Criminal Justice process- PACE Stop & Search Criminal Justice process- PACE Stop & Search

PACE & Codes The PACE came out of the findings of the Philips Royal Commission on Criminal Behaviour (1981) The aim was to achieve a balance between 1) Police powers and 2) The protection of Civil liberties

PACE & Codes A breach of the PACE statue : can lead to wrongful use of police powers which could lead to a few actions that civilians can take in court against the police, and claim for false arrest and false imprisonment are to name a few. A breach of the police codes : leads only to a disciplinary offence and inquiry S67 (10) PACE : a breach of codes can lead neither to an action for damages nor a criminal prosecution against police officers. S67 (7) PACE : breach of code can lead to the exclusion of evidence obtained from the wrong use of the powers.

Detain short of arrest There is no power to detain someone against his or her will in order to make inquiries about that person. S29 PACE 1984 : Where someone attends a police station “ for the purpose of assisting with an investigation’, he is entitled to leave at any time unless placed under arrest. He must be informed at once that he is under arrest’, if a constable takes a decision to prevent someone from leaving at his will”.

Detain short of arrest Detention short of arrest “helping police with their inquiries” R v Lemsatef (1977) as per Lawton LJ “ It must be clearly understood that neither customs officers nor police officers have any right to detain somebody for the purposes of getting them to help with their inquiries.”

Suspects stopped in street Kenlin v Gardiner (1967) Facts : A police officer took hold of the arm of a boy he wanted to question about the latter’s suspicious conduct. The boy did not believe the man was a policeman, despite having been shown a warrant card, and punched the officer to escape. Held : The boy was entitled to act in self defence as the officer’s conduct in trying to physically apprehend them had not been legal.

Suspects stopped in street Donnelly v Jackman (1970) Facts : An officer approached a suspect to ask some questions. The suspect ignored the request and walked away. The Officer followed and made further requests for the suspect to stop and talk. He tapped the shoulder of the suspect and he tapped the officers shoulder. The officer tapped the shoulder again to get his attention, and the suspect returned a punch. Held : The officers conduct was only a de minimis interference with the citizens liberty, and was reasonable. The conviction for assaulting an officer was upheld.

Suspects stopped in street Bentley v Brudzinski (1982) Facts : A constable stopped two men who had been running barefoot down a street in the early hours. He questioned them about a stolen vehicle, as they fitted the description of suspects in an earlier incident. They waited for 10 mins while the officer checked their details over a walkie and then the began to leave. Another officer who just walked in tapped the shoulder of one of them who returned a punch. Held : The court distinguished the case from Donnelly and held that the officers conduct was more than a trivial interference.

Stop and Search S 1(2) of PACE : gives the police power to search ‘any person or vehicle’ and to detain either for the purpose of such a search. S 1(3) : A constable may not conduct such a search ‘unless he has reasonable grounds for suspecting that he will find stolen or prohibited articles’ S1(6) : Any such item found during the search can be seized.

Stop and Search S 1(7) : An article is prohibited if it is either an offensive weapon or it is made or adapted for use in the course of or in connection with burglary, theft, taking a motor vehicle without authority or obtaining property by deception or is intended by the person having it, for such use by him or some other person. S1(9) : An Offensive weapon is defined as meaning any article made or adapted for use for causing injury to person or intended by the person for such use…”

Stop and Search S2 PACE : a police officer who proposes to carry out a stop and search must state his name and police station and the purpose of the search. A plain clothes officer must also produce documentary evidence that he is a police officer. The police officer must also give grounds for search. Such street searches must be limited to outer clothing. e.g. jacket, shoes, socks etc. S 3 PACE : The record of the search must be noted, which should include, the object of search, grounds for search, and result.

Stop and Search R v Fennelley (1989) Held : The police officer made a search without informing the suspect the ‘grounds for the search’ as required under S 2(3)(c) The search was held as unlawful

Stop and Search Code A The Police Codes of Practice had been revised in March 1999 and the codes have been updated. Code A : governs the statutory police powers of stop and search. Code ( 1AA) : It is important to ensure that the powers of stop and search are used responsibly by those who exercise them and those who authorise their use..It is also particularly important to ensure that any person searched is treated courteously and considerately.

Stop and Search Code A Code A : A person can be stopped and questioned prior to a search to discover whether the suspicion that a search is required is well founded, but a person cannot be stopped in order to find grounds for a search. Where there is a suspicion that the suspect was carrying ‘articles unlawfully obtained or possessed’ The reasonable suspicion must be based on objective grounds.

Voluntary searches? PACE does not apply to “voluntary searches”? Research by the law firm Dixon, Coleman and Bottomley (1990) shows that the safeguards in the PACE and police codes are being undermined by the ‘wide interpretation’ given to what is voluntary search. e.g. If the police can get the suspect to “consent” to the search, then the search is not being made under the powers of PACE/Codes but by agreement.

Voluntary searches? Code A - as regards voluntary searches. If an officer chooses to search with consent and not apply the powers under S1(2) or the code A- “ An officer should always make it clear that he is seeking the consent of the person concerned to the search being carried out by telling the person that he need not consent and that, without his consent, he will not be searched.

Search in van or police station Code A - Prohibits search exposing intimate parts of the body in the police van, for non-arrested persons Any search involving removal of other then outer clothing e.g gloves, shoes socks etc may only be made by an officer of the same sex, and away from public view. Every reasonable effort must be made to reduce to the minimum the embarrassment that a person being searched may experience.

Search of arrested persons S32 PACE : governs the search of person, outside the police station, of suspects who have been arrested. S32(2) : allows a search for anything that might be used to effect an escape or which might be evidence relating to an offence. S32(4) : states that a person searched in public cannot be required to take off more than outer garments like coats, jackets and gloves.

Search of arrested persons S32(b) : gives the police powers to enter and search premises in which he was when arrested, or immediately before he was arrested,for evidence relating to the offence for which he was arrested. S54 PACE & Code C : governs the search of detained persons in the police station

Search on detention S54 PACE & Code C : requires the custody officer (a particular officer with special responsibilities in police stations) to take charge of the process of searching detainees. 1. He must make sure he records all the suspects property unless he is not going to be put in a cell, but detained only for questioning. 2. The police can seize anything they reasonably believe to be evidence of an offence. 3. A search must be done by at least a constable and of the same sex. 4. Strip searches may be made if the custody officer thinks its necessary. 5. The custody officer must record the reason and result.

Search on detention S54 PACE & Code C : requires the custody officer (a particular officer with special responsibilities in police stations) to take charge of the process of searching detainees. 1. He must make sure he records all the suspects property unless he is not going to be put in a cell, but detained only for questioning. 2. The police can seize anything they reasonably believe to be evidence of an offence. 3. A search must be done by at least a constable and of the same sex. 4. Strip searches may be made if the custody officer thinks its necessary. 5. The custody officer must record the reason and result.

Procedure on arrest S28 (1) PACE : an arrest is not lawful until the person arrested is told that he is under arrest and the reason for arrest, as soon as practicable. S28 (3) PACE : No arrest is lawful unless unless the arrestee is informed of the ground for the arrest at the time of, or as soon as reasonably practicable after, the arrest. S28 (4) PACE : Where a person is arrested by a constable, this applies regardless of whether the ground for the arrest is obvious.

Procedure on arrest Arrest must be made clear by compulsion, either physical or clear words. Alderson v Booth (1969) Facts : Following a positive breathalyser test the officer said to the defendant, “I shall have to ask you to come back to the station for further tests”. D did accompany the officer to the station. Lawful arrest was a condition precedent to convicting anyone for driving with excess alcohol in their blood. Held : The D was not arrested, as there was no compulsion either 1) physically or 2) telling him that he was under compulsion.