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Police powers - the need for investigative powers
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Home > Lecture notes >  English Legal System >  Criminal process - criminal courts >  Police powers >  Police powers - the need for investigative powers 

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The need for investigative powers

Investigative powers

Arrest

Detention and searching property

Human Rights
Databasing - retention of DNA and fingerprints

Interviews, the "caution" and the "Right to Silence"

Cases relevant to the right to silence
Consideration of victims

Bail

Presumption of innocence

Disclosing information

Rules of evidence

When things go wrong

Post Script

 

The need for investigative powers

Introduction

In 1978 Maxwell Confait, a male prostitute was murdered. Three educationally sub-normal boys (all under eighteen) were convicted of his murder. Whilst under police detention they were given no access to adult or legal guidance, they were interrogated for long periods of time and in the end, they confessed.  New evidence came to light that proved that the boys were innocent. The police had fabricated evidence.  A Royal Commission under Sir Cyril Philips (the Royal Commission on Criminal Procedure 1981 - “The Philip’s Inquiry”) followed taking evidence from 1978-1981.  The Philips Inquiry led to the Police and Criminal Evidence Act 1984.

 

The (The Philips Inquiry) focused on a fundamental balance:

“…need to strike balance between interests of whole community in bringing offenders to justice and rights and liberties of persons suspected or accused of crime”.

1765, Sir William Blackstone said, “It is better to let ten guilty men go free than to punish one innocent man”

Whilst the public interest is clearly to convict the guilty, this interest competes with private interest in securing the acquittal of the innocent.  Arguably, the public interest too should be to ensure the acquittal of the innocent.

 

For centuries the Rule of Law has favoured the acquittal of the innocent; in 1765, Sir William Blackstone said, “It is better to let ten guilty men go free than to punish one innocent man”. 

 

Courts recognise that if an innocent man is convicted the guilty one is free, perhaps to offend again.

 

Rule of Law

Simply put, the Rule of Law, which can be found in the writings of Aristotle, Dicey and Montesquieu, holds (among other things) that

  • no man is punishable except by a court

  • no man is above the law

It follows that it is not the job of the police to punish offenders or take any interest in their punishment.  Individual police officers must obey every law just like anyone else.

 

No man is above the law

The law is "above" the government.
"
Be you ever so high, the law is above you" (Lord Denning in Gouriet v Union of Post Office Workers). That was of course said in relation to the refusal by Attorney General Sam Silkin to grant consent to an action which Mr Gouriet wanted to bring to obtain an injunction against the Union of Post Office Workers to stop them calling a boycott of all post between the UK and South Africa in a protest against apartheid. Silkin had argued that his decision was not subject to review by the courts.

Despite the resonance of Lord Denning’s remark – which he used to justify his conclusion that the Attorney’s decision was justiciable – the House of Lords in fact agreed with Silkin, noting that in this case the Attorney General was accountable to the public for the exercise of his public interest powers through Parliament and not through the courts.

 

Liberal and establishment view

“Liberty” the charity that protects civil liberties and promotes human rights holds the view that the fear of crime is one of the biggest concerns for people across the UK today. The police have a difficult job to do and not enough resources to do it.

 

But too often, rather than give them those extra resources, Governments opt for short-cut solutions. The police are in a position of great responsibility - and great power. That is why their powers have to be carefully managed, to ensure that they're not abused, and that the public have confidence in them.

 

At the same time, they need the support - of more staff, more money, and more resources - so they can genuinely police our streets and help communities feel safer.

 

The difficult but vital balance

Home Secretary announcing a police reform programme Building Communities, Beating Crime A better police service for the 21st century agrees with Liberty and said that preventing, reducing and detecting crime; providing safety and security for law-abiding citizens and their families – is what effective policing is about and it is at the heart of civil society.

 

He went on to say that we owe the men and women of our police service a tremendous debt of gratitude for the challenging and sometimes dangerous job that they do. We also owe them our help and support to enable them to deliver effective policing.

 

The core role of the police service is, and will remain, prevention, detection and reduction of crime, and protecting the public.   There are nearly 140,000 police officers –and there will be 25,000 community support officers (CSOs) and wardens by 2008, the Home Office continues to provide evermore sophisticated improvements in scientific and technological support, such as computers and DNA databasing.

 

The role of the police constable

A police constable is a citizen locally appointed, whose authority is derived from the crown.  It follows therefore that in most cases he acts independently and has personal discretion within the law to act in a manner he sees fit.  This gives individual officers great power.

 

A police officer does not simply act as directed which is the usual position in employment.

 

The police no longer investigate all crime, especially if there is no likelihood of detection.  Even then not every detected crime results in formal action unless it is serious.

 

There have been high profile police teams that have been disbanded because individual officers, in their dedication to convict the guilty (to protect us) over enthusiastically collected evidence – or planted evidence – against known offenders.  The history of the West Midlands Serious Crime Squad and the Metropolitan Police Special Patrol Group is a history of police officers failing to balance of individual rights and their investigative powers.

 

Investigative powers

Arrest

Arrest

Following arrest the dichotomy between the police investigation and the rights of the suspect is at their most pronounced.

 

Powers of arrest

Under the Serious Organised Crime and Police Act 2005 the powers of arrest for constables is extended to allow police to arrest for all offences. 

 

This is claimed by the Home Office to be geared to better serve the interests of justice and in particular the victim.

 

The huge increase in these powers and the vague controls will be a temptation for abuse.  We can only wait and see whether the balance is maintained or the ever increasing power of the police is abused or not.

 

The early signs are not promising;

When a peace activist tried to honour the dead at the Cenotaph in Whitehall two police sergeants and 12 constables arrived in haste to arrest her.

 

Maya Anne Evans

Maya Anne Evans a 25 year-old vegan cook from Hastings breached Section 132 of the Serious Organised Crime and Police Act by reading out names of soldiers killed in Iraq at central London's Cenotaph.

At Bow Street Magistrates' Court she received a conditional discharge but had to pay £100 costs in October 2005.

 

Walter Wolfgang

Mr Wolfgang, a refugee from Nazi Germany and a Labour Party member since 1948, was - in full view of the television cameras - was ejected from the Labour Party conference in Brighton in 2005. 

 

He had heckled the Foreign Secretary whilst he gave a speech (he shouted "That's a lie and you know it").

When he tried to re-enter the secure zone, he was detained by a police officer citing the Terrorism Act.

 

Other stories

Other people have reported what they claim to be bizarre police behaviour exercising various powers.  For example a woman arrested for walking on a cycle track because she could have been a terrorist.

 

In March 2006 the police seized three golliwog dolls because of racism claims; the dolls were returned after 2 weeks and no action was taken by the CPS.  News story here.

 

Parliament Square Peace Campaign

 

Worthy of a section on its own is the record of police, courts and parliamentary action against Brian Haw and the other members of the Parliament Square Peace Campaign.

 

Haw, a carpenter is famous for living in a peace camp in Parliament Square since 2001 in an anti-Iraq-war protest.

 

In an attempt to get rid of him and his noisy megaphone Parliament passed a provision banning all unlicensed protests, permanent or otherwise, in the Serious Organised Crime and Police Act 2005 (sections 132 to 138).  The Act was ineffectual against Haw as the Act was not retrospective (viz. before the date he started his protest), so he remained.

 

He has been arrested many times and so far the police and the courts have had very little success at curbing his protest.

 

Home office plans £367m database linking police across the country

The IMPACT Programme will connect information systems held locally and nationally by police systems, as well as on the Police National Computer.

The programme will meet Sir Michael Bichard's recommendations following his inquiry into the Soham murders and to more widely transform the police's ability to protect communities.

 

However, some people are worried that making projects too large will result in inaccurate records being kept and no one can be sure they will not be misused in the future.
 

Police bring more to justice than the courts

Traditional court convictions account for just 49% of the "offences brought to justice" - a key government crime target.

Between 2005-2007 the number of offenders dealt with by police cautions increased from 268,000 a year to 379,000.

 

Penalty fines and warnings for cannabis possession have risen rapidly to 232,000 a year since they were introduced in 2004.

 

Detention and searching property

Detention

One of the reasons that is clearly stated in PACE is that persons may be detained to obtain evidence by questioning, and it is the way this questioning is done and the circumstances in which it occurs and the controlling rules that produce a conflict of interests.

 

28 days maximum

The police have to complete their enquiries and charge, or release all suspects within a maximum of 28 days.  The government has tried to extend this period for the police asking Parliament for various periods without success.

 

Search premises and persons and seize property

The police will frequently trespass to chase fleeing criminal in the full expectation that owners of land on which they are trespassing will consent. 

 

There is an anomaly in the law of theft where unlawful damage is caused by a person who enters a building as a trespasser, does not amount to burglary; the only known reason for the Act being worded that way is to save police officers from conviction when they cause damage as trespassers.

 

In order to preserve evidence and recover stolen property the police must be given the power to take property from suspects.  In order to obtain possession it follows that they must also be allowed to enter private property and vehicles.

 

A constable has no general right of entry into private property except to prevent a breach of the peace and to prevent the commission of an offence which he believes to be imminent or likely to be committed.

 

He has, however, certain statutory powers of entry, and may be entitled to enter and search premises where a person was at the time of or immediately before his arrest.

 

Where he is on private property he must leave if he is asked to.

 

A constable has certain statutory powers to enter and search premises without a warrant. Alternatively he can search premises with the consent of the occupier or with a search warrant issued by a justice of the peace.

 

Where he is lawfully on any premises he may seize goods if he believes them to be stolen.

 

Or if he thinks it is the fruit of a crime, or an instrument used in a crime or is evidence of a crime.

 

There are special provisions for computers.

 

The police must not retain what they seize for longer than is necessary and they must be judged by their beliefs at the time and not in the light of subsequent events.

 

Use of force

The police can use force to search suspects, take samples, but not to extract a confession.  They can use force in self-defence and to prevent a crime, Section 3 Criminal Law Act 1967.  They can also carry offensive weapons for this purpose and firearms, the only purpose of which is to kill.

 

Article 2 of the European Convention on Human Rights protects the right to life and places onerous obligations on the State to protect the lives of all us.  Lethal force can only ever be justified where “absolutely necessary”; where there is no other way of effectively protecting the lives of others.  

 

This was discussed by Lord Justice Ward in the “Conjoined Twins” case, Re: A (Children) (2000) CA, he said that killing a six-year-old boy who was shooting all and sundry in a school playground, would in law be fully justified and would be lawful (“self-defence of others”).

 

Even in the context of a suspected suicide bomber, Article 2 requires that everything possible is done to avoid a moment where lethal force is the only viable means of preventing the suspect from detonating a device and bringing injury and death to others. However, there may be situations where lethal force is the only means of protecting huge loss of life.

 

Whenever someone dies at the hands of the State, there must be a fully independent and comprehensive inquiry, which is what happened when Jean Charles de Menezes was shot 8 times in the head by police in 2005.

 

Human Rights

Individual rights

A list of 16 basic human rights have been written into UK and European law

The Human Rights Act 1998 (HRA) gives effect to the fundamental rights and freedoms in the European Convention on Human Rights (ECHR). 

There are 16 basic rights. They affect matters of life and death like freedom from torture and killing, and affect rights in everyday life: what an individual can say and do, beliefs, and for our purposes, most importantly, the right to a fair trial and similar basic entitlements. The rights include:

  • right to life

  • prohibition of torture

  • prohibition of slavery and forced labour

  • right to liberty and security

  • right to a fair trial

  • no punishment without law

  • right to respect for private and family life

  • freedom of thought, conscience and religion

  • freedom of expression

  • freedom of assembly and association

  • right to marry

  • prohibition of discrimination

  • protection of property

  • right to education

  • right to free elections

  • abolition of the death penalty

The Human Rights Act protects the individual against the state, the state in this case being the police.  It is therefore abundantly clear that the HRA restricts police activity and ensures fair treatment of the suspect.

 

Civil Liberties

Civil liberties are generally understood to mean the basic human rights and freedoms of the individual against arbitrary (based on whim or impulse) government interference. 

 

Examples include freedom of speech, freedom of assembly, and trial by jury. In England and Wales many of these are enshrined in the Human Rights Act of 1998.

 

It is said that anti-terrorism measures have done little to ensure Britain is safe and secure from terrorist attack, but much to infringe the civil liberties of those living in the UK.

The miscarriages of justice which involved Irish suspects and anti terror laws in the 70s and 80s are a reminder of the dangers of rushing laws which create a twin-track system and delivering poor justice.

The
Prevention of Terrorism Act 2005 gives the Home Secretary the power to issue 'control orders' to restrict the liberty of individuals. Without any need for a trial, control orders range from restrictions on communications to house arrest.

 

Brown v Stott [2000] PC

 

Whole case here

 

B was suspected of having stolen a bottle of gin from a superstore. The police judged her to be the worse for drink, and to have arrived by car.  Using their road traffic powers the police required B to say who had been driving her car at the time it would have been driven to the store car park.

 

B stated that she had been the driver of the car at the relevant time. The police then administered a breath test which proved positive. B was charged with drink driving.

B contended that the use in evidence of the admission would infringe her right to a fair hearing.   

 

Held: The Privy Council did not think the admission infringed her rights.

 

Lord Bingham CJ that the high incidence of death and injury on the roads caused by the misuse of motor vehicles was a serious social problem and there was a clear public interest in the enforcement of road traffic legislation … the Act allowed for the putting of one simple question which was not incompatible with the defendant's rights

 

Users of motor cars know they are subject to a regulatory regime; that regime is imposed because cars have the potential to cause grave injury.

 

Guilty

Dispersal Zones

 

R (on the application of W) v Metropolitan Police Comr (Secretary of State for the Home Department, interested party)
[2006] CA

 

Whole case here.
 

In W v MPC [2006] CA, it was held that police can force children home if they are found within dispersal zones.  Dispersal zones are used to tackle unruly behaviour.  The Court of Appeal reversed a decision of the High Court that had ruled that forcibly 'removing' children home breached their human rights.


Inside these areas, after 9pm, children under 16 - without an adult - can be 'removed'; forced home, to protect them from anti-social behaviour or to prevent them from committing anti-social behaviour. 

 

However, The CofA said that can only happen if the child is at risk from, or involved in, anti-social behaviour.

 

The legislation is Sec 30 Anti-social Behaviour Act 2003.

 

In this case "W" was never 'removed', only warned by a CSO that he was in a dispersal area (he lived in the dispersal area and went to the shops), so although this was a hypothetical question the CofA did answer it to clear up a legal limbo left by the High Court.

 

Other dispersal powers

Police can order persons to di