178 replies to this topic

[5460]

A topic came up in training the other day in relation to use of force, and in specific the area of PACE you get this right.

Now, for drugs searches the power for searching is held within the act itself, but I cannot find anywhere within that act that you may use force to conduct this search if necessary.

Can anyone find specific case law or legislation that allows the use of force specifically for searching under s23? I'm not looking for any sneaky backdoors like arresting for obstruct police.

Help?

[Sceptre]

Whenever this came up the consensus was S3 Criminal Law Act to prevent the offence of obstructing a drugs search being committed, with a token few rooting for S117 PACE on the grounds that the PACE CoP governs all searches anyway.

[MC1]

Sec 3 Criminal Law Act is what I've always assumed.

[5460]

Whenever this came up the consensus was S3 Criminal Law Act to prevent the offence of obstructing a drugs search being committed, with a token few rooting for S117 PACE on the grounds that the PACE CoP governs all searches anyway.

s3:
"A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large."

A s23 search is not applicable in my eyes. I am guessing you are going for the prevention of crime angle? Preventing crime is different to obstructing, and again the use of force would come from obstruction and the arrest, and the search power comes from a different act. I'm specifically looking to see if there's any use of force law around s23.

I disagree with the 117 arguement on the basis that a s23 search power comes from the act, and not from PACE:

Police officers are empowered by Section 117, Police and Criminal Evidence Act to use reasonable force, if necessary, when exercising powers conferred by that Act (Archbold 15-26).

So you can use force when excercising power conferred within PACE. It has no mention of powers over other acts.



By the above I think it answers that you only have a power to use force if they obstruct, and a secondary offence is committed. The spur off question is that it is an offence to obstruct the search as stated within s23, but would that be an offence you could arrest for, or is it an offence you should be reporting for summons so you technically cannot use another act to search during arrest and you lose the search itself?

Edited by 5460, 01 November 2011 - 10:21 PM.

[Sceptre]

There's no specific use of force legislation for drugs searches to the best of my knowledge.

You certainly can arrest someone for obstructing a drugs search, and what I was going for was that you can use force to prevent them committing this offence under S3 CLA - cuffing them prior to a search, putting them on the floor if they start kicking off etc.

[5460]

There's no specific use of force legislation for drugs searches to the best of my knowledge.

You certainly can arrest someone for obstructing a drugs search, and what I was going for was that you can use force to prevent them committing this offence under S3 CLA - cuffing them prior to a search, putting them on the floor if they start kicking off etc.

I would suggest you wouldn't be able to use force to prevent an obstruction, rather the offence would have to occur first?

[Sceptre]

I would suggest you wouldn't be able to use force to prevent an obstruction, rather the offence would have to occur first?

I think under S3 I would; obstructing me is a crime and so I can use reasonable force to prevent the person being searched from committing that crime by cuffing them, putting them on the floor etc.

It would be inconceivable for there to be no power to use force when searching someone for drugs, and when the act was passed Parliament can't have seen a need to incorporate a separate specific power to use force.

[ninetyone]

I would suggest you wouldn't be able to use force to prevent an obstruction, rather the offence would have to occur first?

That makes no sense at all, you're not preventing it then are you

The OP's question came up literally a few weeks ago, and the answer is still the same! S3 CLA to prevent crime, namely the offence of obstruction. If you're not happy with this, then you'll have to arrest for obstruction and then search.

[callsign-kid]

Erm common law is also applicable to this.

A person may use such force as is reasonable and necessary to in self defence or defence of another or to prevent or stop a breath of the peace

That may also include pre-emptive use of force.

Where a person has an honestly held belief that they or another is in imminent danger, they may use such force as is reasonable and necessary to avert that danger.

If I say I'm going to search you and someone says "Oh no you're not." Might the offer me violence? Why yes they might. So I might like to think about handcuffing them.

Think about the conflict management model or use of force model.

Information received - this person wants to offer me resistance of some form, it could be violent.

Threat assessment - Well you have two options, unknown or high. Lets assess the situation. We think the person may have drugs on them, its not unreasonable therefore to think that they might be under the influence of said drugs. We may therefore be unable to clearly communicate with them normally, they may have an altered perception of reality. We also know that they're not complying with our verbal communication. They have told us at the least they are prepared to actively resist if not directly offer us violence. We may also be in fear that this person could swallow drugs which would cause the subject harm.

Powers and policies - We are conducting a lawful drugs search, with which this person is not complying. We fear they may occasion harm on us and we have a right to defend ourselves under the common law, we may use force before he harms us. You could also argue a prevention of a breach of the peace.

Tactical options - Tactical communications and handcuffing techniques are likely to be relevant here. If anything changes then we go through the use of force model again.

Justify account and record. Does the above fit with PLAN - proportionate, yes handcuffing someone to stop them punching you if you think they might is pretty proportionate in my opinion. Legal, well yes its legal to do so under the common law, accountable well yes, and necessary, if you felt it was necessary given the circumstances and you genuinely thought you might get hurt by taking action and you've taken action which amounts to the minimum force you could have used then I would again argue yes.

Edited by callsign-kid, 02 November 2011 - 06:04 AM.

[Random~name]

Does the fact that all searches have to comply with s1 PACE not make you suspect you can use a PACE power of reasonable force to complete a lawful police action?

[SkinSte]

Does the fact that all searches have to comply with s1 PACE not make you suspect you can use a PACE power of reasonable force to complete a lawful police action?

This is where people get confused. All searches do not need to comply with S1 of PACE, but they must comply with the PACE COdes of Practise. The two are different things; S1 PACE is what you may search and search for etc under that section only. S117 of PACE only applies to the PACE Act and not the Codes of Practise.

This has come up several times now and I'm still yet to be convinced that the correct answer is anything other than you search under S23 MDA, it's an offence to obstruct this search i.e. a crime and so you may use S3 CLA to prevent the crime occuring.

[Danny_Met]

I have had some real in depth discussions regarding this recently.

I had a complaint made against me for 'use of force' during a s23 search. I had handcuffed the person for various reasons all of which were legitimate. ( PLAN )

In my notes at the time, I used s117 PACE - The person who complained went straight to a solicitor, who in turn went straight to the IPCC.

They were not satisfied that I was allowed to use force, of any kind, during the search.

After many legal meetings, between the Met and their Solicitors, They were all satisfied that I could use s117 in order to carry out the search.

As all searches are covered by Codes of Practice, I was entitled to use reasonable force.
I was very nearly the missing case law for this!

Edited by Danny_Met, 02 November 2011 - 10:53 AM.

[Truman Burbank]

Blackstone's Police Operational Handbook 2011: Chapter 5.5 Drug related search powers - s.23 (4) Misuse of Drugs Act 1971


"Compliance with PACE and COP are required with regards the grounds for searching of people, the conduct of the search and completion of a search record"

and

"Reasonable force may be used to detain and carry out a search (PACE s 117)"

[rosco]

In my notes at the time, I used s117 PACE - The person who complained went straight to a solicitor, who in turn went straight to the IPCC.

They were not satisfied that I was allowed to use force, of any kind, during the search.

I can understand the person, and I guess a solicitor having this opinion, but the IPCC?!

[Danny_Met]

I can understand the person, and I guess a solicitor having this opinion, but the IPCC?!

The person who complained did not approach the Met, he went straight to the IPCC. I was quite alarmed at first.

The IPCC was not involved and did not comment on use of force, just dealt with the initial complaint

The complaint was not received until 1 year AFTER the search !

[SpecialCCC]

S117 is most applicable.

As long as you remember both S3 (if applicable) and S117 when writing your notes up you'll be fine.

[MattD]

Unless im missing something obvious s117 PACE says:

117 Power of constable to use reasonable force.

Where any provision ofthis Act—

(a)confers a power on a constable; and.
(b)does not provide that the power may only be exercised with the consent of some person, other than a police officer,.
the officer may use reasonable force, if necessary, in the exercise of the power.

to me the key part is in bold. S117 PACE applies to powers confered under PACE only. From what i can see only S3 CLA would apply.

[ninetyone]

I struggle very, very hard to see how on earth S117 PACE could be construed as applying to S23 MDA, for the simple and obvious fact that no provision of PACE confers a power on a police officer to search a person under MDA.

Danny_Met, I must say I am astonished by the conclusion they reached!

[bensonby]

The argument with s.117 is that the PACE CoPs cover all stop and searches.

Either way, you have the power. I always found it odd that I've repeatedly been taught that the "most powerful" (whatever that means) piece of use of force law is at common law, whilst s.3CLA was the weakest. I see s.3 as the most all-encompassing when you consider the range of offences (such as obstruction)

Though why various use of force powers should be arranged in some kind of heirachy God only knows...

[MC1]

The argument with s.117 is that the PACE CoPs cover all stop and searches.

Either way, you have the power. I always found it odd that I've repeatedly been taught that the "most powerful" (whatever that means) piece of use of force law is at common law, whilst s.3CLA was the weakest. I see s.3 as the most all-encompassing when you consider the range of offences (such as obstruction)

Though why various use of force powers should be arranged in some kind of heirachy God only knows...

Didn't Section 3 replace common law?

[callsign-kid]

Didn't Section 3 replace common law?

No. Common law concerns use of reasonable force as an act of self defence whilsts section 3 CLA concerns use of reasonable force to prevent crime and to arrest criminals.

[Obain]

The person who complained did not approach the Met, he went straight to the IPCC. I was quite alarmed at first.

The IPCC was not involved and did not comment on use of force, just dealt with the initial complaint

The complaint was not received until 1 year AFTER the search !

Did anything come of it?

[Danny_Met]

Did anything come of it?

No, After many months and many meetings they were satisfied that I had acted legally.

There was in total 7 different complaints made about the actual incident, 3 about me and 4 about the met I think.

Was a worry for a few months, but I'm glad it has all been resolved

[Time_Bandit]

I struggle very, very hard to see how on earth S117 PACE could be construed as applying to S23 MDA, for the simple and obvious fact that no provision of PACE confers a power on a police officer to search a person under MDA.

Danny_Met, I must say I am astonished by the conclusion they reached!

ninetyone although I understand your logic and where you are coming from.

The general consensus would appear to be pointing toward S.117 PACE giving you your power to use force for a S.23 MDA search.

I have done a bit more research on this and I think it's the same/similar as per Truman Burbank's post above quoting Blackstones.

Although I couldn't see it initially I have come round to the idea of why S.117 could be more applicable. The best and easiest way I can remember it, is that Code of Practice A is made under PACE and C.o.P A applies to ANY searches.

I think I remember also reading (somewhere) that there's an argument that you don't need seperate authority for using force as searching somebody will require use of force to some degree regardless (I think I said something similar in the previous post below about using force regardless... ). To back up this theory, it quoted that in the C.o.P it says that: "The co-operation of the person to be searched must be sought in every case, even if the person initially objects to the search. A forcible search may be made only if it has been established that the person is unwilling to co-operate or resists. Reasonable force may be used as a last resort if necessary to conduct a search or to detain a person or vehicle for the purposes of a search."

Previous Q on drug searching"

Edited by Time_Bandit, 03 November 2011 - 08:05 PM.

[MerseyLLB]

S117 of PACE 1984 provides that " Where any provision of this Act—(a)confers a power on a constable; and(b)does not provide that the power may only be exercised with the consent of some person, other than a police officer,the officer may use reasonable force, if necessary, in the exercise of the power."

S66(1(a)) provides that
"The Secretary of State shall issue codes of practice in connection with—(a)the exercise by police officers of statutory powers—

(i)to search a person without first arresting him; F1...

(ii)to search a vehicle without making an arrest;[F2 or

(iii)to arrest a person;] "





The codes of practice are a provision of PACE 1984 and that is why people (presumably) feel so safe in using S117 PACE 1984 to justify use of force.

However, it is actually S2 of PACE 1984 which makes the requirements of nearly all pre-arrest searches, under a enactment, fall under PACE 1984 protocol. I would therefore, if arguing that power to use reasonable force came from the fact that PACE 1984 governs the way other statutory searches are completed, use S2 PACE 1984 as my justification rather than the code of conduct which are merely guidelines enacted as part of S66 PACE 1984 and not part of the main statute.


EDIT:

Being a late night law student with too much caffeine, it appears that there is a case where a MDA1971 warrant was being executed at an individuals address. When force was used to separate the occupant from the area of the search, a constable was assaulted. The suspect was arrested and charged for assault police. The justice in the original case decided that the police were acting outside their duty in using force and therefore would not convict the defendant for assault police. The police appealed, with their counsel submitting that S117 PACE 1984 was the power of force used during the MDA 1971 warrant and that therefore the officer WAS acting within his duty. The appeal was allowed and the case returned to the lower court to continue the case. Whilst the judgement would not be binding as the circumstances are different, I feel that it would still be a persuasive authority.

DPP v Meaden [2003] EWHC 3005

Click to see case

Edited by MerseyLLB, 04 November 2011 - 01:54 AM.