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You are here: Homepage » English Legal System » Resources » Police Powers Summary

Summary of Police Powers and Safeguards in PACE 1984

Provision of Legal Services as of 1 April 2000

Introduction to Police Powers


1. The system of government funding of legal cases previously contained in the Legal Aid Act 1988 was replaced by the Access to Justice Act 1999, as follows:
On 1 April 2000, the Legal Services Commission (LSC) replaced the Legal Aid Board.

The Community Legal Services Fund is the new scheme for helping eligible people with legal problems (other than criminal matters). The names of the Legal Aid schemes were also changed: Legal Advice and Assistance (the 'Green Form Scheme') is now called 'Legal Help and Help at Court'. Civil Legal Aid and Assistance by Way of Representation (ABWOR) both became 'Legal Representation'. Family Mediation is now funded by the LSC, through contracted mediators and 'Approved Family Help' was created.

One year later, Criminal Legal Aid was replaced by the Criminal Defence Service in April 2001 which provides three levels of service: 'Advice and Assistance', 'Advocacy Assistance' and 'Representation'. In May 2001 the LSC employed a number of criminal defence lawyers, known as public defenders, initially at six pilot sites in England and Wales. The public defenders will be able to provide any of the criminal defence services in exactly the same way as lawyers in private practice.
2. New networks including solicitors, CABs, Law Centres, local authority services, community centres, and other organisations have been set up to make it easier for the public to get legal help and advice.
3. Only organisations with a contract with the LSC can give Legal Help or Legal Representation in all civil matters. This means that they have been checked to see that they meet certain standards and provide a quality service. Solicitors can only carry out criminal defence work funded by the LSC if they have a General Criminal Contract. Firms will be audited to ensure they continue to meet quality assurance standards.
4. Support Funding provides partial funding for personal injury cases and some multi-party actions where such cases are brought under a conditional fee agreement (CFA), but it is unusually expensive so justifies some assistance from the LSC. There are two types of Support Funding: Investigative Support which provides limited funding for the investigation of the strength of a proposed claim with a view to proceedings under a CFA; and Litigation Support which provides partial funding of high cost litigation already proceeding under a CFA. Support Funding is only available through solicitors contracted by the LSC to undertake personal injury cases.
5. Useful website addresses are www.legalservices.gov.uk (for the Legal Services Commission) and www.justask.org.uk (for the Community Legal Service).

 


Power Extent of Power Safeguards

Stop and search

Police may stop and search any person or vehicle for stolen or prohibited articles: s1(2). Prohibited article means an offensive weapon or an article for use in the course of burglary, theft, taking a motor vehicle or conveyance without authority or obtaining by deception: s1(7) and (8)
Such articles may be seized: s1(6)

Must be in a public place: s1(1)
Police must have reasonable grounds for suspicion: s1(3). Reasonable suspicion cannot be based on personal factors alone: Code A, 1.7
Police cannot require citizen to remove any clothing in public except outer coat, jacket or gloves: s2(9). Where it is necessary to conduct a more thorough search (eg by requiring a person to take off a T-shirt), this shall be done out of public view for example, in a police van or police station if there is one nearby: Code A, 3.5.
Police must make a written record of the search: s3(1). Note of persons ethnic origin must be included in record: Code A, 4.5

 

Entry and Search

1. Police, with a warrant, may search premises if a serious arrestable offence has been committed and there is material on the premises which is likely to be of value to the investigation of the offence: s8(1)
Police may seize material: s8(2)

2. Police, without a warrant, may enter premises in order to execute a warrant of arrest, or to arrest a person for an arrestable offence: s17(1)

3. Police may enter and search premises occupied by arrested person:s18(1)

4. Police may search an arrested person if reasonable grounds for believing that person may be a danger to himself or others: s32(1)

5. Police may search (a) arrested person for anything he might use to escape; and (b) premises where person was when or immediately before arrested: s32(2)

1. Magistrates issue warrants under s8
Warrant will specify premises and articles/person sought.
Entry and search must be at a reasonable hour unless the purpose of the search would be frustrated: s16(4)

2. Must have reasonable grounds for believing that person sought is on the premises: s17(2)

3. Must have reasonable grounds for suspecting that there is evidence on the premises: s18(1)

4. Must have reasonable grounds for believing citizen may be a danger to himself or others: s32(1)

5. Search must be to extent reasonably required for discovering items or evidence: s32(3)
Police cannot require citizen to remove any clothing in public except outer coat, jacket or gloves: s32(4)

 

Arrest

Any person may arrest without a warrant (a) anyone who is in the act of committing an arrestable offence; or (b) anyone whom he has reasonable grounds for suspecting to be committing such an offence: s24(4)

When an arrestable offence has been committed, any person may arrest without a warrant (a) anyone who is guilty of the offence; or (b) anyone whom he has reasonable grounds for suspecting to be guilty of it: s24(5)

Where a constable has reasonable grounds for suspecting that an arrestable offence has been committed, he may arrest without a warrant anyone whom he has reasonable grounds for suspecting to be guilty of the offence: s24(6)

A constable may arrest without a warrant (a) anyone who is about to commit an arrestable offence; or (b) anyone whom he has reasonable grounds for suspecting to be about to commit an arrestable offence: s24(7)

Where a constable has reasonable grounds for suspecting that a non-arrestable offence has been committed or attempted, or is being committed or attempted, he may arrest the person if he believes that service of a summons is impracticable or inappropriate because any of the general arrest conditions is satisfied: s25(1)

Offence being committed or reasonable grounds for suspicion

Offence committed or reasonable grounds for suspicion


Reasonable grounds for suspicion that offence committed and reasonable grounds for suspecting person to be guilty

Offence about to be committed or reasonable grounds for suspicion

Reasonable grounds for suspicion and service of summons impracticable, eg, name of person unknown or doubted, address not given or doubted: s25(3)

Other points:

People who voluntarily go to a police station, without having been arrested, are entitled to leave at will unless arrested: s29
Where a person is arrested, the arrest is not lawful unless the person is told that he is under arrest: s28(1)
The arrest will not be lawful unless the person is told the ground of arrest, at the time or as soon as practicable: s28(3)
A person must be cautioned upon arrest: Code C, 10.3
Arrested person must be taken to police station as soon as practicable: s30

Detention

 

Role of Custody Officer:

If CO realises that grounds for detention of a person no longer exist, he must order his immediate release: s34(2)
CO must decide if there is sufficient evidence to charge a person: s37(1). If not, CO must have reasonable grounds for believing that detention necessary to secure or preserve or obtain evidence relating to the offence: s37(2)
Duty of CO to ensure (a) that detainees are treated in accordance with PACE and the codes of practice; and (b) all matters are recorded in the custody record: s39
CO responsible for accuracy and completeness of custody record: Code C, 2.3
There must be a periodic review of the detention of a person who has been arrested and charged by the CO, but if not charged by an inspector: s40
CO must tell person of following rights: to have someone informed of his arrest; to consult with a solicitor (free of charge); and to read the codes of practice: Code C, 3.1
Additional rights of children & mentally ill
If the person is a juvenile (a person under the age of 17), then the CO must, as soon as practicable, inform an appropriate adult of the grounds for his detention and his whereabouts and ask the adult to come to the police station to see the person: s57
The same applies if the person is mentally handicapped or suffers from a mental disorder: Code C, 3.9

 

Rights of detainee:

Right to have someone informed when arrested but right can be delayed by a superintendent for up to 36 hours, if a serious arrestable offence, and belief that it will harm evidence, alert other suspects, or hinder the recovery of property: s56
Right to consult a solicitor privately at any time but right can be delayed by a superintendent for up to 36 hours, if a serious arrestable offence, and belief that it will harm evidence, alert other suspects, or hinder the recovery of property: s58
Right to see Code of Practice: Code C, 2.1


Searches

Fingerprinting

Samples

The CO will record everything which a persons has with him: s54

Strip searches may only take place if it is necessary to remove an article which a person would not be allowed to keep: Code C, 10
Superintendent may authorise an intimate search of a person's body orifices other than the mouth: s55


Fingerprints cannot be taken without consent:s61(1)

Fingerprints can be taken without consent if (a) authorised by a superintendent or (b) person charged with an offence: s61(3)


Intimate samples may be taken if superintendent authorises it and person consents: s62(1). Intimate sample means (a) a sample of blood, semen or any other tissue fluid, urine or pubic hair; (b) a dental impression; (c) a swab taken from a persons body orifice other than the mouth: s65

Non-intimate samples may not be taken without consent unless authorised by a superintendent: s63(3) Non-intimate sample means a sample of hair; a sample from a nail or under a nail; a swab taken from a persons body including the mouth but not any body orifice; saliva; a footprint or a similar impression of any part of a persons body: s65

CO must reasonably believe that person might have concealed an article.

Reasonable grounds for believing that person has anything which could be used to cause injury or a Class A drug; search for drugs to be carried out by doctor or nurse; police cannot search person of the opposite sex: s55

Reasonable grounds for suspecting involvement in a crime and fingerprints will confirm/disprove involvement: s61(4)

Reasonable grounds for suspecting involvement in a crime and sample will confirm/disprove involvement: s62(2). But if person refuses consent, the court or jury may draw such inferences from the refusal as appear proper: s62(10)

Reasonable grounds for suspecting involvement in a serious arrestable offence and sample will confirm or disprove involvement: s62(2)

Interviews

A juvenile or a person who is mentally disordered or mentally handicapped must not be interviewed or asked to provide or sign a written statement in the absence of an appropriate adult: Code C, 11.14. The exceptions are where delay would be likely to (a) harm evidence, (b) alert other suspects, or (c) hinder the recovery of property: C, 11.1
Person must be cautioned before any questions are put: Code C, 10
Tape recording of interviews shall be carried out openly to instil confidence in its reliability as an impartial and accurate record of the interview: Code E, 2.1
No police officer may try to obtain answers to questions or to elicit a statement by the use of oppression: Code C, 11.3
In any period of 24 hours a detained person must be allowed a continuous period of at least 8 hours for rest, free from questioning: Code C, 12.2
Breaks from interviewing at meal times and short breaks for refreshment approximately every 2 hours subject to interviewing officers discretion to delay a break if reasonable grounds for believing it would involve a risk of harm to people or property; delay the persons release from custody; or prejudice the investigation: Code C 12.7
If a confession was or may have been obtained (a) by oppression or (b) in consequence of anything said or done which was likely to render the confession unreliable, the court will not allow the confession to be given in evidence: s76
The court may refuse to allow evidence if it appears that the admission of the evidence would have an adverse effect on the fairness of the proceedings: s78

Note:
Arrestable offence is defined in s24 as (a) an offence for which the sentence is fixed by law, (b) an offence for which an adult may be imprisoned for five years or more, or (c) an offence listed in s24(2). It includes, among others: murder, theft, ABH, rape, robbery and taking a motor vehicle.
Serious arrestable offence is defined in s116 and Schedule 5 and includes, among others: treason, murder, manslaughter, rape, kidnapping and indecent assault.

 

THE RIGHT TO SILENCE AND THE CJPOA 1994

The police have the power to ask suspects or detainees questions. However, questioning is supposed to stop once a person has been charged (Code C, para 16.5). It is generally believed that a person has the right to maintain silence in the face of police questioning. However, the government limited (rather than abolished) the right to silence in the Criminal Justice and Public Order Act 1994.
First of all, if a person fails to mention a defence to the police, then when being tried, the court or jury may draw such inferences as appear proper under s34. Secondly, when a suspect who is interviewed after arrest fails or refuses to answer certain questions, or to answer them satisfactorily, after due warning, a court or jury maw draw such inferences as appear proper under ss36 and 37.

 

Power Extent of Power Safeguards

Questioning
Where a suspect, on being questioned fails to mention any fact relied on in his defence, which could reasonably have been mentioned when questioned, the court or jury, in deciding whether the accused is guilty of the offence, may draw such inferences from the failure as appear proper: s34

Where a person is arrested and there is found on his person, or in his clothing or footwear, or otherwise in his possession, or in the place where he was arrested, any objects, marks or substances, or marks on such objects, and the person fails or refuses to account for the objects, marks or substances found, then the court or jury in determining whether the accused is guilty of the offence, may draw such inferences from the failure or refusal as appear proper: s36

Where a person arrested was found by a constable at a place at or about the time of the offence for which he was arrested is alleged to have been committed, and the person fails or refuses to account for his presence at that place, the court or jury in determining whether the accused is guilty of the offence, may draw such inferences from the failure or refusal as appear proper: s37
Person must be cautioned before any questions are put to him (Code C, 10.1). The caution shall be in the following terms: 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. (Code C, 10.4)

Due warning must be given to the suspect (Code C paras 10.5A-C). The interviewing officer must first tell the suspect in ordinary language:
(a) what offence he is investigating;
(b) what fact he is asking the suspect to account for;
(c) that he believes this fact may be due to the suspects taking part in the commission of the offence in question;
(d) that a court or jury may draw a proper inference if he fails or refuses to account for the fact about which he is being questioned; and
(e) that a record is being made of the interview and that it may be given in evidence if he is brought to trial.




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