Powers of the police in England and Wales

Source of powers

The basic powers of constables derive from the Police Act 1996, which covers attestation (section 29), jurisdiction (section 30) and a number of other matters. The powers given to PCSOs are provided by the Police Reform Act 2002.

Detention

There are three different types of detention:

detention without arrest,

detention after arrest (but before charge), and

detention after charge.

Detention without arrest

Detention without arrest is only permitted in certain circumstances, and is not a generally available power as in some other jurisdictions. In addition to the power to detain during a search (as described below) a constable may detain a person under the following provisions:

Detention after arrest

Where a person is arrested for an offence, they will be taken to a police station. 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. The Custody Officer has sufficient evidence if he has sufficient evidence to provide a reasonable prospect of conviction. If the Custody Officer determines that he does have sufficient evidence, he must charge the person or release him. If he determines he does not have enough evidence to charge him he must release him unless he has reasonable grounds for believing that his detention without being charged is necessary to secure or preserve evidence relating to an offence for which he is under arrest or to obtain such evidence by questioning him.

In terrorism cases, a person may be detained for a maximum of 28 days. Otherwise (and subject to exceptions), a person may be detained for a maximum of 96 hours from the relevant time (normally the time an arrested person arrives at the first police station that he is taken to), in line with the following restrictions:

On expiry of the time limit, the arrested person must be released, either on or without police bail and may not be rearrested without warrant for the same offence unless new evidence has come to light since the original arrest.

Detention after charge

Following charge, a person may be detained in custody pending their trial or during their trial before sentencing.

Immediately after charge, if the detainee is not released (either on police bail or without bail), he must be brought before a Magistrates' Court as soon as is practicable (first appearance). From this point, the following time limits apply, unless extended by the court:

Treatment in detention

The treatment of suspects held in detention is governed by Code H to the Police and Criminal Evidence Act 1984 in the case of suspects related to terrorism and by Code C in other cases. It is generally the responsibility of a designated Custody Officer to ensure that the provisions of the relevant Code and of the Police and Criminal Evidence Act 1984 are not breached.

In particular, a person detained has the following rights; and must be informed of these rights at the earliest opportunity:

to have one friend or relative or other person who is known to him or who is likely to take an interest in his welfare told that he has been arrested and where he is being detained; and

to consult a solicitor.

three meals a day

drinks "on demand"

eight hours of sleep/rest a night

a clean cell

Some or all of these rights may be suspended in exceptional circumstances.

Premises

A constable may enter and search any premises occupied or controlled by a person who is under arrest for an indictable offence, if he has reasonable grounds for suspecting that there is on the premises evidence (other than items subject to legal privilege) that relates to that offence, or to some other indictable offence which is connected with or similar to that offence. A constable also has the power, if a person has been arrested for an indictable offence, to enter and search any premises in which he was when arrested or immediately before s/he was arrested for evidence relating to the offence.

Search without arrest

The Police and Criminal Evidence Act 1984 (PACE) was enacted to correct problems with the implementation of the powers used by the police. The 'sus' law allowed police to stop, search, and subsequently arrest a 'suspected person' without warrant, reason or evidence. Due to the unfair implementation of this law within the black community, there were riots in some parts of the country in majority black areas (Brixton, Handsworth, Toxteth, Southall & Moss Side) in the early 1980s and "sus" was repealed in 1981. The vast majority of search powers now require 'reasonable suspicion' of an offence to be present. Constables cannot carry out 'consensual' searches of a person unless a power to search exists.

Before searching anyone or anything (except an unattended vehicle), a constable in plain clothes must identify himself as a constable and show his warrant card or similar, and a constable (in uniform or otherwise) must state:

the constable's surname and the name of the police station to which he is attached,

the reason for the search,

the grounds (in law) for the search, and

that a copy of the search form will be available on demand for twelve months.

Before searching an unattended vehicle, a constable must leave a notice (inside the vehicle unless it is not reasonably practicable to do so without damaging the vehicle) stating:

that the vehicle has been searched,

the name of the police station to which the constable is attached,

that an application for compensation for any damage caused by the search may be made to that police station, and

that a copy of the search record will be available on demand (if one was made).

The above provisions do not apply to searches under section 6 of PACE or section 27(2) of the Aviation Security Act 1982, which both relate to vehicles leaving goods handling areas where searches are routine.

A search without arrest is unlawful if it appears to the constable, after first detaining the person or vehicle, that the search is not required or it is impracticable. A person or vehicle may be detained for the purposes of a search for as long as is reasonably required to permit a search to be carried out either at the place where the person or vehicle was first detained or nearby. Whilst in public, a constable cannot require a person to remove any of his clothing other than an outer coat, jacket or gloves (except in the case of a search under section 47A of the Terrorism Act 2000, which additionally permits the removal of footwear and headgear). Recently a group of civil, academic and legal organisations have united to form StopWatch, an organisation that aims to monitor the use of stop and search powers, reduce ethnic dis-proportionality and promote good practice in their deployment. The powers to search are as follows:

Search after arrest

A constable may search a person who has been arrested (unless the arrest was at a police station) if the constable has reasonable grounds for believing that the arrested person may present a danger to himself or others. A constable may also (unless the arrest was at a police station) search an arrested person for anything which he might use to assist him to escape from lawful custody, or which might be evidence relating to an offence.

This power is given to officers by Section 32 of the Police and Criminal Evidence act 1984.

A constable may search a person arrested under section 41 of the Terrorism Act 2000 to discover whether he has in his possession anything which may constitute evidence that he is a terrorist (defined by section 40).

Searches in detention

The Custody Officer must record everything which an arrested person has with him at the police station and may search a person to the extent that he considers it necessary to do so, but may not conduct an intimate search for these purposes. The Custody Officer may seize anything, but may only seize clothes or personal effects if the Custody Officer:

believes that the person from whom they are seized may use them:

to cause physical injury to himself or any other person,

to damage property,

to interfere with evidence,

to assist him to escape, or

has reasonable grounds for believing that they may be evidence relating to an offence.

An Inspector also has a limited power to order a search of an arrested person in order to facilitate establishing the identity of a person, particularly by discovering tattoos or other marks. Where such a search requires more than the removal of the arrested person's outer clothing, the provisions of Code C to the Police and Criminal Evidence Act 1984 relating to strip searches apply.

An intimate search is a search of the bodily orifices (other than the mouth). It should be conducted by a suitably qualified person unless this is impracticable and done in the presence of two other people. An intimate search requires the authorisation of an inspector and may only be made in one of the following circumstances:

Arrest without warrant

The only powers of detention that are available to a constable in England and Wales are discussed above. Therefore, when a person's liberty is deprived he is thus under arrest, and:

must be told that he is under arrest, and

must be "told in simple, non-technical language that he could understand, the essential legal and factual grounds for his arrest".

A person must be 'cautioned' when being arrested unless this is impractical due to the behaviour of the arrestee i.e. violence or drunkenness. The caution is:

You do not have to say anything, but it may harm your defence if you do not mention when questioned something which you may later rely on in court. Anything you do say may be given in evidence.

Deviation from this accepted form is permitted provided that the same information is conveyed.

There are three general means of arresting without warrant: firstly in relation to a criminal offence, secondly in relation to a breach of the peace and thirdly for miscellaneous purposes.

Criminal offences

Prior to 1967, the only general power of arrest for offences was that which existed for felonies. In 1964, Home Secretary Rab Butler asked the Criminal Law Revision Committee to look into the distinction between felonies and misdemeanours, and their recommendation was that the distinction be abolished, as it was obsolete. As most powers of arrest relied on the offence being a felony, a new set of arrest criteria were introduced by the Criminal Law Act 1967, which created the arrestable offence (defined as an offence where an adult could be sentenced to imprisonment for five years or more).

These arrest powers were later re-enacted by the Police and Criminal Evidence Act 1984 (PACE), which also created an alternative set of arrest criteria (the "general arrest criteria") which applied in particular circumstances, such as where the person's name or address were not known. As time went on, the number of offences that were defined as "arrestable" grew significantly, to the point where the distinction was becoming confusing and unworkable.

In 2005, the PACE powers of arrest were repealed by the Serious Organised Crime and Police Act, which also abolished the arrestable offence and instead replaced it with a need-tested system for arrest which applied to every offence.

A constable may therefore arrest (without a warrant):

anyone who is about to commit an offence, or anyone whom he has reasonable grounds for suspecting to be about to commit an offence,

anyone who is in the act of committing an offence, or anyone whom he has reasonable grounds for suspecting to be committing an offence, and

anyone who is guilty of an offence or anyone whom he has reasonable grounds for suspecting to be guilty of an offence.

Additionally, if a constable suspects that an offence has been committed, then:

anyone whom he has reasonable grounds to suspect of being guilty of it.

Conditions

But a constable may only use the powers of arrest given above:

to enable the name of the person in question to be ascertained (in the case where the constable does not know, and cannot readily ascertain, the person's name, or has reasonable grounds for doubting whether a name given by the person as his name is his real name),

correspondingly as regards the person's address,

to prevent the person in question:

causing physical injury to himself or any other person,

suffering physical injury,

causing loss of or damage to property,

committing an offence against public decency (only where members of the public going about their normal business cannot reasonably be expected to avoid the person in question), or

causing an unlawful obstruction of the highway;

to protect a child or other vulnerable person from the person in question,

to allow the prompt and effective investigation of the offence or of the conduct of the person in question; or

to prevent any prosecution for the offence from being hindered by the disappearance of the person in question.

Breach of the peace

Breach of the peace is one of the oldest, and most basic offences still in existence in England & Wales. It is an offence at common law, not codified, so it cannot be found in any act of Parliament. The power of arrest in relation to breach of the peace is available to anyone (regardless of whether they are a constable or not), who may arrest without warrant:

any person who commits a breach of the peace in his presence, or

if they reasonably believe that a breach of the peace is about to occur or is imminent, any person in order to prevent that.

However, the Court of Appeal laid down the following conditions:

there must be a real and present threat to the peace justifying depriving a citizen, not acting unlawfully at the time, of his liberty,

the threat must come from the person arrested,

the conduct must clearly interfere with the rights of others and its natural consequence must be not wholly unreasonable violence from a third party, and

the conduct of the person arrested must be unreasonable.

Other powers of arrest

There are few powers of arrest without warrant where an offence is not either known or suspected to have been committed. A constable may arrest a person:

Absconding or going AWOL

who he has reasonable cause to suspect of being:

an officer or rating of the Royal Navy,

an officer, warrant officer, non-commissioned officer or airman of the Royal Air Force,

an officer, warrant officer, non-commissioned officer or soldier of the British Army,

who has deserted or is absent without leave,

who is unlawfully at large from a civilian prison, secure accommodation or young offenders institution or military prison,

who has failed to answer bail or street bail,

who has absconded whilst on remand for a report on their mental condition, on remand for treatment or subject to an interim hospital order under the Mental Health Act 1983,

who has absconded whilst being transferred to or from the United Kingdom under a prisoner transfer agreement, or

who has absconded from a place of safety to which he has been taken under the Powers of Criminal Courts (Sentencing) Act 2000 or from local authority accommodation in which he is required to live, or to which he has been remanded or committed.

Alcohol and driving

who has provided a positive sample of breath (or has failed to provide any sample at all) under the Road Traffic or Transport and Works Acts, or

who:

has been required to provide a sample of breath, blood or urine under section 7 or section 7A of the Road Traffic Act 1988 (that is to say, an evidential, not a preliminary breath test)

the constable believes is over the prescribed limit or is unfit to drive, and

is likely to drive or attempt to drive a vehicle.

Other powers

to take fingerprints after a conviction

who has failed to comply with a conditional caution,

who has committed an offence against bylaws made under the Military Lands Act 1892,

who he reasonably suspects of being a "terrorist".

Powers of Entry

A constable has the power, at common law, to enter premises to deal with or prevent a breach of the peace. A constable may also enter and search any premises for the purpose:

of executing:

a warrant of arrest issued in connection with or arising out of criminal proceedings, or

a warrant of commitment issued under section 76 of the Magistrates' Courts Act 1980

a search warrant issued under Section 112 of the Protection of Freedoms Act 2012 in relation to searching and seizing evidence in relation to stalking offences

of arresting a person for an indictable offence,

of arresting a person for an offence under:

section 1 (prohibition of uniforms in connection with political objects) of the Public Order Act 1936,

any enactment contained in sections 6, 7, 8 or 10 of the Criminal Law Act 1977 (offences relating to entering and remaining on property),

section 4 of the Public Order Act 1986 (fear or provocation of violence),

section 4 (driving etc. when under influence of drink or drugs) or section 163 (failure to stop when required to do so by constable in uniform) of the Road Traffic Act 1988,

section 27 of the Transport and Works Act 1992 (which relates to offences involving drink or drugs),

section 76 of the Criminal Justice and Public Order Act 1994 (failure to comply with interim possession order),

any of sections 4, 5, 6(1) and (2), 7 and 8(1) and (2) of the Animal Welfare Act 2006 (offences relating to the prevention of harm to animals),

of arresting, in pursuance of section 32(1A) of the Children and Young Persons Act 1969, any child or young person who has been remanded or committed to local authority accommodation under section 23(1) of that Act,

of arresting a person for an offence to which section 61 of the Animal Health Act 1981 (transportation etc. of animals during rabies outbreak) applies,

of recapturing any person who is, or is deemed for any purpose to be, unlawfully at large while liable to be detained:

in a prison, remand centre, young offender institution or secure training centre, or

in pursuance of section 92 of the Powers of Criminal Courts (Sentencing ) Act 2000 (dealing with children and young persons guilty of grave crimes), in any other place,

of recapturing any person whatever who is unlawfully at large and whom he is pursuing, or

of saving life or limb or preventing serious damage to property.

A constable also has the power to enter any place in order to carry out a search under section 47 of the Firearms Act 1968.

Road checks

A uniformed constable may stop any vehicle at any time under section 163 of the Road Traffic Act 1988. However, if a constable wishes, for one of the reasons given below, to stop all vehicles or certain vehicles selected by any criterion, then they must do so under the power granted by section 4 of the Police and Criminal Evidence Act 1984. A road check is normally only authorised by a police officer of the rank of superintendent or above, in which case the restrictions given in the second column apply. However, if it appears to an officer below the rank of superintendent that a road check is required (for one of the reasons below) as a matter of urgency, then he may authorise it himself. In this case, the conditions given in the second column do not apply.

If an officer below the rank of superintendent gives authorisation, it must be referred to a superintendent as soon as it is practicable to do so. Where a superintendent gives authorisation for a road check, he:

must specify a period, not exceeding seven days, during which the road check may continue, and

may direct that the road check shall be continuous, or shall be conducted at specified times during that period.

If it appears to an officer of the rank of superintendent or above that a road check ought to continue beyond the period for which it has been authorised he may specify a further period, not exceeding seven days, during which it may continue.

In addition to the powers to conduct road checks given above, the police have a common law power to set up road checks and search vehicles stopped at them in order to prevent a breach of the peace.

Removal of disguises

Under section 60AA Criminal Justice and Public Order Act 1994, if:

an authorisation under section 60 of the Act (searching for weapons) is on force, or

an inspector issues an authorisation under section 60AA on the grounds that he reasonably believes that:

activities are going to take place in a certain part of his police area,

those activities will involve offences being committed, and

to prevent or control those offences it is necessary to order the removal of disguises,

then a constable in uniform can:

require a person to remove any item which the constable reasonably believes that person is wearing wholly or mainly for the purpose of concealing his identity, and

seize any item which the constable reasonably believes any person intends to wear wholly or mainly for that purpose.

Authorisations apply to one locality only, last for 24 hours, and the inspector who gives them must inform a superintendent as soon as possible. A superintendent can extend the authorisation for a further 24 hours. Failure to remove a disguise when required is an offence.