POLICE POWERS IN GREAT BRITAIN

1. POLICE POWERS IN GREAT BRITAIN Unit 35

2. Preview • History of the English police • Arrest • Entry • Search • Seizure • Legal terms • Exercise

3. History • JPs conscripted ordinary citizens known as petty constables, later as constables, to walk the streets and report any disorder • Sometimes- employed thief-takers, who were often no better than criminals; knew the criminal underworld well • 17th and 18th c: gangs of criminals roamed the towns; transport was risky (highwaymen)

4. History • First police force: the Metropolitan Police Force (policed the metropolis of London) – created by Metropolitan Police Act of 1829 • Home Secretary: Robert Peel – policemen came to be known as ‘Bobbies’ • Instruction book: ‘the first duty of a constable is always to prevent the commission of a crime’

5. History • The headquarters: at first occupied a private house in Whitehall Place, the back of which opened on to a courtyard – site of a residence owned by the Kings of Scotland; the courtyard became known as Scotland Yard • When a new police station was built it was called New Scotland Yard

6. Law related to police powers • Defines the extent to which the police may interfere with the freedom of the individual • Various questions of civil and criminal liability depend on the lawfulness or unlawfulness of the use of police powers

7. Due process • Importance of indvidual citizen • The need to limit the powers of officials, who may otherwise abuse their position • The need for formal safeguards to protect the position of suspects at all stages

8. Crime control • The most important function of the criminal justice system- repression of criminal conduct in the interests of society • Efficiency; the capacity to investigate, try and convict a high proportion of offenders • Emphasis on informality rather than compliance with strict procedural rules

9. Crime control • Emphasises the expertise of the police and prosecutors to screen out the innocent, rather than relying on more thorough judicial proceedings or the rights of suspects to challenge the criminal justice process if it becomes oppressive • Emphasis on the need for the police to extract confessions from suspects

10. PACE • Police and Criminal Evidence Act (1984): defines legal powers of the police

11. Police powers • Arrest • Search • Entry • Seizure

12. Powers of arrest • Until 2006 police could only arrest people suspected of arrestable offences • 1 Jan. 2006 the Serious Organised Crime and Police Act came into force • All offences are ‘arrestable’ • Necessity test: police can only arrest someone if it is necessary to do so, e.g. to stop them from escaping or to protect a vulnerable person from attack

13. Powers of arrest • A constable may arrest without a warrant: • 1) anyone who is about to commit an offence, who is in the act of commining an offence or anyone he has reasonable grounds for suspecting to be committing an offence • 2) if a constable has reasonable grounds for suspecting that an offence has been committed • 3) if an offence has been committed

14. Lawful arrest requires: • 1) a person’s involvement or suspected involvement AND • 2) reasonable grounds for believing that the person’s arrest is necessary • Arresting officers must inform the person arrested that they have been arrested, even if this fact is obvious

15. Arrest can be made: 1) to enable the person’s name or address to be ascertained • 2) to prevent the person from causing physical injury to himself or others, causing loss of or damage to property, committing an offence against public decency, causing an unlawful obstruction of the highway

16. Arrest can be made: • 3) to protect a child or other vulnerable person • 4) to allow investigation of an offence • 5) to prevent any prosecution for the offence from being hindered by the disappearance of the person in question

17. Arrest with a warrant • The police maymakeanapplication to a magistrate for a warrant to arrest a namedperson

18. Arrest • Citizens – power to arrestanyone who is committing, or reasonablysuspected to becommitting, anindictableoffence; citizenshave no power ofarrest for anticipatedoffences; theycanarrestfor past andpresentoffencesonly (Section 24A of PACE, s. 110 oftheSeriousOrganisedCrimeand Police Act 2005)

19. Reasonablesuspicion • Givesthe police a very wide discretioninthematterofarrest; veryfewrestraints on police discretion • Theexerciseofthatdiscretion is structurednotby legal rules but by police workingrules, ofwhichtheyidentifysixwhichtheyregard as particularlysignificant

20. Police workingrules • Beingknown to the police - likely to makesbd a suspect Publicorder • Generasuspiciousness • Informationrecieved • Workload • Victim (e.g. problemsoffemalevictimsofdomesticviolence; assumptionsabout male rightsandfemaleblame)

21. Lawfulness of arrest • If the arrest is lawful, the arrested person will be guilty of the crime and tort of assault if he uses force to resist • The policeman is entitled to use such reasonable force as may be necessary to make the arrest • If the arrested person escapes from custody, he will be guilty of an offence

22. Unlawful arrest • If the arrest is unlawful, the policeman will be guilty of the tort and crime of false imprisonment • If the policeman uses force, he will be guilty of assaut • The arrested person is legally entitled to use reasonable force to protect his liberty • He will not be guilty of any offence if he resists arrest or escapes from custody

23. Powers of detention • Police can detain a suspect while they carry out their investigations (24 hrs, 36 hrs, max: 96 hrs; exception: terrorism cases: 14-28 days) • The power to question the suspect • The power to take bodily samples

24. Rights of a detained person • Confessions obtained by oppression – inadmissible at court • Right to advice of solicitor • The right to silence • Children must be accompanied by a parent or other ‘responsible adult’ • Interviews should be tape-recorded

25. Theright to silence • “You do nothave to sayanything. But it mayharmyourdefenceifyou do notmentionwhenquestionedsomethingwhichyoulaterrely on in court. Anythingyou do saymaybegiveninevidence.”

26. Falseconfessions • A safeguardagainstthedangerofconvictionsbased on falseconfessions – a rulethatthedefendantcouldnotbeconvicted on confessionevidencealone (a corroborationrule) – thiswouldreducetheriskofmiscarriagesofjusticearisingfromfalseconfessions

27. Stop and search • Right to stop andsearchpeopleandvehiclesin a public place • Ifthere are reasonablegrounds for believingthatanoffencehasbeencommitted (e.g. theft, possessionofstolengoods, firearms, drugs, or theunlawfultakingof a vehicle)

28. Stop andsearch • Powers to stop andsearchinanticipationofincidentsinvolvingseriousviolence (CriminalJusticeandPublicOrderAct 1994) • Suchpowers to look for articlesthatcouldbeusedwithcommission, preparation or instigationofactsofterrorism (Section 44 oftheTerrorismAct 2000)

29. PACE: Stop andsearch • “Powers to stop and search must be used fairly, responsibly, with respect for people being searched and without unlawful discrimination” • “It is unlawful for police officers to discriminate on the grounds of race, colour, ethnic origin, nationality or national origins when using their powers”

30. Stop andsearch • There must beanobjectivebasis for reasonablesuspicionbased on facts, informationandintelligence • Reasonablesuspicioncanneverbebased on personal factorsalonewithoutreliablesupportingintelligence or informationor some specificbehaviourbythepersonconcerned

31. Unlawful search • An unlawful search of the person – assault • The person searched is entitled to use reasonable force to resist

32. Lawful search • If the search is lawful, the policeman is entitled to use reasonable force • Resistance is considered to be an assault

33. Safeguards • The police officer must give his name and station and the reason for the search

34. Recordofsearch • Theobjectofthesearch • Thegrounds for making it • The date and time and place where it wasmade • Theoutcome • Whetherany, andifsowhat, injury to a person or damage to property, appearstotheconstabletohaveresultedfromthesearch • Theidentityoftheconstablemakingthesearch

35. Osman v DPP (1999) • The officers did not give their name and station • The Queen’s Bench Divisional Court held this made a search of Mr Osman unlawful and so he could not be guilty of assaulting the police in the execution of their duty • If the officer fails to give a reason for the search, the search is unlawful

36. Enter and search premises • A magistrate issues a searchwarrant • Police may enter premiseswithout a warrantiftheybelieveaseriousoffencehasbeencommitted, to save life, or to preventseriousdamagetoproperty

37. Lawful entry • The police can enter premises to make an arrest and can search the premises

38. Unlawful entry • Unlawful entry onto private property constitutes the tort of trespass • The occupier is entitled to use reasonable force to expel the trespasser • If the latter retaliates, he will be guilty of the tort and crime of assault

39. Seizure • When a lawfularrest is made, the police are entitled to seizearticles or documentsinthepossessionorcontrolofthesuspectthatcouldbeusedinevidenceagainsthim • Theycanalsotakeanyweapon or articlethat he could use to harmhimself or others

40. Seizure: lawful or unlawful? • If a policeman takes goods without lawful justification, he is guilty of the tort of trespass to the goods • If he refuses to return them, he will be liable for the tort of detinue or conversion • The owner can obtain damages from the police and a court order for the return of the goods

41. Unlawful entry and searches • It may be possible to persuade the judge at the trial to refuse to allow the prosecution to put forward any evidence obtained as a result of an unlawful search

42. The use of force? • The use of force by the police should be reasonable and must be delayed until it is necessary • Example: although the policeman has the right to use force to enter the building, he must not do so until the occupier has had the opportunity to open the door. The occupier should be told by the policeman why he requires entry

43. Attestation • “I…do solemnly and sincerely declare and affirm that I will well and truly serve the Queen in the office of constable, with fairness, integrity, diligence and impartiality, upholding fundamental human rights and according equal respect to all people; and that I will, to the best of my power, cause the peace to be kept and preserved and prevent all offences against people and property; and that while I continue to hold the said office I will, to the best of my skill and knowledge, discharge all the duties thereof according to law”.

44. Training • The new police constable must work ‘on the beat’ – patrolling the streets – for a probationary period (2 years) • Career structure: constable, sergeant, inspector, superintendent, Deputy Chief Constable, Chief Constable

45. Legal terms • Arrest • Uhićenje, prisilno dovođenje, lišavanje slobode • Search • Pretraga, pretres, pravo pretrage • Entry • Ulazak na privatni posjed; pravo ulaska na privatni posjed • Seizure • Privremeno oduzimanje, zapljena

46. Legal terms • Assault • An intentional or reckless act that causes someone to be put in fear of immediate physical harm. Actual physical contact is not necessary to constitute and assault (e.g. pointing a gun at someone may constitute an assault) • Assault is a form of tresspass to the person and a crime as well as tort • Napad, nasrtaj, pokušaj nanošenja ozljede

47. Assault • Common a.: a summary offence punishable by a fine and/or up to six months’ imprisonment • Aggravated a.: more serious assault, e.g. assault with intent to resist lawful arrest (2 years), a. occasioning actual bodily harm (5 years), a. with intent to rob life (life imprisonment)

48. Legal terms • Custody • Istražni zatvor, pritvor • False imprisonment • Protuzakonito uhićenje

49. False imprisonment • Unlawful restriction of a person’s freedom of movement, not necessarily in a prison. • Includes unlawful arrest and unlawfully preventing a person from e.g. leaving a room • A form of trespass to the person, so it is not necessary to prove that it has caused actual damage • Both a crime and a tort • The writ of habeas corpus is available to restore the imprisoned person to liberty

50. Legal terms • Writ • Sudski nalog • Suspect • Osumnjičena osoba • Warrant • Uhidbeni nalog