178 replies to this topic

[Danny_Met]

Thank you MerseyLLB, I appreciate you taking the time to look it all up

+ 1

[MattD]

Mersey...may this not be the case though that this is specific to warrants to search premises under S32 AND which have specifically detail a power to search persons found upon those premises?

Isnt the key pargraph from BALLI:

That said, those are not matters which affect the outcome of the present appeal because, as I have already indicated, Hepburn is plainly distinguishable from the present case. Furthermore, the warrant here was not only issued in relation to persons as well as premises, it was issued under both section 23 of the 1971 Act and section 15 of the Police and Criminal Evidence Act, in relation to which there are the powers enshrined in section 117 of that Act. Section 23 conferred on the officers a power to detain people for the purpose of searching them, and section 117 conferred the power to use reasonable force for the purpose of executing the warrant.

in that S117 PACE perhaps only applies to premises search warrants because warrants applied for under S23 MDA are also applied for under S15 PACE to be lawful? In that as s117 confers a power to use force to any power given under PACE and warrants are issued under both MDA and PACE?

If this were the case it would mean that s117 PACE does not apply to S23 MDA PERSON searches.

[ninetyone]

Exactly - in Meaden, they hold that warrant was issued under PACE and therefore the power to search came from PACE, so therefore there is a power to use reasonable force in exercise of that power to search.

However, I can't say I agree with them. Using s117 would require s15 to "confer a power on a constable" to conduct a search under a search warrant. S15 does not grant powers, but rather restricts them. Nowhere in s15 is any power granted at all. The fact that a warrant is issued in accordance with s15 does not mean that s15 adds anything to it, or adds any powers, in the slightest.

[MerseyLLB]

Indeed that is the argument. Nothing in PACE specifically confers any powers for drugs searches, s60 searches etc but it does limit them. Much like the s15 PACE point ninetyone made; if we look at literal wording of PACE then there is no power to use force in alot of circumstances.

[callsign-kid]

Just read this through in the white notes. They state that section 117 of PACE gives you the power to use force to conduct a search or to detain a vehicle to detain a person or vehicle for the purposes of a search. Though it does also state that there may be more than one bit of legislation which covers a use of force.

Edited by callsign-kid, 06 November 2011 - 08:51 AM.

[Chewie]

They state that section 117 of PACE gives you the power to use force to conduct a search or to detain a vehicle to detain a person or vehicle for the purposes of a search.

I said this last time the question was raised, but was shouted down by the "it only covers PACE searches" crew...!!!

[Time_Bandit]

As was said before it certainly appears that the feeling/consensus appears to be leaning toward S.117 PACE giving you the authority to use force....not only for S.23 MDA but also S.60 searches.

[5460]

At least I don't feel silly for asking now

[MattD]

For those who disagree and believe s117PACE provides a power to use force for a S23 search can you atleast say why......other than just because someone told you so or it's in some training notes.

There is nothing in S117 that would indicate it applies to anything other than PACE. Ive cut and pasted it above and it's very specific in my view.

[Time_Bandit]

For those who disagree and believe s117PACE provides a power to use force for a S23 search can you atleast say why......other than just because someone told you so or it's in some training notes.

I believe some already have...did you miss it? Not only that but I think it's copacetic to accept "someone told you so" (I am talking about for example Blackstones tells you so etc etc)

"The best and easiest way I can remember it, is that Code of Practice A is (a provision) made under PACE and C.o.P A applies to ANY searches."

and

"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 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."

Last but not least...and reasonably pertinent...for the reason that it has been dicussed by lawyers (including the complainant's own solicitor...and they agree/accept it is covered by S.117.)

"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."

Edited by Time_Bandit, 10 November 2011 - 07:52 PM.

[MattD]

I didnt miss it time bandit im asking for a proper source. All the above is just repeating what another poster says he was told, not something id want to rely on when using force.

The PACE Codes are in effect statutory instrument and it is sensible to suggest that person searches should be conducted in accordance with the codes, But in no way do they bring S23 MDA Person searches under PACE. S117 is specific in that it applies ONLY to PACE powers being confered. Ive seen nothing in either S23 MDA or PACE which would suggest otherwise. There is no caselaw which suggest otherwise, as the above caselaw relates to premises searches on warrant which detail a power to search persons on the premises...indeed the court of appeal ruling makes no mention in its judgement of the codes of practice merely that S117 would have applied in that SPECIFIC circumstance because the warrant was sworn out under S23MDA AND in accordance with S15 PACE. Its there on the laying an information for a warrant forms.

Dont get me wrong i am not suggesting that there is no power, clearly there are situations when our powers overlap at times and i believe as others above that it would be covered by S3 CLA.

[callsign-kid]

I said this last time the question was raised, but was shouted down by the "it only covers PACE searches" crew...!!!

I think there is some confusion in so far as there can be more than one power being used at any one time. Say common law and PACE 117 or S3 CLA. Indeed all three may be applicable to one incident.

[MerseyLLB]

As MDA was 1971, perhaps the best way at looking at the matter is 'Where was the power to use force in a drugs search derived from pre PACE 1984?'




The answer to that question might give us an idea.<br><br>




I am betting that pre-PACE there was a common law power to use force in the execution of duties. *NB just a bet.

Not sure where to start in my quest....




Edit: I will add to this post, it may get lengthy but I will source links for those that re interested in my findings.

• Hansard debate on Police and Criminal Evidence Bill (what evolved into PACE1984) http://hansard.millb...-use-reasonable
  
  It is interesting as a starter. It shows how MPs and even legal professionals can sometimes lack the knowledge to give context to real situations. This relates specifically to qualms over the proposals for what is now S117 PACE 1984.
• Hansard debate relating to proposed drug legislation, Dangerous Drugs Bill, as discussed is the House Of Lords on 5th July 1967 http://hansard.millb...rous-drugs-bill
  
  It is interesting to read the Lords view on coercive powers of search and the relative mistrust of a street stop and search scenario that is displayed. I belive that these provisions never made it to fruition. It is also interesting to note that the only acknowledged street stop and search powers listed here are those used by the Metropolitan Police under S66 Metropolitan Police Act http://www.legislati...3/47/section/66 1839 (repealed by PACE 1984)
  
  I was previously of the opinion that stop and search was generally under the Vagrancy Act 'sus' laws, so I find this very interesting.
• With no obvious answer so far, I am looking at the term 'detain' as in '...detain him for the purpose of searching him...'. When 'detaining' a person [short of arrest] under other acts I have looked if there are explicit provisions for use of force.
  
  Under the Mental Health Act 1983, http://www.legislati.../20/section/139 Section 139 of the Act provides immunity from civil and criminal prosecution for acts made in good faith. Therefore the issue of using force to detain/'remove to a place of safety' under the various provisons are covered under that.
  
  Under the power to detain with regard to football banning orders under http://www.legislati.../37/section/21A Section 21A Football Spectators Act 1989 there is no definition of detention or provision for use of force. Section 21B of the same Act provides that where a person is issued a notice to attend court they may be arrested if the officer believes it necessary for them to comply with attending the court.
  
  Contempt of court, as provided by several acts, seems irrelevant as there is long established custom of a person being taken into custody for contempt of court (often forcibly)
  
  Interestingly under the http://www.legislati...000/11/contents Terrorism Act 2000, Section 44 (repealed) specifically provided a power of detention for the search, as well as there being provisions under section 47 for offences for failing to stop (pedestrian and vehicle) and obstructing a search. Section 43 (still in force) makes no mention of any power to detain for the purpose of the search.
  
  However, under THIS ACT http://www.legislati.../11/section/114 Section 114 - Police Powers, PROVIDES A SPECIFIC POWER TO USE REASONABLE FORCE FOR EXERCISING A POWER CONFERRED BY THE ACT! The TOA 2000's precursor, Prevention of Terrorism (Temporary Provisions) 1989 (repealed) Section 20(2) also provided a specifc power to use reasonable force when exercising the powers!
  
  Thus far and with a tired brain I have only managed to convince myself that, where an act specifies a power of detention, there is no actual power to use force (outside of powers specifically conferred by PACE 1984). The fact that both PACE 1984 and TOA 2000 have specific elements providing that reasonable force may be used, when exercising powers conferred by those acts, actually seems to suggest that where no explicit power to use force is provided then one doesn't exist!

Edited by MerseyLLB, 11 November 2011 - 06:01 PM.

[callsign-kid]

As MDA was 1971, perhaps the best way at looking at the matter is 'Where was the power to use force in a drugs search derived from pre PACE 1984?'

The answer to that question might give us an idea.

I am betting that pre-PACE there was a common law power to use force in the execution of duties. *NB just a bet.

Not sure where to start in my quest....

You do raise a good point. I think that PACE could still be used. There may have been a use of force piece of legislation which has been superseded by PACE. However I think there are other powers to. I think the good old common law right to self defence is it. After all the search is lawful and you can use force to protect yourself. If someone starts to become aggressive towards you whilst you're conducting a search then you may have to defend yourself and common law would cover that and a pre-emptive use of force as well, as long as it is reasonable and necessary.

[SkinSte]

You do raise a good point. I think that PACE could still be used. There may have been a use of force piece of legislation which has been superseded by PACE. However I think there are other powers to. I think the good old common law right to self defence is it. After all the search is lawful and you can use force to protect yourself. If someone starts to become aggressive towards you whilst you're conducting a search then you may have to defend yourself and common law would cover that and a pre-emptive use of force as well, as long as it is reasonable and necessary.

And what about if they passively resist the search, offering you and colleagues no violence but simply resist? Common law self defence would have no application then, so what next?

[Chewie]

I'm not going to get drawn in like before, but I'll just reiterate why S3CLA doesn't apply to a S23MDA search.

S3CLA says that "Any person may use such force as is reasonable, in the circumstances, in the prevention of a crime, or in affecting or assisting in the lawful arrest of offenders, suspected offenders, or of persons unlawfully at large".

Should you suspect evidence of an offence and search a completely innocent MOP who has nothing on them, then no crime has or will have been committed - ergo, you have prevented no crime. S3 is very specific - it does not say "suspicion of a crime", or even just "crime", it says "a crime" - a crime has to be imminent, taking place, or have taken place for it to apply.

As for those who say that they won't accept an answer along the lines of "I was taught that S117 PACE applied" - well, you've been taught a lot of things over time, most of which is knowledge imparted from reference books, teachers, etc - you don't need to prove something yourself before you can accept it as fact. As others have pointed out here and in other threads on the subject, Blackstones, judges, other officers, etc agree that S117 PACE is the legal power used during a S23MDA search - either you accept that or you don't. If you don't, well, that still doesn't mean it's not true!

Edited by Chewie, 11 November 2011 - 10:45 PM.

[MerseyLLB]

I'm not going to get drawn in like before, but I'll just reiterate why S3CLA doesn't apply to a S23MDA search.

S3CLA says that "Any person may use such force as is reasonable, in the circumstances, in the prevention of a crime, or in affecting or assisting in the lawful arrest of offenders, suspected offenders, or of persons unlawfully at large".

Should you suspect evidence of an offence and search a completely innocent MOP who has nothing on them, then no crime has or will have been committed - ergo, you have prevented no crime. S3 is very specific - it does not say "suspicion of a crime", or even just "crime", it says "a crime" - a crime has to be imminent, taking place, or have taken place for it to apply.

As for those who say that they won't accept an answer along the lines of "I was taught that S117 PACE applied" - well, you've been taught a lot of things over time, most of which is knowledge imparted from reference books, teachers, etc - you don't need to prove something yourself before you can accept it as fact. As others have pointed out here and in other threads on the subject, Blackstones, judges, other officers, etc agree that S117 PACE is the legal power used during a S23MDA search - either you accept that or you don't. If you don't, well, that still doesn't mean it's not true!

Blackstone's is not a legal authority, it is a book written by legal academics. I don't believe any judges have made any kind of binding decision to state that S117 PACE covers MDA 1971 searches. I would be pleased if they did and as I am interested I am spending a considerable amount of time trawling through the law library at my uni and legal databases.

It is one of those things that may be ASSUMED to be covered but as the bail fiasco earlier in the year showed - it is all very well assuming until a case reaches a judge who applies the statutes literally. PACE removed the old search powers under the common law, under which would have invariably been a common law power to use force.

It is a little obtuse to say that something IS right but not back it up with any kind of persuasive argument. I may be proven wrong, however I have given more than one reason and sources as to why I believe my point is correct.

In my experience, alot of the things I was taught in training school were legally inaccurate.

[Time_Bandit]

MerseyLLB and MattD.

Are you saying that the Met (presumably their legal team i.e lawyers etc), the Solicitors (who were acting on behalf of a complainant from a S.23 MDA search and who subsequently agreed/accepted that S.117 DOES give you a use of force power), and Blackstones are wrong?

In your opinion then, where do we get our power to use force for S.23 MDA and S.60 CJ&POA?

Do you agree (for S.23 at least) that S.3 CLA is the appropriate use of force power?

[Chewie]

As has been pointed out previously, Code A of the PACE Codes of Practice states (on it's first page!):

This code governs the exercise by police officers of statutory powers to search a person or a vehicle without first making an arrest. The main stop and search powers to which this code applies are set out in Annex A, but that list should not be regarded as definitive. [See Note 1] In addition, it covers requirements on police officers and police staff to record encounters not governed by statutory powers. This code does not apply to:

(a) the powers of stop and search under;

(i) Aviation Security Act 1982, section 27(2);
(ii) Police and Criminal Evidence Act 1984, section 6(1) (which relates specifically to powers of constables employed by statutory undertakers on the premises of the statutory undertakers).

(b) searches carried out for the purposes of examination under Schedule 7 to the Terrorism Act 2000 and to which the Code of Practice issued under paragraph 6 of Schedule 14 to the Terrorism Act 2000 applies.

Note that there are no further exemptions - apart from S6(1) of PACE as mentioned in a(ii) above, the remaining sections of PACE are covered - including S117.

Edited by Chewie, 12 November 2011 - 01:32 AM.

[MerseyLLB]

Yes, I agree that the Codes of Practice govern all searches (except the exemptions you quoted), but they cannot in themselves confer additional powers.

If Codes of Practice were able to confer powers then I would suggest that the relevant 'empowering' section would be:

PACE Codes of Practice

CODE A 3.2

"3.2 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."


However I am not convinced that a code of practice can provide a new power. If it can, why would there have been the need for the specific inclusion of 'power to use reasonable force' sections in legislation.

The jury is out.

Edited by MerseyLLB, 12 November 2011 - 02:02 AM.

[Chewie]

The jury is out.

As far as you're concerned, maybe.

You accused me of being obtuse earlier - I'd say that it's also a little obtuse to continually say that something isn't right but without any attempt at saying what is, so I'll put Time_Bandit's unanswered question to you again - what power do you think applies? S3CLA?

Edited by Chewie, 12 November 2011 - 02:33 AM.

[MerseyLLB]

No, S3 Criminal Law Act to me relates to actual arrests and preventing somebody from committing/continuing to commit an offence. Whilst some argue that using reasonable force to prevent somebody from obstructing a drugs search, I find that as weak as stating that S.117 PACE has to cover it.

My view is that it is a legal grey area, where no power to use force actually exists if you are to take the statute literally, but I imagine that if it were to go to a senior court they would decree that there is (and indeed always has been) a common law power in existence.

This is how I think it could be reasoned:

I imagine the successful argument would come down to the fact that any physical search requires force to be used (force which if unlawful would amount to a trespass to the person), therefore the application of reasonable force to complete a search would not amount to a battery. It could then be suggested that where somebody offered more than some light active resistance, they would be obstructing the drugs search and should face arrest for that offence. The additional fact that there is a power to detain, and with many such instances of a power to detain without any listed power to use force, I think also suggests that there must be a common law power to use force in order to exercise a power of detention.

[MerseyLLB]

MerseyLLB and MattD.

Are you saying that the Met (presumably their legal team i.e lawyers etc), the Solicitors (who were acting on behalf of a complainant from a S.23 MDA search and who subsequently agreed/accepted that S.117 DOES give you a use of force power), and Blackstones are wrong?

In your opinion then, where do we get our power to use force for S.23 MDA and S.60 CJ&POA?

Do you agree (for S.23 at least) that S.3 CLA is the appropriate use of force power?

To reuse my earlier example: Politicians, Police Officers, Solicitors, Barristers, Judges, Blackstone's, Halsbury's and so on (from 1986 when PACE came into force) believed that the 'custody clock' paused when a person was released on bail. 25 years later in 2011 they were proved wrong by a judge who applied the law as it was set out. It took legislation to be rushed through parliament to remedy the situation. As far as I can see there has been no precedent on use of force during a non-PACE stop and search.

As I said, I do not believe that there is technically a power to use force. Obviously you can make physical contact in terms of the search and not commit a battery. If the person resists a lawful search they are committing an offence of either obstructing a drug search or simply obstructing a constable and should therefore be arrested for that offence.

To illustrate my point about the CPS etc:

The fact is that alot of PCSO powers/offences are used incorrectly and dare I say unlawfully. In particular I came across several senior officers in the Met who didn't have a clue as to PCSO powers. The fact is, there were Metropolitan Police PCSOs acting outwith their jurisdiction/scope of the legislation. However, their cases were still taken up, investigated by a PC, reviewed by an ERO and charged by the CPS.

[roger_that]

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?

Obstruction of a drug search is a specific offence in itself

[Time_Bandit]

To reuse my earlier example: Politicians, Police Officers, Solicitors, Barristers, Judges, Blackstone's, Halsbury's and so on (from 1986 when PACE came into force) believed that the 'custody clock' paused when a person was released on bail. 25 years later in 2011 they were proved wrong by a judge who applied the law as it was set out. It took legislation to be rushed through parliament to remedy the situation. As far as I can see there has been no precedent on use of force during a non-PACE stop and search.

As I said, I do not believe that there is technically a power to use force. Obviously you can make physical contact in terms of the search and not commit a battery. If the person resists a lawful search they are committing an offence of either obstructing a drug search or simply obstructing a constable and should therefore be arrested for that offence.

With regard to the PACE clock I believe (well last I heard) that is awaiting an appeal anyway. It's possible that the Law Lords will disagree with that judge and overturn his ruling. IF that happens then all of the aforementioned persons (above) will have been "right". The Law Lords may well decide that judge applied the law incorrectly.

You say that physical contact would not amount to battery. I'm not quite sure why it wouldn't amount to a battery. Would handcuffing (whilst carrying out search) amount to battery? You are using force on someone which is inherent in searching that person. For clarity I'm talking about someone who ISN'T physically resisting you in anyway, but they haven't given you permission per se.

What about S.60 CJ&POA. Has the fact that you need to use force for that power been overlooked also?