Police Powers Abuse
This question relates to the discussion of the interaction and compatibility of the use and abuse of the statutory police powers with the Civil liberties of individuals. As it can be gleaned from the question Amy has been frightened by the acts of PC Federline who looked very similar to Keith, who she knew as somebody who could hurt her. It is mentioned that as he put his hand around her arm, Amy became frightened and wrenched herself free. She was chased into the house by the police officer and charged with wilfully obstructing a police officer.Now she faces a charge with obstructing police officers in the execution of their duty;assaulting a police officer in the execution of his duty; and being in possession of a controlled drug. She was however at this point informed that she was being arrested for scratching a police officer. Then her roommate Lily has also been charged for obstructing police officers in the execution of their duty; and being in possession of a controlled drug.
At this point I have been asked to advise whether these women have any remedies against the police for the infringement of the civil liberties in terms of the way they were arrested and the way they have been searched and detained.
In this regard it is necessary to review the police powers of arrest, interviewing and charging suspects which are contained in the Police and Criminal Evidence Act 1984 (PACE 1984) and the Codes of Practice there under. In general terms the Act provides the overall framework and the Codes provide the details over the five Codes of Practice .Code A is Code of Practice for the Exercise by Police officers by statutory powers of Stop and Search. Code B is the code of practice for the searching of premises by police officers and the seizure of property found by Police Officers on Persons and Premises. Code C relates to the Code of Practice for the detention, treatment and questioning of persons by Police officers and Code D is the Code of Practice for the Identification of the persons by the Police Officers and Code E is the code of practice on Tape recording .On 1 January 2006 an additional, Code G code came into force dealing with statutory powers of arrest and on 24 July 2006 a further Code H came into force dealing with the detention of terrorism suspects.
When Amy is approached by PC Allen who identifies himself and informs Amy that she is being arrested for soliciting for the purposes of prostitution it would seem that PC Allen is abiding the law. He has informed her of the arrest and has tried to tell her the reasons for the arrest under Section 28(3)/(4) PACE 1984.ECHR Article 5(2) also provides that an arrested person should be told promptly and in a language he understands of the reason for his arrest and any charge against him. Article 5 is construed narrowly and sets out an exhaustive list of circumstances in which a person may properly be detained.UK domestic law has been held to be formulated with “the degree of precision required by the Convention” in Steel v UK(1988) 28 EHRR 602.All these requirements seem to have been complied here.
The police have the power to arrest a suspect on a holding charge provided that there are reasonable grounds for arresting that person on that charge. However the court will ignore the “properness” of the arrest if the motive is to investigate other and more serious offences (R v Chalkley and Jeffries (1998) QB 848).If Amy and Lily are able to prove that the arresting officer knew that there was no possibility of a charge being brought ,the arrest will be improper even if there are in fact reasonable grounds for suspecting that an offence has been committed (Holdgate-Mohammed v Duke (1984)AC 437).
It is not a requirement of s 28 that the arresting officer should supply the reason for the arrest as long as the reason is provided as soon as practicable thereafter (Dhesi v Chief Constable if the West Midlands The Times 9 May 2000) where the defendant was arrested by one officer and directed towards another nearby who supplied the reason).There seems to have been no delay in reasoning here for the arrest for both Lily and Amy.
If the reason given for the arrest renders the arrest unlawful, it is irrelevant that there was a valid reason for the arrest if it was not communicated to the arrested person at that time (Christie v Leachinsky (1947) AC 5 73;Abassy v Commissioner of police of the Metropolis (1990) 1 WLR 385.)Based on the above Amy and Lily cannot exactly complain regarding the reason for arrest. However they have a good case regarding the way they have been handled during the arrest due to the way the plain clothes policemen approached them and delayed the revelation of their identity.
At the police station
Under the law the arrested person must be taken immediately to a police station unless it is reasonable to carry out other investigations first (PACE 1984 s 30 (1),(10) and (10 A) and Dallison v Caffery (1965) 1 QB 348,s 35 (1)).If it is anticipated that the detention will last for more than six hours ,the arrested person must be detained in a designated police station (s 30(2) and (3)).Now based on this starting with the procedural details first Amy and Lily were taken to the local police station. It has not been mentioned whether this was a designated police station. They have declined to speak to a solicitor and they refused to say anything when they were interviewed, except that Amy had informed the police that she had mistaken PC Federline for a local gangster. It should however be mentioned at this point that once a suspect is in a police station he or she has the right to have a solicitor under section 58(1)PACE 1984 which provides that a person who has been arrested and is being held in custody is entitled upon request to consult privately with a solicitor at any time whether in person, in writing or by telephone.
In the case of R v Samuel (1988) it was held that it would only be held in rare cases that a delay in allowing a contact with the solicitor could be justified by the police and this had to be based on the specific aspects of the case and the police justify a delay on the basis that access to a solicitor alert the accomplices. This can be seen in the more recent case of R v Grant the Court of Appeal looked with disfavour upon the illegal conduct by the police and said that in this case there would be deliberate interference by the police with the detained suspect's right to a private meeting with his solicitor. This infringement was held to be a serious breach of PACE and the accused's murder conviction was quashed.
It should also be noted that Amy and Lily have the right to have someone informed under s 56(1) PACE 1984 like a friend or a relative of the arrest and the police will have to comply with the arrest as soon as possible. Furthermore they have the rights to consult the Codes of Practice. This does not entitle him or her to delay unreasonably any investigation or administrative action while this is done(Code C paras 3.1 and 3D)Also Amy and Lily will be able to complain under sections 34-36 PACE 1984 whether the custody officer informed them of their rights to consult a solicitor.
They were charged and released after 39 hours. They had been detained for 4 extra hours prior to release because the police were waiting for the CPS to decide whether or not they should be charged. Except for rountine cases or where the police need to make a holding charge the decision as to which offence the suspect is charged with is a matter for the CPS rather than the police.There are indeed strict rules about the detention of suspects when they are taken into the police station about the length of time they may be held. The general rule is that the police are allowed to detain Lily and Amy for 24 hours. After this the police may detain a suspect for a further 12 hours (making a total of 36 hours) but only with the permission of a senior officer, superintendent or above. For ordinary arrestable offences a suspect must then be charged or released. In the question it says that these women were detained for 39 hours and 4 hours extra while waiting for the CPS and it was clearly in contravention of the detention provisions because no permission was taken from a senior officer.
In this case Amy and Lily can also complain about whether they were given adequate reviews on a regular basis while they were in detention , the first review must be not more than 6 hours after the suspect was first detained. Then the custody officer must review their detention at intervals of not more than 9 hours. They will also have a reason to complain if the custody officer did not keep a record of events that occurred, for example, interviews and visits to the cells by police officers.
PACE is often recognised by the courts as one of the greater safeguards of civil liberties granted by the act.Based on this Amy and Lily may have some serious complaints to make regarding the way their premises have been searched. In Oman v DPP (1999) EWHC Admin 622 (1st July, 1999) the suspects search was held to be unlawful because the PC's searching him did not give their names and station, contrary to PACE's requirements.
In the case of O'Loughlin v Chief Constable of Essex (1998), the courts held that the entry of a premises by the PC's to arrest O'Loughlin's wife for criminal damage was unlawful because under PACE, anyone present on the premises must be given the reason for entry.Based on this it would seem that the PC's entry to search the flat of Amy and Lily was not legal at all and infringed their civil liberties.However at this point regard should be had to the case of R v Longman (1988),which also concerned plain clothes policemen and drugs as in the case at hand. It was held that the police entry of premises to execute a search warrant for drugs was lawful, even though they had used a disguise to gain entry, and upon entering, the PC's had not disclosed their true police identity. However the general rule is that the police can only enter the premises without the occupier's permission to make a search if they have a warrant from the police and this warrant is shown before the search starts (see R v Longman (1988)).As mentioned before, in the Longman Case the police like in the case at hand used a disguise knew it would be difficult to gain entry to a property where they wished to search for drugs so they used plain clothes to gain access to the premises. The police then burst in without showing the warrant and without saying they were police officers. The Court of Appeal held that the search was lawful. However in the case at hand the PC's were chasing a suspect and they only found the heroin as an incident of the search. Also they have forced Lily to open the place with a threat of treating her badly at the police station if she does not give them the key. This means that the court will not follow the case of Longman given the different facts and these PC's will be held to be infringing the provisions and the spirit of PACE 1984.
Also the police seem to have failed to give a reason for entering the premises of Amy and Lily. Based on the case of O'Loughlin v Chief Constable of Essex (1998) ( where the police forced their way in without explaining it was in order to arrest Mr O'loughlin's wife) means that the entry was unlawful.They might be able to sue the police for damages for the infringement of their civil liberties here. The police can enter the premises without permission if they believe that there is evidence relating to an arrest as was held in (R v Badham (1987).However if this power is not exercised immediately after the arrest, the police cannot return to the premises even a few hours later to make the search.(R v Badham 1987)
It should be noted that the police can also enter premises without a search warrant if the occupier of the premises gives them permission to do so and this has to be written and may be withdrawn at any stage .
So what are the remedies available for Amy and Lily? If it can be shown that the police exceed any of their powers to enter and search premises then these women can claim against the police in the civil courts. The police will be unable to obtain any evidence as a result of an unlawful search then use it against the defendant in court. The defence can argue that it should be inadmissible as oppressive evidence under s78 PACE, ultimately unless Judge or Magistrate decide to allow this as evidence it will not be possible for such evidence to be used by the CPS.
Amy and Lily have a good case to sue the police and complain regarding the way their premises were searched. Moreover their 39 hour detention seems to be illegal and unsanctioned under the law and they have a cause of complaint here aswell.The extra four hour detention cannot be defended on grounds of waiting for a response from the CPS.Last but not the least being in possession of drugs is a strict liability offence and lack of knowledge is no defence on their behalf. Therefore they will be charged accordingly even though they lack the mens rea.