Suggested Answer To An A2 Question On Police Powers Under Pace 1984

PACE SPECIMEN ANSWER N.B. You must learn other aspects of PACE that do not appear in this question as issues such as Strip Searches and Search of a suspect's premises under s18 etc could be in your exam.

PC LEMON AND LIME SCENARIO Police powers to deal with criminal suspects and the legal rights of those suspects are contained in Police and Criminal Evidence Act 1984. Breach of these rights potentially gives suspects the power to sue the police in the law of tort in the civil courts. Guidance on how these powers should and should not be used is contained in Codes of Good Practice A (Stop and Search) to G (Arrest). Regarding the Search under Section 1 of PACE officers may stop and search any person in a public place if they have reasonable grounds to suspect that they will find stolen goods, offensive weapons or articles connected to burglary or criminal damage. Code A states that "reasonable grounds " can never be based on racial stereotyping, age of suspect or clothing. It could be based on the suspect's behaviour being suspicious. Here the stop and search does not seem to be lawful as just carrying a bag cannot in itself provide reasonable grounds for suspicion. If the only reason is that Aziz is of an Asian ethnic group the search is illegal. The officers are clearly in breach of Section 2 which states that before searching the suspect the officers must tell the suspect their names and their station, the reason for their suspicion, what they are searching for and his right to a written record of the search . They have done none of these things. Code A also says they must treat the suspect with respect and seek co-operation. The officers are in breach of the law and Code A, the search is illegal, and the force can be sued for false imprisonment. Section 3 also requires a full written "National Search Record" of the search to be filled in detailing the date, time reason for the search and whether anything incriminating was found. A copy must given to the suspect at the time. This has not been done. Regarding the Arrest section 24 of PACE says that the police can arrest a person if they have reasonable grounds to suspect him of involvement in an offence e.g. theft or weapons offences. Here they have found some knives but they may be kitchen knives and these do not necessarily suggest involvement in a crime like a hunting knife might. Have they allowed Aziz to explain why he has them? Section 24(4) also requires that arrest is NECESSARY for reasons listed in Section 24(5) e.g. to ascertain the suspect's name or address or prevent injury to anybody or to enable the prompt and effective investigation of the offence. Code G gives guidance on the latter. It says the need to take fingerprints, DNA samples and suspicion regarding the suspect's explanation could influence the decision to arrest as well as the need to question him properly at the station under caution with a solicitor. Again this is not at all clear - if they lack reasonable suspicion then the arrest cannot possible be necessary. Even if Section 24 was satisfied the arrest is made illegal by breach of Section 28 which says that the officer must tell the suspect that he is under arrest and the reason for the arrest and they failed to fully comply with this. Therefore arguably everything that happens to him after the illegal arrest is also illegal and his full 36 hours in custody could be false imprisonment. Code of Practice C governs detention at the police station and a Custody Officer unconnected with the investigation should make an independent decision whether detention without charge is necessary under s37 e.g. because questioning is necessary to obtain evidence. He or she should keep a very detailed custody record under s39 and inform Aziz of his legal rights and ensure that all his rights are respected. Section 56 says that a suspect has the right to have someone informed of his arrest and detention and it does seem that the police are going to contact his wife for him. A suspect also has a right under s58 to independent legal advice, free of charge under the Criminal Defence Service Scheme, when in police custody. This right can only be postponed - for up to 36 hours maximum - if it is an indictable offence that can be tried in Crown Court and a Superintendent gives permission because of a reasonable belief that legal advice could e.g. lead to interference with evidence or injury to others. Unless these conditions are satisfied the postponement is illegal. Section 40 requires that detention must be reviewed by an independent Reviewing Officer 6 hours after detention is first authorised and then every 9 hours after this. Failure to do this renders continued detention illegal false imprisonment. Regarding time limits on detention without charge Section 41 states that after 24 hours in detention, then detention can only be extended for 12 more hours by authority of a Superintendent if the offence is indictable, the detention conditions in section 37 still apply, and the investigation is being conducted efficiently. No mention is made of a Superintendent authorising the extra time. So the extra 12 hours of detention are false imprisonment even if the first 24 hours were somehow lawful. If he was interviewed he should have been cautioned before the first interview, reminded he is under caution in later interviews, have legal representation. All interviews must be tape recorded (Section 60) and a contemporaneous written record made of the interview which the suspect will sign only if he agrees with the contents. If the arrest and detention was lawful then Section 61 states police can request fingerprints from a suspect and if refused and an Inspector authorises it , they can use reasonable force to take the prints. Likewise under Section 65 if a suspect refuses a Non-intimate DNA sample e.g. hair (other than pubic hair) or saliva reasonable force can be used to take this with an Inspector's consent. Under section 82 Criminal Justice and Police Act 2001 the police can retain these samples indefinitely even if Aziz is not charged or is acquitted in court, although in Marper (2008) the ECtHR ruled this to be in breach of Article 8. Arguably if the arrest and detention is unlawful then taking the samples against his will is unlawful and an assault and battery and the samples should be destroyed. John arguably can sue the Police force in the civil courts for compensation for assault and battery and up to 36 hours of false imprisonment. He can also make an official complaint to the Independent Police Complaints Commission.