Commons briefing on policing powers

In October 2021, the Commons Library, which is an impartial research and information service for MPs and their staff, published a briefing paper introducing a series on police powers. Given the urgent need for political scrutiny of the circumstances and policing culture which led to the blatant abuse of police powers by Wayne Couzens, Deniz Jaffer and Jamie Lewis, and others, the timing is apposite.

The briefing paper makes the obvious point that at its core, the duty of the police is to protect the public by detecting and preventing crime, a duty which is established as a matter of common law. The police also have both common law and legislative powers to exercise this duty.

The paper refers to the fact that the use of police powers must be compatible with human rights and equalities legislation. It states that members of the police are individually responsible for ensuring that their use of their special powers is lawful, proportionate, and necessary. However, the paper does not appear to make explicit that what also follows from this, is that the police also have the duty to uphold the rights of suspects. For example, The Code of Practice issued under section 23(1) of the Criminal Procedure and Investigations Act 1996 states that they must look for evidence which points both towards and away from the suspect.

Misuse of powers

The paper explains that where an officer’s misconduct amounts to a criminal offence, the officer may be charged and tried in the normal way through the criminal justice system. It goes on to say that misuse by the police of their powers does not necessarily amount to a criminal offence, but may instead amount to a failure to uphold the policing standards of professional behaviour. Officers can be held accountable through the making of a police complaint and resulting misconduct proceedings, and any misuse of powers may be challenged through civil proceedings. What the paper does not make clear, is that as a matter of criminal procedure, in certain circumstances, evidence obtained in breach of procedure may also be rendered inadmissible in a criminal trial.

Investigation powers of the police

The power to investigate crime is heavily regulated by several pieces of statute, notably the Police and Criminal Evidence Act 1984 (PACE) and the PACE Codes A to H, Investigatory Powers Act 2016 (IPA), and the Regulation of Investigatory Powers Act 2000 (RIPA).

How does PACE regulate police powers?

The paper recaps that PACE regulates police powers to:

1. Arrest, detain, question and take the biometric details of a suspect
2. Enter private property, search it and seize evidence
3. Stop and search

Arrest

The paper sets out that Section 24 PACE provides the police with the power to arrest those they suspect have committed or are committing a crime, when it is necessary. Under Section 24, an arrest may be necessary if it is required to ascertain the name and address of the suspect, protect the vulnerable, prevent injury or damage to property, or support the prompt investigation or prosecution of an offence.

Detention

Police may detain those they have arrested without charge. Once detained, the police can question a suspect and collect their biometric information. The detention of a suspect is subject to time limits, and most suspects can only be detained without charge for up to 24 hours. Those arrested for serious offences may be detained without charge for up to four days, if authorised by senior officers and the courts.

Suspects who are not charged in custody are normally ‘released under investigation’ (RUI), but can be bailed when it is proportionate and necessary to do so. Bailed suspects are required to report to the police at intervals whilst the investigation continues. The police may attach certain conditions to a suspect’s bail.

RUI was brought in some years ago, to deal with the hugely lengthy time suspects often had to wait before any decision was made as to whether or not the police would charge a suspect or take no further action. However, this failed to address the issue and in fact, had the opposite effect. As a result, the use of bail and RUI are now currently under review again by the Home Office – it is not known when this review will be completed or how the law may change once again.

When can the police stop and search?

The police’s stop and search powers allow them to ‘allay or confirm suspicions about individuals without exercising their powers of arrest.’ There are three types of stop and search powers:

1. Powers which require officers to have ‘reasonable grounds’ to conduct the search
2. A power which allows officers to search without reasonable grounds (known as a s.60). This can only be used when authorised by a senior officer based on certain pre-conditions
3. A power to search those that police officers reasonably suspect are terrorists

Under a s.60 stop and search, uniformed police officers can stop and search anyone who is in a specific area designated by a senior officer, regardless of whether the officer reasonably believes that the individual has a prohibited item, provided certain ‘pre-conditions’ are met. These pre-conditions are:

1. Incidents involving serious violence may take place in a locality and it is expedient to give authorisation
2. An incident involving serious violence has taken place, the weapon used is in a locality and it is expedient to give authorization to find it
3. People are carrying dangerous instruments or offensive weapons in a locality

IPA

The IPA regulates police powers to acquire ‘communications data’. Communications data and the content of it can be acquired through the following means:

1. The Office for Communications Data Authorisations can grant any police force access to communications data
2. Certain police forces can obtain a warrant from the Secretary of State to intercept communications and see their content
3. Chief officers can issue warrants to their officers which authorises them to ‘hack’ the equipment of those suspected of serious crimes, or to ‘bug’ their property

What is the RIPA?

RIPA establishes the legislative framework for covert human intelligence sources by public authorities, including the police, the security and intelligence services and customs officials.

Prevention powers

The police’s power to prevent crime is derived from their common law duty to protect the public and ‘maintain the Queen’s peace’. The police can also prevent disorder associated with protect, trespass and anti-social behaviour.

Breach of the peace

For example, officers can request someone leave an area or enforce a cordon in order to prevent a breach of the peace. It is generally accepted that a ‘breach of the peace’ (which is a common law concept, and therefore undefined) occurs when someone or their property is, or is likely to be, harmed, or a person is in fear of being harmed.

The threat of a breach must be immediate to justify an arrest. A breach of the peace is not an offence, and so those arrested for it cannot be charged but they may still be held on remand.

When can the police use of force?

The police can use proportionate and necessary force in the course of their duties. They must only use force to the extent that it is necessary, proportionate and reasonable in all the circumstances. They must use the minimum amount of force necessary to achieve the required result, and they must be able to account for their use of force.

Police orders

The police can apply for certain orders, including:

• Sexual Risk Orders (SROs)
• Slavery and Trafficking Prevention Orders (STPOs)
• Slavery and Trafficking Risk Orders (STROs)
• Football Banning Orders (FBOs)
• Injunctions such as gang injunctions

Disposal

The paper describes the police powers to ‘dispose’ of certain cases. They can either charge an individual or issue an ‘out of court’ disposal.

Charging

The police can charge suspects where they believe there is sufficient evidence to secure a realistic prospect of conviction and that the prosecution is in the public interest. The CPS prosecutes cases charged by the police.

Out of court disposals

The police can issue an out of court disposal where a case is not in the public interest to charge. The police can issue:

1. Cautions: a formal warning for an offence; conditional cautions require offenders to meet certain conditions
2. Community Resolutions: where the accused agrees to undertake certain activities designed to rehabilitate, punish or provide reparation
3. Fixed Penalty Notices: where an accused can avoid court proceedings by paying a fine