Ings of an experienced trial judge, the same confidence does not extend

to magistrates, who are advised only to exclude evidence in the clearest

case and in exceptional circumstances (R. v. Kings Lynn Justices ex

parte Holland (1992)).

The ECHR appears to take a similar view to UK law on the ques-

tion whether improperly obtained evidence is admissible (see Schenk v.

Switzerland (1998)). In Khan v. UK (2000), it was held that, despite a

breach of ECHR Art. 8 (privacy), evidence obtained by a bugging

device was admissible. The overriding concern is whether the criminal

proceedings are unfair. Although issues of evidence are primarily mat-

ters for the domestic courts, judges have now to consider whether Art. 6

requires them to exercise their discretion to exclude evidence. Problems

have already arisen concerning entrapment which, although no defence,

does invoke issues of fairness. If the police act as agents provocateur,

that is, they create a criminal intention on the part of the accused, then

any evidence so obtained will be tainted under Art. 6. To admit such

evidence would be an affront to the public conscience. If, however,

the police entrap the defendant in circumstances where the defendant

already has a criminal intention, and freely takes the opportunity to

break the law, the evidence is admissible (R. v. Elwell (2001)).

Confessions, self-incrimination and the right to silence

Unsound confessions, that is those induced either by oppression

(which usually entails physical intimidation or inhumane treatment:

see R. v. Fulling (1987)) or, even where there is no police impropriety,

as a consequence of ‘anything said or done’ which makes them unreli-

able (see R. v. Harvey (1988)), are subject to mandatory exclusion

under s. 76, such confessions are also likely to offend Art. 3 and

Art. 6 of the ECHR. The unreliability ground operates particularly to

518 General Principles of Constitutional and Administrative Law

prevent the conviction of weak-minded and suggestible persons solely

on the basis of their own admissions (R. v. Heaton (1993)). Otherwise

the trial judge has a discretion, but not a duty, to exclude evidence.

In R. v. Walker (1998), for example, a confession by a person with a

severe personality disorder was inadmissible. In DPP v. Cornish (1997),

by contrast, a confession made by a mentally handicapped person was

allowed even in the absence of an appropriate adult, in that the absence

did not itself make the confession unreliable. These evidential safe-

guards, protect only those who plead not guilty. The danger remains

that defendants who are not legally represented may plead guilty on

the basis of a confession which might otherwise be inadmissible

evidence. On the entry of a guilty plea, the court will not be concerned

with how evidence underlying the plea was obtained.

It is a widely accepted principle that nobody should be forced to

answer police questions nor to incriminate themselves in court, and the

common law has traditionally recognised a right to silence (Rice v.

Connolly (1966)). Prior to the Criminal Justice and Public Order Act

1994, juries and magistrates could not draw adverse inferences from an

accused’s silence in interview or court. Indeed, it could not even be

commented upon by the prosecution. Sections 34–38 of the 1994 Act,

however, allow the court or jury to draw such inferences ‘as appear

proper’ from an accused’s failure to mention any fact relied on in his

defence in certain circumstances. These circumstances arise when the

accused is being questioned under caution before being charged or

where the accused is being charged, or formally warned that he might

be prosecuted and where the fact in question was one which it would

be reasonable to expect him to have mentioned. It has been held that

remaining silent on legal advice is not itself sufficient (Condron v. UK

(2000); see also R. v. Argent (1997)). Section 34 (2A) does, however,

prevent an adverse inference to be drawn when the detainee at a police

station had been denied the opportunity to consult a solicitor prior

to interview. Section 35 of the Act allows the court or jury to draw

inferences from an accused’s failure to give evidence at the trial itself,

but only when a prima facie case exists: Murray v. UK (1996). It can-

not, therefore, be the sole basis of a conviction. This ability to draw

inferences does not operate where the physical or mental condition of

the accused makes it undesirable for him to give evidence: Condron v.

UK (2000), (heroin addicts experience withdrawal symptoms).

The ECHR regards the right to silence as fundamental. Article 6 (2)

contains the presumption of innocence which impliedly reinforces the

right against self-incrimination. Such protection is thought to ensure a

fair trial. Hence, domestic attempts to exclude or modify the right to

519

Police Powers of Arrest and Search in the Investigation of Crime

silence might fall foul of the Human Rights Act. Following Brown

v. Stott (2001) (above p. 429) a national court, when faced with an

alleged derogation from Convention Rights, should test whether it can

give an interpretation of the statutory provision which is compatible

with the ECHR. If not, the provision offends s. 6 (1) of the 1998 Act

and is to be disapplied. A declaration of incompatibility may then be

issued under s. 4 (see above pp. 434–8).

In certain cases, notably the Companies Act 1995 s. 432 (2) (see also

Criminal Justice Act 1987 s. 2), and Road Traffic Act 1988 s. 172 (2) a

person is required to give information. It may be that such powers

violate the ECHR (see Saunders v. UK (1997); R. v. Chauhan (2000)),

but this is not necessarily the case (see DSS v. Wilson (2001)).

21.3 Pre-Arrest Questioning

A police officer, just as any person, has the right to attract the

attention of any individual and, in doing so, may make reasonable

(i.e. trivial) physical contact (short of restraint) without incurring civil

liability for trespass to the person (Collins v. Wilcox (1984)). Questions

may be put to that individual but, in the absence of some specific

statutory provision (e.g. as under the Road Traffic Act 1972 or Terror-

ism Act 2000) there is no common law obligation to answer them (Rice

v. Connolly (1966)). If, however, a false story is concocted by that

person, it could amount to the offence of obstruction of a police officer

under s. 51 (3) of the Police Act 1964. Short of lawful arrest, the police

enjoy no common law power to detain for the purposes of questioning

(Kenlin v. Gardiner (1967)). If the questioning elicits sufficient informa-

tion to suspect the individual of committing an arrestable offence, it

then becomes an interview and the suspect must be cautioned and the

subsequent dialogue noted down.

21.4 Stop and Search

Stop and search is traditionally a contentious issue and is often viewed

as a provocative, random and unproductive aspect of policing. It is

nevertheless prized by the police for its alleged deterrence value. On a

practical level, the appeal to the police officer is that such powers

provide the opportunity to establish the commission (or otherwise) of

an offence without making an arrest and on the basis of intangible

520 General Principles of Constitutional and Administrative Law

suspicion rather than proof. The inherent danger is that their exercise

also offers scope for the potential harassment and victimisation of

individuals and may be easily directed at the law-abiding citizen. There

is much evidence suggesting that racial prejudice and stereotyping

influence who is likely to be stopped and searched.

Part I of PACE has to some extent recognised the dangers associ-

ated with pre-arrest stop and search and has attempted to keep the

exercise of such powers on a tight rein. Although creating for the first

time a national power to stop and search persons or vehicles for cer-

tain unlawful items, the Act (and also Code A) contains safeguards

and procedures which are specifically designed to protect the rights of

the citizen. This power is also subject to Art. 5 of the ECHR which

requires that a deprivation of liberty must be justified within the terms

of the Convention (see below).

In outline, the general power conferred by s. 1 allows a police officer

to stop and search any person or any attended or unattended vehicle,

in any place to which the public have access, if there are reasonable

grounds for suspecting that the officer will find stolen articles, equip-

ment to be used for theft, or weapons. This is echoed in Art. 5 (1) (c)

of the ECHR which permits the deprivation of liberty on reason-

able suspicion that the individual has committed a criminal offence.

As demonstrated in Murray v. UK (1994) the level of suspicion need not

be sufficient to justify the charging of the detainee with an offence.

Although the co-operation of the suspect should be sought in all cases,

reasonable force may be used if necessary, and as a last resort, to detain

and to search (A: 3.2). Any such items found may be seized (s. 1 (6)).

Note, however, the Terrorism Act 2000 which allows the police to

stop and search persons or vehicles in order to prevent terrorism with-

out any need for suspicion. All that is necessary is that an officer of at

least the rank of Assistant Chief Constable considers it ’expedient’ for

the prevention of terrorism.

21.4.1 Reasonable grounds for suspecting

Before considering s. 1 in more detail it is necessary to examine the

requirement of reasonable suspicion. This is of relevance not merely

to stop and search, but (alongside the concept of ‘reasonable belief ’)

represents a safeguard against arbitrary exercise applicable to many

other powers, including, for example, search, arrest and seeking a

warrant. While incapable of precise definition, it is clear that ‘suspicion

. . . is a state of conjecture or surmise where proof is lacking: ‘‘I suspect

but I cannot prove’’ ’ (per Lord Devlin (Hussein v. Chong Fook Kam

521

Police Powers of Arrest and Search in the Investigation of Crime

(1970))). The term ‘belief ’, however, imposes a higher degree of confi-

dence than ‘suspicion’ (Baker v. Oxford (1980)).

Not surprisingly, nowhere in the Act or Codes is any attempt made

to define these illusive terms. Nevertheless, some important guidance is

to be found within the revised Code A. It is made clear that the

existence of ‘reasonable suspicion’ will depend on the circumstances of

each case and, moreover, must be capable of objective evaluation

(A: 1.6). Mere instinct or hunch will not suffice and no power exists

which allows the police to stop and search in order to discover grounds

for suspicion (A: 2.1). There is, however, nothing which prevents an

officer questioning any person provided no compulsion is present

(A: 1B), and the grounds for justifying a subsequent restraint and

search can emerge from such voluntary questioning.

The grounds for a reasonable suspicion may arise from the nature of

the article thought to be carried, coupled with other factors such as,

for example, time, place and behaviour (A: 1.6). Situations which may

indicate the likelihood that an article of a certain kind will be found

are illustrated in the Code. These include where relevant informa-

tion has been received by that officer; where the suspect is behaving

covertly or warily or is attempting to hide something; or when the

individual is carrying a certain type of article at an unusual time or in a

known area of criminal activity (A: 1.6). In order to outlaw the crude

stereotyping of suspects, the Code makes it clear that the colour, dress,

appearance and previous convictions of a person are no justifications

for stop and search (A: 1.7). Nevertheless, it remains likely that such

matters will continue as operating factors in the initial suspicion of an

individual, and the cynic may fear that the police will persist with

broad categorisations of potential suspects and merely look harder for

objective reasons after the event so as to validate their actions. This is

a seemingly inevitable price to be paid for street policing. The targeting

of male members of the Black and Asian community would, however,

contravene Art. 14 of the ECHR. Article 14 requires that Convention

Rights (here against an unjustified deprivation of liberty) be enjoyed

without discrimination on any ground such as sex, race, colour,

language and religion.

21.4.2 Search under section 1

The stop and search may be initiated only for the purposes of detect-

ing ‘stolen or prohibited items’ or those items listed within s. 1 (8A).

For these purposes, a ‘stolen’ article will include any item dishonestly

obtained, whereas, a ‘prohibited article’ is either an offensive weapon

522 General Principles of Constitutional and Administrative Law

(i.e. something designed to injure or intended to do so) or an item

designed or intended for use for stealing, burglary, deception or taking

a motor vehicle (s. 1 (7) (a), (b)). This enables the police to carry out a

search for a flick knife, jemmy, picklock or bunch of duplicate car

keys, for example. The additional basis for stop and search concerns

an article, other than a pocket knife, which has a blade or is sharp-

pointed or a pocket knife where the cutting edge of the blade exceeds

three inches. These latter items need not be ‘offensive’ or ‘made or

adapted’ for committing a criminal offence.

The stop and search power may be exercised in any place where

the public have access, whether as of right (the highway, public park

or public toilet, for example), or by virtue of express or implied per-

mission (for example, cinema, pub car park or private grounds); or

any other place (except a dwelling) where people have ready access

(an unfenced building site or open frontage to an industrial unit, for

example). Although a search of a dwelling is not allowed under s. 1,

someone who is in the yard or garden of a dwelling may be searched if

the constable does not reasonably believe that person to be the resident

or a guest of the resident. Except for the stopping of a moving vehicle

(s. 2 (9) (b)), there is no requirement that the officer be in uniform.