48 replies to this topic

[securitas88]

And if it was a S1 search would this make any difference?

If the grounds for the search were suspecion of possession of an offensive weapon, possession of a bladed article or possession of an article for use in theft/burglary/criminal damage then you can enter under S17 PACE and arrest for the relevant offence. Then you can search after arrest. The threshold for arrest and search are the same (suspicion) so as long as you had enough grounds to search in the first place, any arrest for the relevant offence should be lawful.

[Bobby-Bali]

Been through this mate...the above is wholly incorrect. If you have read the pace codes of practice.it shows that the point of searching and the idea of giving us a power of search is to avoid an unnecessary arrest. therefore with no evidence of an offence you should not be arresting for it. nor would it conform to human rughts act plan. it is not necessary or accountable.

[securitas88]

Been through this mate...the above is wholly incorrect. If you have read the pace codes of practice.it shows that the point of searching and the idea of giving us a power of search is to avoid an unnecessary arrest. therefore with no evidence of an offence you should not be arresting for it. nor would it conform to human rughts act plan. it is not necessary or accountable.

I don't think you've quite got what I was saying. If you have enough suspicion for a search, you have enough suspicion for an arrest. If you had no grounds for suspecting that they had with them the relevant articles for a S1 search then obviously you wouldn't be searching them and you wouldn't be arresting them.

As for unnecessary arrest- an arrest is entirely necessary in a circumstances where someone has run away from a S1 search into a house as there is no other way you can lawfully apprehend/detain the person for a search.

I think it's ludicrous to suggest (if you are) that you should simply let the person go if you were in hot persuit and suspected them to have a weapon/knife/article for use in theft/burglary/fraud.

Whether this action comforms to the Human Rights Act or PLAN is a matter of debate, unless you have case law regarding the HRA which shows that the actions I have suggested would be unlawful.

[hathaway]

Simple solution - under s.89(2) of the Police Act 1996 they have willfully obstructed a constable. You needed to arrest them to prevent their disappearance, the loss of any evidence on them, and for a prompt and effective investigation. This means you have a s.17 power of entry, and then s.32 search them

EDIT: I'm very wrong

Edited by hathaway, 06 March 2012 - 12:39 PM.

[bensonby]

Obstruct police is a summary only offence.

[securitas88]

Can some other officers comment about this- would you be prepared to arrest for say, possession of an offensive weapon, if a suspect you stopped to search ran away into a house? That way we can get a range of views, instead of me and Bobby-Bali arguing.

[securitas88]

Here's a senario:

You have had a call that someone's been reported carrying a 6" knife in public and are given a description of the offender. As you approach the area where he was reported to be, you see someone who appears to match the description. It could be ther person, however, it could equally be just an innocent person who looks similar to the suspect. You stop the patrol car, get out and state "Police, wait there...you're being detained." They immediately run away and as you chase them round the corner on foot they run into a house. You are in immediate pursuit and if you continued after him there would probably be enough time to catch him and arrest him before he hides any evidence or escapes out the back of the house.

You could enter under S17 PACE, arrest under S24 (necessity: prompt & effective investigation/disappearance of suspect) and then search under S32. Or you could decide, as Bobby-Bali states, that this is an abuse of the power of arrest, against PLAN and in breach of the Human Rights Act and instead not enter, hindering any prosecution or arrest for possession of a bladed article which might be necessary and possibly endangering the public.

[hathaway]

Obstruct police is a summary only offence.

Well blow me down

[Bobby-Bali]

I personally am not arresting someone when i have no evidence of an offence. nor any substantiation of an offence.

Further for your scenario, when i was a special we had a borough wide email with case law saying that you are detained is not in itself sufficient for them to be detained. all of gowisely must be given prior to having the power to go hands on otherwise a search is unlawful. cant for the life of me rmember what case law ref this was

when you get out of training school you will very quickly realise that this sort of scenario if you followed through would end in you getting a telling off by a custody skipper.

Oh youve arrested him for points and blades? Where is tge pointed bladed article? Err i couldnt find it sarge...im not authorising your detention at this police station...

Remember you must believe that id copplan applies and without any physical evidence.

Anyway its your warrant card not mine...

Without any corroborating evidence eg having been viewed on cctv or statements youd be dead in the water.

Please stop trying to apply training school logic to real life youll very quickly realise they are not one and the same!

[wanabe]

I personally am not arresting someone when i have no evidence of an offence. nor any substantiation of an offence.

Further for your scenario, when i was a special we had a borough wide email with case law saying that you are detained is not in itself sufficient for them to be detained. all of gowisely must be given prior to having the power to go hands on otherwise a search is unlawful. cant for the life of me rmember what case law ref this was

when you get out of training school you will very quickly realise that this sort of scenario if you followed through would end in you getting a telling off by a custody skipper.

Oh youve arrested him for points and blades? Where is tge pointed bladed article? Err i couldnt find it sarge...im not authorising your detention at this police station...

Remember you must believe that id copplan applies and without any physical evidence.

Anyway its your warrant card not mine...

Without any corroborating evidence eg having been viewed on cctv or statements youd be dead in the water.

Please stop trying to apply training school logic to real life youll very quickly realise they are not one and the same!

You would arrest on suspicion off though wouldn't you? Just because a JOG search does find anything doesn't mean they don't have it on them! It could be down their boxers or anywhere. If you feel you need to do a strip search not many custody Sgts are going do refuse detention.

[SCBravo]

If they have resisted/escaped arrest then could you possibly consider assault with intent to resist or prevent lawful arrest (s38 offences against the person act), which is an either way offence, therefore has power of entry?

[Capt. Carrot]

If they have resisted/escaped arrest then could you possibly consider assault with intent to resist or prevent lawful arrest (s38 offences against the person act), which is an either way offence, therefore has power of entry?

I'd like to be nearby when you try getting that one past CPS

Edit to add explanation. S38 is generally only used when the attempted arrest was a S24a arrest (Persons other than a Constable). If the arrest involves a Constable the CPS would look at the S89(1) Police Act 1996 offence.

Edited by Capt. Carrot, 06 March 2012 - 02:50 PM.

[securitas88]

I'd like to be nearby when you try getting that one past CPS

Edit to add explanation. S38 is generally only used when the attempted arrest was a S24a arrest (Persons other than a Constable). If the arrest involves a Constable the CPS would look at the S89(1) Police Act 1996 offence.

I think what he's saying though is if you arrest for assualt with intent to resist arrest (indictable) you then have a power of entry. Whereas, arresting for assualting a police officer (summary), you don't. After all, the offender can be charged with assault police at a later date if the CPS don't want to go with S38 OATPA.

[phantom91]

I think what he's saying though is if you arrest for assualt with intent to resist arrest (indictable) you then have a power of entry. Whereas, arresting for assualting a police officer (summary), you don't. After all, the offender can be charged with assault police at a later date if the CPS don't want to go with S38 OATPA.

Good reply. In my original post I did state the suspect 'pushed' the officer and 'ran off' so I guess this could potentially fall under the assault with intent to resist area - for arrest purposes anyway.

Does anybody else agree with the above?

[SCBravo]

I think what he's saying though is if you arrest for assualt with intent to resist arrest (indictable) you then have a power of entry. Whereas, arresting for assualting a police officer (summary), you don't. After all, the offender can be charged with assault police at a later date if the CPS don't want to go with S38 OATPA.

Thanks for clarifying my post, that is indeed what I meant!

[Capt. Carrot]

Good reply. In my original post I did state the suspect 'pushed' the officer and 'ran off' so I guess this could potentially fall under the assault with intent to resist area - for arrest purposes anyway.

Does anybody else agree with the above?

Umm, yes well, actually I do! I would indeed consider the S38 if I wanted to use a power to enter, I just don't think the CPS charging standards would support continuing with it.
Having said that, there is a statable case from 2000 (R v Lee) which refers to S38. As I recall it was to do with a drink driver convicted of assaulting a Police Officer who was trying to arrest him. Lee appealed the conviction based on him believing the arrest was unlawful. He lost! I'm sure someone else will recall it much more fully.

[Stumblebum]

You would arrest on suspicion off though wouldn't you? Just because a JOG search does find anything doesn't mean they don't have it on them! It could be down their boxers or anywhere. If you feel you need to do a strip search not many custody Sgts are going do refuse detention.

There is no need to arrest a person in order to carry out a strip search though...... (or am I missing the point?)

[wanabe]

There is no need to arrest a person in order to carry out a strip search though...... (or am I missing the point?)

Well their not going to volunteer to go to the station are they?

Edited by wanabe, 08 March 2012 - 05:41 PM.

[Stumblebum]

Well their not going to volunteer to go to the station are they?

Detaining a person for the purpose of a search includes a strip search. You may detain them and take them to a police station without arresting that person.

You may also carry out a strip search at a place other than a police station.

Whether they volunteer to go willingly, is neither here nor there.

[Bobby-Bali]

Precisely my point!! Ta

[Stumblebum]

If you have enough suspicion for a search, you have enough suspicion for an arrest. ..

That is very worrying...

[Fry]

If you have enough suspicion for a search, you have enough suspicion for an arrest.

That is very worrying...

Really, why?

It makes logical sense; the power of search is that you have to have reasonable grounds to suspect that someone has something they shouldn't, and the power of arrest is that you have to have reasonable grounds to suspect that they have committed some offence. If you're happy to search someone because you've got reasonable grounds to suspect that they have drugs on them, logically you should be happy to arrest them possession of a controlled substance. Good practice and common sense says that you conduct a search, but legally if the arrest necessity is made out and it's proportionate/necessary etc. then I can't see why you couldn't arrest apart from the fact it would likely be a waste of a lot of time.

[Bobby-Bali]

I agree...worrying. although he is still in training.

[fence]

Good read!