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The police and criminal evidence act
Public Law Coursework
This question raises issues relating to the police power and here it mainly needs application of the Police and criminal Evidence Act 1984 (PACE). It will also focus other issues from different jurisdiction like the Human Rights Act 1998.
The general power of the police to stop and search is under s.1 PACE. However, there must be reasonable grounds on which basis the police had suspect that stolen and prohibited goods will be discovered. Normally when the police are investigating a crime after getting a compliant this power may also be applied. On the fact, it is clear that officer Clegg was not following a legitimate line of inquiry; so stop and search against Rob may not be valid or lawful. Although under s.1(6) Clegg can seize such items from Rob.
In PACE (s.2), it is stated that while carrying out stop and search police officer must disclose their identity, their station and the purpose of the search. However, under s.2(3)(c), if the officer fails to disclose the information then the search will be unlawful. So, if Clegg does not fulfil these conditions he may not carry out a legal stop and search. Here, Clegg may argue in applying paragraph 2.9 of Code of Practice A. On the other part, if it could be established that the suspect is reluctant to co-operate, a forcible search could be carried out. Under s. 2(9), a police may not be required to remove any clothing of the citizen other than the jacket, coat, gloves, etc.
In the criminal process an arrest is a basic step designed to make sure that a suspect is available to answer charges. In order to be a valid arrest there must be legal authority and the correct formalities. It would be unlawful if a police detains a person simply to question not fulfilling the condition of the arrest. Under s.28, a person when arrested must be informed that he/she is under arrest and the reason for it. The police may be for false imprisonment if the suspect is not so informed unless the suspect's conduct makes it impossibleA person cannot be detained forcefully by the police for any help with the inquires unless under he/she is under arrest (R v Lemsatef). Clegg may bring up argument that Rob was not attending voluntarily. So, here Clegg arrested Rob for handling drugs under Misuse Drugs Act 1971, which is also an arrestable offence under s.24 of the PACE.
Rob has been in trouble before which raises two issues; firstly what was the basis for the officer Clegg's arrest as he is not allowed to arrest on the basis of the personal characteristics of the suspect under s.24. There must be reasonable grounds to make an arrest if it lacks then Rob perhaps could use Clegg's statement as evidence that there were no reasonable grounds. Although when assessing, the police are allowed to use their suspect's previous convictions whether they are likely to commit a crime, which raises the second issue whether in the court if Clegg chose to pursue a conviction then Rob's past convictions could be raised against him. Rob's convictions basically may not be given against him because the common law does not allow bad character as being part of the prosecution evidence. The prosecution could use Rob's past convictions against him if he (Rob) tries to prove good character. Besides, in some situations they may raise evidence of previous convictions if the facts are similar (R v Lunt).
An arrested may be searched if the police have reasonable grounds to believe that the person may cause danger to oneself and others. One issue arises here as to whether the search was made prior to the arrest or not. On the facts, it can be said that Rob was handcuffed before the search which is whether it was an arrest. S.54(3) also gives power to seize items by the custody officer. Rob's keyring was taken by Clegg although there was no sign of custody officer present at the police station.
However, after arrest the person must be taken straight to the designated police station (s.30) but here Clegg has attended another call 4 miles away and asked Rob question on the way.
Rob, after being arrested, has some rights under ss.56 and 58 of PACE. S.56 PACE entitles Rob to inform his next of kin of his arrest. S.58 entitles Rob a right to legal representation. In certain situations this right could be denied as mentioned in R v Samuel (1988). In R v Aladice, this decision was repeated. Hence, an officer of the rank can delay this right if the suspect has been charged with a serious arrestable offence and the police reasonably believe that contacting a solicitor may cause harm to the evidence/ investigation. However, by denying the rights Clegg may have breach Code of Practice and s.6, s.8 of the Human Rights 1998.
Now the subject of the questioning and the detention. All the interviews must be tape recorded under s.60 PACE. Here, there was no questioning this could be because as it was Saturday night the custody officer was not present.
Rob was detained for several hours without break and this violated the Police Code of Practice. Here, issue arises regarding the validity of the detention and whether Clegg warned Rob before the interview. However, there seems to be less likelihood that this was done.
Under s.82 (1) PACE, ‘confession includes any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise'. Normally, confessions are admissible evidence but if it is alleged that it has been obtained by oppression or anything likely, the court will not admit it unless the prosecution can prove beyond reasonable doubt. ‘Oppression includes torture, inhuman, or degrading treatment, and the use of threat of violence. However, it may also include heavy handed questioning and also distorting the weight of the charges and denying access to the lawyer. So, Rob may have been the victim of oppression as he was denied access to legal advice and may have been heavy handed in detention for hours without respite. It appears that the confession could be deemed unreliable under s.76 (2)(b). To some degree the court also have discretionary power to exclude unfairly or improperly obtained evidence under s.78 PACE, ‘in any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all of the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it'.
The confession would still be inadmissible even if there is no oppression and for this needs to be shown that it was obtained by Clegg by anything said or done (Goldenbery). From the issue, it is clear that Clegg has done tricks on Rob into confessing while on the way to the police station (Kirk, ‘a trick or deception by the police can amount to anything said or done').
A citizen could lodge a complaint against the individual officer who has acted in breach of the Act and the Code of Practice. So, Rob could possibly make a complain against Clegg if it can be shown that the police power was exceeded. Disciplinary actions are taken informally against informally against minor complaints and the person receives an apology. Police Complaints Authority deals with serious complaint which is governed by Police Act 1996.
Habeas Corpus is a prerogative writ and could be applied where the Divisional Court reviews the legality of a person's detention. The availability of this remedy is not affected by the provisions in PACE even though the detention time limit makes it less likely.
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