178 replies to this topic

[Bobby-Bali]

I'll try and take a screen pic of it tomorrow when I'm in if I remember!!

[TYChua]

This question was raised today in a talk at Hendon. The answer given was that S23 Misuse of Drugs Act searches are afforded use of force powers due to the search being covered by s2 and s3 of PACE so s117 applies. I doubt there will be an agreement on what is considered right or wrong until there is case law of some sort; but the person giving the talk heads up the MPS Civil Actions Unit and if we were going to be sued and a case actually come forward it'd be going through her and that's the answer she's given. That's good enough for me!

[Danny_Met]

This question was raised today in a talk at Hendon. The answer given was that S23 Misuse of Drugs Act searches are afforded use of force powers due to the search being covered by s2 and s3 of PACE so s117 applies. I doubt there will be an agreement on what is considered right or wrong until there is case law of some sort; but the person giving the talk heads up the MPS Civil Actions Unit and if we were going to be sued and a case actually come forward it'd be going through her and that's the answer she's given. That's good enough for me!

It was me that asked that question, I even spoke with the lady after the class and she was 100 % satisfied that s117 applies

Although she did admit to asking her colleague immediately after the class finished to make sure she did not give incorrect info

As far as I'm concerned it's settled! However, I can see why there has been so much debate and confusion.

Thank you all who have joined in

[Woody]

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?

s117 of pace allows you to use reasonable force for carrying out any act of pace.

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!

Also if yo thought he would harm you that counts as a reason to handcuff, even if you were worried he may swallow the drugs(harming himself) they had no argument surely?

[Woody]

s117 of pace allows you to use reasonable force for carrying out any act of pace.



Also if yo thought he would harm you that counts as a reason to handcuff, even if you were worried he may swallow the drugs(harming himself) they had no argument surely?

why the neg 1, its not incorrect. Nothing worse than not giving a reason for the neg feedback. Explain to me why it was so worthy of a neg 1.

Edited by wayneone, 13 December 2011 - 11:48 PM.

[5460]

Also, s2 PACE does not confer a power, it confers certain requirements upon a constable when using their powers conferred by s23 MDA. The power comes from s23 MDA. Therefore s117 does not apply; the English in the statute is quite simple and plain and does not say what you're trying to suggest, so we need some case law to show that the statute extends further than it appears, and no one has managed to find any.

We're still hitting my second post on this one, and you've re-itterated my thoughts on s117. I want to be proved wrong, I really do, but sadly 5 pages in we're not really any closer!

With all due respect to previous posters, I cannot accept "because my trainer said so" or "because the MET said so". Danny, you may feel it's covered done and dusted, but most of us aren't convinced, and sadly your argument won't help me in a court of law!

I'm hoping Bobby Bali can bring the case law (as I am assuming a few others do also!) as it would give substance to an argument, especially if it went to court.

Wayne - wasn't me, and if you read the whole thread you'll see the argument against s117 as the search power doesn't come from pace, it comes from MDA.

[Woody]

We're still hitting my second post on this one, and you've re-itterated my thoughts on s117. I want to be proved wrong, I really do, but sadly 5 pages in we're not really any closer!

With all due respect to previous posters, I cannot accept "because my trainer said so" or "because the MET said so". Danny, you may feel it's covered done and dusted, but most of us aren't convinced, and sadly your argument won't help me in a court of law!

I'm hoping Bobby Bali can bring the case law (as I am assuming a few others do also!) as it would give substance to an argument, especially if it went to court.

Wayne - wasn't me, and if you read the whole thread you'll see the argument against s117 as the search power doesn't come from pace, it comes from MDA.

Yeah, that's cool. Just people need to explain they neg's or students like myself will never know what is wrong.

[Fry]

Yeah, that's cool. Just people need to explain they neg's or students like myself will never know what is wrong.

I didn't neg you either, but if I was to guess it would be because after 5 pages of thread you go and post something that clearly shows you haven't bothered to read it

We're still hitting my second post on this one, and you've re-itterated my thoughts on s117. I want to be proved wrong, I really do, but sadly 5 pages in we're not really any closer!

With all due respect to previous posters, I cannot accept "because my trainer said so" or "because the MET said so". Danny, you may feel it's covered done and dusted, but most of us aren't convinced, and sadly your argument won't help me in a court of law!

I'm hoping Bobby Bali can bring the case law (as I am assuming a few others do also!) as it would give substance to an argument, especially if it went to court.

I agree, I don't like "But my trainer said so" or because the Met said so, because it goes against what I'm reading in the statute. With respect to police trainers, they are just police officers rather than lawyers. The whole bail debacle proved we cannot just assume what we've always done is actually law. In this case, the plain text of the statute is very clear and we really need a case to break the deadlock.

Genuinely, if someone managed to post something to prove s117 PACE did apply to s23 MDA searches, I'd be happy. No part of my argument is that it shouldn't apply or that there isn't the power to use reasonable force, just that s117 PACE doesn't, which means the legal situation is that we rely a little bit awkwardly on s3 CJA and other powers. In fact, when I first read this thread, I went out looking for the evidence to argue that s117 did apply but as I looked I ended up proving myself wrong, and had to argue the opposite.

Edited by Fry, 14 December 2011 - 12:21 AM.

[MerseyLLB]

I didn't neg you either, but if I was to guess it would be because after 5 pages of thread you go and post something that clearly shows you haven't bothered to read it



I agree, I don't like "But my trainer said so" or because the Met said so, because it goes against what I'm reading in the statute. With respect to police trainers, they are just police officers rather than lawyers. The whole bail debacle proved we cannot just assume what we've always done is actually law. In this case, the plain text of the statute is very clear and we really need a case to break the deadlock.

Genuinely, if someone managed to post something to prove s117 PACE did apply to s23 MDA searches, I'd be happy. No part of my argument is that it shouldn't apply or that there isn't the power to use reasonable force, just that s117 PACE doesn't, which means the legal situation is that we rely a little bit awkwardly on s3 CJA and other powers. In fact, when I first read this thread, I went out looking for the evidence to argue that s117 did apply but as I looked I ended up proving myself wrong, and had to argue the opposite.

I put in a complaint about powers training given to PCSOs. It was wildly wrong and led to several unlawful searches/detentions by my peers. I have every respect for most of the trainers, but when they are presented with proof that they are hugely wrong it shouldn't take a complaint for them to look into it, as happened in my circumstance. And some officers believe trainers as if they were Mr Statute themself!

[Woody]

I didn't neg you either, but if I was to guess it would be because after 5 pages of thread you go and post something that clearly shows you haven't bothered to read it



I agree, I don't like "But my trainer said so" or because the Met said so, because it goes against what I'm reading in the statute. With respect to police trainers, they are just police officers rather than lawyers. The whole bail debacle proved we cannot just assume what we've always done is actually law. In this case, the plain text of the statute is very clear and we really need a case to break the deadlock.

Genuinely, if someone managed to post something to prove s117 PACE did apply to s23 MDA searches, I'd be happy. No part of my argument is that it shouldn't apply or that there isn't the power to use reasonable force, just that s117 PACE doesn't, which means the legal situation is that we rely a little bit awkwardly on s3 CJA and other powers. In fact, when I first read this thread, I went out looking for the evidence to argue that s117 did apply but as I looked I ended up proving myself wrong, and had to argue the opposite.

I did read it but obviously missed something

[richr]

I agree, I don't like "But my trainer said so" or because the Met said so, because it goes against what I'm reading in the statute. With respect to police trainers, they are just police officers rather than lawyers. The whole bail debacle proved we cannot just assume what we've always done is actually law. In this case, the plain text of the statute is very clear and we really need a case to break the deadlock.

Genuinely, if someone managed to post something to prove s117 PACE did apply to s23 MDA searches, I'd be happy. No part of my argument is that it shouldn't apply or that there isn't the power to use reasonable force, just that s117 PACE doesn't, which means the legal situation is that we rely a little bit awkwardly on s3 CJA and other powers. In fact, when I first read this thread, I went out looking for the evidence to argue that s117 did apply but as I looked I ended up proving myself wrong, and had to argue the opposite.

Absolutely agree. I spent some merry hours on westlaw to try and prove MerseyLLB wrong (nothing personal, I just enjoy a challenge!), and have had to concede that, any way you cut it, s117 simply does not apply to s23 MDA searches.

Seeing as I'm going to MD, Home of the s23 Search™, I'm quite keen for a case to arise so I can say one way or t'other - otherwise I'm going to have to rely on the met's assurances of my powers which might be a bit ropey in the event of an assault allegation.

To be honest, I'm minded to write to my MP to see if he fancies tabling a small amendment to MDA/PACE by way of whatever criminal justice bill is still floating about.

[MerseyLLB]

Absolutely agree. I spent some merry hours on westlaw to try and prove MerseyLLB wrong (nothing personal, I just enjoy a challenge!), and have had to concede that, any way you cut it, s117 simply does not apply to s23 MDA searches.

Seeing as I'm going to MD, Home of the s23 Search™, I'm quite keen for a case to arise so I can say one way or t'other - otherwise I'm going to have to rely on the met's assurances of my powers which might be a bit ropey in the event of an assault allegation.

To be honest, I'm minded to write to my MP to see if he fancies tabling a small amendment to MDA/PACE by way of whatever criminal justice bill is still floating about.

I want to be proven wrong, so that I feel confident using force in a S23 if/when I get in MerseyPol!

[SkinSte]

It was me that asked that question, I even spoke with the lady after the class and she was 100 % satisfied that s117 applies

I spoke to the Doctor at Victoria and he said it was from the MDA itself. Both seem very knowlegable but they can't both be right...

[Bobby-Bali]

To add to the pot...I found an extract from pnld, saying that "use of force" In a drugs search does not need a specific legal power because searching in itself is a use of force!

http://pnld.westyork...tent/D17269.htm

[Time_Bandit]

I'll try and take a screen pic of it tomorrow when I'm in if I remember!!

Hi mate,

Did you manage to get a ref for pnld for R v Roberts 2007? I'd still be interested to read this.

Also can't get your link to work.

Cheers.

[Bobby-Bali]

This link was direct from pnld on an aware terminal, so try viewing from there.

and i couldnt find the r v roberts link we saw during training last time i searched! if i get a moment i will have another look when my next pattern starts on saturday

[smithster]

I think you could probably use S.3 Criminal Law but I think you'd be on safer ground using S.117 PACE 1984.

Smudge

[Bobby-Bali]

The link I posted mentions s60 searches, which similar to s23, has no use of force written in directly. I says that 117 and s3 cover use of force in these circumstances. I shall clarify if I get a chance at work later with a quote

[1943PC]

For what it's worth dragging up an old topic I contacted PNLD to get their views on this issue and this is their reply

Section 117 of the Police and Criminal Evidence Act 1984 (document D21571
on PNLD) only applies to powers exercised under PACE. Section 3 of the
Criminal Law Act 1967 document D386 on PNLD) would provide the statutory
power to use force when carrying out a search under section 23 of the
Misuse of Drugs Act 1971 (document D2121 on PNLD). However, paragraph 3.2
of Code of Practice A of PACE (document D10168 on PNLD) will still apply,
which states:

"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."

In the case of R v Bristol (2007) (document C1525 on PNLD) it was also held
that when using the power to search for drugs under section 23 of the
Misuse of Drugs Act 1984, section 2 of PACE (document D196 on PNLD) will
also apply.

Regards,
PNLD

[richr]

The link I posted mentions s60 searches, which similar to s23, has no use of force written in directly. I says that 117 and s3 cover use of force in these circumstances. I shall clarify if I get a chance at work later with a quote

Funnily enough, that extract was on the wall at the nick when I went in today!

Broadly, the gist was that as s60 (and s23) are designed for the prevention of crime, s3 " A person may use such force as is reasonable in the circumstances in the prevention of crime" applies.

I'll actually make a note of the reference when I go in tomorrow.

[Bobby-Bali]

Cheers, i both have little time or care to sit down and do it of late whilst at work lol...sorry

[Yagoobian]

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?

I can't believe this thread has got so out of hand, when it is so simple.

S23 MDA states you have the power to detain and search someone, which means that if you come across a subject who you Reasonably Suspect is in possession of drugs, you stop them, inform them of your suspicion and tell them they are detained for the purposes of a search - simple.

One of two things then happen - they either co-operate and you search them using the absolute minimum of force required to search a pocket or pat someone down,

or they refuse.

At the point they refuse either by stating so verbally or by their actions (pulling away, struggling etc) they commit the offence of Intentionally Obstructing an Officer in the execution of his powers to search under S23 MDA 1971.

At this point you arrest under Sec 24 PACE, search them under Sec 23 PACE and restrain them under Sec 117 PACE if required.

The scenario of rolling around on the ground using force during a search under S23 MDA doesn't exist, because the second they resist or refuse they should be under arrest.

Put very simply, You would never use force to conduct a drugs search, because if force is required they have committed an arrestable offence and you should arrest them!

[5460]

I can't believe this thread has got so out of hand, when it is so simple.

At the point they refuse either by stating so verbally or by their actions (pulling away, struggling etc) they commit the offence of Intentionally Obstructing an Officer in the execution of his powers to search under S23 MDA 1971.

Put very simply, You would never use force to conduct a drugs search, because if force is required they have committed an arrestable offence and you should arrest them!

1. Read the whole thread, the discussion is around is there a power of use of force for a search. You have come up with a workaround which is lovely, but haven't answered the question. I'm sure many would respect an answer of "there's no power for a use of force, however if someone obstructs...." etc

2. What would be your power of arrest for obstruct police? Prompt and effective? In my mind that doesn't really stick, and once you have obstruct police you'd be better just taking them to court for that offence. It doesn't sit too well to arrest for obstruct police to facilitate a drugs search! The finding of drugs for obstruct police should be a bonus and not a facilitation method surely?

3. You've already stated a use of force to perform a drugs search, so how can you backtrack and say you would never use any force?

The fact this is a 5 page discussion shows it's not a simple answer.

[MC1]

I can't believe this thread has got so out of hand, when it is so simple.

One of those negs is mine because it's the daftest answer so far in this thread. You have either missed the point completely, or deliberately not answered. Because there isn't much to be gained from that post. I hope anyone just starting out doesn't take it as fact anyway.

And a search after arrest is a Sec. 32 not 23.

Edited by MC1, 19 February 2012 - 09:26 PM.

[richr]

Oooh, while I remember - PNLD FAQ reference is D17269.