Companion Website

Police Law 11th Edition

3. Police Powers

Chapter 3

Power to stop and search for the prevention of terrorism p 46

A chamber of the European Court of Human Rights has held that the process of stop and search under TA 2000, s 44 is contrary to the European Convention of Human Rights, Article 8, right to private and family life.

It held that, because police officers’ decisions about whether to stop and search someone are based solely on a human or professional intuistitution, there is a clear risk of arbitrariness. The concerns over s. 44 being so widely framed led the judges to draw attention to a serious risk of discrimination against members of ethnic minorities, and of misuse against demonstrators. [Gillrattan and Quinton v UK [2010] ECHR 4158/05].

Reasonable suspicion p 49

In the second line of the third paragraph, delete 'some generalisation stemming from'.

Record of search p 55

At the end of the material under this heading insert:

When an officer makes a record of the stop electronically, and he is able to provide a copy of the record at the time of the stop or the stop and search, the officer must do so. This means that if the officer has or has access to a portable printer for use with the electronic recording equipment, a copy of the record must be provided. If the officer is carrying a paper version of the record form, a record must be provided at the time of the incident. An officer carrying a paper version as a 'back-up' in case of technical breakdown in the electronic recording device which he has with him is not required to provide a written record if he is able to provide an electronic record.

An officer would not be required to produce anything other than a receipt if neither of these two scenarios are new, nor would he be required to provide a full record at the scene in the event that he was called to respond to an incident of higher priority. Where the person has been searched, the officer must explain how the person can obtain a full copy of the stop or stop or search record and give the person a receipt which contains:

1. a unique reference number and guidance on how to obtain a full copy of the stop or search;
2. the name of the officer who carried out the stop or search (unless para 4.4 applies); and
3. the power used to stop and search them. [Stop and Search Code as revised 1 January 2009]

Recording of encounters not governed by statutory powers p 57

The material under this heading should now read:

When an officer requests a person in a public place to account for himself, that is his actions, behaviour, presence in an area or possession of anything, a record of the encounter containing the person's self-defined ethnic background must be made. Officers must record the self-defined ethnicity of a person according to the categories listed in Annex B to the Stop and Search Code. Respondents should be asked to select one of the five main categories (white, mixed, Asian/Asian-British, Black/Black-British, Other) representing broad ethnic groups and then a more specific cultural background from within those categories specified under those headings. The ethnic classifications should be coded (using the code numbers provided in Annex B) for recording purposes using the coding system specified. An additional 'not-stated' box is available but should not be offered to respondents specifically. Officers should be aware and explain to members of the public, especially where concerns are raised, that this information is required to obtain a true picture of stop and search activity and to help improve ethnic monitoring, tackle discriminatory practice, and promote effective use of the powers. If the person gives what appears to the officer to be an incorrect answer, (eg a person who appears to be white states that he is black), the officer should record the response which has been given. Officers should also record their own perception of the ethnic background of every person stopped and this must be done by using the PNC/Phoenix classification system. If the not-stated category is used the reason for this must be recorded on the form. There is no power to require the person concerned to supply personal details. Where there is a refusal to declare a self-defined ethnic background the record should provide a description of the person's ethnic background. The record must identify the officer who has made the stop and conducted the encounter; but, where the officer reasonably believes that recording his names might endanger him, his warrant number or other identification number and duty station alone may be recorded; an officer need not identify himself by name in the case of inquiries related to a terrorist investigation or where he reasonably believes that it might endanger him to do so.

Unless there are exceptional circumstances making this wholly impracticable, such as in public order situations or where the officer is urgently required elsewhere, an officer who requests a person in a public place to account for himself must make the record at the time and give a receipt to the person at the time. (Officers must inform the person of his entitlement to a receipt.) Where such circumstances apply, a record should be made as soon as possible. A receipt of an encounter must always be made and must be given to the person at the time unless such exceptional circumstances apply.

When stopping a person in a vehicle a separate record or receipt does not need to be completed b y an officer when a form HO/RT 1, a Vehicle Defect Rectification Scheme Notice, or a fixed penalty notice is issued, nor does it apply when a preliminary specimen of breath is required under the Road Traffic Act 1988 (RTA 1988), s 6, or when stopping a person when a penalty notice is issued for an offence.

The above requirements do not apply to general conversations such as giving directions to a place or when seeking witnesses, nor does it include the seeking of general information or the questioning of people to establish background to incidents which have required intervention to maintain the peace or resolve a dispute.

Where the criteria for the issue of a receipt have not been met but a person requires one, a receipt should be provided but the officer should record the fact that the encounter did not meet the criteria. The officer may refuse to issue such a receipt if he reasonably believes that the purpose of the request is deliberately aimed at frustrating or delaying legitimate police activity.

All references to `officers' include police staff designated as community support officers. [Stop and Search Code as revised 1 January 2009]

Reasonable suspicion p 62

The Court of Appeal has emphasised that whether a police officer has reasonable grounds for suspicion depends on the information which he has, and that an officer instructed to arrest a person but without being given reasonable grounds to suspect that person’s guilt cannot assume that his superior who instructed him must have other information providing reasonable grounds which has not been disclosed to him. [Raissi v Metropolitan Police Commissioner [2008] ESWCA Civ 1237]

Arrest without warrant for fingerprinting p 69

PACE, s 27 is prospectively replaced by a new PACE, Sch 2A, added by the Crime and Security Act 2010, s 6. The details of the new provisions are included in the forthcoming twelfth edition of Police Law. If the new provisions are in implemented before its publication, they will be added to this website.

Search p 76

In relation to the provision discussed in the last paragraph of p77 and first paragraph of p 78, and the power to enter premises to effect and arrest, etc dealt with on pp 80 and 81 (see the second sentence of the ante-penultimate paragraph on p 81), a divisional court has stated that there is no decisive test to determine when a place of occupation is to be treated as divided into separate dwellings and that each case must be decided on its own facts, In the case in question, the bedrooms which homeless people had a licence to occupy for a day in a local authority hostel, each of which had a lock, were separate dwellings, because each licensee had a sufficient degree of exclusive possession. [Thomas v DPP Times 26 November 2009]

Entry to premises to effect an arrest, etc p 80

In relation to (h) in the third paragraph of the text under this heading a divisional court has pointed out that:

1. a constable entering and searching premises for the purpose of saving life and limb can enter without the permission of the occupant. The purpose of the provision is that entry is allowed without permission; there would be no point if consent were required;
2. the words 'life or limb' are wide enough to cover saving someone from himself as well as saving someone from a third party.

The court added that, although it is desirable for a constable to give reasons for exercising his powers of entry, there is no hard and fast rule to that effect. There is no need for a constable to give an occupant any such explanation where it is impossible, impracticable or undesirable. [Baker v CPS [2009] EWHC 299 (Admin)]

Requirement for issue of search warrant p 84

'Material' in PACE s, 8(1) is wide enough to include a computer and its hard disk. [R (or the application of Faisaltex Ltd) v Preston Crown Court [2008] EWHC 2832 (Admin)].

Retention p 98

Add after the first sentence of the first paragraph under this heading:

'"So long as is necessary" in PACE, s 22 means means so long as necessary for carrying out the purposes for which the powers of seizure (referred to pages 97 and 98 of the text) are conferred. [Scopelight Ltd v Chief Constable of Northumbria [2009] EWCA Civ 1156]'

Add at the end of the material under this heading:

'The police can retain property which they have seized after the Crown Prosecution Service has decided not to prosecute but a private prosecution by a public or private body is being contemplated or taking place.

The phrase in s 22 "anything which as been seized by a constable may be retained so long as is necessary in all the circumstances" requires the police to consider each case on its own individual facts, at each stage in the process of investigation and prosecution. If the CPS is prosecuting the case, whatever is required for forensic investigation or the prosecution will obviously be retained but, even then, consideration would have to be given to ensuring that no more than is necessary for the case, either to pursue it or to rebut a potential defence, is kept. If a prosecution is not to be pursued by the CPS but some other public or private body wishes to pursue a private prosecution, the relevant circumstances include, but are not limited to: the identity and motive of the potential prosecutor; the gravity of the allegation along with the reasoning behind the negative decision of the CPS and thus the extent to which, in this case, the public has a legitimate interest in the criminal prosecution ; the police view of the significance of what has been retained; and any material fact concerning the proposed defendant.' [Scopelight Ltd v Chief Constable of Northumbria [2009] EWCA Civ 1156]

Authorisation p 102

RIPA 2000, 29 is amended by the Policing and Crime Act 2000, s 8 as follows.

After the words, 'In addition' in line 5 in the first paragraph, there is added by the P&CA 2009, s 8 'in the case of a source other than a relevant collaborative unit'.

After the first paragraph on p 103, the P&CA 2009, s 8 results in the addition of the following:

'In addition, in the case of a source of a relevant collaborative unit, the designated officer must also believe that arrangements exist for the source's case that satisfy the following requirements:

1. that there will at all times be a qualifying person who will have day-to-day responsibility for dealing with the source, and for the source’s security and welfare;
2. that there will at all times be another qualifying person who will have general oversight of the use made of the source;
3. that there will at all times be a qualifying person who will have responsibility for maintaining a record of the use made of the source;
4. that the records relating to the source that are maintained by virtue of (c) will always contain particulars of all such matters (if any) as may be specified for these purposes in regulations made by the Secretary of State;
5. that records maintained by virtue of (c) that disclose the identity of the source will not be available to persons except to the extent that there is a need for access to them to be made available to those persons; and
6. that any other requirement imposed by the Secretary of State is satisfied.

For the above purposes, a person is a qualifying person if-

1. he holds office, rank or position with a police force whose chief officer of police is a party to a collaborative agreement of the type mentioned below, and
2. persons holding offices, ranks or positions with that force are permitted by the terms of the agreement to have the responsibility mentioned in (a) or (c) or the general oversight mentioned in (b) (as the case may require)

For the above purposes, a relevant collaborative unit is a unit consisting of two or more local police forces whose chief officers of police have made an agreement under the Police Act 1996 s 23(1)- which relates to the discharge by persons holding offices, ranks or positions with any of the forces of functions in connection with the conduct or use of the source.

Additional requirements before an authorisation is granted (or renewed) where matters subject to legal privilege are involved are made by the Regulation of Investigatory Powers (Covert Human Intelligence Sources : Matter Subject to Legal Privilege) Order 2010, SI 2010/123. They apply where any conduct that is, or is to be, authorised in an authorisation under RIPA 2000, s 29 consists in any activities involving conduct or a source, or the use of a source, to-

1. obtain matters subject to legal privilege;
2. provide access to any matters subject to legal privilege to another person; or
3. disclose matters subject to legal privilege.

An authorisation for such conduct must not be granted or renewed unless it satisfies the additional requirements set out below. Such conduct is referred to hereafter as 'specified conduct'.

For the purpose of the Regulations 'matters subject to legal privilege' means:

1. communications between a professional legal adviser and his client or any person representing his client which are made in connection with the giving of legal advice to the client;
2. communications between a professional legal adviser and his client or any person representing his client, or between a professional legal adviser or his client or any such representative and any other person, which are made in connection with or in contemplation of legal proceedings and for the purposes of such proceedings;
3. items enclosed with or referred to in communications of the kind mentioned in (a) or (b) and made in connection with the giving of legal advice, or in connection with or in contemplation of legal proceedings and for the purposes of such proceedings.

However, communications and items are not matters subject to legal privilege when they are in the possession of a person who is not entitled to possession of them, and communications and items held, or oral communications made, with the intention of furthering a criminal purpose are not matters subject to legal privilege.

Where a single authorisation under s 29 authorises conduct to which the Order applies and other conduct falling within RIPA 2000, Pt II, the additional requirements only apply in relation to those parts of the combined authorisation which authorise obtaining, giving access to, or disclosing, matters subject to legal privilege.'

The additional requirements are as follows:

Approving officer Where the person designated for the purposes of 29 is a member of any of the intelligence services; an official of the Ministry of Defence; an individual holding an office, rank or position in the Prison Service; or a member of Her Majesty’s forces, the approving officer for the purposes of RIPA 2000, Pt II is the Secretary of State. In any other case, the approving officer is an ordinary Surveillance Commissioner.

Notification Before a person grants or renews an authorisation for specified conduct, he must in accordance with arrangements made by the relevant approving officer, give or transmit electronically written notice to the approving officer, stating that the requisite approval is sought (see below) and including:

1. Where approval to grant an authorisation is sought:
1. the grounds on which he believes that the requirements for an authorisation referred to on p 102 of the text are satisfied and also his grounds for believing that an authorisation is necessary on grounds if it is necessary in the interests of national security; for the purpose of preventing or detecting serious crime; or in the interests of the economic well-being of the United Kingdom;
2. the specified conduct that is, or is to be, authorised by the authorisation;
3. the identity, where known, of the professional legal adviser and his client or any person representing his client, or of the professional legal adviser or his client or any such representative and any other person, to whom the activities of he covert human intelligence source relate;
4. the matters subject to legal privilege (to the extent known) to which the conduct to be authorised relates; and
5. whether the conduct is likely to result in the obtaining of private information about any person who is not specifically identified in the notice for the purposes of the investigation or operation.
2. Where a person gives notice seeking approval to renew an authorisation the notice to the approving officer must specify:
1. whether the authorisation is being renewed for the first time, or, where it has been previously renewed, each occasion on which it has been renewed;
2. the matters required by (i) as they apply at the time of the notice seeking approval to renew;
3. every respect (if any) in which the information contained in the previous notice under the notification provisions has changed.
4. the reason why it is considered necessary to renew the authorisation;
5. the content and value to the investigation or operation of the matters subject to legal privilege obtained from the conduct or the use of the covert human intelligence source in the period since the grant of the authorisation;
6. the results of any reviews of the use made of the source since the grant (or latest renewal) of the authorisation, the tasks given to the source during that period and the information gained from the source;
7. the period for which the authorisation is considered likely to continue to be necessary.

Approval required for grant or renewal of authorisations- An authorisation for conduct to which the Order applies must not be granted or renewed until-

1. it has been approved by the relevant approving officer, and
2. written notice of the approving officer’s decision to approve the grant or renewal of the authorisation has been given or transmitted electronically.

The approving officer must give his approval to the grant or renewal of the authorisation if, and only if, satisfied that there are reasonable grounds for believing that-

1. the authorisation is necessary: and
2. the requirements of proportionality and satisfactory arrangements which apply to authorisations are met.

Written notice of the decision must be given or transmitted electronically to the applicant as soon as reasonably practicable after the decision is made. Except in urgent intelligence services authorisations, the notice must be signed by the Secretary of State.

Duration Where an authorisation authorises conduct to which the Order applies, it has effect for:

1. six months in the case of an authorisation which was granted or renewed by a member of any of the intelligence services, and
2. three months in any other case,

except that an urgent intelligence services authorisation signed not by the Secretary of State, but by a senior official with his approval, and not renewed by the Secretary of State ceases to have effect at the end of the second working day of its grant.

Taking photographs of demonstrators or activists, etc p 110

Insert at end of text:

'Where the police take and retain photographs of persons such as demonstrators or activists, etc. who are not committing or suspected of committing any offence, this may involve an infringement of the European Convention on Human Rights, Article 8. Whether or not it does so depends on the facts of the case and whether the measures taken are proportionate to any legitimate aims that the police may be pursuing.' [R on the application of Wood) v Metropolitan Police Commissioner [2009] EWCA Civ 414]

IDENTITY CARDS p 107

Substitute the following for the final paragraph under this heading which appears on p 108:

With a couple of exceptions, the provisions of the ICA 2006, including ss 25-29, are now fully in force. If the Identity Documents Bill, currently before Parliament, is enacted, the ICA 2006 will be repealed.

Taking photographs of demonstrators or activists, etc p 110

Insert at end of text:

Where the police take and retain photographs of persons such as demonstrators or activists, etc. who are not committing or suspected of committing any offence, this may involve an infringement of the European Convention on Human Rights, Article 8. Whether or not it does so depends on the facts of the case and whether the measures taken are proportionate to any legitimate aims that the police may be pursuing. [R on the application of Wood) v Metropolitan Police Commissioner [2009] EWCA Civ 414]