Police Powers and Detention: Understanding PACE and Codes of Practice

1. Restrictions, including those restrictions permitted by the European Convention on Human RightsPOLICE POWERSDetention

2. Objectives • Explain and apply the main provisions of the Police & Criminal Evidence Act 1984 (PACE) and the Codes of Practice. • Explain potential remedies against the police for breach of their powers.

3. Detention Section 36 Role of the Custody Officer Inform suspect of rights. Books the suspect in (time limits start running from this time). Keeps the Custody record. Section 54 Search at the police station – to prevent injury, search for evidence, prevent escape and record property.

4. Detention Section 55 –Intimate Searches: must be authorised by a superintendent reasonable grounds for believing that an article would cause injury or class A drugs are concealed must be carried out by a doctor, unless urgent then same sex officer consent of suspect is not needed Searches of the mouth are no longer classed as a intimate search – CJPOA 1994.

5. Detention - Time limits Section 41 – detention up to 24 hours Section 42 – superintendent can authorise a further 12 hours = 36 hours, for any arrestable offence (since CJA 2003) Section 43 – at 36 hours must apply to magistrates for a warrant of further detention – if granted another 36 hours = 72 hours Section 44 - at 72 hours must apply to court again for a further 24 hours = total 96 hours max – (4 days) Suspect must then be released, or charged Section 40 – reviews of detention – 1st 6 hours, every 9 thereafter.

6. Detention - Time limits Terrorism Act 2006 Suspect can be detained for up to 28 days

7. Right to inform someone of the detention Section 56 – suspect is entitled to inform a relative/ friend of their arrest. Section 58 – suspect is entitled to consult a legal advisor (free of charge).

8. Right to inform someone of the detention The rights under sections 56 & 58 may be suspended for up to 36 hours if: It is an indictable offence; and Authorising officer believes contact would lead to interference with evidence or others being warned. See the cases of : R v Samuel (1988); compare this with R v Alladice (1988).

9. Suspect rights in detention Section 60 PACE – interviews must be tape recorded, cautioned before interview, suspect to be allowed to sit during interview. Code C – detention 3 meals in 24 hours 8 hours (continuous) free from questioning Clean cell Reasonable drink/ toilet breaks

10. Suspect rights in detention Right to silence –abolished by the CJPOA 1994 – suspects cannot be forced to speak but the court can draw inferences from silence in 4 situations. The caution now reads: ‘You do not have to say anything, but it may harm your defence if you do not mention when questioned anything which you later rely on in court. Anything you do say may be given in evidence’.

11. Appropriate Adult PACE & Code C – certain people are required to have an appropriate adult with them during interview. Adults with mental disorders or mental disabilities. Juveniles - 17 and under.

12. Appropriate Adult An appropriate adult may be a parent, social worker etc. However on the importance of having a suitable appropriate adult see the cases of: R v Morse (1991) where the appropriate adult had such a low IQ as to not understand the significance of what was happening – evidence from interview was subsequently deemed inadmissible. R v Blake (1991) – where the police proceeded with an appropriate adult against the wishes of the suspect - evidence from interview was subsequently deemed inadmissible.

13. Identification Section 61 – police are permitted to take fingerprints - consent of suspect is not needed. Section 62 – intimate samples, this includes blood, saliva, or semen can be taken - consent of suspect is usually needed. Section 63 – Non-intimate samples, this includes hair, nail clippings – consent of suspect is not needed, but must be authorised by an inspector or above. Criminal Justice & Court Services Act 2000 allows for compulsory drug testing.

14. Retention of Fingerprints and DNA Powers of the police to take and retain DNA samples are also found in Section 82 (2) Criminal Justice & Police Act 2001 – this allows for indefinite retention of fingerprints and DNA samples even if no charges arise or found not guilty. However, see the challenge by S and Marper v UK (2008). On 4 December 2008, the European Court of Human Rights issued its judgment in the case of S and Marper. The Court concluded that the retention of the applicants' fingerprints, cellular samples and DNA profiles was in violation of Article 8 of the Convention.

15. Exclusion of Evidence Admissibility of evidence section 76 – prosecution must prove that a confession was not obtained by oppression, this includes torture, inhumane, degrading treatment, use or threat of violence, or circumstances that would render it unreliable. Section 78 – court can refuse evidence of any kind if the court believes it would adversely affect a fair trail. See: R v Canale (1990); R v Latif & Shahzah(1996); A v Sec of State for the Home Dept. (2005).

16. Search of Premises Section 8 PACE - Search with a warrant Search without a warrant Section 17 – police can enter and search to: arrest with or without a warrant; to capture someone at large, to protect people or prevent damage to property.

17. Search of Premises Search without a warrant Section 18 – police can enter and search: After an arrest for an indictable offence if they reasonably suspect that there is evidence of the immediate offence or other offences on the premises. Section 32 – after an arrest for an indictable offence police can enter and search where the person was when arrested or immediately before if reasonable suspicion that there is evidence on the premises.

18. Potential remedies against the police A person could sue for: Trespass to the person Trespass to goods False imprisonment Malicious prosecution Sue under the Race Relations (Amendment) Act 2000 Sue under the Human Rights Act 1998 – potential breaches could include, Articles 3, 5, 6 & 8 Complain to the Independent Police Complaints Commission

19. Test yourself • Under what section is the role of the custody officer found? • List the time limits for detention and the section numbers. • When are reviews of detention carried out? • What should happen during interview?

20. Test yourself • Under what section can fingerprints be taken? • List the sections for intimate and non-intimate samples. • Can samples be retained indefinitely? • When can the police enter premises without a warrant? Give the section numbers. • What section numbers deal with admissibility of evidence? • List 3 possible remedies against the police for breach of powers.