This essay has been submitted by a law student. This is not an example of the work written by our professional essay writers.
Stop and search are primarily contained within PACE
The power of stop and search are primarily contained within PACE S.1-7 and code of practise A. PACE says that an officer must not stop and search unless the necessary legal power exists. Before an officer can stop a person or vehicle they must have reasonable suspicion that an individual is in possession of a prohibited article, is about to commit or has committed an arrestable offence. An officer cannot target an individuals for their age, race, appearance previous offences committed. An individual can submit to a voluntary search but the power to do so must exist in any case. An officer must must give their name station and reason for the search. The officer must of the same sex as the subject of the search and the search must take place near the location or as near as is practicable. Reasonable force may be used during the search if necessary. A police officer can ask you to remove your jacket, coat or gloves etc but no more. A more thorough search can take place in a private for example a police van. The officer will fill out a form explaining why they have stopped you and should contain the details of the officer that stopped you and the outcome of the search, any prohibited items being carried may be seized.
There are exemptions to some stop and search powers under PACE where officers can stop without suspicion. These are contained in annex A of PACE amongst other these are under the Misuse of Drugs Act 1971 allowing officers stop and search for drugs, the Terrorism ACT 2000 where there is suspicion of involvement in terrorism or section 60 of the Criminal Justice and Public Order Act 1994(CJPOA) this must be authorised by a senior officer who believes that serious violence may take place in the locality. If authorised an officer does not have to have reasonable suspicion about an individual who is stopped. Under the Crime and Disorder Act (1998) when a section 60 has been authorised. An officer can ask a person to remove any item that is being used by an individual to hide their identity and they can seize that item if there is reasonable suspicion that it is being or will be used mainly for the purpose of concealing of identity. This order can last for a maximum of 24 hours unless the chief constable believes threat of violence still exists then another 24hrs may be granted.
The power for police to enter and search premises are mainly contain in S17 and S18 of PACE and code of practise B. This gives the police powers to enter and search premises for evidence, this can be done with or without a warrant. Premises can be searched without a warrant if the occupier gives permission to do so, permission must be given in written form, and consent can be withdrawn at any time.
If a warrant is needed the police must apply to a magistrate for it to be issued. The magistrate must believe that the police have reasonable grounds for suspecting that an indictable offence has been committed and that the premises subject to the search contain relevant and substantial evidence in relation to the investigation. It must also be impractical to gain access with the occupiers permission or that it would frustrate the aim of the search or it is know that entry would not be granted without a warrant .
The Serious and Organised Crime and Police Act 2005 introduced the powers to allow with a warrant entry to a specific premises, or any premises occupied or controlled by the person named on the warrant it may allow for entry to the premises on more than one occasion the number of searches can be limited or unlimited these power are known together as a Super warrant. A search warrant must be used within 3 months and it must be executed at a reasonable hour. On entry to a premises the officers must identify themselves, explain why they are there, what the ground there are for the search and under what powers they do so [they need not do so upon entry if the situation would make this impracticable but they must do so before the search begins [R v Longman (1998)]. A police officer can enter and search a premises without a search warrant if it is in order to arrest a person named on an arrest warrant, to arrest someone for an arrestable offence or to recapture and escaped prisoner. An officer can also enter without a search warrant, after making an arrest if the officer believes there is evidence on the premises relating to, connected to or similar to the offence for which the person has just been arrested. An officer can enter any premises occupied or controlled by the person under arrest or any premises in which a person was in at the time of arrest or immediately before arrest. The police must make these search at the time of arrest they may not return to search hours later[R v Badham (1987]. The police have the right to enter a premises under common law to prevent or deal with a breach of the peace. This can also apply to private dwellings. See [McLeod V Commissioner of Police for the Metropolis (1994)]. A suspect cannot be detained without a formal arrest taking place.
The powers of arrest are contained in S.24 of Pace and code of practise G. The SOCPA replaced the old S.24 and 25 of PACE with a new section 24. Pre 2006 PACE had a definition of arrestable and non-arrestable offences. Arrestable offences being those for which a potential sentence would be in excess of 5 years and non-arrestable would be an offence for which the sentence is under 5 years. Separate definitions no longer exist since the enactment of the SOCPA. An officer can now affect an arrest for any offence as long as he believes it is necessary.
A police officer should inform a suspect as soon as possible that they are under arrest. There is no set wording that should be used so it could be enough to just say that 'your nicked for theft'. A suspect should be cautioned on arrest. if there are grounds to suspect a person of an offence, they should be cautioned before they are questioned. A police officer can arrest without a warrant anybody who is about to commit or is committing an offence or anybody who the officer has reasonable grounds for suspecting is about to commit or is in the process of committing an offence. If a police officer has reasonable grounds to suspect an offence has been committed he may arrest anybody he has reasonable grounds to suspect is guilty of it.
If an offence has been committed an officer can arrest without warrant anybody who is guilty of the offence or anybody he has reasonable grounds to suspect is guilty of it.
To affect an arrest, an officer must believe an offence is about to be or has been committed or has reasonable grounds for suspecting an offence has happened, also it must meet the necessity criteria this means. An officer can only affect an arrest if he believes it is necessary to confirm a persons name or address if he suspects that an individual is providing false information. To prevent the person's in question; causing physical harm to themselves or others, suffering injury, causing loss of or damage to property, causing an unlawful obstruction of the highway. To protect a child or vulnerable person from harm by the person in question. To allow the prompt and effective investigation of an offence or the conduct of the person; to prevent the prosecution of an offence being hindered by the disappearance of the person or prevent a person from committing acts against public decency thought this only applies where members of the public cannot reasonably avoid the person in question.
CJPOA 1994 added powers to PACE to allow an officer to arrest without warrant anyone who has been released on police bail and has not attended the police station at the set time.
Prior to the enactment of SOCPA, PACE included a definition of non-arrestable offences. non-arrestable offences where offences that had a sentence of 5 years or less for an individual aged 21years or over. Police had powers of arrest for non-arrestable offences under S.25 of PACE, they could arrest if they believed it is necessary to confirm a person’s name or address, In order to serve a summons.(if they suspected that an individual is providing false information or refuses to give details). To prevent the person's in question; causing physical harm to themselves or others, suffering injury, causing loss of or damage to property, causing an unlawful obstruction of the highway. To protect a child or vulnerable person from harm by the person in question. To allow the prompt and effective investigation of an offence or the conduct of the person; to prevent the any prosecution of an offence being hindered by the disappearance of the person or prevent a person from committing acts against public decency thought this only applies where members of the public cannot reasonably avoid the person in question.
A person other than a police officer may arrest without a warrant anyone who is in the act of committing an indictable offence; anyone who he has reasonable grounds for suspecting is committing an indictable offence. If an indictable offence has been committed a person other than a police officer may arrest. Anyone who is guilty of the offence or anyone whom they have reasonable grounds to believe is guilty of it. These powers of arrest by non-police officers can only be exercised if they have reasonable grounds for believing that it is necessary to arrest the person in order to prevent them from causing physical harm to themselves or others; suffering physical injury; causing loss of or damage to property or to prevent them making off before a police officer can take responsibility for them.
Once arrested, detained a suspect must be taken to a police station as soon as is practicably possible; the police have the option of bailing the person to appear at a later date.
Powers relating to police procedures following arrest are contained mainly in PACE S40-41 and code of practise C. On arrival the suspect will be reviewed by the custody officer who will decided whether sufficient evidence exists to charge and bail the suspect this will be the case unless a suitable bail address can not be found. A person who has been charged and held in custody because they cannot be bailed must be brought before a magistrate at the earliest possible opportunity. If there is not enough evidence to charge the suspect he can be detained in order to secure such evidence. The custody officer is the main person who records matters related to the detention of suspects at various stages of their detention, he must make sure the arrests made by officer are legitimate. The police have a limited time in which to charge a suspect this can be initially for up to 36hrs  . If it is necessary to preserve or secure evidence and the offence is an indictable offence a further period of 12hrs can be authorised by a senior officer. After this a period of up to 96 hours maximum can be authorised by a magistrate  . A review of the detention will take place after the 1st 6 hours and thereafter at a period of no less than 9 hours. This will be done by the custody officer if a suspect has been charged. If a suspect has not been charged this review will be done by an officer with the rank of no less than inspector. In cases were a suspect is under suspicion of matters relating to terrorism an individual may be held for up to 28days. On arrival at the station you should be informed of your right to have someone informed of your arrest, the right to free legal advice and that you are allowed to consult the code of practise this will be done by the custody officer. You may be allowed to make a phone call for a reasonable length of time but this is a privilege not a right. A detainee has the right to a copy of the custody record and they will be given a signed copy of a form to acknowledge they have been informed of their rights.
During detention police also have the power to search you, take fingerprints and photographs and where necessary, use reasonable force to ensure you comply. If either an intimate (strip) search or invasive search is needed, there are rules governing each of these searches and a special permission is required from a senior officer.
A detained person should be questioned at a police station and these interviews are all taped. The police will make a record at the end of the interview to be kept of file. Any information or confessions made before the commencement of the taped interview should be put to the suspect at this point. A suspect has the right to a solicitor at interviews unless it is a matter of urgency, a suspect also has the right to refuse his right to a solicitor although they can ask for a solicitor at any stage of an interview. A senior officer can delay access to solicitor for up to 36hours in indictable cases if he believes by having a solicitor present it would lead to damage, interference, harm to evidence or people, or he believes it could alert others connected with the offence not already under arrest.
If the suspect is under 17 or is mentally impaired in some way they are entitled to have an appropriate adult present at interviews in addition to legal representation. If there is doubt that a suspect is a juvenile or their mental capacity is in question they are to be treated as needing an appropriate adult[R v Aspinall (1999)]. PACE states that interview rooms must be adequately light, heated and ventilated the suspect should be allowed to sit and be given breaks for meals, refreshments and sleep. Until the enactment of the CJPOA 1994 a suspect had the right to silence when being questioned this meant they needed to say nothing at all in response to questions if they wished and no adverse inference could be drawn from their lack of a response. Whilst a suspect cannot now be compelled to answer questions, inference from the court can be drawn from their silence.
PACE has two provisions under S.76(2) and S.78 relating confessional evidence. The courts will not allow evidence to be submitted that it believes was obtained by duress or in conditions that would make it unreliable or unfair. It defines oppression as torture, inhuman or degrading treatment and use or threat of violence. It says confessions obtained where the PACE code of practise relating to interview conditions, such as breaks etc have not been followed, could make a confession unreliable. Further the court has the power to disallow evidence where the evidential value is outweighed by the prejudicial effect of it's introduction.
Powers under PACE are a delicate balance between protecting individual liberties and freedoms with protecting society as a whole and in general it manages that well. What is of concern however in current police powers is that it seems there too many catch all clauses, mainly in PACE giving the police almost unlimited power of arrest for any reason they see fit. A police officer can arrest for almost anything as long as he believes it is necessary to do so. the fact that of the 77,549 searches in Greater Manchester area in 2010 only 1,586 led to arrests must be of great concern. Whilst there is an obvious need for flexibility in policing the overall rights of individuals should not be interfered with by over zealous officers.
Cite This Essay
To export a reference to this article please select a referencing stye below: