It clear that such force can be used to secure entry to premises when

access is refused, the premises are unoccupied or there are reasonable

grounds for believing that communication would frustrate the object

of the search or endanger any person (B: 5.6). As the authority to

search carries with it an implied duty on the occupier to admit entry,

refusal will normally amount to an obstruction of the police in the

execution of their duty (Lunt v. DPP (1993)). Where the premises

have been entered by force, it is the responsibility of the officer in

charge to ensure that they are secure before leaving (B:5.12). This

can be achieved by arranging for the occupier to be present and,

thereby, discharging responsibility or by any other appropriate means

(e.g. boarding up windows).

21.7.4 Post-search records

Where premises have been searched (except when consent is not

required because it would cause disproportionate inconvenience to the

person concerned: B: 4.4), the officer in charge shall, on return to the

station, have compiled a record of the search (B: 7.1). This record must

identify the premises searched; the date, time and duration of the

search; the lawful basis for the search (i.e. the warrant, consent or

statutory power); except as regards terrorist investigations, the officers

who participated; whether (and if so why) force was used and the

extent of any damage caused to the premises; and a list of any articles

seized. If the search was under warrant, similar details must also be

endorsed on that warrant (B: 7.2).

At each subdivisional police station, a search register must be

maintained and all records required by Code B need to be entered or

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Police Powers of Arrest and Search in the Investigation of Crime

referred to in this register (B: 8.1). These records will assume a gen-

eral research importance and may also be used in evidence in any

proceedings.

21.8 ‘In the Station’: an Outline

It is beyond the scope of this chapter to explore in depth the statu-

tory provisions which regulate the reception, detention, accommoda-

tion and interrogation of the arrested person once inside the police

station. It should, however, be appreciated that PACE and Codes C,

D and E lay down detailed rules concerning the treatment and rights

of detainees. In recognition of the general theme that the exercise of

police powers should produce a minimum interference with the per-

sonal freedoms of the individual, these controls are designed to ensure

that detention time is kept to a minimum; that the detainee is treated in

a humane fashion; and that questioning is unoppressive and conducted

fairly. These safeguards appear consistent with Art. 3 and Art. 5 of the

ECHR. In order to achieve these ends, the powers of the police are

clarified, the suspect is to be given notification of his rights, interviews

will normally be tape recorded and there must be a documentary record

of actions taken (and the reasons why), with the key decisions being

reached (often on the basis of ‘reasonable grounds’) by senior officers

unconnected with the investigation. This is, at least the theory. In prac-

tice, legal advice is often delayed, the suspect is encouraged to talk in

the absence of a lawyer, and obtaining a guilty plea is plausibly the

driving force of police practice.

PACE requires that a custody officer (not below the rank of sergeant

and who also is unconnected with the investigation) takes responsibility

for the progress of the person through detention and maintains a

custody record which discloses much of what happens to that indi-

vidual while in the station. The suspect is allowed to view the Codes of

Practice and must have explained (orally and/or in written form) his

fundamental rights. Detailed rules govern the conditions of detention

and, for example, cells must be adequately heated, ventilated and clean;

at least two light meals and one main meal must be provided in every

24-hour period; access to toilet and washing facilities must be afforded;

and outdoor exercise should be permitted. The detainee should be

visited every hour and the continuing need for detention must also be

kept under regular review. The Criminal Justice and Police Act 2001

allows this review process to be undertaken by telephone or video con-

ferencing facilities. In the normal course of events, the arrested person

544 General Principles of Constitutional and Administrative Law

will not be detained more than 24 hours without being charged (s. 42).

In certain circumstances a superintendent may authorise an additional

12 hours’ detention in the case of a serious arrestable offence (s. 42).

Detention beyond this time must, however, be authorised by a magis-

trate who may grant a warrant of further detention for up to 36 hours

(s. 43). This warrant may be extended on subsequent application for

further periods until a total ceiling of 96 hours’ detention is reached

(s. 44 (2), (3)). During the period of detention, the arrested person is

given the fundamental rights to obtain legal advice (s. 58) and to notify

a third party of the arrest and the whereabouts of detention (s. 56). The

exercise of these rights may be delayed for up to 36 hours on strictly

delimited grounds, but only if the offence is of a serious arrestable

nature and the delay is authorised by an officer of at least the rank of

superintendent, (legal advice) or inspector (third-party notification).

Under the Anti-Terrorism, Crime and Security Act 2001, there are

increased powers to take fingerprints, to carry out a non-intimate body

search, to photograph suspects and to remove head coverings, all for

the purpose of identification.

Summary

21.1 Traditionally, in English law, the police were not regarded as having special

powers, but changes in society and the nature of crime necessitated that the

police became more organised and more effective. Today, the law (principally

statute law) recognises the need of law-enforcers to have clear and specific

powers to enable them to perform their functions and at the same time to

enable the individual to know his rights.

21.2 Current legislation deals with police powers to stop and search individuals

and vehicles, to make arrests and to carry out searches for the evidence of

crime. In exercising these powers the police are often allowed to act only on

the basis of reasonable suspicion or reasonable belief. The 1984 Act, and the

associated Codes of Practice, provide guidelines as to what can and cannot

constitute such suspicion or belief. In many respects the extent of police

powers will turn upon the seriousness of the offence under investigation and

the distinction between arrestable offences, non-arrestable ones and serious

arrestable offences.

21.3 It is now possible to be more certain as to whether an arrest or search is

lawful. Although redress following an unlawful exercise of these powers

remains essentially the same as before (i.e. a criminal prosecution or civil

action for trespass to the person or land), the admissibility of the Act and

Codes as evidence, coupled with individual records of searches and arrests

which are now to be compiled, greatly assists the individual in challenging

police action. Whether wrongful action on the part of the police will lead to an

exclusion, in a subsequent criminal trial of the suspect, of illegally or unfairly

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Police Powers of Arrest and Search in the Investigation of Crime

obtained evidence, remains, however, a matter for judicial discretion rather

than clear legal rules.

21.4 Whether PACE strikes the right ‘balance’ between police powers and indi-

vidual liberty is a meaningless question because these are incommensur-

ables. The real question is whether there is an accommodation that is broadly

acceptable to the community.

Further Reading

Feldman, Civil Liberties and Human Rights in England and Wales, chapter 5.

McCrudden and Chambers, Individual Rights and the Law in Britain, chapter 3.

Munday, R. (1996) ‘Inferences from silence and human rights law’, Criminal Law

Review, 370.

Sharpe (1997) ‘The European Convention, a suspect’s charter’, Criminal Law Review,

448.

Exercises

21.1 One night, PC Bell and PC Rogers, two patrolling police officers, are told by X,

a householder, that a burglar had just tried to enter her house but had run off

when X shouted at him. X’s house is 200 yards away from the point where X

spoke to the officers. X gets into the police car and is driven round the

neighbouring streets in search of the suspect. After five minutes, PC Bell sees

a man walking hurriedly along the pavement. ‘Is that him?’ Bell asks X. ‘I can’t

be sure. The burglar was roughly that height’, replies X. The police stop their

car and PC Bell approaches the man, Thompson. Bell asks him who he is and

where he is going, but Thompson replies ‘None of your business’, and moves

to get past PC Bell. At this time, PC Bell puts out an arm to stop him, but

Thompson pushes it away and walks on. PC Bell grabs him, saying ‘You’re

coming with me.’ Thompson asks ‘Am I under arrest?’ and PC Bell answers ‘It

certainly looks like it, doesn’t it?’ and pushes Thompson into the police car.

Nothing more is said until Thompson arrives at the police station where he is

interviewed. As a result of this interview, there emerge no grounds for

suspecting Thompson of being a burglar, but he is charged with assaulting PC

Bell in the execution of his duty. Discuss:

(i) the likelihood on these facts of Thompson being convicted,

(ii) whether Thompson could maintain an action for unlawful arrest, and

(iii) whether your answer to (ii) would be different if PC Bell had said to

Thompson: ‘I am arresting you on suspicion of burglary.’

21.2 Throughout January–April 2001, ‘The Biker’s Cafe’ was frequented by mem-

bers of motor-cycle groups, most of whom had long hair and leather jackets.

On three occasions, in April 2001, police found that several patrons of the cafe

were in possession of offensive weapons. In each case the person was a

long-haired motor-cyclist and sporting a leather jacket. On 1 May, Detective

Constable Bell visited the cafe and was not in uniform. He noticed Mick, a man

aged about 21 years, who was wearing a leather jacket, carrying a crash

helmet and had his hair tied back in a pony-tail. DC Bell observed that there

was a bulge in one of the pockets of Mick’s leather jacket and that the metallic