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p. 21215. Police powers, public order, and terrorismfree

p. 21215. Police powers, public order, and terrorismfree

  • Colin FaragherColin FaragherFormerly Senior Lecturer in Law, University of West London

Abstract

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter discusses the law on police powers. These include the role of the police, the organization of the police in England and Wales, police areas, the powers and functions of Police and Crime Commissioners, the Mayor’s Office for Policing and crime in London, the Police and Criminal Evidence Act 1984 and its Codes of Practice, which contain rules concerning police powers of stop, search, entry, seizure of property, arrest, detention, and treatment of suspects; the meanings of reasonable suspicion and public place, and information which must be given on arrest.

Key facts

Police officers detect and prevent crime, bring offenders to justice, keep the peace, and protect people and their property from injury and damage.

The Police and Criminal Evidence Act 1984, as amended, and its Codes of Practice, contain rules concerning police powers of stop, search, entry, seizure of property, arrest, detention, and treatment of suspects.

The Public Order Act 1986 concerns the control of protests and assemblies.

Police powers contained in the 1986 Act were extended by the Criminal Justice and Public Order Act 1994 and the Anti-social Behaviour Act 2003.

The Serious Organised Crime and Police Act 2005 made important changes to the rules governing powers of arrest and introduced further restrictions to the right to protest in parts of Central London.

The Terrorism Act 2000 introduced comprehensive counter-terrorist measures throughout the UK.

The Anti-terrorism Crime and Security Act 2001 focuses on terrorist funding, intelligence gathering, immigration, and the elimination of organized crime.

The Terrorism Act 2006 extends the law further.

Revision tip

You should aim to be able to map out an outline framework of police powers, public order, and the prevention of terrorism before attempting to learn the detailed rules.

p. 213Police powers

The role of the police was explained by Lord Steyn in the House of Lords’ decision in Brooks v Commissioner of Police of the Metropolis (2005) at 1509. He said that the prime function of the police is the preservation of the Queen’s peace. The police must concentrate on preventing the commission of crime; protecting life and property; and apprehending criminals and preserving evidence. The organization of the police in England and Wales is contained in the Police Act 1996 as amended by the Police Reform Act 2002 and the Police Reform and Social Responsibility Act 2011. Under current statutory provisions a police force is maintained within each police area. The Police Reform and Social Responsibility Act 2011 provides that police areas outside London will have a directly elected Police and Crime Commissioner and local policing bodies or panels. In London this role is carried out by the Mayor of London supported by the Mayor’s Office for Policing and Crime. Chapter 3 Police Reform and Social Responsibility Act 2011 sets out the functions of elected local policing bodies. The Police and Crime Commissioner for a police area and, in London, the Mayor’s Office for Policing and Crime, must publish and have regard to an annual police and crime plan which sets out the body’s police and crime objectives and how policing will be carried out in their area. The elected local policing body for a police area may also make a crime and disorder reduction grant to any person. The 2011 Act also obliges local policing bodies to publish progress reports on what they are doing and obtain the views of the community on policing. Police forces outside London are organized under the direction of a chief constable and a deputy or assistant chief constable. The other ranks, which may be held in a police force, are superintendent, inspector, sergeant, and constable. The creation of additional ranks may be made by regulation. A police force may employ civilians to assist the police force to discharge its functions. London is composed of the Metropolitan Police District and the City of London Police Area. The Metropolitan Police is headed by the Commissioner of Police of the Metropolis. Section 56 London Police Act 1839 empowers the Common Council of the City of London to set up a police committee for the purpose of exercising such powers in connection with the police as the Common Council delegates to it. The City of London Police is led by the Commissioner of Police of the City of London.

The Police and Criminal Evidence Act 1984 (PACE), as amended, and the Codes of Practice made under it contain rules concerning stop and search (ss 1–7); entry, search, and seizure of property (ss 8–23); arrest (ss 24–33); detention (ss 34–51); and treatment of suspects (ss 53–65).

p. 214The Codes of Practice

Code A deals with stop and search powers prior to making an arrest. Code B deals with the power to enter and search premises and seize property. Code C concerns detention, treatment, and questioning of non-terrorist suspects. Code D deals with identification of wanted persons and the keeping of accurate and reliable criminal records. Code E deals with the tape recording of interviews with suspects in the police station. Code F deals with the visual recording with sound of interviews with suspects. Code G deals with powers of arrest. Code H sets out the requirements for the detention, treatment, and questioning of suspects related to terrorism in police custody.

Revision tip

When learning police powers under PACE you should adopt a chronological approach starting with the point of first contact and ending with the decision of the police either to charge or release a suspect.

Stop and search

Acting on reasonable suspicion a police officer may stop and search anyone in order find stolen goods, drugs, an offensive weapon, any article made or adapted for use in certain offences, for example a burglary or theft, knives, or any items which could damage or destroy property. This includes spray-paint cans. A police officer may use reasonable force if the person being searched will not cooperate. Force, however, should be used only as a last resort.

In R v Bristol (Christopher) (2007) the Court of Appeal had to decide whether a drug search was unlawful because the police officer failed, before commencing the search, to take the reasonable steps required by s 2 PACE. This section requires a police constable to give their name and the name of the police station to which they are attached. The Court of Appeal held that the search was unlawful and the conviction was quashed.

The power to enter and search premises

Police officers may enter and search premises if they have obtained a search warrant, or have a statutory right to enter and search, or have obtained the permission of the owner or occupier.

If they have a search warrant, the police must search the premises at a reasonable hour and, if the owner is in occupation, with their cooperation. When they seek entry to any private premises, the police officers must identify themselves (and, if they are not in uniform, show their warrant card) and explain why they want to search, the rights of the occupier, and whether the search is made with a search warrant or not. Having obtained a search warrant the police may force entry if: the occupier has refused entry, it is impossible to communicate p. 215with the occupier, the occupier is absent, the premises are unoccupied, or they have reasonable grounds for believing that if they do not force entry it would hinder the search or someone would be placed in danger.

Police officers have statutory authority to enter private premises without a warrant in order to deal with a breach of the peace or prevent it, enforce an arrest warrant, arrest a person in connection with certain offences, recapture someone who has escaped from custody, or save life or prevent serious damage to property. Unless entering premises to save life or protect property, a police officer must have reasonable grounds to believe that the person for whom they are searching is there. Police officers may search premises occupied by an arrested person or visited by an arrested person during or immediately prior to their arrest. The police must reasonably believe that they might find evidence connected with the crime an arrested person is accused of committing.

Seizure of property

Police officers should seize goods only if they have reasonable grounds to believe that the goods have been obtained illegally or are evidence in relation to an offence. The police must also have reasonable grounds to believe that it is necessary to seize the goods to prevent them being lost, stolen, or destroyed.

Arrest

If a private citizen arrests anyone, they must inform the arrested person of the charge or the crime they are suspected of having committed. A police officer arresting someone without warrant must tell the arrested person the charge upon which the arrest is being made or the facts which are said to constitute the crime they are alleged to have committed.

This information must be given to the person being arrested at the time of their arrest or at the first reasonable opportunity after the arrest. This was determined by the House of Lords in Christie v Leachinsky (1947).

Police officers can arrest a person if they have a warrant. They may arrest a person without warrant if they have reasonable grounds to suspect that the person being arrested has committed certain offences; is committing certain offences; is about to commit certain offences.

The Serious Organised Crime and Police Act 2005 gives police officers the power to arrest a person to find out the person’s name and address. A person may also be arrested to prevent them causing physical injury to themselves or any other person; suffering physical injury; causing loss of or damage to property; committing an offence against public decency; or causing an unlawful obstruction of the highway. Police officers may also make an arrest in order to protect a child or other vulnerable person; allow the prompt and effective investigation of the offence the arrested person is suspected of committing or the conduct which has prompted their arrest; and prevent any prosecution for the offence from being hindered by the disappearance of the person being arrested.

p. 216Detention

At the police station, the arrested person has the right to: inform someone of their arrest, seek legal advice, and examine and read the Codes of Practice.

Limits to detention

Nobody should be detained for longer than 24 hours without charge. A police officer with the rank of superintendent (or above) can authorize detention for a further 12 hours. Magistrates can authorize further detentions up to a maximum of 96 hours. Once charged, if a person is still in detention they should be brought before the magistrates the next day (but not on Christmas Day, Good Friday, or any Sunday). At the time of writing, if a person is arrested as a suspected terrorist, different rules apply. A judge can authorize continued detention, in stages, for up to 28 days.

R (on the application of G) v Chief Constable of West Yorkshire [2008] 1 WLR 550

The question was whether a custody officer was entitled to detain an arrested person whilst they sought guidance from the Crown Prosecution Service under s 37A PACE on how to proceed with the charges.

The Court of Appeal held that s 37(7) PACE deals comprehensively with the alternatives available to a custody officer. These do not include a power to postpone the charging decision for the purpose of obtaining advice from the Crown Prosecution Service without admitting the suspect to bail. Such a power cannot be inferred by reference to guidance issued by the Director of Public Prosecutions. G’s detention without charge was illegal.

Public order

Revision tip

At this stage in your revision you should link police powers and public order with the human rights principles discussed in Chapter 14. There are also ‘rule of law’ implications to this topic which link up with material discussed in Chapter 3. You should now take time to consider the material you revised in these chapters. Doing this will help you when answering essay questions in the examination.

The relevant statutes are the Public Order Act 1986, the Criminal Justice and Public Order Act 1994, the Anti-social Behaviour Act 2003, and the Serious Organised Crime and Police Act 2005.

Public Order Act 1986 as amended

Section 11 requires at least six clear days’ written notice to be given to the police before most public processions, including details of the intended time and route, and giving the name and address of at least one person proposing to organize it. Sections 12–14 give police power to p. 217impose conditions on processions ‘to prevent serious public disorder, serious criminal damage or serious disruption to the life of the community’; ban public processions for up to three months by applying to the local authority for a banning order which needs subsequent confirmation from the Home Secretary; impose conditions on assemblies ‘to prevent serious public disorder, serious criminal damage or serious disruption to the life of the community’. The conditions are limited to specifying the number of people who may take part, the location of the assembly, and its maximum duration.

Criminal Justice and Public Order Act 1994

Sections 34–39 substantially changed the right to silence of an accused person, allowing for inferences to be drawn from their silence. Sections 54–59 gave the police greater rights to take and retain intimate body samples. Section 60 increased police powers of unsupervised ‘stop and search’. Section 70 prohibited trespassory assemblies.

Anti-social Behaviour Act 2003

Section 57 amends the definition of public assembly in s 16 Public Order Act 1986 from ‘20 or more persons’ to ‘2 or more persons’. Section 58 amends s 63 Criminal Justice and Public Order Act 1994 to extend it to cover raves where 20 or more persons are present. Section 59 amends ss 68 and 69 Criminal Justice and Public Order Act 1994. Aggravated trespass covers trespass in buildings, as well as in the open air. Section 60 inserts a new s 62A into the Criminal Justice and Public Order Act 1994. A senior police officer may direct a person to leave land and remove any vehicle or other property with him.

Serious Organised Crime and Police Act 2005

Apart from changing the rules governing arrest this Act created an exclusion zone of one kilometre from any point in Parliament Square within which the right to demonstrate is restricted. Trafalgar Square is not included. Demonstrators must apply to the Metropolitan Police Commissioner six days in advance, or if this is not reasonably practicable then no less than 24 hours in advance.

Austin v Commissioner of Police of the Metropolis [2007] Ewca Civ 989

The Court of Appeal had to decide whether the police had been justified in depriving the claimants of their liberty, by cordoning them within an area for seven hours along with over 1,000 protestors, on the ground that it was necessary to prevent a breach of the peace.

In extreme and exceptional circumstances it is lawful for the police to contain demonstrators and members of the public caught up in that demonstration, even though they themselves do not appear to be about to commit a breach of the peace, where it is necessary to prevent an imminent breach of the peace by others, and no other means would achieve that.

Looking for extra marks?

Police powers and public order are highly controversial subjects which have given rise to a great deal of academic argument. Some of these arguments are contained in articles referred to in the Key debates section at the end of this chapter. As essay questions, in particular, require you to demonstrate evidence of wider reading, you should read these articles, as well as those recommended in your course materials, and your recommended standard textbook.

p. 218Terrorism

Revision tip

This topic not only links up with human rights and the rule of law, as do police powers and public order, but also with separation of powers considered in Chapter 4. You should now reconsider the issues discussed in Chapter 3. This will help you to answer any essay question which focuses on the relationship between the executive and the judiciary or the nature and extent of judicial independence.

According to s 1 Terrorism Act 2000 as amended by the Terrorism Act 2006, terrorism means the use or threat of action involving serious violence against a person; or serious damage to property; or danger to life; or a serious risk to the health and safety of the public; or interference with an electronic system.

The use or threat of action must be designed to influence the government or an international governmental organization or to intimidate the public or a section of the public. The use or threat of action must be made for the purpose of advancing a political, religious, or ideological cause.

The Terrorism Act 2000 made it illegal for certain terrorist groups to operate in the UK. The groups listed are called proscribed organizations and include international terrorist groups. The police were given greater powers to help prevent and investigate terrorism, including wider stop and search powers; and the power to detain suspects after arrest for up to 28 days (periods of more than two days must be approved by a magistrate). This period was extended to 28 days under the Terrorism Act 2006. A number of new offences were introduced allowing the police to arrest people suspected of inciting terrorist acts or seeking or providing training for terrorist purposes at home or overseas and providing instruction or training in the use of firearms, explosives, or chemical, biological, or nuclear weapons.

The Anti-terrorism, Crime and Security Act 2001 aimed to cut off terrorist funding; ensure that government departments and agencies can collect and share information required for countering the terrorist threat; streamline relevant immigration procedures; ensure the security of the nuclear and aviation industries; improve security of dangerous substances that may be targeted/used by terrorists; extend police powers available to relevant forces; and ensure that we can meet our European obligations in the area of police and judicial cooperation and our international obligations to counter bribery and corruption.

p. 219

Revision tip

The measures enacted by the 2001 Act were considered by the House of Lords in A v Secretary of State for the Home Department (2005).

The Prevention of Terrorism Act 2005 introduced control orders, which impose conditions on where a person can go and what they can do. These must be signed by the Home Secretary and confirmed by a judge within seven days. A control order may impose conditions banning possession or use of specified articles or substances; prohibiting the use of certain services, such as the internet or phones; restricting work or business; restricting association or communication with certain individuals, or other people generally; restricting the person’s place of residence or who is allowed into the premises; requiring the person to be at specified places or in a particular area at certain times or days; and restricting movements within the UK or international travel.

A control order may also contain a specific 24-hour ban on movements and requirements to surrender a passport; give access to specified people to their home; allow officials to search their home; let officials remove items from premises for tests; be monitored by electronic tagging or other means; provide information to an official on demand; and report at a specified time and place.

Secretary of State for the Home Department v JJ [2007] UKHL 45, Secretary of State for the Home Department v MB [2007] UKHL 46, Secretary of State for the Home Department v E [2007] UKHL 47

In all three cases, the House of Lords had to consider whether the obligations placed upon the appellants breached their rights under Art 5 European Convention on Human Rights (ECHR); compliance with the Secretary of State’s duty under s 8(2) HRA 1998 was a condition precedent to the making of an order; and, a control order constituted a criminal charge for the purposes of Art 6 ECHR; and procedures which allowed reliance on undisclosed material breached Art 6. The House of Lords determined, in these cases, that control orders must be subject to ‘civil fair trial procedure’, which has been breached in some cases by the ‘special advocate procedure’. This procedure allows the government to release sensitive information to terror suspects’ security-screened lawyers, on the condition that this information is not passed on to the suspect. Moreover, the Law Lords ruled that control orders do not constitute a criminal penalty and hence do not engage the much stricter requirements of ‘criminal fair trial procedure’. The cases were referred back to the High Court.

The Terrorism Act 2006 creates new offences including the following: acts preparatory to terrorism; incitement or encouragement to terrorism; dissemination of terrorist publications; terrorist training offences. The Terrorism Act 2006 also makes amendments to existing legislation, including introducing warrants to enable the police to search any property owned or controlled by a terrorist suspect; extending terrorism stop and search powers to cover bays and estuaries; extending police powers to detain suspects after arrest for up to 28 days (though periods of more than two days must be approved by a judicial authority); improved search powers at ports; and increased flexibility of the proscription regime, including the power to proscribe groups that glorify terrorism.

p. 220The Counter-Terrorism Act 2008

The Counter-Terrorism Act 2008 amends the law on terrorism in a number of ways. Its provisions affect the gathering and sharing of information for, among other things, counter-terrorist purposes. This includes the disclosure and sharing of information by and with the security services. It also makes provisions relating to the post-charge questioning of terrorism suspects, the prosecution and sentencing of those charged with terrorism offences, the financial aspects of terrorism, sensitive information, and the creation of new powers and offences relating to terrorism.

The Counter-Terrorism and Security Act 2015

This Act:

strengthens the legal powers and capabilities of law enforcement and intelligence agencies to disrupt terrorism and prevent individuals from being radicalized;

ensures that the law enforcement and intelligence agencies can disrupt the ability of people to travel abroad to fight, and control their return to the UK;

enhances operational capabilities to monitor and control the actions of those in the UK who pose a threat, and helps to combat the underlying ideology that supports terrorism.

This Act forms part of the CONTEST strategy, the aims of which are to:

pursue: the investigation and disruption of terrorist attacks;

prevent: work to stop people becoming terrorists or supporting terrorism and extremism;

protect: improving our protective security to stop a terrorist attack; and

prepare: working to minimize the impact of an attack and to recover from it as quickly as possible.

Table 15.1 The measures introduced by the Act

TRAVEL

TPIMS

COMMUNICATION

BORDER CONTROL

IDEOLOGY

INSURANCE

The Act places temporary restrictions on travel where a person is suspected of involvement in terrorism.

The Act enhances existing Terrorism Prevention and Investigation Measures.

The Act enhances law enforcement agencies’ ability to investigate terrorism and serious crime by extending the retention of relevant communications data to include data that will help to identify who is responsible for sending a communication on the internet or accessing an internet communications service.

The Act strengthens security arrangements in relation to the border and to aviation, maritime, and rail transport.

The Act reduces the risk of people being drawn into terrorism, by enhancing the programmes that combat the underlying ideology which supports terrorism through improved engagement from partner organizations and consistency of delivery.

The Act amends existing terrorism legislation to clarify the law in relation to both insurance payments made in response to terrorist demands and the power to examine goods under the Terrorism Act 2000.

In addition the Act strengthens the independent oversight arrangements for UK counter-terrorism legislation by extending the statutory remit of the Independent Reviewer of Terrorism Legislation and enabling a more flexible reporting schedule, and by providing for the creation of a Privacy and Civil Liberties Board which will support the Independent Reviewer to discharge their statutory functions.

Looking for extra marks?

This is a topic which has generated a huge debate, specific aspects of which may be examined as essay questions. As with other aspects of this topic, you should follow up your reading of this chapter with accounts of this debate in your recommended standard textbook and other materials recommended in the Key debates section.

p. 221Key cases

CASE

FACTS

PRINCIPLE

A v Secretary of State for the Home Department [2005] 2 AC 68

The House of Lords had to decide whether s 23 Anti-terrorism, Crime and Security Act 2001 was compatible with Convention rights incorporated by the Human Rights Act 1998.

The House of Lords stated and applied the following principles:

1. personal liberty is among the most fundamental of rights;

2. although national security is a matter of political judgement for the executive and Parliament, a court is required, when Convention rights are in issue, to give effective protection by adopting an intensive review of whether such a right has been impugned; and

3. the courts are not precluded by any doctrine of deference from examining the proportionality of a measure taken to restrict such a right.

Austin v Commissioner of Police of the Metropolis [2007] EWCA Civ 989

The Court of Appeal had to decide whether the police had been justified in depriving the claimants of their liberty, by cordoning them within an area for seven hours along with over 1,000 protestors, on the ground that it was necessary to prevent a breach of the peace.

In extreme and exceptional circumstances it is lawful for the police to contain demonstrators and members of the public caught up in a demonstration even though they themselves do not appear to be about to commit a breach of the peace, where it is necessary to prevent an imminent breach of the peace by others, and no other means would achieve that.

p. 222R (on the application of G) v Chief Constable of West Yorkshire [2008] 1 WLR 550

The question was whether a custody officer was entitled to detain an arrestee whilst he sought guidance from the Crown Prosecution Service under s 37A PACE on how to proceed with the charges.

Section 37(7) PACE dealt comprehensively with the alternatives available to a custody officer who had determined that he had before him sufficient evidence to charge an arrested person; that those alternatives did not include a power to postpone the charging decision for the purpose of obtaining advice from the Crown Prosecution Service without admitting the suspect to bail; that such a power could not be inferred by reference to guidance issued by the Director of Public Prosecutions under s 37A, which was not referred to in s 37(7) which was required to be consistent with and limited by the alternatives found in that subsection.

Key debates

Topic

‘Terrorism: Prevention of Terrorism Act 2005 ss. 2 and 3—Non-derogating Control Order—Whether “Deprivation of Liberty” under Article 5 European Convention on Human Rights’

Author/Academic

Clive Walker

Viewpoint

Comments on three House of Lords’ decisions on issues raised about non-derogating control orders made under ss 2 and 3 Prevention of Terrorism Act 2005.

Source

[2008] Criminal Law Review 486–503

Topic

‘The Widening Gyre: Counter-terrorism, Human Rights and the Rule of Law’

Author/Academic

Arthur Chaskalson

Viewpoint

Examines the parallels between some counter-terrorism measures introduced around the world in the wake of the US attacks of September 11, 2001 and the legal regime introduced in South Africa to support the policy of apartheid.

Source

(2008) 67 Cambridge Law Journal 69–91

Topic

‘Evidence and Procedure: Pre-charge Detention’

Author/Academic

Case comment

Viewpoint

Notes the Court of Appeal decision in R (on the application of G) v Chief Constable of West Yorkshire (2008).

Source

(2008) 8 Criminal Law Week 1–3

p. 223Topic

‘Evidence and Procedure: Stop and Search’

Author/Academic

Case comment

Viewpoint

Reports of the Court of Appeal decision in R v Bristol (Christopher) (2007).

Source

(2008) 3 Criminal Law Week 1–2

Topic

‘May Day, May Day: Policing Protest’

Author/Academic

ATH Smith

Viewpoint

Discusses the Court of Appeal decision in Austin v Commissioner of Police of the Metropolis (2007).

Source

(2008) 67 Cambridge Law Journal 10–12

Exam questions

Essay question 1

Explain the nature and extent of police powers to detain suspects and indicate how these powers are limited.

Essay question 2

Critically assess the effectiveness of the Serious Organised Crime and Police Act 2005 as a means of controlling protest in Central London.

Online Resources

This chapter is accompanied by a selection of online resources to help you with this topic, including:

Concentrate Q&As

For more questions and answers on public law, see the Concentrate Q&A: Public Law by Richard Clements.

Go to the end of this book to view sample pages.

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