H418/03 - Police powers and individual rights

Stop and search

Police and Criminal Evidence Act 1984 (PACE) section 1 permits specified searches based on reasonable suspicion, not a general power to search anyone an officer dislikes.

A constable may search a person, vehicle or things in a vehicle, and detain them for the search, in the places covered by the section. These broadly include places to which the public has access and other readily accessible places excluding dwellings, with specific restrictions on residential gardens and land. The object must fall within the statutory categories, including stolen or prohibited articles. Prohibited articles include offensive weapons and articles made, adapted or intended for use in specified offences. Section 1 is not the universal source for all searches: drugs and some other situations have separate statutory powers.

The officer must genuinely suspect that a qualifying item will be found and have reasonable grounds for that suspicion. Suspicion is below proof of guilt but needs objective information relevant to the person and circumstances. PACE Code A excludes general stereotypes and previous convictions as suspicion grounds; combining such personal factors does not make them valid. A specific recent suspect description can contain physical details, but matching that description differs from stereotyping a group. Observed behaviour and reliable intelligence can also contribute; the question is what those facts reasonably suggest, not simply whether an officer feels uneasy.

Under sections 2–3 and Code A, the officer must give the reason and object, identify their name and station (with applicable safety-related code exceptions), explain the power and entitlement to a search record, and, if not in uniform, show documentary identification. A record is required unless impracticable, with a copy available under the applicable record rules. A public search cannot ordinarily require removal of more than outer coat, jacket and gloves; more intrusive searches have further safeguards and appropriate privacy. Search detention should last only as long as reasonably needed.

Original contrast: a shop reports a theft moments ago, gives a detailed description and describes a distinctive bag containing the stolen item. Matching those details nearby can support suspicion. Searching a person solely because they belong to an ethnic group or refuse to answer casual questions cannot supply Code A's reasonable grounds. A search is not an arrest or proof that an offence has been committed.

Arrest and necessity

PACE section 24 requires both an offence-related basis for arrest and reasonable grounds for believing arrest necessary for a specified reason.

A constable can arrest without a warrant a person committing or about to commit an offence, or reasonably suspected of doing so. Where an offence is suspected to have been committed, there must be reasonable grounds both for that suspicion and for suspecting the person arrested is guilty. Section 24 also covers the statutory cases where an offence has in fact been committed. The current rule is not limited to an old category of “arrestable offences”.

Even with an offence-related basis, necessity must be established. Section 24(5) lists reasons: ascertain a name or address where it cannot readily be established or is reasonably doubted; prevent specified injury, property damage, public-decency offences or unlawful highway obstruction; protect a child or vulnerable person; allow prompt and effective investigation; or prevent prosecution being hindered by disappearance. The public-decency ground has its own statutory condition concerning people unable reasonably to avoid the conduct. “We arrest everyone” is not an additional reason.

PACE Code G requires consideration of whether voluntary attendance is a practicable alternative to arrest for an interview. Reliable identity, an agreed prompt interview and no reason to anticipate obstruction can weaken necessity. Risk of intimidating witnesses, destroying evidence or disappearing may support it. The officer must connect the reason to the facts; repeating “prompt investigation” is not a complete explanation.

O'Hara v Chief Constable of the Royal Ulster Constabulary (decision 1996, reported 1997) concerned a different terrorism arrest provision. The House of Lords explained that the arresting officer must actually suspect and have objectively reasonable grounds based on information known to that officer. A briefing can provide grounds; a bare order does not automatically replace them. Use this principle by analogy when analysing reasonable suspicion, without presenting O'Hara as a PACE section 24 necessity decision.

PACE section 28 requires the person to be informed of the arrest and its grounds at the time or as soon as practicable, even where they seem obvious, subject to its impracticability exception for escape. Code G requires explanation of the necessity grounds as well. Information enables the person to understand and challenge the interference.

Original example: police reasonably suspect Ada of shop theft, know her verified address and arrange an interview that afternoon. With no identified evidence or attendance risk, arrest purely to make interviewing easier is difficult to justify. If credible information shows that she is about to destroy relevant records and flee, necessity becomes substantially stronger. Suspicion and necessity are separate findings.

Detention and review

Lawful arrest does not automatically justify keeping a suspect in custody for the maximum permitted period.

At the station, the custody officer decides under PACE section 37 whether sufficient evidence exists to charge. If not, detention requires reasonable grounds for believing it necessary to secure or preserve evidence or obtain evidence by questioning. Where the statutory basis no longer exists, the person must be dealt with under the applicable release or charge rules. Detention is an investigatory power with continuing conditions, not a punishment before conviction.

For ordinary non-terrorism PACE detention without charge, section 41 normally imposes a 24-hour maximum measured from the statutory relevant time. In an ordinary arrest followed by arrival at the first police station, this is usually arrival; voluntary attendance followed by arrest at the station and cross-area cases have specific rules. It is not invariably the moment of street arrest. Questions using a time calculation must identify the applicable relevant time.

Under section 42, an officer of superintendent rank or above can authorise detention up to 36 hours from the relevant time for an indictable offence if evidence-related necessity continues and the investigation is diligent and expeditious. It is not an extra 36 hours after the first 24. Magistrates may issue a section 43 warrant of further detention on the statutory grounds, for a period of at most 36 hours, and extend under section 44, subject to an overall maximum of 96 hours from the relevant time. Court involvement is not automatic permission to reach that maximum: evidence and continuing necessity are required.