POLICE SEARCH POWERS

5.1 Stop and Search of Vehicles and / or Persons

Police have the powers to stop and search you or your vehicle under either Section 1 of PACE, Section 60 of the Criminal Justice and Public Order Act 1994 or Sections 43 and 44 of the Anti-Terrorism Act 2000.

Sections 1 and 2 of the Police and Criminal Evidence Act 1984 (PACE)

Under Section 1 of PACE the police may search you and / or your vehicle, if they have reasonable grounds to suspect that you have stolen goods, offensive weapons or for articles used for burglary or theft. Under the recently passed Criminal Justice Act 2003, they may now also search you for items which they suspect are being used for criminal damage.

Points to Note

•Unless you are the driver of a vehicle you do not have to give your name and address. You can be searched in public places, or on private land if this is “readily accessible” to the public at the time of the search, but you may not be searched in a dwelling.
•Always ask the police what the reasonable suspicion is – it has to be something more than the fact, for example, that you are a known animal rights activist.
•In public places they can only search outer clothing, more thorough searches must be made out of sight, in a police van or station.
•Reasonable minimum force may be used to effect a search. You are entitled to get a report of the search from the police station within a year.
•Certain safeguards apply to this and most other searches conducted by the police, according to which the police have to provide certain information during and after the search – see below.

Section 60 Criminal Justice and Public Order Act 1994 (CJA)

Under section 60 of the CJA a police officer of the rank of superintendent or above may authorize all persons and vehicles within a locality to be searched regardless of suspicion, if serious violence is expected in an area. This power may be exercised by an inspector if he believes violence is imminent and no superintendent is available.

Points to Note

•The police do not need to have reasonable suspicion that you are carrying an offensive weapon to search you under Section 60
•The “safeguards” (see below) which require that the police have to give you certain information prior to and during the search apply to Section 60 as they do to any other search. The police have been known to say that they don’t need to give this information for a Section 60 search – they do. Section 2 (2) (b) PACE states that the above information must be given during the exercise of any search, apart from a couple of search powers which are not relevant here. If they refuse the information, the search may be illegal – and hence inadmissible in court - and you may also be able to sue them for assault and battery.

Sections 43 and 44 Terrorism Act 2000

Overview

The definition of "terrorism" under the Terrorism Act 2000 is defined so as to include serious damage to property as well as violence to people. The use of such violence must also be designed to influence the government or to intimidate the public or a section of the public, and it must be used for the purpose of advancing a political, religious or ideological cause.
It's clear therefore that certain types of animal rights actions - eg arson and possibly even serious public order offences such as violent disorder - could fall within this definition of terrorism, and therefore enable the police to use the associated draconian powers against them conferred by the act. Although we're not aware of this happening to animal rights protestors yet, the metropolitan police in London have used the blanket search conferred by Section 44 of the act against anti-war protestors In London and the power to do this has recently been upheld in the High Court. This is not too surprising in the current political climate.

Section 43

This states that a constable may stop and search a person whom he reasonably suspects to be a terrorist to discover whether he has in his possession anything which may constitute evidence that he is a terrorist.
This gives the police wider search powers than they would enjoy under Section 1 of Pace or Section 60 CJA above. Basically they can search you for just about anything.
Unlike Section 44 (below) the police officer must have reason to suspect the person to be a terrorist.

Section 44

An authorisation under this subsection authorises any constable in uniform to stop a person or a vehicle in an area or at a place specified in the authorisation, and to search the person or vehicle and its occupants for articles associated with terrorism.
This is a blanket search power - much like Section 60 CJA above - and does not therefore require that the constable reasonably suspects the presence of articles used for terrorism.
The authorisation has to be given by a police officer who is of the rank police constable or higher, and may remain in place for up to 28 days.

Points to Note on Sections 43 and 44

•The police are obliged to provide you with a written statement that you or the vehicle was stopped, if you apply for it within 12 months of the search.
•Certain safeguards apply to this and most other searches conducted by the police, according to which the police have to provide certain information during and after the search – see below.
•Failure to stop when required to do so or obstructing the police during the exercise of these powers is punishable by either a fine or 6 months in prison or both.
•Failure to stop is not an "arrestable offence" under Section 24 of PACE but a constable can arrest anyone if he reasonably suspects they are committing or about to commit any offence under the act.

Safeguards Applicable to any power to search persons or vehicles

Before any of the above search powers are exercised, the constable must inform you of the following:
a) the constable’s name and the police station to which he is attached.
b) the object of the proposed search
c) the constable’s grounds for proposing to make it.
d) the fact that you are entitled to a copy of the search.

5.2 Searches of Dwellings

Section 8 PACE, Search with a warrant
Under Section 8 of PACE, magistrates may authorize the police to enter and search premises, where the police reasonably suspect that a “serious arrestable offence” has been committed. They must also have reason to believe that it is not practical to gain entry otherwise and that there is material on the premises likely to be of substantial value to the investigation.
When applying for a warrant, the police must specify the reasons they are asking for it, and identify the items or persons sought.
The actual warrant must specify:
i) the name of the person who applied for it,
ii) the date on which it was issued
iii) the enactment under which it was issued
iv) the premises to be searched and
v) the articles or persons sought.
The police are supposed to enter at a reasonable hour, unless this would “frustrate the purpose of the search”. They must identify themselves and supply the occupier with a copy of the warrant. If there is no person present on the premises at the time, the police must leave a copy of the warrant in a prominent place. After the search has finished, the police must return it to the magistrates court where it was issued, where it must be retained for 12 months. The occupier has a right to inspect it during this period.

Points to Note

•In practice it is not difficult for police to satisfy the above conditions for getting a warrant. The hearing is held “ex parte” – ie without your representative present - and the magistrates are usually sympathetic.
•A warrant may only be issued where the police reasonably suspect that a “serious arrestable offence” (an SAO) has been committed. An SAO is defined under Section 116 of PACE as an “arrestable offence” which has led or is intended or likely to lead to any of the following consequences:
i) serious harm to the security of the State or to public order
ii) serious interference with the administration of justice or with the investigation of offences
iii) the death of any person
iv) substantial financial gain to any person
v) serious financial loss to any person.
•The police can use reasonable force to exercise the warrant, usually at around 6-7am in the morning. It may or may not involve your door being kicked in, depending on the nature of the search and whether or not the police believe that the search will be prejudiced by alerting you to their presence. If they do damage your door, the police are under a duty to secure the property afterwards.
•The police may only search for items covered by the warrant and may seize anything for which they are searching under the warrant. But they may also seize anything else under their general power of seizure, which they reasonably regard is evidence in relation to any offence.
•The police can NEVER get a search warrant for an offence which is not “arrestable”, as defined by Section 24 of the Police and Criminal Evidence Act 1984. So for example, the police could never search your home where they suspect merely that aggravated trespass has occurred as this is not an “arrestable offence”.

Section 18 PACE Search without warrant after arrest

This entitles a constable to enter and search premises which are occupied or controlled by someone under arrest for an “arrestable offence” where they reasonably suspect that there is evidence on the premises relating to the offence for which they have been arrested or to some other similar arrestable offence.

Points to Note

•This power is not therefore exercisable where you are under arrest for a non-arrestable offence – eg. for aggravated trespass. This is why the police sometimes arrest you initially for an “arrestable offence”, in order to trigger the Section 18 power of search. For example, they may arrest you for violent disorder (arrestable offence) even though the evidence may only support a charge of threatening behaviour (non-arrestable).
•The police may only search those parts of the premises occupied or controlled by the suspect. The police would not be able to search a room within the premises occupied or controlled by someone else, but would be able to search communal areas.
•Although the police may only search for evidence relating to the offence, they may seize anything which they reasonably believe is evidence relating to any offence, under the general power of seizure – Section 19 PACE. (see below)

Section 32 Pace Search without warrant upon arrest

This section confers the power on a constable to search a person not at a police station upon arrest for anything which might be evidence relating to an offence. The constable may also enter and search the premises where the suspect was arrested, or immediately before he was arrested, for evidence, if he reasonably suspects that he will find on those premises items relating to the offence for which the suspect was arrested.

Points to Note
•This power is not limited to “arrestable offences”, unlike Section 18. But you have to be on the premises at the time of the arrest or immediately before, so the police are unlikely to use it very often to search your house.
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