New police powers
Serious Organised Crime and Police Act 2005
The implementation in January 2006 of part 3 of the Serious Organised Crime and Police Act 2005 substantially increases police powers at the investigation stage. The concept of the arrestable offence is abolished. Constables are able to arrest a person for any offence, however trivial, provided that the constable has reasonable grounds for believing that any of the reasons specified in the substituted section 24(5) of the Police and Criminal Evidence Act 1984 (PACE) make it necessary to arrest the person.
These reasons are:
These grounds replicate the existing section 25 of PACE. However, two further reasons are added. These are: to allow the prompt and effective investigation of the offence or the conduct of the person in question; and to prevent any prosecution for the offence from being hindered by the disappearance of the person in question.
These give considerable discretions to individual constables and substantially widen their powers of arrest. They will be guided in the use of these powers by a new PACE code G. When making first contact with a police station, solicitors should check which ground of arrest applies in the individual case.
The powers of arrest of those who are not constables are dealt with in a new section 24A of PACE. The powers of such persons will now be restricted to indictable offences, that is to say, any offence that is not summary only. The powers will be exercisable only if the person making the arrest has reasonable grounds for believing that any of the following grounds make it necessary and it appears to the person making the arrest that it is not reasonably practical for a constable to make it instead.
These grounds are to prevent the person from:
By reason of the abolition of the concept of an arrestable offence, the Act sees the abolition of the concept of a 'serious arrestable offence'. This is replaced by the much more lowly standard of an indictable offence, that is to say any offence that is not summary only. Thus, in future, the police powers to keep suspects incommunicado, authorise continuing detention and delay access to lawyers as well as apply for special procedure material and carry out certain search and entry powers are extended to a hugely greater range of offences.
New rules are brought into force in relation to the issue of search warrants. These may now allow entry on more than one occasion, if it is necessary to achieve the purpose for which the warrant is issued. Warrants can be executed within a three-month period and may include an all-premises warrant that will allow entry to one or more sets of premises or to any premises occupied or controlled by a person specified.
Police officers acquire new powers to take photographs and fingerprints from suspects outside the police station. It will be lawful to photograph a person without his consent, otherwise than at a police station, provided that he has been arrested by a constable, or has been taken into custody by a constable after being arrested by someone who is not a constable, or has been made subject to a requirement to wait by a community support officer, or issued with a fixed-penalty notice. A photograph includes a video for these purposes. Such photographs will be retained.
Fingerprints may be taken prior to a person's arrest and away from a police station if the constable reasonably suspects that the person is committing or attempting to commit an offence or has committed or attempted to commit an offence and either the name of the person is unknown or cannot reasonably be ascertained by the constable, or the constable has reasonable grounds for doubting whether the name given by the person is his real name. This will allow for street bail to become effective. The fingerprints will be used for a speculative search. However, they must be destroyed as soon as they have fulfilled the purpose for which they were taken. A further set will then be taken on detention at a police station.
A new section 61A of PACE gives the police power formally to take footwear impressions, with or without a suspect's consent, provided that the person has been arrested for or charged with a recordable offence or has been informed that he will be reported for such an offence. The Act allows for the creation of civilian custody officers and increases the powers available to community support officers.
These changes lead to the introduction of completely new codes of practice under PACE.
It should be noted that on 1 July 2005 a new definition of intimate samples was inserted into section 65 of PACE to include a swab taken from any part of a person's genitalia.
Drugs Act 2005
On 1 December 2005, provisions of the Drugs Act 2005 were brought into force.
A power to test for class A drugs is introduced, in relation to adults on detention at a police station. Adults and youths of 14 years and older may be tested on charge (section 63B of PACE).
A power is introduced to require adults who have tested positive to attend an assessment of their drug use with a suitably qualified person. These powers may only be used in areas specified by the home secretary and where the suspect has committed a trigger offence or any offence for which an inspector or above, having reasonable grounds to suspect that misuse of specified class A drugs caused or contributed to the offence, has authorised the taking of a sample.
Failure to attend and stay at a required assessment without good cause is an offence. Information obtained as a result of an assessment may be disclosed, without consent, to enable the court to determine whether the assessment fulfils the purpose of a relevant assessment section 19 of the Criminal Justice Act 2003, but no other disclosure is allowed.
From 1 January 2006, a written consent to an intimate search for drugs must be given but an inference is available if refused without good cause. An inspector or above may authorise the taking of x-rays and ultrasounds for class A drugs. Similar provisions for inference apply in the absence of consent without good cause. Courts may remand in both customs and police drugs cases for up to 192 hours.
From 1 January 2006, judges, when sentencing an adult for production and for supply of controlled drugs, must treat as an aggravating factor that the supply was in the vicinity of school premises or that a courier under 18 was used (section 4A of the Misuse of Drugs Act 1971).
By Anthony Edwards, TV Edwards, London
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