Talk:Powers of the police in England and Wales

Extent of search powers / Lawrence inquiry

Caveat: I'm not a lawyer or policeman. On the TV tonight a member of the public complained that he was being unlawfully forced to remove his shoe in a stop and search. He insisted that the officer only had powers to compel him to remove his jacket. Was this correct? PACE (1984) Pt.I S2.9 seems to suggest he was:

"(9) Neither the power conferred by section 1 above nor any other power to detain and search a person without first arresting him or to detain and search a vehicle without making an arrest is to be construed—

(a) as authorising a constable to require a person to remove any of his clothing in public other than an outer coat, jacket or gloves; or

(b) as authorising a constable not in uniform to stop a vehicle." (PACE 1984 Pt.1 S2.9(a))

Can anyone competent enlighten me? And should this page include a section about the extent of search powers (of the physical search itself, not the conditions under which a search may lawfully be carried out, which this article currently seems to focus on)?

Lawrence Inquiry Also, I read a training manual from NPIA (2005 I think, lost it now, sorry) which highlighted problems arising from abuse (or insensitive use) of stop and search powers, with particular reference to the Lawrence inquiry findings. Again, can anyone expand on this for my benefit at least? Thanks, Comrade jo (talk) 01:14, 28 April 2010 (UTC) (Have posted same comment in http://en.wikipedia.org/wiki/Talk:Stop_and_search)

We're not here to answer legal questions, but a requirement to remove a shoe in public would indeed be unlawful by virtue of S2(9). I have added in the provisions of S2. ninety:one 17:50, 28 April 2010 (UTC)

I have answered your question somewhat here http://en.wikipedia.org/wiki/Talk:Stop_and_search#Extent_of_search_powers_.2F_Lawrence_inquiry --199.4.27.122 (talk) 14:02, 10 June 2010 (UTC)

Search for prohibited fireworks (Section 3.2.1)

Having been reading in relation to the points above, I think that powers to stop and search specifically for prohibited fireworks derive from SOCAP/SOCPA (2005) s115, not PACE 1984 as stated in the table? Can anyone clarify? ta.. Comrade jo (talk) 16:45, 28 April 2010 (UTC)

The power was inserted into PACE by SOCAP. ninety:one 17:50, 28 April 2010 (UTC)

Recent edits by User:Leopheard

I've reverted almost every one of the edits that User:Leopheard has recently made, and I shall explain why below:

• the power to enter to prevent a BoP is not from S17 PACE but common law. Clarified.
• there are absolutely no "citizen powers" to make entry; what there are are reasonable excuses for the relevant offence.
• The "Sources of power" section refers to the Act under which they are sworn in. The actual powers they exercise are covered in the remainder of the article, and do not need listing here. Expanded to include more information about PA 1996.
• S18 does include the power to search for evidence relating to an offence that is "similar" to the original offence.
• S32 does not include a power to search premises which a person was "in the vicinity of" prior to the offence.
• S23 MDA is not limited to public places.
• the list of "Various persons with arrest powers" is not only incomplete and inaccurate, but also totally inapproriate for an article which is very clearly limited to territorial police constables of England and Wales.

The nature of some of these edits is such as to lay question as to the intention, where wording that is specifically included (or not included) in the Act has added or removed. I suggest that Leopheard takes some more time to check out the nature and scope of an article before making changes in future, and where he does to check that the sources clearly support those changes. ninety:one 22:23, 12 December 2010 (UTC)

there is a citizen power to enter to save life/limb, of which comes from PACE not BoP as you state. Thanks for your input also, as I didn't realise you owned this article. leopheard (talk) 23:46, 14 December 2010 (UTC)

If you think I made a mistake, please correct me! But remember to use a reliable source. I'm not sure what you're trying to imply, but I've explained in some detail why I reverted your edits; if you think that's OWNish then I'm sorry. ninety:one 00:40, 15 December 2010 (UTC)

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PCSO search powers

@Bowchaser: I have reverted your assumption that Constables do not have the power of search for alcohol and also tobacco on this page. Yes, they have the power to seize, but they can't search specifically for it.

If you look at ALL PCSO powers, they all confer the specific power of Constable for the offence. Look at s59 seizures, confiscation of alcohol, removal of kids from places, etc. When they passed the bits of SOCAP2005 to amend PRA2002, they for some reason didn't do this with the alcohol or tobacco SEARCH powers as they refer to a PCSO only - See here. I remember this from training and found it strange also. Please could you provide me legislation that shows a Constable can search for alcohol and tobacco specifically not using any other proxy power MDA, PACE1 sus theft, etc ? --Apeholder (talk) 01:27, 29 September 2018 (UTC)

Just found some proof, the Scottish government are discussing new powers here and make reference to the anomaly: https://www.gov.scot. Also, check the Codes of Practice here - it appears the ONLY power a Constable has to search for alcohol is during sporting events. It even lists on page 29 the three powers under PCSOs and not bobbies - alcohol/container/tobacco searches --Apeholder (talk) 01:27, 29 September 2018 (UTC)

See this link [1] for the power of a constable in relation to alcohol and tobacco. Bizzarely it is a actually a duty of a constable to seize tobacco from those under 16 (a throwback to very old law but implies must: which obviously doesn't happen in practise, but I digress.

I understand what you are trying to say regarding search vs seizure but the reason PCSOs have the add on power to search is because a constable can arrest for the summary offence under the power I've mentioned, search the person for alcohol or tobacco (Sec 32 PACE) and then go from there, i.e. de-arrest, street bail, bring into custody etc etc. PCSOs can't do this. All I am trying to say is please do not try and write into an encyclopedic article about how PCSOs have such and such a power and constables do not. There is often a reason the legislation is the way it is because PCSOs have very much more limited powers whereas constables have a wide range of powers to draw on in any situation - you can't just rely on one bit of legislation to make a redundant point. They gave that specific search power to PCSOs because the lack of any power otherwise, without calling a constable to the scene...

This article needs to be fairly straightforward for the average reader not some detailed analysis of law which, having corrected a few things already (not saying it was you), I've already found not to be accurate in places. Bowchaser (talk) 08:29, 29 September 2018 (UTC)

Further, the way you are currently writing the additions re PCSO only powers is a bit like saying ONLY PCSOs have the specific power to detain someone for 30mins pending the arrival of a constable. Yes that is true technically, but the reason constables don't have this specific power as set out in the relevant legisltation is because of the powers constables already have under PACE (arrest, stop & search etc etc). Constables don't need th 30min detention power PCSOs have, so haven't been given it. Same as the search power for alcohol or tobacco. Bowchaser (talk) 08:43, 29 September 2018 (UTC)

@Bowchaser: - You're spot on re: search, seizure, retention and confiscation all being different things albeit very similar at face value. I'm not trying to create an article on what powers the PCSOs have and Constables don't, because that's almost totally untrue, with the exception of the three powers we've discussed here. It's referenced in a side note but is relevant to that power. That's it essentially. Not sure why they did this though, as if someone refuses to be searched, this is an offence and the PCSO still has to detain and call a Constable to deal with it...

You make a good point re: the PCSO detaining for 30 mins pending a bobby. I don't think that power exists for them (hence the PCSO ref in the PRA2002 not a Constable) as they obviously couldn't detain to call themselves? You'd use an MDA detention, S60, etc. Aside from that, the rest of the PCSO powers refer to a Constable but just place them on the PCSO for that section too. Anyway, we're not really trying to justify a Constable's worth even though they have this power, I'm just trying to literally update the 'Police powers in England in Wales' as accurately as I can. Nobody is saying they're rubbish which is the vibe I feel you're defending against here for some reason.

Furthermore, I'd strongly advise against arresting for a summary offence for the purpose of search and then de-arrest - you'd have a hard time justifying the Code G necessity test in a civil suit Apeholder (talk) 09:41, 29 September 2018 (UTC)

Actually Code G via (e)(iv) provides for exactly that - arrest necessity criteria for a search of a person (look it up).  I would also add that the de-arrest decision wouldn't be made at the point of arrest but after if it was appropriate and proportionate - and it would be quite legitimate.  There are plenty of grounds for Code G.  It is a summary offence to fail to give name and address in such circumstances or handover the alcohol/container etc.  There is the offence part of it for the arrest - the code G aspect would be any of the following depending on the circumstances (kids drinking alcohol in a public place) (I'm using shorthand):(5)(a) no name/doubt name etc, (b) no address, doubt address etc (c) (i) causing harm to themselves or others, (ii) suffering physical injury (iii) causing loss or damage to property (iv)committing an offence against public decency (depending on what they are doing) or(v) causing an unlawful obstruction of the highway (d)to protect a child or other vulnerable person from the person in question (themselves in this case!);  and arguably possibly these two too: (e)to allow the prompt and effective investigation of the offence or of the conduct of the person in question (arguably the prompt and effective investigation of the offence would include seizing the alcohol - which means searching under section 32 (see (e)(iv)) in much the same way we use this clause to conduct a taped interview in custody for more serious matters (e)(i) ); (f)to prevent any prosecution for the offence from being hindered by the disappearance of the person in question.

So no problems there, its almost a full house on code G depending on the circumstances.  You need to remember some of us have also been doing this for a while too!

Anyway, lets no get into the weeds of this.  The bottom line is that this is an encyclopedia article.  It should be focused generally on what police officers (and the wider police family) can and cannot do generally speaking, make arrests, search etc.  It shouldn't be a detailed legal document setting out stuff which would take pages and pages to fully explain.  You have focused on 3 very specific bits of legislation which give PCSOs very specific powers in which constables are not mentioned.  This is because constables have a wider set of powers to call upon which would be used in such circumstances and basically don't need the power as they already have it covered.  This encyclopedic article is not the place to be going into such detail so it needs to be general and not imply something which isn't correct (i.e. that constables can't do something PCSOs can - which is patently incorrect in any practical sense i.e. what a general reader of enclopedic article would be looking for).

I'll leave it there and edit as sparingly as I can. But any implication that PCSOs can do something a constable can't will be amended to ensure a general reader understands Bowchaser (talk) 10:47, 29 September 2018 (UTC)

Article needs to be restructured and possibly stripped down

I note this article is slowly growing with either quotes of legislation or codes of practice and the like. I'm not sure how encylopedic this is and if some thought needs to be given to making this article more readible for the general reader. It shouldn't be a respository of criminal/police procedure law which can be found in other places on the internet.

I'd also argue that the structure is all over the place. I would suggest that for the general reader detention is not the first thing that should be outlined. I would suggest after an introduction it should be search powers (before arrest), then arrest powers, then detention powers (with search after arrest powers and bail etc included) then other ancilary police powers. This sort of then follows chronologically a journey through the initial part of the criminal justice system.

But as I say, I do think the article needs a complete rethink to try and make it more encylopedic instead of a copy and paste of legislation. Bowchaser (talk) 07:39, 4 April 2019 (UTC)

A restructure would be good, to help the flow. The issue here is that the article needs to be pretty detailed, as having a very brief and vague skirting over the CJS would also be unencyclopedic. Maybe as a compromise, making sub articles which are linked from various sections here e.g. sub article on the PACE codes of practice listing what they are, but also updates and relevant case law. Without covering all sides, articles such as this basically end up being heavily biased Apeholder (talk) 21:29, 4 April 2019 (UTC)

Ok, I may have a bash at restructure over the next few days if time allows. Please note I've also edited your revert of my edit around your comments around it being strange that DOB is not included in the name and address requirements around ASB. Stating it is strange is your opinion and would need some citation to back it up. I could take a different point of view that it isn't particulary strange as other areas of criminal/police procedure do not give a power for requiring DOB. For example, necessity criteria for arrest include not knowing/doubting name and/or address but not DOB. So, its hardly strange. Happy to discuss further Bowchaser (talk) 21:46, 4 April 2019 (UTC)

That's fine. As for the DoB, how about the words "name and address (only)". It's not unreasonable to add and is totally relevant. The exact same reasons why a bobby has to explain a search before it's done - transparency. Why shouldn't the Wikipedia article be the same? I'm not suggesting "they can't take your vehicle details or weight" as there's little connection there, but if you asked most people what details the Police can take from you, I'm sure you'd agree that most would say "name, address and DoB". It is just one thing to help reduce confusion and mostly because this article shouldn't just be "a Constable can lock you up for all these things", and then have the finer details systematically removed e.g. your suggestion to remove the Codes of Practice. If this is going to be encyclopedic then it needs to paint as accurate picture as possible Apeholder (talk) 00:49, 5 April 2019 (UTC)

One other thing - you previously made a change saying that a Constable has another option if he/she wants to search for alcohol in the circumstances they can't. What other search power can they use? I know they can't arrest and PACE 32 the search as I don't think the necessity criteria would be met and also that power relates to escaping from lawful custody. Also, is it lawful to arrest and de-arrest purely TO search? Not sure what "other options" a Constable would have in those circumstances? Apeholder (talk) 01:25, 5 April 2019 (UTC)

Re DOB. If you were to place a negative for every power the article would be full of commentary on what the police cannot do. Legislation is written to explicitly state what power police do have - the subject of this article. My view is that in the article it should simply state what powers the police do have. It is a natural inference that what is not positively described in the legislation the police have no power to require/do. Otherwise, where does it end? Under that same power as well as having no power to require DOB, the police have no power to ask for email address, telephone number or mothers maiden name etc etc. Do we list them all too? It just gets silly. Also, as I've already mentioned lack of power to require DOB is not unique to this Act/section. One of the most fundamental areas of police law - arrest necessity - also does not list DOB as a criteria - so the ASB is hardly unique.

You have no need to put "name and address (only)". You have correctly quoted the Act without the "(only)". The power is quite clear, there is a power to require name and address. Thats it. Otherwise we start going into a whole world of negatives. Transparency is found by reading, quoting the legislation as it stands - not giving our spin on it. Of course if you are driving the officer can require name address and DOB but thats a whole other subject. Keep it simple stick to what powers are outlined in statute - if its not there its not there - no further explantion needed.

I am not suggesting the article should be "a constable can lock you up for these things" and then have everything else removed. What I am suggesting is that this is a wikipedia article not a detailed police procedure/law book. Access to legislation and codes of practise are readily availble to anyone who can get on to wikipedia. This is an encyclopedia so it should be broad enough for the general reader with links where needed to the finer detail/legislation/Codes etc where appropriate. Wikipedia is not supposed to be a Blackstones law library. Bowchaser (talk) 10:24, 5 April 2019 (UTC)

Turning to your further point around alcohol - I thought we'd covered this off! You seem to misunderstand a few issues. I'll go through it chronologically. Police officer stops a 15 year old youth who he suspects in possession of alcohol (he can see the outline of beer cans/bottles in his trousers and has a rucksack too) . Disregarding any other possible offences the inital powers are found under Confiscation of Alcohol (Young Persons) Act 1997. The constable can require him to surrender anything in his possession which is, or which the constable reasonably believes to alcohol or a container for alcohol. (He can also require name and address (no DOB again!! not so strange is it!) but that is bye the bye). The youth gives his name and address but refuses to hand over the alcohol. At this point the youth is commiting an offence of failing to comply with the requirement to hand over the alcohol (or containers for such).

There is no power to search at this point but the constable can arrest for the offence, I'll go through which necessity criteria apply later but you need to be aware that an constable can arrest to be taken into custody now or to street bail. That said, the necessity criteria that I can see that would reasonably apply are (using the necessity subsections as per statute) (a) name - I would argue that due to the youths actions there are now reasonable grounds for doubting the name given is correct, (b) same with address, (c)to prevent the person in question: (i) causing physical injury to himself or any other person and/or (ii) suffering physical injury - arguable that a youth drinking a load of alcohol could come to harm in any number of ways which we see very often, (d) to protect a child or other person form the person in question - if the booze is for his mates (other children) they could come to harm same as himself, (e) to allow the prompt and effective investigation of the offence or the conduct of the person in question, I specifically point to (iv): when considering arrest in relation with any offence and it is necessary to search etc the person to obtain evidence (the alcohol or containers in this case). So I would suggest there way more than enough necessity criteria to arrest and we have already establised which offence we are looking at.

So the constable arrests and he then has powers under section 32 PACE to search, specifically sub section (2)(a)(ii) to search for anything which might be evidence relating to an offence (the alcohol or alcohol containers which are implicitly linked to the offence for which he has been arrested). Also, I'd argue that the bottles of alcohol could be used as a weapon to try and escape so sub section (2)(a)(i) would also apply - items which may be used to assist him to escape, plus while we are at it subsection (1) of Section 32 of PACE - if the bottles could be used as weapon they are a danger to the arresting officers.

So there you have it - clear chain of police powers to be used in these circumstances. And I haven't included various other things that could come into play such as obstruct police, police protection under Childrens Act etc etc. For information the de-arrest decision would not arise until you'd got to the end of the chain. The officer has several options once he gets to that point - he can take into custody, street bail if a parent/guardian can come to the scene, de-arrest then report for summons with parent on scene, de-arrest and warn if parent on scene and/or de-arrest and take home or to a place of safety (the Confiscation of Alcohol (Young Persons) Act gives such a power. There are probably more. As I said right at the beginining, a constable has a huge toolbox to deal with situations, unlike the more limited powers of a PCSO - who although does have a specific power in relation to searching for alcohol, has to gain informed consent from the person in question which is totally unlike any search power a constable has (no consent required). Hope all of the above makes sense! Bowchaser (talk) 10:24, 5 April 2019 (UTC)

What about the CPS?

Multiple TV series would collapse if this were all there is to it:

The custody officer at that police station must determine whether he has sufficient evidence to charge the detainee for the offence and may keep the detainee in custody until he can make this decision.

It seems invariably the case that it is the CPS that decides whether or not the suspect should be charged. Or is that just in cases where the alleged offence is so serious that thee suspect will be remanded in custody pending trial? --𝕁𝕄𝔽 (talk) 18:46, 5 March 2024 (UTC)

References

𝕁𝕄𝔽 (talk) 18:46, 5 March 2024 (UTC)