COP A 2.4 – RS should normally be linked to accurate and current intelligence /
information, e.g. describing an article stolen recently / suspected offender
 COP A 2.8A – Searches more likely to be effective, legitimate and secure public
confidence where reasonable suspicion based on a range of factors

Exercise – all searches to be carried out in accordance with PACE s 2 + COP A 3.8-3.11 =>
o Officer conducting search must tell individual (COP A 3.8(a)-(e)):
 They are being detained for purpose of search
 Officer’s name + name of police station to which attached, save where COP A 3.8(b)
applies –
 Terrorism
 Reasonable belief that giving name might put them in danger
 The legal search power being exercised (s 1 PACE or s 23 MDA)
 Purpose of the search +the grounds for reasonable suspicion; and
 That he is entitled to a copy of the record of the search

o How?
 With courtesy, consideration and respect for the person (COP A 3.1; NFG 4)
 Co-operation must be sought, even if person initially objects, + reasonable force only
as last resort if necessary to conduct search / detail person or vehicle (COP A 3.2)
 Power to use reasonable force where PACE confers a power that does not
require consent under s 117 PACE
 Search carried out at or near place where person / vehicle first detained (COP A 3.4)
 Except where search carried out under s 60 CJPOA, no power to require removal of
clothing in public other than outer coat, jacket or gloves (COP A 3.5)
 Officer can search pockets of outer clothing, and feel around inside of collars,
socks and shoes; although removal of shoes should be done in the police van
 More thorough search must be conducted in police van / at police station by
person of same sex (s 2(9) PACE; COP A 3.6)

o Recording the search per s 3 PACE + COP A 4.1-4.20 and NFG 15-22B
… for controlled drugs
 Authority = s 23(2) Misuse of Drugs Act 1971 (MDA) = may detain and search any person / vehicle for
controlled drugs
 Criteria
o Constable or higher
o Reasonable grounds to suspect in possession of a controlled drug (s 23(2))
 Exercise as above

… other powers

 S 60 Criminal Justice and Public Order Act 1994

 Terrorism Prevention and Investigation Measures Act 2011

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Power of arrest without warrant
 Authority – s 24 PACE

 Criteria –
o Constable or higher
o Reasonable grounds to suspect that a person has committed, is committing or is about to
commit an offence (s 24(1) PACE)
o Reasonable grounds to believe it is necessary to arrest the person (s 24(4)) because of one of
the reasons listed in s 24(5) PACE (detailed in COP G 2.9):
a) To enable the name of the person to be ascertained
b) Correspondingly as regards address
c) To prevent the person in question:
i. Causing physical injury to himself / another
ii. Suffering physical injury
iii. Causing loss / damage to property
iv. Committing an offence against public decency
v. Causing an unlawful obstruction of the highway
d) To protect a child / other vulnerable person
e) To allow the prompt and effective investigation of the offence or of the conduct of
the person in question; or
f) To prevent any prosecution for the offence from being hindered by the
disappearance of the person in question

 Exercise –
o Arrest not lawful unless the person being arrested is (s 28 PACE):
 Informed that he is under arrest; and
 Told of the grounds for his arrest
o Caution must also be given at time of arrest (COP C 10.4), unless impracticable due to
suspect’s condition / behaviour:
 ‘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 I court. Anything you do say may
be given in evidence.’ (COP C 10.5)
o Police may use reasonable force to effect an arrest (s 117 PACE)
o Person must be taken to police station ASAP

o Where arrest unlawful / no caution = defence may challenge admissibility of prosecution

evidence (s 76 / s 78 PACE)
o Where arrest not lawful by reason of procedural irregularity, it can be rendered lawful by
correction of defective part of arrest procedure

Person may voluntarily attend police station and be entitled to leave at will unless placed under arrest (s
29(a) PACE) + informed that he is under arrest (s 29(b) PACE)
o Arrest only where necessary under s 24(5) PACE + constable or higher + reasonable grounds
to suspect (see above)
o Arrest should not be carried out where voluntary attendance is a practicable alternative for
the purposes of carrying out the interview (COP G NFG 2F)
o Arrest should only, subsequent to arrangements being made for voluntary attendance, be
made where voluntary attendance is no longer a practicable alternative or where suspect
leaves before the end of the interview (COP G NFG 2G)

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 o Arrest not permitted solely to take samples, fingerprints etc., unless there are grounds to
believe that checking prints etc. will provide evidence of involvement

At the police station

 See custody officer who authorises continued detention
 Informed of rights, reason for arrest etc.
 Non-intimate samples
 See appropriate healthcare professional (where appropriate)
 Speak to legal representative (if requested)
 Interviewed, with legal representative present
 After interview:
o Released under investigation / police bail; or
o Charged +
 Released on police bail to later appear at Magistrates’ court
 Remanded in police custody to appear at Magistrates’ court on the following day

Custody officer + Detention

 Custody officer = at least sergeant (s 36 PACE)

Procedure

 CO – Decide whether sufficient evidence to proceed to charge the detainee (s 37(1) PACE)
o If yes, consider bail (s 38)
o If not, must be released unless:
 Reasonable grounds for believing detention necessary to:
 Secure / preserve evidence; or
 Obtain such evidence by questioning (s 37(2))

If no charge, but grounds to detain, CO must…

Exercise

PACE

 Authorise detention of suspect

 Open custody record – recording all information required under COP C (COP C 2.1), which may be
viewed as soon as practicable by legal representative (COP C 2.4)
o Requirement to inform reason for arrest
o Circumstances of arrest
o Why arrest necessary
o Comments made by arrested person
 Inform detainee of reason for arrest
 Inform detainee of reason for detention; and
 Advise the detainee of rights

COP C

 Conduct risk assessment procedure for each detainee (COP C 3.6-3.8)

 Make special arrangements, if necessary, for detainees who may be physically or mentally
incapacitated (COP C 3.12-3.20)

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  Arrange for interpreters to be present, where appropriate (COP C 3.12)
 Deal with detainee’s property (COP C 4)
 Contact healthcare professionals, if needed (COP C 9)

Reviews of detention

 Review officer responsible for determining if still necessary to detail suspect (COP C 15.1)
 Review officer at least rank of inspector, NOT connected with investigation + NOT custody officer (s
40(1)(b))
 Reviews of detention must be carried out periodically during detention of a suspect (s 40(3) PACE):
o First review – ≤ 6 hours after detention authorised by CO
o Subsequently – every 9 hours
 Reviews may be postponed under s 40(4) where:
o Not practicable; or
o Detainee being interviewed; or
o No review officer readily available
 Postponement => review must take place ASA practicable after latest time for review (s 40(5))
 Detainee must be reminded of right to free legal advice + to make representations (s40(12)), unless
unfit to make representations / asleep at time of review
 Review officer must be satisfied detention still necessary (COP C 15.1) = do grounds for detention
under s 37 still exist?

Limits on period of detention

 S 41 PACE – max period of custody before being charged is 24 hours from the ‘relevant time’
o ‘Relevant time’ begins the moment the suspect arrives at police station (s 41(2)(a)(i))
o Relevant time indicated on custody record
 Before 24-hour period expires, suspect must either be charged or released

Power to extend beyond 24 hours

 Authority – s 42 PACE = may be extended for a further 12 hours

 Criteria –
o Officer of at least rank superintendent must authorise
o Superintendent or above has reasonable grounds for believing detention is necessary to
secure / preserve evidence / obtain evidence by questioning
o Offence indictable
o Investigation being conducted diligently and expeditiously

 Exercise
o Authorisation must be given before expiry of initial 24 hours, but after second review (s 42(4))
o Grounds for extension must be explained to suspect and noted in custody record (s 42(5))
o Suspect and/or solicitor allowed to make representations (s 42(6))

Power to detain beyond 36 hours

 Must apply to magistrates’ court for warrant of further detention (s 43, 44 PACE)
 Warrant may authorised continued detention for:
o First application – 36 hours
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 o Second application – 24 hours
 Criteria –
o Magistrates’ court satisfied reasonable grounds for believing further detention necessary to
secure / preserve evidence / obtain evidence by questioning
o Offence indictable
o Investigation being conducted diligently and expeditiously

Samples

 Evidential sample = used to strengthen police case by means of forensic identification connecting the
suspect to the offence

Intimate samples

 Authority under s 62(1) – s 65 PACE defines intimate samples as:

o Blood, urine, tissue fluid, pubic hair
o Dental impression; or
o Swab taken from any part of a person’s genitals (including pubic hair) or from a person’s body
orifice other than the mouth
 Criteria – s 62 PACE:
o Suspect must be warned that failure to consent can be given in evidence at court (s 62(10))
o Suspect must consent (s 62(1)(b)) in writing (s 62(4)), and therefore the sample may not be
taken by use of reasonable force under s 117
o Officer of at least rank of inspector (s 62(1)(a)) must authorise it (confirmed) in writing (s
62(3))
o Inspector must have reasonable grounds for
 Suspecting involvement of person in recordable offence (s 62(2)(a)); and
 Recordable offence = offence carrying sentence of imprisonment + some other
offences (COP D NFG 4A)
 Believing that the sample will confirm or disprove his involvement
 Exercise –
o Consent + authorisation both obtained in writing
o Suspect must be informed of reason for sample + authorisation + legal authority
o Suspect warned that if he refuses without good cause, his refusal may harm his case if it
comes to trial; and
o Suspect told that sample might be subject to a speculative search
o Grounds, authorisation + consent noted in custody record
o Medical practitioner to take sample (Forensic Medical Examiner)

Non-intimate samples

 Authority – S 63(2A) gives authority, where non-intimate as defined in s 65:

o Hair other than public hair
o Nail / under nail
o Swab from any part of body other than where intimate
o Saliva
o Skin impression
 Criteria – s 63(2A)-(2C): may be taken without suspect’s consent provided:
o Detained for recordable offence (2B); and
o No such sample yet taken / any such sample proved inadequate (2C)
 Exercise –
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 o S 117 allows for use of reasonable force if necessary
o COP D 6.8 => suspect must be informed:
 Of the reason for the sample
 Of the power + authority
 That his sample and information derived from it may be subject to a speculative
search; and
 That his sample and information derived may be retained

Power to take fingerprints

 Authority – s 61(3) PACE (finger); s 61A (footwear impression)

 Criteria – s 61, without consent where:
o Arrested for recordable offence (s 61(3)(a)) + prints not already taken in course of
investigation (s 61(3)(b)); or
o Charged with recordable offence + prints not already taken I course of investigation
 Exercise – before fingerprinting, suspect must be informed:
o Reason for taking fingerprints
o Power and authority
o That fingerprints may be subject of speculative search against other fingerprints; and
o Fingerprints may be retained in accordance with Annex F

Speculative searches

 S 63A PACE – forensic information obtained during an investigation may be compared to DNA
material held on the database
 Suspect must be informed of power, but once samples taken, cannot refuse consent to speculative
search

Photographs

 Routinely taken after arrest, with fingerprints + mouth swab

 Photos governed by s 64A PACE

Suspect’s rights

 COP C 3.1 – when a person at police station under arrest, custody officer must tell person about
following continuing rights which may be exercised at any stage during custody:
o Right to have someone informed of arrest (s 56 PACE)
o Right to consult privately with solicitor + free independent legal advice available (s 58 PACE)
o Right to consult the Codes of Practice
 Custody record to record these rights + response by suspect

Power to delay right to have someone informed of arrest

 Authority – s 56(1) PACE

 Criteria – s 56:
o Indictable offence (s 56(2)) => [Offence] is indictable if it is an either way offence.
o Authority to delay exercise of right granted in writing by at least inspector (s 56(2)) – APPLY
o Inspector has reasonable grounds to believe that exercise of right will lead to (s 56(5)):
a) Interference with / harm to evidence or interference with / harm to others;

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 b) Alerting of other people suspected of committing an indictable offence but not yet
arrested; (accomplice? – APPLY) or
c) Hinder recovery of property obtained in commission of offence / obtained due to
carrying out of offence
o May also authorise where has reasonable grounds for believing that (s 56(5A):
a) Person detained has benefitted from criminal conduct; and
b) Recovery of the value of the property will be hindered by the telling of the named
person

 Exercise –
o COP C 5.7A – delay or denial of rights must be proportionate + last no longer than necessary
o S 56(3) – delay for no longer than 36 hours
o Detained person must be told reason for delay and this must be noted in the custody record
(s 56(6))

Power to delay right to consult with solicitor privately at any time

 Authority – s 58(1) PACE + COP C Annex B

 Criteria – s 58 + COP C Annex B:
o Indictable offence (s 58(6))
o Authority to delay granted by at least a superintendent (s 58(6)) in writing (s 58(7))
o Superintendent has reasonable grounds to believe that the exercise of the right will lead to =
see ABOVE (s 58(8) + s 58(8A))
 COP C Annex B 3 – ONLY where grounds to believe that solicitor might pass on a
message, or act in some way leading to the consequences in s 58(8) or 58(8A))
 However, must in any case allow to choose alternative solicitor to that named
 COP C Annex B NFG 3 – decision to delay is a rare occurrence
 COP C Annex B 4 – NOT where solicitor:
 Might advise the detainee not to answer questions
 Asked to attend police station by someone else

 Exercise –
o Maximum of 36 hours (s 58(5))
o Proportionate and no longer than necessary
o Where delay authorised, must be recorded in custody record + suspect informed of reason for
delay (s 58(9))

Treatment of suspects in a police station

COP C 8:

 So far as practicable, not more than one detainee in each cell

 Cells adequately heated, cleaned + ventilated
 Bedding supplied
 Toilet + washing facilities
 Replacement clothing of reasonable standard
 Two light meals and one main meal every 24 hours

Interview

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  COP C 11.1A – interview = questioning of a person regarding their involvement or suspected
involvement in a criminal offence
 Following provisions apply
o Must be carried out under caution (COP C 10.1)
o After arrest, suspect should only be interviewed about offence at a police station except
where COP C 11.1 (a)-(c) applies
o Prior to commencement / re-commencement of interview, suspect should be reminded of
right to legal advice (COP C 11.2)
o Accurate record made (COP C 11.7)
 Failure to comply = may challenge evidence under s 76 / 78