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  • 1. Training Manual for Trainee Police Officers INTRODUCTION The objectives of the Criminal Justice System are to punish and deter conduct which society has determined as unacceptable and which is prohibited by law. The Police have powers to investigate alleged crimes. There are specific and detailed rules governing the use of Stop and Search powers, arrest, detention, and the way suspects are to be treated at the Police Station. Each of the above powers are governed by legislation and codes of practice which are strict in interpretation and application. The relevant principle Act is The Police and Criminal Evidence Act 1984 and there are codes of practice made under that Act. 1 A Simple Guide to Police Powers
  • 2. SECTION 1 The need for Police Powers and the importance of balancing this need with individual rights. As stated overleaf the Police have powers to investigate and there are specific rules governing their powers both on the street as regard to stopping and searching individuals and their property together with powers regarding arrest and detention and the way people are dealt with at Police Stations. The Police force exists to enforce the law and to provide protection for society from crime and disorder. In order to do this the Police have to investigate, question and search, all of which goes against the concept of privacy and disregard the basic rights of individuals. The aim of the Police and Criminal Evidence Act 1984 (PACE) is to strike a balance between the powers of the police and the rights of the individual. It is also very important to be aware of the powers of arrest and to consider the impact of the Police and Criminal Evidence Act 1984, whilst also considering the impact of Codes of Practice made under the Police and Criminal Evidence Act 1984. The Police and Criminal Evidence Act 1984 and the Codes of Practice used together provide a range of powers, procedure, and rules which must be complied with by the Police when exercising powers of Stop and Search, detention, and the investigation of suspects. The collective aim of the Act and Codes is to provide guidance to the Police on how to deal with suspects whilst providing safeguards for suspects as to what happens if they fail to comply with their content. 2 A Simple Guide to Police Powers
  • 3. Codes of Practice were introduced in accordance with Section 66 of the Police and Criminal Evidence Act 1984. Each of the codes deals with areas of procedure: CODE A – Stop and Search CODE B – Searching of premises & seizure of property CODE C – The detention, treatment, and questioning of suspects CODE D – Identification CODE E – Recording of interviews – audio CODE F – Recording of interviews – visual CODE G – Arrest CODE H – Terrorism The Humans Right Act 1998 incorporated the European Convention on Human Rights into United Kingdom domestic law. The provisions of HRA are particularly significant in Criminal Law. The Act guarantees that UK citizens will enjoy a number of legal rights in relation to application of the rules of the justice system. In relation to criminal cases Article 5 of the Convention affects Police Powers. Article 5 provides that: 5(1) Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) The lawful detention of a person after conviction by a complete court; 3 A Simple Guide to Police Powers
  • 4. (b) The lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law. (c) The lawful arrest or detention of a person effected for the purpose of bringing him/her before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his/her committing an offence or fleeing after having done so; (d) The detention of a minor by lawful order for the purpose of educational supervision or his/her lawful detention for the purpose of bringing him before the competent legal authority; (e) The lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts, or vagrants; (f) The lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. Article 5 also provides that anyone arrested for an offence should be: i. Informed the reason for arrest. ii. The charge iii. Given a trial within a reasonable time 4 A Simple Guide to Police Powers
  • 5. SECTION 2 The Power of Stop and Search It is necessary to consider what the powers are for a Stop and Search and to clarify in what circumstances a search can be conducted whilst referencing the grounds and provisions which govern a Stop and Search. The Police and Criminal Evidence Act 1984 permits Police Officers to detain and search persons or vehicles in a public place for items such as stolen goods, offensive weapons and knives. The Police and Criminal Evidence Act 1984 provides safe guards and failure to comply with the safe guards may make the Stop and Search unlawful. Sections 1-7 inclusive of the Police and Criminal Evidence Act 1984 govern Stop and Search. Section 1 (1) provides where a Stop and Search might take place – namely a public place is anywhere where the public have access to by payment or otherwise. For example, shopping centres, parks, or bus stations and 5 A Simple Guide to Police Powers
  • 6. places to which the public have access but is not a dwelling, for example a garden, or yard. Section 1 (2) provides what may be searched – that is any person or vehicle for stolen or prohibited articles or any articles to which section 1 (8) applies that is offenses involving dishonesty and or damage. Section 1 (3) provides why a search may be conducted – in order to detain and search persons or vehicles in a public place for items such as stolen goods or offensive weapons that is, articles such as knives, an axe, a baseball bat and articles used to inflict injury. Additionally to search for a prohibited firework or articles that can be or have been used to cause criminal damage or items the subject of theft or burglary. Cases which illustrate requirements have asked a variety of questions inclusive of: The suspect asking: Do I as a member of the public have to answer the Police Officers questions? This question was answered in the cases set out below. Rice v Connolly (1966) A member of the public was considered to be behaving suspiciously in an area where several burglaries had occurred. The police questioned the individual, but he refused to answer. His conviction for obstructing a Police Officer in the execution of his duty was overturned, and it was confirmed that members of the public are not under any obligation to answer questions. Ricketts v Cox (1892) The Police asked an individual questions about an assault. He was hostile and used abusive language; Magistrates decided that he was guilty of obstruction. 6 A Simple Guide to Police Powers
  • 7. It is also important to define how the Stop and Search procedure should be conducted. There are defined steps which set out the steps that should be applied to search. Section 2 of the Police and Criminal Evidence Act 1984 and Code A of the Police and Criminal Evidence Act 1984 provides that all Stop and Search procedures must be carried out with courtesy, consideration, and respect for the person concerned. A procedure that should be adopted is the GOWISELY procedure. The GOWISELY procedure provides that the officer conducting a Stop and Search of a person or vehicle must: G – Indicate the grounds for the search. O – Inform the suspect of the object of the search. W – Produce his warrant card if not in uniform. I – Provide details of his/her identity. S – Provide details of his/her station. E – Indicate that the suspect in entitled to receive a copy record of the search. L – Inform the suspect of the power (legislative authority) which is being implemented. Y – Inform the suspect that he/she is to be detained for the purpose of the search. 7 A Simple Guide to Police Powers
  • 8. Osman v DPP 1999 – Provides that where Police Officers did not inform the suspect (Osman) of their names and Police Station then the search was unlawful and he could not be guilty of assaulting the officers in the execution of their duty. Other Acts of Parliament governing Stop and Search include: The Terrorism Act 2000 provides powers for a Stop and Search to be carried out. Section 44 permits officers to Stop and Search for articles that could be used in connection with terrorism. Detained persons can be asked to remove headgear and shoes. Unlike the requirements of Police and Criminal Evidence Act 1984 officers do not need reasonable suspicion that such articles are present to conduct the search. It is necessary, however for a Senior Officer to authorise the search procedure at particular locations and at particular times. This authorisation must also be confirmed by the Home Secretary. Section 60 of the Criminal Justice and Public Order Act 1994 allows officers to use Stop and Search in a specific area at a specific time where there is a threat of serious violence or public disorder. The aim of this section is to deal with football hooliganism, gang fights, and large scale public disorder. The power under Section 60 must be authorised by a Senior Officer. Again, unlike the Police and Criminal Evidence 8 A Simple Guide to Police Powers
  • 9. Act 1984 officers do not need to have reasonable suspicion but an authorisation must be in place and that authorisation must not extend beyond 24 hours in any one period. It should be noted that the Police have used Section 60 for purposes other than public order to Stop and Search. An example of this power is to Stop and Search gangs engaging in or believe to be engaging in Anti- Social behaviour. This of course is effectively an abuse of the provisions governing Stop and Search powers. The European Court of Human Rights as recently as 12th January 2010 ruled that it was unlawful for the Police to use powers under Section 44 of the Terrorism Act 2000, to Stop and Search people without needing any grounds for suspicion as it violated an individual’s freedoms and rights. Section 60 AA of the Criminal Justice and Public Order Act 1994 also permits officers to ask persons to remove any item that they have reasonable grounds for believing is being worn to conceal that person’s identity, for example hats, hooded tops or a scarf. It is important to note that in accordance with Section 117 of the Police and Criminal Evidence Act 1984 a Police Officer is allowed to use reasonable force in a Stop and Search but only if the person is unwilling to cooperate or resists. The exercise of force should be ‘a last resort.’ The period of time during which a person or vehicle is detained must be kept to a minimum, obviously the extent of the search will depend on what is suspected. The search must be carried out ‘at or near the place where the person or vehicle was first detained.’ The search on the street must not be intimate. The only items of clothing a detained person can be required to remove in public are an outer coat, jacket and gloves. A search in public of a detained persons clothing which 9 A Simple Guide to Police Powers
  • 10. has not been removed can only be a superficial examination of outer garments. If an officer has reasonable grounds for considering it necessary that a more thorough search be conducted, for example removal of a shirt then this must be done out of public view in a place such as a Police vehicle. In accordance with Codes of Practice an intimate search must take place at the Police Station. The officer must have reasonable grounds that an unlawful act has taken place in order to conduct a Stop of Search. It is accordingly necessary to ask: What does reasonable grounds mean? An individual can only be stopped and searched if the Police have reasonable suspicion that the suspect in possession of drugs, weapons or stolen property, or things that could be used to commit a crime, an act of terrorism or criminal damage. Reasonable grounds cannot be satisfied if the police undergo a ‘fishing expedition.’ 10 A Simple Guide to Police Powers
  • 11. Police Officers are not entitled to stop people at random on the off-chance that something With reference to the Codes of Practice, Code A stresses that the powers of Stop and Search must be used ‘fairly, responsibly with respect without lawful discrimination. Code A Sates that “reasonable suspicion can never be supported on the basis of personal factors alone without reliable supporting intelligence or some specific behaviour by the person concerned. A person’s race, age, appearance or previous conviction cannot be used alone or in combination with each other as the reason for searching that person” Appearance & Exception: Grounds for suspicion cannot be based solely on attitudes or prejudices towards certain types of people, e.g. young football fans. Nor can it be based solely on: skin colour, hairstyle, mode of dress or previous convictions. Example scenarios He fits the description of a suspect we were told 11 A Simple Guide to Police Powers about at briefing this morning
  • 12. That man looks a bit shifty and this is a bad area for drugs! Grey areas: Reasonable suspicion can sometimes exist without specific information or intelligence and on the basis of the behavior of a person. For example, if an officer encounters someone on the street at night obviously trying to hide something, this clearly constitutes conduct that might reasonably lead the officer to suspect that stolen or prohibited articles are being carried. How may a suspect be Stopped and Searched? In order for the Search to be conducted lawfully there must be compliance with Article 5 of the Human Rights Act 1998 – see pages 3-4. There must also be compliance with Article 8 of the Humans Rights Act 1998 which provides that 3 test have to be satisfied: 1. The search power must be in accordance with prescribed law. 2. The search must be conducted in pursuit of a legitimate aim. 12 A Simple Guide to Police Powers
  • 13. 3. The search must be proportionate to the aim which is to be achieved. 13 A Simple Guide to Police Powers
  • 14. SECTION 3 The Power of Arrest It is necessary to consider who and how a suspect can be arrested. Who can be arrested? Timing Event Section Under PACE PAST Actual • Anyone who is guilty of the 24(3)(a) Offence offence. 24(3)(b) • Anyone whom he reasonably suspects to be guilty PAST • Reasonable grounds for suspecting 24(2) Suspected an offence has been committed – Offences can arrest anyone whom he reasonably suspects to be guilty of it. PRESENT • Anyone in the act of committing an 24(1)(b) offence. 24(1)(d) • Anyone whom he has reasonable grounds for suspecting to be committing an offence. FUTURE • Anyone who is about to commit an 24(1)(a) offence. 24(1)(c) • Anyone whom he has reasonable grounds for suspecting to be committing an offence. How may a suspect be arrested? A Police Officers decision to arrest a suspect is a key stage in criminal process. In Christie v Leachinsky 1974, Lord Simmonds said arrest was the beginning of imprisonment. Arrest will be the first occasion when a suspect has been deprived from his/her liberty, and must therefore have 14 A Simple Guide to Police Powers
  • 15. both a clear legal justification and be necessary. Arresting or detaining someone who it is reasonably suspected has committed a criminal offence is one of the exceptions to an individual’s rights to liberty and security under Article 5 of the Human Rights Act 1998. What does reasonable grounds for arrest mean? Causing physical injury to himself or Causing an unlawful To protection a child or others? obstruction of the vulnerable person? highway? Possession of To prevent any Drugs? prosecution for the offense from being hindered by the Possession of a disappearance of the weapon? Reasonab person in question? le Grounds Possession of Items Suffering physical on them that are injury? stolen? Possession of items that could An illegal be used to steal, commit firework on Committing an burglary, take a car, commit them? offence against public fraud or commit criminal decency? damage? E.g. Spray Paint The Police and Criminal Evidence Act gives an honest belief founded on grounds which would lead an ordinary cautious person to the conclusion that the person arrested was guilty. 15 A Simple Guide to Police Powers
  • 16. Accordingly, a Police officer can use a person’s age, appearance or race or previous convictions to Stop and Search. The Stop and Search must be based on accurate and current intelligence or information. Cases that illustrate the above are: Castorina v Chief Constable of Surrey 1988 – The Court of Appeal said reasonable grounds was NOT whether an ordinary person would think that the suspect was guilty but that it was sufficient for an ordinary person to suspect that the suspect would be guilty. Taylor v Chief Constable of Thames Valley Police 2004 – The Court of Appeal held that an arrest is not lawful unless he is told (1) that he is under arrest and (2) the ground which exists for the arrest. The power to arrest an individual may be conducted by one of two methods: 1. With a warrant. This is the least usual method of arrest because a warrant is not normally necessary to effect an arrest. Warrants are issued upon application by the police to a Justice of the Peace. A warrant is a formal document authorising the police to take the person into custody and then to produce him/her at court. 2. Without a Warrant Section 24 of the Police and Criminal Evidence Act 1984 as amended by Section 110 of the Serious Organised Crime and Police Act 2005 is the governing provision for arrest without a warrant. Prior to the introduction of Section 110 there had to be an arrestable offence, however now an arrest can be made for any offence no matter how minor that offence may be. 16 A Simple Guide to Police Powers
  • 17. In general, Section 24(5) provides that a police officer may arrest a person without a warrant if he/she is committing, has committed, or is about to commit an offence or if the Police Officer with the reasonable cause suspects that he/she is in the act of committing, has committed or is about to commit an offence. A Police Officer may also arrest without a warrant for a breach of the peace. There is also a power to arrest an individual to prevent a breach of the peace. This power is a Common Law power. Examples of arrest without a warrant in accordance with section 24 of the Police and Criminal Evidence Act 1984 are given below: The conditions in Section 24(5) are deliberately drawn widely, and a Police Officer should have little difficulty in persuading a court that one or 17 A Simple Guide to Police Powers
  • 18. more of these conditions were satisfied at the time the Police Officer decided to make the arrest. Most of these conditions are self- explanatory and require no further discussion. Even if none of the other conditions in Section 24(5) is satisfied, a Police Officer will normally be able to justify an arrest under Section 24(5)(e) on the basis that reasonable grounds for believing that the arrest was necessary for the ‘prompt and effective investigation of the offence or of the conduct of the person in question.’ What is a Breach of the Peace? R v Howell 1982 held that ... there is a breach of the peace whenever harm is actually done or likely to be done to a person in his presence, to his property, or a person is in fear of being so harmed through an assault, an affray, a riot or other disturbance. SECTION 4 18 A Simple Guide to Police Powers
  • 19. The Power of Detention. There are strict rules which govern the detention (Section 4), treatment and questioning of suspects whilst at the Police Station (Section 5). A person/suspect may attend at a Police Station as a volunteer. A volunteer has the right to leave the Police Station at any time. If the Police require him/her to stay then he/she must be arrested. The Police and Criminal Evidence Act 1984 and Codes of Practice particularly Code C govern the procedure that has to be applied following the arrest of a suspect. Codes C, D, E and F of the Police and Criminal Evidence Act 1984 governs the detention, treatment and questioning of suspects whilst at the police station. Code C deals with the general procedure governing detention, treatment and questioning whilst Code D deals with the issue of identification and Code E and F deals with the audio and visual recording of interviews. The diagram below provides an example flow chart of the Police Station procedure following arrest: Suspect is arrested If there is enoughmust arrest in accordance with Police charge evidence Policelegal authority (e.g. warrant/ Police suspect and rerelease and Criminal Evidence Act 1984) If there is If Suspect is decideto Police Station the Police taken not him/her on bail or keep Custody Officer opens custody evidence insufficient record. 19 him/her in custodyAUsually ‘designated’ detain without Simple Guide to Police Powers until Is there enough evidence to charge to proceed suspect is Tells suspect of their station Must eventually Police Police and first court hearing must consider this question charge Suspect handed suspect?Custody Officer released and free toto over go charge or release Criminal Evidence Act 1984 rights Police
  • 20. On arrest, the suspect who has been arrested at a place other than a Police Station must be taken to a designated Police Station as soon as practicable and must be put before a Custody Officer. A Custody Officer is an officer over the rank of sergeant who is unconnected with the investigation and will be responsible for supervising the suspect’s welfare and overseeing the questioning and detention of the suspect. The Custody Officer has a duty to record details of the detention on a Custody Record. This record details information such as arrival time at the station, property taken from the suspect, interview times, access to lawyers, and sleep and refreshment time. The Custody Officer must also advise the suspect of his/her rights under the Police and Criminal Evidence Act 1984 and provide details of them in a 20 A Simple Guide to Police Powers
  • 21. written notice. Details of the giving of the written notice should be recorded in the Custody Record. The Custody Officer is responsible for opening and then maintaining a Custody Record for each suspect who has been arrested and brought to 23/01/2010 the Police Station. This is a written document which records certain key information: 4.00pm Joe is arrested. i. The suspects name, address, telephone number, date of birth and 4.30pm Joe arrives at Police Station/searched. occupation; Custody Record opened/ Police and Criminal ii. The offence Evidence Act 1984 notified. arrested and why the for which the suspect has been Refreshment Provided. arresting officer considered it necessary to arrest the suspect; 6.00pm Ask to speak to his Solicitor/Solicitor iii. The time of the suspect’s arrest and the time of his/her arrival at called. the Police Station; 6.30pm Solicitor sees Joe in private/advice given. iv. The reason why the suspect’s ongoing detention at the Police Station 7.30pm Interview (taped) in presence of has been authorised by the Custody Officer; Solicitor/Police wish to question further/no charge made. v. The time such detention was authorised; 10.30pm First detention review carried out/no charge vi. Confirmation that the suspect has been given details of the rights yet/continues detention/food provided/sleep he/she may exercise whilst detained at the Police Station, and in cells. whether he has requested legal advice from a solicitor; and vii. Details of the items of property the suspect had on his/her person, 24/01/210 and details of any medical condition he/she suffers from. 7.30am Second detention review/continue detention. An example of a Custody Record is shown below:further interview.) (Food/exercise provided/ 4.30pm Third detention review. Further detention authorised by superintendent. (SAO/need for further questioning) 6.30pm Interview (taped) in presence of Solicitor. 8.30pm 21 Charged/released on conditional Police bail. A Simple Guide to Police Powers
  • 22. As stated previously any person who attends at a Police Station voluntarily has a right to leave the Police Station unless he/she is arrested. 22 A Simple Guide to Police Powers
  • 23. The Police and Criminal Evidence Act 1984 provides that there is basic limit of 24 hours from the time the arrested person is received into the care of the Custody Officer. This 24 hour period can be extended to 36 hours if a Police Officer of at least the rank of Superintendent authorises the further 12 hours. The authorisation must be recorded on the Custody Record. If detention for up to 36 hours has been authorised and the Police wish to detain the suspect beyond that period then prior to the expiry of the 36 hour limit then the Police may apply to a Justice of the Peace (Magistrate) for further authorisation. This authorisation is called a WARRANT OF FURTHER DETENTION. The warrant can extend detention for periods not exceeding 36 hours at any one time and should not allow extension of detention beyond a maximum of 96 hours. In addition to the time limits set out above the Custody Officer is obliged to carry out periodic review to ensure that the grounds on which detention was initially authorised are still applicable. This is a requirement is accordance with Section 40 of the Police and Criminal Evidence Act 1984. If reviews are not undertaken then detention after the initial authorisation will be unlawful as decided in Roberts v Chief Constable of the Cheshire Constabulary 1999. The time limits on detention: 6 Hours First review by Police 23 A Simple Guide to Police Powers
  • 24. + 9 Hours Second review by Police + 9 Hours Further Review by Police 24 Hours Charge if required UNLESS + 12 Hours Authorised by Senior Officer. Then Charge required UNLESS 36 Hours Application to court for warrant of further detention + 36 Hours Further detention order by court + 36 Hours Extension of further detention ordered by court BUT 96 Hours Maximum length of detention allowed before charge. SECTION 5 Treatment of Suspects 24 A Simple Guide to Police Powers
  • 25. As stated previously the Police and Criminal Evidence Act 1984 and the Codes of Practice are very important provisions regarding the way that suspects are to be treated whilst at the Police Station. There are numerous areas of the Codes of Practice together with procedural requirements to consider: The right to legal advice (Section 58 of PACE and Code C). A suspect who has been arrested and held in custody at a Police Station has the right to receive free and independent advice from a Solicitor or an Accredited Police Station Representative. In accordance with Section 58 of the Police and Criminal Evidence Act 1984 and Code C the suspect is entitled to consult a Solicitor or Representative privately and at any time he/she requests. This consultation can be either in person or on the telephone. A suspect’s request to see or speak to a Solicitor/Representative must be recorded in the custody record. 25 A Simple Guide to Police Powers
  • 26. The Police have a very limited right to delay but not deny the right to see a Solicitor/Representative. Any delay must be authorised by an officer with at least the rank of Superintendent, and can be authorised only when a suspect has been arrested for indictable offence. The length of any delay can be for a maximum of 36 hours. Authorisation for delay may be given orally, but must also be confirmed in writing. A Police Officer may only authorise the delay to legal advice only if he/she has reasonable grounds for believing that access will lead to: a. Interference with or harm to evidence connected to an indictable offence or interference or physical injury to other persons. b. The alerting of other persons suspected of having committed such an offence but not yet arrested for it. c. Hinder the recovery of any property obtained as a result of such an offence. Cases that illustrate the above are: R v Grant (2005) here there had been a deliberate interference by the Police with the detained suspect’s right to confidence of privileged communication with a solicitor. The Court of Appeal held that the court would not tolerate illegal conduct by the Police. This was such a serious abuse of process that it justified his conviction for murder being quashed. R v Samuel (1988) here the defendant was a 24 year old man, whose mother had already been informed of her son’s arrest some hours before he was refused access to a Solicitor. The Court of Appeal said if anyone was likely to be altered it would have already happened, and that there was no room to deny Samuel his ‘fundamental freedom’. As his final interview had taken place after his Solicitor had been refused access, the evidence was inadmissible in court. Samuel’s conviction for robbery was quashed. The Court of Appeal stressed that a delay to the right to legal 26 A Simple Guide to Police Powers
  • 27. advice would only be justified on rare occasions, and that it must be based on specific aspects of the case, not a general assumption that access to a Solicitor might lead to the altering of accomplices. The right to inform someone of the detention (Section 56 of PACE and Code C). Section 56 of the Police and Criminal Evidence Act 1984 and Code C provide that where a person has been arrested and taken to a Police Station, he/she is entitled to request that one relative or another person be informed of his arrest and whereabouts. This right may be delayed in certain circumstances. The reasons for the delay are the same as those outlined in the paragraph above. However, the right not to be held without informing of the detention is a fundamental right and the Police cannot delay this right unless they have reasonable grounds that telling the named person will lead to anyone of the consequences outlined above. The right to rest, food and exercise (Code C). The Police and Criminal Evidence Act 1984 and Code C provide that there must be reasonable provision at the police Station for the suspect to be given rest, food and exercise. Code C provides that the suspect must be held in a clean, ventilated, adequately lit and heated cell. The suspect must be offered food within the detention period. The suspect should also be offered brief outdoor exercise if this is practicable. Further, if the suspect is injured or suffering from any medical condition then the Custody Officer must make 27 A Simple Guide to Police Powers
  • 28. arrangements for the suspect to see a doctor as soon as reasonably practicable. If the suspect is detained for more than one day, in any period of 24 hours the suspect must be given a continuous period of at least 8 hours for rest. Interviews and Identification. Once the Custody Officer has authorised the detention of the suspect then the Investigating Officer can further the investigation. This can be done by: a. Carrying out an audio recorded interview with the suspect. b. The taking of fingerprints or impressions of footwear. c. Carrying out an identification procedure, for example an identification parade or video identification parade. d. The taking of samples either intimate or non-intimate. e. The taking of photographs of the suspect. These investigative powers will be examined further below. The Interview. Interviews must comply with Codes C and E of the Police and Criminal Evidence Act 1984. Interviews are ordinarily recorded on tape. There is a procedure to record a suspect visually however this is only done in cases of very serious offences or where the suspect has a disability such as the need to use sign language. 28 A Simple Guide to Police Powers
  • 29. The interview will be recorded on three tapes. One is used as a master tape and is sealed at the end of the interview. This seal is only broken at trial. The second tape is used as the working copy and will be used to produce a transcript of the interview. The third copy is given to the suspect or his/her Solicitor/Representative. Code C of the Police and Criminal Evidence Act 1984 further requires that the question should the suspect be interviewed if he/she is unable to appreciate the significance of questions or their answers or he/she is unable to understand what is happening because of the effects of drink, drugs or any illness. There is also a need to be aware of the needs of suspects who come within special categories, those are: • Juveniles – That is suspects who are aged between 10 and 16. Any interview must be in the presence of a parent/guardian or a responsible adult. • Suspects who have a mental disability – Again the interview must be in the presence of a responsible adult. • Suspects who are deaf, dumb or blind – Arrangements have to be made to ensure the suspect fully understands the procedure of interview – a responsible adult and/or interpreter will be required. • Suspects who cannot speak or understand English – Arrangements have to be made to ensure an appropriate interpreter is available for any interview or subsequent procedure. A case which illustrates the above is: R v Aspinall (1999) this is where the Court of Appeal held that a suspect with Schizophrenia should have had an appropriate adult present. This was even though the suspect appeared to understand the questions put forward by the Police. The interview was, therefore not admissible as evidence. 29 A Simple Guide to Police Powers
  • 30. Prior to a start of any interview, the Police Officer conducting the interview is obliged to caution the suspect. The suspect should already have been cautioned on arrest. The right of a suspect to remain silent following the issuing of a caution is a qualified right (see below). The basic caution upon arrest that should be given is the same basic caution given at the time of interview. The caution reads as follows; “you do not need to say anything. But it may harm your defence if you do not mention when questioned something that you later rely on in court. Anything you say may be given in evidence.” There are also circumstances when a SPECIAL CAUTION must be given (this will be discussed further below). The basic caution is worded in this way because, although the suspect has a right remain silent and cannot be compelled to answer questions in the interview, if the suspect exercises this right but then at his/her trial raises facts as part of his/her defence which he/she could have mentioned during the interview, the court may draw an ‘adverse inference’ from his/her silence under Section 34 of the Criminal Justice and Public Order Act 1994. The Court may, for example, infer that the defendant said nothing at the Police Station because he/she did not have any answer to the questions put by the Police, and fabricated his/her defence only when he/she had left the Police Station and had the time to concoct a story. If, however, the Interviewing Officer wants the suspect to account for an object, substance or mark found on his/her person, in or on his/her clothing or footwear, otherwise in his/her possession or in the place where he/she was arrested, a ‘special caution’ must be given. Such a caution will also be required if the suspect was arrested at the place where the offence was committed at or about the time of the offence, 30 A Simple Guide to Police Powers
  • 31. and the officer wants the suspect then fails to answer the question or to answer the question satisfactorily, the court at trial will be able to draw an adverse inference. If the officer fails to administer the special caution, no such inference may be drawn at trial. The special caution requires the suspect to be informed of the following matters: a. What offence is being investigated; b. What fact the suspect is being asked to account for; c. This fact may be due to the suspect taking part in the commission of the offence; d. A court may draw a proper inference if the suspect fails or refuses to account for this fact; and e. A record is being made to the interview and it may be given in evidence if the suspect is brought to trial. Code C of the Codes of Practice made under the Police and Criminal Evidence Act 1984 also provides guidelines on how an interview must be conducted. The interviewer must not use inappropriate conduct in order to obtain answers. The Code provides that there should be oppression. Oppression might include the Interviewing Officer: • Raises his/her voice or shouting at the suspect; • The making of threats towards the suspect; or • A threat to detain the suspect indefinitely unless he/she makes a confession. The interview must end when the officer in charge of the investigation is satisfied all the questions they consider relevant to obtaining accurate and reliable information about the offence have been put to the suspect, 31 A Simple Guide to Police Powers
  • 32. this includes allowing the suspect an opportunity to give an innocent explanation and asking questions to test if the explanation is accurate and reliable, for example to clear up ambiguities or clarify what the suspect said. Fingerprints and impressions of footwear. The use of fingerprints in the detection of crime is very important. The taking of fingerprints is governed by Section 61 of the Police and Criminal Evidence Act 1984 and Code D of the Codes of Practice. Fingerprints may be taken if the suspect consents. They may also be taken without consent and if necessary, by using reasonable force, in the following circumstances: a. The suspect is over the age of 10; b. An officer of at least the rank of inspector authorises them to be taken where he has reasonable grounds for suspecting the involvement of the suspect in a criminal offence and for believing that taking fingerprints will prove or disprove the suspect’s involvement. 32 A Simple Guide to Police Powers
  • 33. c. If the suspect has been charge with a recordable offence – (one that will be recorded on the Police national computer and imprisonable) or has been told that he/she will be reported for such an offence and has not already had his/her fingerprints taken in the course of the investigation; d. The suspect has been convicted of a recordable offence; or e. There is doubt about the identity of a person who has been previously fingerprinted and bailed. Section 61(a) of the Police and Criminal Evidence Act 1984 permits Police Officers to take impressions of a suspect’s footwear if the suspect is arrested, charged or told that he/she will be reported for a recordable offence. Reasonable force may be used to take an impression of footwear. Video identification and identification parades. The provisions which cover identification procedures are contained within Code D of the Codes of Practice under the Police and Criminal Evidence Act 1984. 33 A Simple Guide to Police Powers
  • 34. Identification by witnesses arises, for example if the offender is seen committing the crime and a witness is given an opportunity to identify the suspect in a video identification, identification parade or similar procedure. The procedures are designed to: • Test the witness’ ability to identify the person they saw on a previous occasion • Provide safeguards against mistaken identification. There are four different types of identification procedure – all are organised by an officer over the rank of inspector who is not involved in the investigation. 1. Video identification. A video identification occurs when the witness is shown moving images of a known suspect together with similar images of at least eight other people who resemble the suspect in age, height and general appearance. The suspect will not be present at a video identification having been filmed earlier. Before viewing the video the witness must be told that the person they saw may not be in the video. 2. An identification parade. An identification parade occurs when a witness sees the suspect in a line of at least eight other persons who resemble the suspect in age, height and general appearance. The suspect may choose where he stands in the parade. Before viewing the line-up the witness must be told that the person they saw may not be in the line-up. 3. Group identification. 34 A Simple Guide to Police Powers
  • 35. Group identification occurs when the witness sees the suspect in an informal group of people. This form of identification may take place either with the consent and cooperation of the suspect, or covertly if the suspect does not consent. 4. Confrontation by a witness. A Confrontation occurs when a witness is brought face to face with the suspect in the Police Station. Confrontation identification is rarely used. Taking of samples. Body Samples: Officers may wish to take body samples from the accused to try and link him/her with the crime. A suspect may ask his/her legal advisor whether he/she can refuse to give such samples. The rules differ according to whether the sample is ‘non-intimate’ or ‘intimate’. Non-intimate Samples: These include such categories such as saliva, footprints, hair that is not pubic hair, and mouth swabs. The suspect will first be asked whether he/she consents, if so, the samples will be taken. Samples can be taken without consent, there are reasonable grounds of suspecting the suspect’s involvement in a recordable offence, or where the suspect has already been charged with a recordable offence. Intimate Samples: 35 A Simple Guide to Police Powers
  • 36. These include blood, semen, urine, pubic hair and swabs from the body orifices other than the mouth. An inspector can authorise the taking of such a sample if he/she has reasonable grounds to believe that the sample will tend to prove or disprove the suspect’s involvement in a recordable offence. Consent is required, but if this is refused, the court can be informed and draw adverse inferences from such refusal. An intimate sample must be taken by a qualified Medical Practitioner. Breach of the Police and Criminal Evidence Act 1984 and Codes of Practice. The consequences will depend will depend on the nature and extent of the breach. A breach of the provisions regarding access to legal advice or informing of whereabouts will not affect the admissibility of the evidence in court, for example the right to use evidence at a trial. Although, the accused may make a complaint to the Police Complaints Authority, a body which has power to investigate complaints against the Police. If a confession is obtained in breach of the Codes of Practice, it is not automatically inadmissible but shall be excluded as evidence at trial if it has been obtained by oppression or is unreliable because of things said or done at the same time (Section 76 of the Police and Criminal Evidence Act 1984). The court may also exclude prosecution evidence if the admission of the evidence would have such an effect on the fairness of the proceedings that it ought not to be admitted (Section 78 of the Police and Criminal Evidence Act 1984). 36 A Simple Guide to Police Powers
  • 37. The charging of the suspect (Code C). In some cases it may be appropriate to issue a caution or a conditional caution rather than charge the suspect with the offence in question. Cautioning is very often applied where the offence is minor and the suspect admits his guilt or where the suspect has no or very few other convictions. As soon as the police officer in charge of an investigation reasonably believes that there is sufficient evidence to provide a realistic prospect of the suspect’s conviction, he must notify the Custody Officer who will be required to make a decision as to whether the suspect should be charged. If the suspect is to be charged then he must be cautioned by means of giving the standard caution as outlined above. The accused must be given a written notice setting out details of the charge. Following charge, the accused may only be asked questions connected to the offence if the questions are: a. To prevent harm or loss to another person or the public; b. To clear up any ambiguities; or c. Where it is in the interest of justice to allow the charged suspect to comment on information that has come to light since he/she was charged. As seen above the Custody Officer has to determine whether there is sufficient evidence to charge the suspect or whether further time following arrest is required to establish those issues. If there is not sufficient evidence to charge the suspect immediately then the suspect should be released either on bail or without bail unless: 37 A Simple Guide to Police Powers
  • 38. a. The Custody Officer has reasonable grounds for believing that detaining the suspect without charge is necessary to secure or preserve evidence relating to an offence for which he/she is under arrest; or b. It is necessary to obtain such evidence by questioning. It is therefore important to discuss how long a suspect may be held in Police Custody before and after charge as applicable. 38 A Simple Guide to Police Powers
  • 39. SECTION 6 SUMMARY TABLE POLICE LIMITATIONS ON SUSPECTS RIGHTS COMMENT Summary Section POWER POWER Stop and Must have reasonable Police must give name and If these are breached the search is Search grounds for suspecting station. unlawful. procession of stolen goods Police must state reason for Only about 13% of those stopped are or prohibited articles. search. arrested, suggesting that too many Must not stop only on basis stop and searches are made. If search is in public, can only of personal factors (e.g. ask suspect to remove outer When there ere fewer searches race. Age, known previous coat, jacket and gloves. crime rates go up. convictions). Must have a real reason. Arrest There must be involvement Suspect must be told of The powers of arrest now apply to all or suspected involvement in arrest and reason for it. offences. an offence Police can only use reasonable The necessity test is very wide. AND force in making the arrest. the Police Officer must The Police have considerable have reasonable ground for Suspect must be taken to a discretion in making the decision of believing the person’s Police Station as soon as whether to arrest or not. arrest is necessary. possible after arrest. Detention Normally can only detain Right to: Custody Officer reviews detention for 36 hours. regularly. - Have someone informed of For indictable offences detention. Custody Record is kept BUT it is 39 must apply to Magistrates believed that 10% of records are not - A Simple Guide to Police Powers Have legal advice. for an extension to 96 accurate. hours. - Consult the Codes of
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