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Criminal law and procedure for police and criminal evidence
The Police and Criminal Evidence Act 1984 (PACE) along with its codes of practice, provides the foundation and structure for policing powers and secures these policing powers around stop and search, arrest, detention, investigation, identification and interviewing detainees.
Whilst adhering to the above PACE must also find the right balance between the powers of the police and the rights and freedoms of the public. This balance is most important and is fundamental in order for PACE to work.
This assignment will explain the exercise of Police Officers statutory powers of stop and search to a person and vehicle sections 1 - 7 under the PACE Act, it will also explain the rights of a suspect detained along with its safeguards in regards to searches and the explanation of Bail.
Statutory Powers of Stop and Search Sections 1 - 7
Sections 1 - 7 of the Police and Criminal Evidence Act 1984 defines the rights of Police Officers statutory powers for stop and search.
1.Power of Constable to stop and search person(s), vehicles etc
A Police Officer carries powers to search any person or vehicle (inside and outside) in any place where the public have access, however this does not apply to the person's dwelling.
However the Police Officer must justify the search fully by having reasonable grounds for suspecting that the person or vehicle carries a prohibited or stolen article/firework or an offensive weapon.
If the suspect or vehicle appears to be on land attached to a dwelling i.e. yard, garden etc, the police officer can only have powers to search if he/she has reasonable grounds to believe that the suspect or vehicle does not reside in the dwelling or that the suspect/vehicle has no permission to be on the dwelling in question
The section also states that a Police Officer may only seize an article if he/she believes it to be stolen or prohibited.
An article would be prohibited if it was made or adapted with the intentions of being used to commit an offence or if was carried for the purposes of handing it to some other person to use to commit an offence.
The offences in question would be the following;-
- Offences under Section 12 of the Theft Act 1968
- Fraud (Contrary to Section 1 of the Fraud Act 2006)
- Offences under Section 1 of Criminal Damage Act 1971
The article must be in relation to an offence committed or which was to be committed under Section 139 of the Criminal Justice Act 1988
A firework in this section is construed in accordance as in Section 1(1) of the Fireworks Act 2003
An offensive weapon contrary to this part in this act means any article made or adapted for the use of causing injury to a person by the person carrying the weapon or intentions of the person to hand it to some other person to be used.
2. Provisions made relating to the search
A Police Officer must show documentary evidence if he or she is not in their policing uniform.
It would also be common practice for the Officer to give his name, station and explain to the suspect his reasons) for the search, it would also be common practice to explain the requirements from the search and the amount of time the search is likely to take.
If a Police Officer searched an unattended vehicle, he/she must leave a notice stating the vehicle has been searched, the station in which the Police Officer is attached to, an application for compensation can be made for any damage that may have occurred due to the search and that a record of the search has been made.
As aforementioned the Police Officer must explain to the suspect that the search will take as much time as reasonably required.
It is only permitted for the outer clothing of the suspect to be removed. The Police Officer must also compile a written report of every incident occurred. The written reports may stop problems where individuals' receive arbitrary (abusing the power) searches. The written report will be compiled as soon as practicable.
3. Duty to compile a written report concerning the search
A note of the person's name may be taken if it is made aware to the Police Officer, however the Police Officer cannot detain the person for the purposes of having his/her name. If the Police Officer was not made aware of the person's name, a description of the person must be included in the written report. The same applies for vehicles.
The written report of the search must contain:-
- The Object of the search
- The grounds for making the search
- The date and time in which the search was conducted
- The place in which the search was conducted
- Whether anything was found and if so, what?
- If there were any person(s) or property damaged due to the search being conducted.
- Identifying the Police Officer making the report
The person or person in charge of the vehicle searched is entitled to a copy of the written report within 12 months of the date of the search.
4. Road Checks
This section of the act sets out the conduct in which Police Officers must carry when conducting a road check to ascertain whether the vehicle is carrying:-
- A person who has committed an offence other than a road traffic offence
- A person is a witness to an offence
- A person is intending on committing an offence
- A person who is unlawfully at large
A road check is conducted in relation to Section 163 of the Road Traffic Act 1988
The Road check must only be conducted when authorised in writing by a police officer of the rank Superintendant and above when he or she has reasonable grounds to believe that the offence is an indictable offence and for suspecting that the person is, or is about to be in the locality in which vehicles would be stopped if the road checks were authorised.
A Police Officer under the rank of Superintendant may only authorise a road check to be conducted, if it were to be a matter of urgency and for the same reasons as aforementioned. The authorising Officer must compile a written record of the time the authorisation was given and to inform an officer of the rank superintendant and above of the authorisation as soon as it's appropriate.
Following the notification to the higher officer, he/she may authorise in writing for the checks to continue. If the officer decides to stop the checks then he/she must in written record the time the checks finished and for why were the checks made.
A note must also be made of the locality of the checks conducted. The authorising officer can also (within seven days) decide whether or not the checks are to continue and that they will be conducted at times specified.
Every written officer must specify in their written authorisation:-
- Name of the authorising officer
- Specify the purpose of the road check
- Specify the locality where the checks were conducted
The owner in charge of a vehicle checked has a period (not exceeding 12 months) in which he/she is entitled to a written copy of the reasons for the checks made.
5. Reports of recorded road checks and searches
Every annual report under Section 22 of the Police Act 1996 or made by the Commissioner of Police of the Metropolis contains information about searches recorded under section 3 (Duty to compile a written report concerning the search) and section 4 (road checks).
The information contains the total numbers of searches each month relating to stolen articles, Offensive weapons and other prohibited articles. The report will also contain the total numbers of arrests made each month consequence to the searches conducted.
The report will also contain information on the road checks conducted, the reason for the checks and its results.
6. Statutory Undertakers and 7. Supplementary
This section states that any police officer employed as a statutory undertaker i.e. bodies authorised by statute to run a railway, transport, harbour or dock in which they employ their own police force e.g. The British Transport Police.
A constable employed by a statutory undertaker may stop, detain and search any vehicle before it leaves the goods area. However a constable employed by a statutory undertaker does not carry the rights to stop a person.
Any search conducted must be justified with reasonable grounds of suspicion and recorded.
This section states that certain passing's of laws by legislative bodies shall cease to have effect (as stated in section 7).
The Codes of Practice within the PACE Act sets out parameters in which the Police Officers must follow. PACE Code A sets out the guidance for stop and search i.e. it explains to Police Officers what reasonable suspicion is therefore decreasing individuals from harassment due to their appearance or previous criminal record.
“Statistics shows that Black people are 26 times more likely than white people to be stopped and searched by police officers in England and Wales, this analysis of government data has brought claims of discrimination from campaigners who say the findings corroborate concerns that black and Asian Britons are being unfairly targeted”.
Nearly 70,000 people who were stopped and searched had committed no offence showing that only 13% were arrested after the search. The amount of searches conducted has increased tenfold since 1986.
Here are the advantages collated from different members of the public in their views towards stop and search:-
- May deter a crime from occurring
- Gun Crime is on the increase and therefore stop and search may make members of the public feel more secure (however this depends on the area in question)
- Youth Crime is also on the increase as young adults see it as ‘cool' to be involved in young crime, therefore stop and search can stop a crime from occurring
- Olympic Games are up and coming in 2012 in London, People will feel more secure knowing that within justifiable reasons a person may be stopped if under reasonable suspicion.
- Stop and search can only be conducted in public places, therefore it would be believed that the search would have to be conducted correctly as other members of the public would be within distance
- Stop and Search tries to promote confidence within the community and along with this promote understanding
- It is a useful tactic when used in the correct manner
- The members of the public also their rights and also there are complaints forms available for any complainant
- Young adults (Hoodies), Black or Asian people, males etc, are targeted more than others
- Certain areas are more common than others for people to be stopped and searched
- Stop and Search can become unuseful when used in the incorrect way
- The ethnic minority seem to be targeted for terrorism more than the white population. Section 44 of the Terrorism Act 2000 states that any police officer can stop and search anyone or any vehicle that is in a specific area. As shown in case Patricia ARMANI DA SILVA against the United Kingdom Brazilian born Jean Charles de Menezes was shot dead by a member of the metropolitan police when mistaken as a suicide bomber, just two weeks after four suicide bombers detonated explosions on the London transport network. Three were on underground trains and one was on a bus this resulted in 56 people being killed.
- It can be an intrusion on a person's privacy
- Very little intelligence is gained through stop and search itself
- Only 13% of stop and searches lead to an arrest being made
Rights of a detainee held at a police station
A detainee is a person that is held in custody. The PACE Code C 2008 sets out the requirements for the detention, treatment and questioning of suspects in police custody, however this does not relate to terrorism.
Many members of the public, at some point in their lives, rightly or wrongly will become under the attention of the police. Every person arrested and detained must be made aware of their rights and duties.
A person can be arrested and taken into custody with or without a warrant. Section 1.1 of the PACE Code C 2008 states “All persons in custody must be dealt with expeditiously, and released as soon as the need for detention no longer applies.”
When taken into custody, the police have the power to detain and hold the suspect for questioning if they suspect that an imprisonable offence has been committed.
If the suspect is detained, he/she can only be detained for a time not exceeding 24 hours after the detention started or earlier if there are no grounds for suspicion if arrested. However a higher ranking officer may extend this period of time by an extra 12 hours, and a magistrates court can extend detention for a 96 hour period and then furthering the limit to 28 days if required.
However if the suspect has been detained for a time period longer than 24 hours the detainee must be brought before a magistrates court the following day (excluding weekends, Christmas Day or Good Friday).
An explanation must be made to the detainee on why they are being detained, and the detainee must be handed the codes of practice as stated in Section 3.1 of Code C. The suspect is entitled to legal representation immediately. This representation can be made by a personal meeting or through telephone contact from the Criminal Service Defence Direct. The suspect can also make one more person aware of his/her detention and where they are detained. The detainee has the right to a telephone call or to write a letter, the call or letter may be monitored however the telephone call to the solicitor must be done privately. All the aforementioned are stated in Section 58 of the PACE Act
The detainee can receive free legal advice from a duty solicitor, however this depends solely on the detainees financial circumstance. The detained person may also wish to seek advice from their own independent solicitor, this will depend on whether the crime is a serious offence or not. The detainee is well within his/her rights to refuse answering anymore questions once legal advice has been given.
A detainee also has the right to be treated with dignity, food, drink and exercise, access to lavatory and washing facilities, a warm clean ventilated room with bedding and at least eight hours rest in a 24 hour period.
If the detainee is a minor, and under the age of 16 or is mentally vulnerable, then the police must tell an appropriate adult such as the guardian or parents as soon as practicable. Unless there is suspicion that the guardian or parent is involved in the offence in question then the police may allow the guardian or parent to attend the police station and have access to the young or mentally vulnerable person.
The suspect must have the above rights given to them in way of writing along with written confirmation that the suspect was given his/her arrangements for obtaining legal advice, a right to the copy of the custody record, the caution in the terms prescribed in Section 10 of the PACE Codes C, an additional written notice briefly setting out their entitlements whilst in detention. It is also a requirement to have the detainee to sign this written notice, if the detainee refuses to sign, then this must be noted down on the custody record.
The Police also hold powers to search, take fingerprints, palm prints, take photographs etc. A special warrant is required in regards to internal searches.
An offender cannot be detained more than once for the same offence.
If any of the procedures aforementioned have not been followed, the detainee may wish to complain through the correct procedure. Complaints can be made if the suspect's rights were infringed or breached. The suspect has a right to claim and the police may be disciplined or prosecuted for the abuse of rights of misconduct.
Complaints can be made to the local police station, independent police complaints commissions, or a solicitor.
Safeguards in relation to subsequent searches
Upon arrest, the duty officer must take into account all of the detainee's possessions and have them recorded as stated in Section 54 of the PACE Act. For these possessions to be attained a search must be conducted. An officer of the same sex must conduct the search, and the officer may use reasonable force necessary if the suspect refuses to cooperate.
There are different types of searches:-
- Strip Search - This kind of search would be made if the custody/searching officer decide that the suspect holds on his/her person e.g. a prohibited item or an offensive weapon, or any article that may be used as an offensive weapon. The search requires more than the outer clothing to be removed. This search would require the same sex officer to conduct the search and an appropriate adult may be present if requested. The search and its reason(s) must be recorded in the custody record.
- Intimate Body Searches - This search consists of a physical examination of any one or more of the suspects' bodily orifices excluding only the mouth, and is only authorised by an officer ranking at least as an inspector.
- Search of an immediate area after an arrest - The police are allowed to search the immediate area in which the arrest took place and this includes any dwellings or buildings that the suspect may have come from previous to the arrest taking place. This is stated in Section 32 of the PACE Act. The searches of property itself is set in PACE Code B
- Search of the suspects premises after the arrest - If the suspect has been arrested, the police have the right to search the suspects home or any other premises that the suspects may be in charge of (such as business), due to it being related to the offence arrested for Section 18 of the PACE Act The police must have reasonable grounds to believe that the premises has something which relates to the offence
The three main purposes for these searches under Section 32 of the PACE Act are for the following three articles -
- Evidence relating to an offence
- Anything the suspect might use to escape
- Anything that the suspect might present as a danger to himself, the police officers or others.
Types of Bail
Section 1 (1) of the Bail Act 1976 states “In this Act “bail in criminal proceedings” means—
(a)bail grantable in or in connection with proceedings for an offence to a person who is accused or convicted of the offence, or
(b)bail grantable in connection with an offence to a person who is under arrest for the offence or for whose arrest for the offence a warrant (endorsed for bail) is being issued.”
Bail is a security, usually in means of a sum of money, which is exchanged for the release of an arrested person as a guarantee of that person's appearance for trial.
The Criminal Justice and Public Order Act 1994 ensures that Bail can be granted by the police, when a suspect is released without charge, however the suspect is on a condition that he/she must reappear to the police station on a date specified by the police. Section 4 of the Criminal Justice Act 2003 states that Police Officers can grant street bail for minor offences committed.
The Magistrates and Crown Courts also have the power and right to grant Bail.
There are two types of Bail:-
Conditional Bail is when the police or courts authorise bail for an offender, however this authorisation is made with limitations and requirements. These limitations are required to ensure that the offender:
- Attends Courts when called upon
- Does not re-offend
- Does not interfere with witnesses
Common limitations and restrictions would include
- The defendant would not be allowed within a certain distance of a witness's home
- The defendant is subject to a curfew
The courts can also grant conditions that meet the defendants own protection, this is most likely granted in cases involving a child or young person.
Unconditional bail is granted when the police or courts believe that it is very unlikely that the defendant will re-offend, will attend court when required and will not interfere with the justice process. Therefore the bail is granted without limitations or restrictions.
If a defendant fails to abide by the bail conditions granted, or fails to attend court on the date stated by the courts, then the defendant is in breach of his/her bail. The defendant is most likely to be arrested and a withdrawal of the bail would be made. Failure to comply with Bail restrictions and limitations can also result in refusal of further Bail and the defendant will also be remanded in custody until further notice. It is also a criminal offence under Section 7 of the Bail Act 1976 When a defendant fails to appear at court at the date and time required.
Refusal of Bail
There are many reasons as to why an offender may be refused bail. However the main reasons of refusal are due to the following:-
- Courts believe that the defendant will fail to return to Court
- Interfering with witnesses involved in the case
- Likelihood of committing further offences is high as shown in case R. v Allen (David) Court of Appeal (Criminal Division) where the appellant committed fraudulent crimes when on bail and was therefore arrested and brought back into custody
There are several factors that determine the above reasons. These factors are:-
- Seriousness of the offence committed
- How strong is the evidence?
- Previous Convictions
- Background of the defendant
- Whether the defendant has breached bail requirements in the past
- Whether there are any outstanding sentences
- Whether the defendant has committed other offences
If the defendant is refused bail, he or she may wish to apply again in the second court hearing. An appeal can also be made to the Crown Court Judge.
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