Criminal Criminal Justice Justice

process- PACEprocess- PACE

Stop & SearchStop & Search

PACE & CodesPACE & Codes

The PACE came out of the findings of the The PACE came out of the findings of the Philips Royal Commission on Criminal Philips Royal Commission on Criminal Behaviour (1981)Behaviour (1981)

The aim was to achieve a balance The aim was to achieve a balance betweenbetween

1) Police powers and1) Police powers and

2) The protection of Civil liberties2) The protection of Civil liberties

PACE & CodesPACE & CodesA breach of the PACE statueA breach of the PACE statue : can lead to : can lead to wrongful use of police powers which wrongful use of police powers which could lead to a few actions that civilians could lead to a few actions that civilians can take in court against the police, and can take in court against the police, and claim for false arrest and false claim for false arrest and false imprisonment are to name a few.imprisonment are to name a few.

A breach of the police codes :A breach of the police codes : leads only leads only to a disciplinary offence and inquiryto a disciplinary offence and inquiry

S67 (10) PACE :S67 (10) PACE : a breach of codes can a breach of codes can lead neither to an action for damages lead neither to an action for damages nor a criminal prosecution against nor a criminal prosecution against police officers.police officers.

S67 (7) PACE : breach of code can lead S67 (7) PACE : breach of code can lead to the exclusion of evidence obtained to the exclusion of evidence obtained from the wrong use of the powers.from the wrong use of the powers.

Detain short of Detain short of arrestarrestThere is no power to There is no power to detain detain someone someone

against his or her will in order to make against his or her will in order to make inquiries about that person.inquiries about that person.

S29 PACE 1984S29 PACE 1984 : :

Where someone attends a police station Where someone attends a police station

““ for the purpose of assisting with an for the purpose of assisting with an investigation’, he is entitled to leave at investigation’, he is entitled to leave at any time unless placed under arrest. He any time unless placed under arrest. He must be informed at once that he is must be informed at once that he is under arrest’, if a constable takes a under arrest’, if a constable takes a decision to prevent someone from decision to prevent someone from leaving at his will”.leaving at his will”.

Detain short of Detain short of arrestarrestDetention short of arrestDetention short of arrest

““helping police with their helping police with their inquiries”inquiries”

R v Lemsatef (1977)R v Lemsatef (1977)as per Lawton LJas per Lawton LJ

“ “ It must be clearly understood that It must be clearly understood that neither customs officers nor police neither customs officers nor police officers have officers have any right to detain any right to detain somebody for the purposes of getting somebody for the purposes of getting them to help with their inquiries.”them to help with their inquiries.”

Suspects stopped in Suspects stopped in streetstreet

Kenlin v Gardiner (1967)Kenlin v Gardiner (1967)Facts : A police officer took hold of Facts : A police officer took hold of the arm of a boy he wanted to the arm of a boy he wanted to question about the latter’s question about the latter’s suspicious conduct. The boy did not suspicious conduct. The boy did not believe the man was a policeman, believe the man was a policeman, despite having been shown a warrant despite having been shown a warrant card, and punched the officer to card, and punched the officer to escape.escape.

Held : The boy was entitled to act in Held : The boy was entitled to act in self defence as the self defence as the officer’s conductofficer’s conduct in trying to physically apprehend in trying to physically apprehend them had not been legal.them had not been legal.

Suspects stopped in Suspects stopped in streetstreetDonnelly v Jackman (1970)Donnelly v Jackman (1970)

Facts : An officer approached a suspect Facts : An officer approached a suspect to ask some questions. The suspect to ask some questions. The suspect ignored the request and walked away. ignored the request and walked away. The Officer followed and made further The Officer followed and made further requests for the suspect to stop and requests for the suspect to stop and talk. He tapped the shoulder of the talk. He tapped the shoulder of the suspect and he tapped the officers suspect and he tapped the officers shoulder. The officer tapped the shoulder. The officer tapped the shoulder again to get his attention, and shoulder again to get his attention, and the suspect returned a punch.the suspect returned a punch.

Held : The officers conduct was only a Held : The officers conduct was only a de minimis interference with the de minimis interference with the citizens liberty, and was reasonable.citizens liberty, and was reasonable.

The conviction for assaulting an officer The conviction for assaulting an officer was upheld.was upheld.

Suspects stopped in Suspects stopped in streetstreetBentley v Brudzinski (1982)Bentley v Brudzinski (1982)

Facts : A constable stopped two men Facts : A constable stopped two men who had been running barefoot down a who had been running barefoot down a street in the early hours. He questioned street in the early hours. He questioned them about a stolen vehicle, as they them about a stolen vehicle, as they fitted the description of suspects in an fitted the description of suspects in an earlier incident. They waited for 10 earlier incident. They waited for 10 mins while the officer checked their mins while the officer checked their details over a walkie and then the details over a walkie and then the began to leave. Another officer who just began to leave. Another officer who just walked in tapped the shoulder of one of walked in tapped the shoulder of one of them who returned a punch.them who returned a punch.

Held : The court distinguished the case Held : The court distinguished the case from Donnelly and held that the officers from Donnelly and held that the officers conduct conduct was more than a trivial was more than a trivial interference.interference.

Stop and SearchStop and SearchS 1(2) of PACE : S 1(2) of PACE : gives the police gives the police power to searchpower to search ‘ ‘any person or vehicle’any person or vehicle’ and to detain either for the purpose of and to detain either for the purpose of such a search.such a search.

S 1(3)S 1(3) : A constable may not conduct : A constable may not conduct such a searchsuch a search

‘‘unless he has unless he has reasonable grounds for reasonable grounds for suspectingsuspecting that he will find stolen or that he will find stolen or prohibited articles’prohibited articles’

S1(6)S1(6) : Any such item found during the : Any such item found during the search can be seized.search can be seized.

Stop and SearchStop and SearchS 1(7) : S 1(7) : An article is prohibited if it is An article is prohibited if it is either an either an offensive weapon or it is made offensive weapon or it is made or adapted for use in the course of or in or adapted for use in the course of or in connection with connection with burglary, theftburglary, theft,, taking taking a motor vehicle without authority or a motor vehicle without authority or obtaining property by deception or obtaining property by deception or is is intended by the person having it, for intended by the person having it, for such use by him or some other personsuch use by him or some other person..

S1(9)S1(9) : : An Offensive weapon is defined An Offensive weapon is defined as meaning any article made or adapted as meaning any article made or adapted for use for causing injury to person or for use for causing injury to person or intended by the person for such use…”intended by the person for such use…”

Stop and SearchStop and SearchS2 PACE : S2 PACE : a police officera police officer who who proposes to carry out a stop and search proposes to carry out a stop and search must state his name and police station must state his name and police station and the purpose of the search.and the purpose of the search.

A plain clothes officer must also A plain clothes officer must also produce documentary evidence that he produce documentary evidence that he is a police officer.is a police officer.

The police officer must also give The police officer must also give grounds for search.grounds for search.

Such street searches must be limited to Such street searches must be limited to outer clothing. e.g. jacket, shoes, socks outer clothing. e.g. jacket, shoes, socks etc.etc.

S 3 PACES 3 PACE : The record of the search : The record of the search must be noted, which should include, must be noted, which should include, the object of search, grounds for the object of search, grounds for search, and result.search, and result.

Stop and SearchStop and Search

R v Fennelley (1989)R v Fennelley (1989)

Held :Held : The police officer made a search The police officer made a search without informing the suspect the without informing the suspect the ‘grounds for the search’ as required ‘grounds for the search’ as required under S 2(3)(c)under S 2(3)(c)

The search was held as unlawfulThe search was held as unlawful

Stop and Search Stop and Search Code ACode A

The Police Codes of Practice had been The Police Codes of Practice had been revised in March 1999 and the codes revised in March 1999 and the codes have been updated.have been updated.

Code A : governs the statutory police Code A : governs the statutory police powers of stop and search.powers of stop and search.

Code ( 1AA) : It is important to ensure Code ( 1AA) : It is important to ensure that the powers of stop and search are that the powers of stop and search are used used responsiblyresponsibly

by those who exercise them and those by those who exercise them and those who authorise their use..It is also who authorise their use..It is also particularly important to ensure that particularly important to ensure that any person searched is any person searched is treated treated courteously and considerately.courteously and considerately.

Stop and Search Stop and Search Code ACode A

Code A :Code A :

A person can be stopped and A person can be stopped and questioned prior to a search to questioned prior to a search to discover discover whether the suspicion that a search is whether the suspicion that a search is required is well foundedrequired is well founded, but a person , but a person cannot be stopped in order to find cannot be stopped in order to find grounds for a search.grounds for a search.

Where there is a suspicion that the Where there is a suspicion that the suspect was carrying ‘articles suspect was carrying ‘articles unlawfully obtained or possessed’unlawfully obtained or possessed’

The reasonable suspicion must be The reasonable suspicion must be based on objective grounds.based on objective grounds.

Voluntary searches?Voluntary searches?PACE does not apply to “voluntary PACE does not apply to “voluntary searches”?searches”?Research by the law firm Dixon, Research by the law firm Dixon, Coleman and Bottomley (1990) shows Coleman and Bottomley (1990) shows that the safeguards in the PACE and that the safeguards in the PACE and police codes are being undermined by police codes are being undermined by the ‘wide interpretation’ given to what the ‘wide interpretation’ given to what is voluntary search.is voluntary search.

e.g. If the police can get the suspect to e.g. If the police can get the suspect to “consent” to the search, then the “consent” to the search, then the search is not being made under the search is not being made under the powers of PACE/Codes but by powers of PACE/Codes but by agreement.agreement.

Voluntary searches?Voluntary searches?Code A - as regards voluntary Code A - as regards voluntary searches.searches.If an officer chooses to search with If an officer chooses to search with consent and not apply the powers under consent and not apply the powers under S1(2) or the code A-S1(2) or the code A-

“ “ An officer should always make it clear An officer should always make it clear that he is seeking the consent of the that he is seeking the consent of the person concerned to the search being person concerned to the search being carried out by telling the person that he carried out by telling the person that he need not consent and need not consent and that , without his that , without his consent, he will not be searched.consent, he will not be searched.

Search in van or police Search in van or police stationstation

Code A - Prohibits search exposing Code A - Prohibits search exposing intimate parts of the body in the police intimate parts of the body in the police van, for non-arrested personsvan, for non-arrested persons

Any search involving removal of other Any search involving removal of other then outer clothing e.g gloves, shoes then outer clothing e.g gloves, shoes socks etc may only be made by an socks etc may only be made by an officer of the same sex, and away from officer of the same sex, and away from public view.public view.

Every reasonable effort must be made Every reasonable effort must be made to reduce to the minimum the to reduce to the minimum the embarrassment that a person being embarrassment that a person being searched may experience.searched may experience.

Search of arrested Search of arrested personspersons

S32 PACES32 PACE : : governs the search of governs the search of person, outside the police station, of person, outside the police station, of suspects who have been arrested.suspects who have been arrested.

S32(2)S32(2) : allows a search for anything : allows a search for anything that might be used to effect an escape that might be used to effect an escape or which might be evidence relating to or which might be evidence relating to an offence.an offence.

S32(4)S32(4) : states that a person searched : states that a person searched in public cannot be required to take off in public cannot be required to take off more than outer garments like coats, more than outer garments like coats, jackets and gloves.jackets and gloves.

Search of arrested Search of arrested personspersons

S32(b)S32(b) : gives the police powers to : gives the police powers to enter and search premises in which he enter and search premises in which he was when arrested, or immediately was when arrested, or immediately before he was arrested,for evidence before he was arrested,for evidence relating to the offence for which he was relating to the offence for which he was arrested.arrested.

S54 PACES54 PACE & Code C : governs the & Code C : governs the search of detained persons in the police search of detained persons in the police stationstation

Search on detentionSearch on detentionS54 PACE & Code C :S54 PACE & Code C :requires the requires the custody officercustody officer (a particular (a particular officer with special responsibilities in officer with special responsibilities in police stations) to take charge of the police stations) to take charge of the process of searching detainees.process of searching detainees.

1. He must make sure he records all the 1. He must make sure he records all the suspects property unless he is not going to suspects property unless he is not going to be put in a cell, but detained only for be put in a cell, but detained only for questioning.questioning.

2. The police can seize anything they 2. The police can seize anything they reasonably believe to be evidence of an reasonably believe to be evidence of an offence.offence.

3. A search must be done by at least a 3. A search must be done by at least a constable and of the same sex.constable and of the same sex.

4. Strip searches may be made if the 4. Strip searches may be made if the custody officer thinks its necessary.custody officer thinks its necessary.

5. The custody officer must record the 5. The custody officer must record the reason and result.reason and result.

Search on detentionSearch on detentionS54 PACE & Code C :S54 PACE & Code C :requires the requires the custody officercustody officer (a particular (a particular officer with special responsibilities in officer with special responsibilities in police stations) to take charge of the police stations) to take charge of the process of searching detainees.process of searching detainees.

1. He must make sure he records all the 1. He must make sure he records all the suspects property unless he is not going to suspects property unless he is not going to be put in a cell, but detained only for be put in a cell, but detained only for questioning.questioning.

2. The police can seize anything they 2. The police can seize anything they reasonably believe to be evidence of an reasonably believe to be evidence of an offence.offence.

3. A search must be done by at least a 3. A search must be done by at least a constable and of the same sex.constable and of the same sex.

4. Strip searches may be made if the 4. Strip searches may be made if the custody officer thinks its necessary.custody officer thinks its necessary.

5. The custody officer must record the 5. The custody officer must record the reason and result.reason and result.

Procedure on arrestProcedure on arrestS28 (1) PACE :S28 (1) PACE :an arrest is not lawful until the person an arrest is not lawful until the person arrested is told that he is under arrest arrested is told that he is under arrest and the and the reason for arrestreason for arrest, as soon as , as soon as practicable.practicable.

S28 (3) PACES28 (3) PACE : :

No arrest is lawful unless unless the No arrest is lawful unless unless the arrestee is informed of the arrestee is informed of the ground for ground for the arrestthe arrest at the time of, or as soon as at the time of, or as soon as reasonably practicable after, the arrest.reasonably practicable after, the arrest.

S28 (4) PACES28 (4) PACE : :

Where a person is arrested by a Where a person is arrested by a constable, this applies regardless of constable, this applies regardless of whether the ground for the arrest is whether the ground for the arrest is obvious.obvious.

Procedure on arrestProcedure on arrestArrest must be made clear by Arrest must be made clear by compulsion, either physical or compulsion, either physical or clear words.clear words.

Alderson v Booth (1969)Alderson v Booth (1969)Facts : Following a positive breathalyser Facts : Following a positive breathalyser test the officer said to the defendant, “I test the officer said to the defendant, “I shall have to ask you to come back to the shall have to ask you to come back to the station for further tests”. D did accompany station for further tests”. D did accompany the officer to the station. Lawful arrest was the officer to the station. Lawful arrest was a condition precedent to convicting anyone a condition precedent to convicting anyone for driving with excess alcohol in their for driving with excess alcohol in their blood.blood.

Held : The D was not arrested, as there Held : The D was not arrested, as there was no was no compulsion either 1) physically or compulsion either 1) physically or 2) telling him that he was under 2) telling him that he was under compulsion.compulsion.