Thursday 19 October 2006

Prior to PACE the police would search the premises of a detained person whenever they believed that they would find evidence of a crime. PACE was to regulate such searches without a warrant.

Section 17 PACE states that a constable may enter and search premises:

to execute a warrant of arrest or a warrant of committal to prison;
to arrest a person for an arrestable offence;
to arrest in respect of certain public order offences (e.g. possession of offensive weapons at public meetings and processions);
to arrest, if in uniform, for any offence under ss 6, 7, 8, or 10 CLA 1977[1];
to recapture a person unlawfully at large and whom he is pursuing; or
to save life or limb or prevent serious damage to property.

Except in the last category above, a police constable must have reasonable grounds for believing that the person he is seeking is on the premises.

Far more importantly is s18 PACE which allows for the search of premises occupied/controlled by a person who is under arrest for an indictable offence.

A search is permitted if there are reasonable grounds for suspecting that there is on the premises evidence (other than items subject to legal privilege) that relate either to:

the indictable offence or
some other connected or similar indictable offence.

s18(2) PACE allows for seizure of such evidence. The search has to be authorised by an officer of at least the rank of Inspector but a constable does not need such authorisation if he arrests a person and does not then take him directly to a police station because that person’s presence at a place other than a police station is necessary for the effective investigation of the offence.

s50 Criminal Justice & Police Act 2001 allows for seizure of an item where the officer needs to make further enquiries, e.g. a computer believed to contain child pornography.

Section 32(2)(b) grants a power to enter and search any premises in which he was when arrested or immediately before he was arrested, for evidence relating to the offence for which he is being arrested. This power is restricted by s32(6) which forbids such a search unless the relevant police officer has reasonable grounds for believing that there is such evidence on the premises.

After arrest s32(1) permits a constable to search an arrested person even though the offence is only a criminal offence, e.g. an offence of dropping litter where the defendant refuses to provide his identity. The officer must have reasonable grounds for believing that the arrested person.

may present a danger to himself or others; or
may have concealed on him anything which he might use to assist him in escape from lawful custody; or
may have concealed on him anything which might be evidence relating to an offence.

The officer must have reasonable grounds for believing that a search is necessary, but it is common to make a quick search, if only for the officer’s own safety.

A police officer may not require a person to remove any of his clothing in public other than an outer coat, jacket or gloves, but may order the removal of anything concealing his identity, e.g. motor cycle crash helmet: s25 Crime & Disorder Act 1998.

I then mentioned street bail, an invention of s4 Criminal Justice Act 2003. It is a discretionary power that allows for the arresting officer to release the arrested person immediately, under a condition that they attend at a police station at a specified time and date. The arresting officer should consider:

The severity of the offence
Need to preserve evidence
Person’s fitness for release
Whether he understands what is happening
Likelihood of offences continuing.

Not a well used power, and not difficult to see why.

s54 PACE permits a custody officer at a designated police station to authorise the search of a person arrested in order to complete his custody record. He may then seize and retain the property as he sees fit. However, clothes and personal effects may be seized only if a custody officer:

believes that the person from whom they are seized may use them:

to cause physical injury to himself or other persons;
to damage property;
to interfere with evidence; or

has reasonable grounds for believing that they may be evidence relating to an offence.

s8 Criminal Justice Act 2003 states that there is no need to record all the accused’s property if there is no point.

s54 PACE enables an officer of the same sex as the arrested person to carry out a “strip search”, but this is a rare procedure and should be distinguished from an “intimate search”.

s55 – an intimate search can be authorised only by an officer of at least Superintendent rank who has reasonable grounds for believing that a person to be searched may have concealed on him specified items which cannot be found without an intimate search. If, for example, a police officer suspects that a person may have swallowed in a suitable container a class A drug, then s55 permits an intimate search that must be carried out by a “suitably qualified” person, e.g. a doctor or nurse.

The search is undertaken by an officer of the same sex, at a police station, hospital, doctors’ surgery or at some other place used for medical purposes.

The detention of suspected persons is governed PACE and the related Codes of Practice.

s37 PACE creates the post of “custody officer”, an officer of at least Sergeant rank, and the person who is responsible for an arrested person’s treatment from the time of his arrival at a “designated police station”.

DESIGNATED POLICE STATIONS are those with the proper facilities for prisoners over the periods of time during which they can be detained under PACE. Particularly in rural areas persons can be arrested and taken to a NON-DESIGNATED POLICE STATION but they must be transferred within six hours to a “designated police station” if detention is to be of greater duration than the time mentioned. Thus, if a person is arrested in a rural area with a small police station and the custody officer decides that his detention is necessary to preserve evidence and to enable the police to interview him, then within the six-hour period he must be transferred to a proper police station with adequate facilities and this is the kind of police station that is referred to as a “designated police station”.

The custody officer is charged with a number of duties by PACE. When a suspect arrives at a designated police station the custody officer is required to supervise his detention and interrogation and to ensure that the provisions PACE and the codes of practice are complied with.

He maintains a “custody record” which will provide a full history of the person’s detention whilst at the station. It will commence with details of the suspect’s arrival at the police station and his property taken from him prior to his detention being authorised. At each stage in a suspect’s detention the custody officer is responsible for ensuring that an accurate record is kept on the custody record. Nowadays, the custody record is generated by computer.

The custody officer can authorise a person’s detention if it is necessary to:

secure or preserve evidence relating to an offence for which he is under arrest; or
obtain such evidence by questioning him.

These two grounds continue when the system of reviews is undertaken.

s40 PACE 1984 obliges the review officer, who must be an officer of at least the rank of inspector (when the prisoner as yet to be charged) who has not been directly involved in the investigation, to review an arrested person’s detention not later than six hours after the detention was first authorised. The review officer must carry out further reviews every nine hours thereafter and, if he finds that the criteria for detention are no longer satisfied, he must ensure that the arrested person is released.

s6 CJA 2003 introduces s40A(1) and (2) PACE 1984, which allow the review of the suspect’s detention to be undertaken by telephone where it is not reasonably practicable for the Inspector to be present at the police station to review the suspect’s detention. The power cannot be exercised where the review is undertaken by video-conferencing facilities, which should be used in preference to the telephone. A further review is required not later than nine hours after the first.

At the end of the 24-hour period, where the suspect has been detained in connection with a CRIMINAL OFFENCE, he must be released from police custody or charged. We will return to this when considering detention without charge post-24 hours.


Code C deals with the detention, treatment and questioning of persons. Persons in custody must be dealt with expeditiously and be released as soon as the need for detention has ceased to apply. Persons attending the station voluntarily must be treated with no less consideration. The custody officer must ensure that a custody record is kept covering all the prescribed details of the person’s detention.

He must inform the person detained:

His right to free legal advice
His right to have informed a person interested in his welfare
His right to consult the Codes of Practice

The appropriate adult must be informed if the detainee is a juvenile, or if the person appears to be mentally ill.

s56(5A) PACE 1984 has extended the grounds for delaying the suspect’s right to inform a person of his arrest where the officer has reasonable grounds for believing that:

the person detained for the indictable offence has benefited from his criminal conduct; and
the recovery of the value of the property constituting the benefit will be hindered by telling the named person of the arrest.

Annex B Code C provides that the right to inform someone of the suspect’s arrest may be delayed where the suspect is detained in connection with an indictable offence which is:

a drug trafficking offence and the officer has reasonable grounds for believing that the detained person has benefited from drug tracking, and the recovery of the value of the detainee’s proceeds from drug tracking will be hindered by the exercise of his rights under s56 PACE 1984; or
an offence to which a confiscation order can be made under Part VI Criminal Justice Act 1988 and the officer has reasonable grounds for believing the detained person has benefited from the offence and the exercise of his rights under s56 PACE 1984 will hinder the recovery of the value of the:

property obtained by him from or in connection with the offence;
pecuniary advantage derived by him from or in connection with it.

The delay may not exceed 36 hours.

s58 PACE 1984 allows a person who has been arrested and detained at the police station to obtain legal advice at any time. Any request must be noted in the custody record. The consultation between the suspect and his solicitor must be in private and can be either in person or by telephone. The client can ask for his own legal adviser or consult with the duty solicitor.

The safeguarding of the suspect’s rights under s58 is supported by para 6 Code C, which provides that:

detainees must be informed of their rights to communicate privately with a solicitor and to obtain independent legal advice free of charge from the duty solicitor (para 6.1);
a poster advertising the right to legal advice should be displayed prominently in the charge room (para 6.3);
no police officer should do or say anything with the intention of dissuading a detainee from obtaining legal advice (para 6.4);
when a solicitor arrives at the police station to see the detainee, the detainee must be informed of the solicitor’s arrival and asked if he would like to see him, even if he has earlier declined legal advice (para 6.15);
where the suspect is allowed access to legal advice, he must be allowed to have his solicitor present for the interview once it is established that the adviser is present at the police station, or is on his way, or is easily contactable by telephone (para 6.8).

The officer should ask the solicitor to give an estimated time when he expects to arrive at the police station. If the solicitor is on his way or is to set off immediately, it will not normally be appropriate to begin the interview before he arrives (Note 6A).

Where, during a police interview, the suspect requests legal advice there should be no further questioning until he has spoken to his legal adviser.

The police must remind the suspect about his right to legal advice at the following stages of his detention:

immediately before the commencement or recommencement of any interview at the police station;
before a review of detention takes place;
after the suspect has been charged, if a police officer wishes to draw the suspect’s attention to any written or oral statements made by any other person;
after the suspect has been charged, if further questions are to be put to the suspect about the offence;
before an identification parade, group identification or video identification is held;
before an intimate body sample is requested.

The right to legal advice can be denied where an officer of at least the rank of Superintendent has reasonable grounds for believing that one or more of the conditions laid down in s58(6) or (8A) PACE 1984 or Annex B Code C applies. s58(6) provides:

the suspect has been arrested in connection with an indictable offence; and
an officer of at least the rank of superintendent authorises the delay on the ground the officer has reasonable grounds for believing that, if the suspect was permitted to exercise his right to receive legal advice, this:

will lead to interference with or harm to evidence connected with an indictable offence or interference with or physical injury to other persons; or
will lead to the alerting of other persons suspected of having committed such an offence but not yet arrested for it; or
will hinder the recovery of any property obtained as a result of such an offence.

s58(8A) PACE 1984 has extended the grounds for delaying the suspect’s right to inform a person of his arrest where the officer has reasonable grounds for believing that:

the person detained for the indictable offence has benefited from his criminal conduct; and
the recovery of the value of the property constituting the benefit will be hindered by telling the named person of the arrest.

Annex B Code C provides that the right to legal advice may be delayed where the suspect is detained in connection with an indictable offence which is:

a drug trafficking offence and the officer has reasonable grounds for believing that the suspect has benefited from drug tracking, and the recovery of the value of the detainee’s proceeds from drug trafficking will be hindered by the exercise of [his rights under s58 PACE 1984]; or
an offence to which Part VI Criminal Justice Act 1988 (covering confiscation orders) applies and the officer has reasonable grounds for believing the detained person has benefited from the offence and that the recovery of the value of the property obtained by that person from or in connection with the offence or of the pecuniary advantage derived by him from or in connection with it will be hindered by the exercise of [his rights under s58 PACE 1984].

The authorisation for the delay may be given to the suspect orally or in writing. The reason for the delay must be noted in the custody record and, if justified, may not exceed 36 hours from the time the suspect arrived at the designated police station.

In addition to the grounds noted above, the detainee may continue to be interviewed where the solicitor contacted by the suspect:

cannot be contacted; or
has previously indicated that he does not wish to be contacted;
or having been contacted has declined to attend

(para 6.6(c) Code C); or
the person who wanted legal advice has changed his mind and an officer of at least the rank of inspector has given agreement for the interview to continue (para 6.6(d) Code C).

It is well established that the police cannot deny access to legal advice where it is believed that the suspect will be advised not to answer police questions: Alladice [1988].

Cautioning of suspects before questioning falls within this Code. Interviews should generally be conducted at police stations, and should be contemporaneously recorded. The custody record can be of substantial value to both the prosecution and defence where questions of admissibility of statements are in issue at trial – see ss 76 and 78 PACE 1984. We shall cover this judicial discretion later.


[1] Relates to entering and remaining on property

Thursday 12 October 2006

We began with a recap on police powers of stop and search. Before undertaking the search the constable must tell the suspect of his name and station and the object and grounds of the proposed search – s2(3), and if out of uniform he must produce his warrant card – s2(2).

The search can take place anywhere to which the public or any section thereof has access, so it is normally in a street. If the suspect is in the garden or yard of a dwelling or other land so occupied, and the officer has reasonable grounds to believe:

• that he does not reside in the dwelling; and


• that he is not where he is with the express or implied permission of a person who resides in the dwelling;

     
then the officer may stop and search – s1(4). This is intended for the apprehension of burglars or people who trespass on another’s property in order to thwart the officer.

Section 4 PACE permits a Superintendent to give written authority for the conduct of a ROAD CHECK of all or any classes of vehicle in a particular locality continuously or at given times during a renewable seven-day period. A constable in uniform may use his powers to require a motor vehicle to stop and then, using his powers set out in s4 PACE, to ascertain whether the vehicle is carrying;

• a person who has committed an indictable offence; or


• a person who is a witness to such an offence; or


• a person intending to commit such an offence; or


• a person who is unlawfully at large.

These are wide powers, which in effect permit the police to cause a road block for the purposes permitted in s4.

In cases of urgency an officer below the rank of Superintendent may authorise a road check but this must be reported in writing to an officer who is not below the rank of Superintendent as soon as is practicable. The officer to whom the written report is submitted may then authorise the road check’s continuance or discontinue it.

We then turned to SEARCH WARRANTS. Section 8 PACE does not affect any of the pre-existing statutory powers to issue search warrants, e.g. s23(3) MISUSE OF DRUGS ACT 1971 However s8 PACE entitles a police officer to make an application to a justice of the peace for a warrant authorising the officer to enter and search premises. The officer must satisfy the justice that there are reasonable grounds for believing:

• that a serious arrestable offence has been committed; and


• that there is material on the premises which is likely to be of substantial value to the investigation of the offence; and


• that the material is likely to be relevant evidence; and


• that it does not consist of or include items subject to legal privilege, excluded material, or special procedure material and that any of the conditions specified below applies.

The officer’s application is in writing and must further satisfy the magistrate:

• that it is not practicable to communicate with any person entitled to grant entry to the premises;


• that it is practicable to communicate with the person entitled to grant entry to the premises but it is not practicable to communicate with any person entitled to grant access to the evidence;


• entry to the premises will not be granted unless a warrant is produced;


• that the purpose of a search may be frustrated or seriously prejudiced unless the officer arriving at the premises can secure immediate entry to them.

It is the officer’s duty to:

• specify the premises which it is desired to enter and search; and


• to identify, as far as is practicable, the articles or persons to be sought; and


• to state the ground on which he makes the application and the enactment under which the warrant would be issued.

On making the application the police officer, if required by the justice of the peace or judge, shall answer questions on oath relating to the application.

Sections 15 and 16 PACE provide further safeguards:

• a warrant can authorise entry on one occasion only;


• a warrant may be executed by any police officer and may authorise other persons to accompany him;


• a warrant can be executed only within one month of its issue;


• a warrant can be executed only at a reasonable hour unless the purpose of the search would otherwise be frustrated;


• the search authorised by the warrant must be limited to the purpose for which the warrant was issued.

SOCPA 2005 amends s8 and covers:

• All premises owned/occupied by person named in warrant may be searched, whether named on warrant or not


• Multiple visits are permitted, although on second and subsequent visits the authority of an Inspector is needed.

Section 15(7) requires two copies to be made of the warrant. The purpose of this is that if at the premises the occupier is present the police officer must identify himself and supply a copy of the search warrant to the occupier. If the officer is not in uniform, often the case in drug squad raids, he must identify himself by producing his warrant card. If the premises are found to be unoccupied, a copy of the warrant must be left in a prominent position on the premises. If the occupier is not present but another person is and appears to be in charge of the premises then exactly the same rules apply.

An executed warrant must be endorsed with information about whether the articles or persons sought were found and whether any articles were seized by the police.     

After execution, or after a period of one month, the warrant must be returned to the clerk to the justices of the peace for the petty sessional division or to the appropriate Crown Court if granted by a circuit judge. Warrants which are returned to the Crown Court or to the Magistrates’ Court are retained for a year and any occupier affected by the police search has the right to inspect them.

There are three classes of material that a magistrate cannot grant access to:

(1) Items subject to legal privilege
(2) Excluded material
(3) Special procedure material

LEGAL PRIVILEGE is defined by s10(1)(a) PACE as:

• Communications between a professional legal adviser and his client or any person representing his client made in connection with the giving of legal advice to the client;


• Communications between a professional legal adviser and his client or any person representing his client or between such an adviser or his client or any such representative and any other person made in connection with or in contemplation of legal proceedings and for the purposes of such proceedings; and


• Items enclosed with or referring to such communications and made in connection with giving legal advice or in connection with or in contemplation of legal proceedings and/or the purposes of such proceedings”.

R v Inner London Crown Court, ex parte Baines and Baines [1988] –records relating to the conveyancing of property were not privileged because they were not connected to the solicitor actually giving advice. However, all correspondence between the solicitor and the client was privileged.

EXCLUDED MATERIAL is defined by s11 PACE:

• Personal records which a person has acquired or created in the course of any trade, business, profession or other occupation or for the purposes of any paid or unpaid office in which he holds material in confidence.


• Journalistic material which a person holds in confidence and which consists of documents or records other than documents.


• Human tissue or tissue fluid which has been taken for the purposes of diagnosis or medical treatment and which a person holds in confidence.

SPECIAL PROCEDURE MATERIAL is defined by s14 PACE:

• includes “journalistic material” not falling within the definition contained in s11.


• If material comes into the possession of a person who acquires it in the course of his trade, business or profession or other occupation or office and who holds it subject to an express or implied undertaking to keep it confidential, then s8 will apply.


• S1 PACE therefore extends protection to journalistic material not held in confidence and the client records of professional people who do not enjoy legal privilege are therefore covered.

Whilst no court can grant access to items subject to legal privilege, a Circuit Judge may grant access to excluded and special procedure material.

Section 19 PACE allows a police officer who is lawfully on premises may seize anything on the premises if he has reasonable grounds for believing:

• that it has been obtained in consequence of the commission of an offence and that it is necessary to seize it in order to prevent it from being concealed, lost, damaged, altered or destroyed, or


• that it is evidence in relation to an offence whether under investigation or not and that it is necessary to seize it in order to prevent it from being concealed, lost, damaged, altered or destroyed.

In reality the material is always going to be seized.

Section 50 Criminal Justice & Police Act 2001 allows for the seizure of material and removal from the premises of any item if it is believed it may contain something the defendant is not entitled to possess, e.g. child pornography on a computer.

Finally, although the warrant is addressed to all the constables of the police force concerned, s16(2) PACE permits them to be accompanied by non-police officers, who will posses the same powers as the officer, e.g. computer experts.