Search powers

(1) Fairness in relation to police searches can either involve respect for a right to liberty (in the case of personal searches) or respect for a right to property (in the case of physical searches). The latter type of search was restricted by the principle that "an Englishman’s home is his castle" in the case of Entick v Carrington (1765) 95 E.R. 807 [This case will be available in full soon]

Though the principle enunciated in this case remains true, on the facts it has been affected by the Security Service act 1989 section 3 which does allow the Home Secretary to issue search warrants.

However, the right to privacy is not recognised in English Law (see the case of Malone)

and this means that forms of bugging and spying were not regulated for a long time under English law.

(2) There are now many different types of statutory search powers, so no more than a brief outline of sources is given here.

(3) Searches on private property conducted under judicial warrant

Such searches may be carried out under the follwoing powers:

under PACE section 8 or 9 (and schedule 1) in relation to serious offences

Police and Criminal Evidence Act 1984, s.8
Power of justice of the peace to authorise entry and search of premises

 8. - (1) If on an application made by a constable a justice of the peace is satisfied that there are reasonable grounds for believing -

(a) that a serious arrestable offence has been committed; and
(b) that there is material on premises specified in the application which is likely to be of substantial value (whether by itself or together with other material) to the investigation of the offence; and
(c) that the material is likely to be relevant evidence; and
(d) that it does not consist of or include items subject to legal privilege, excluded material or special procedure material; and
(e) that any of the conditions specified in subsection (3) below applies,

he may issue a warrant authorising a constable to enter and search the premises.

(2) A constable may seize and retain anything for which a search has been authorised under subsection (1) above.

(3) The conditions mentioned in subsection (1)(e) above are -

(a) that it is not practicable to communicate with any person entitled to grant entry to the premises;
(b) that it is practicable to communicate with a person entitled to grant entry to the premises but it is not practicable to communicate with any person entitled to grant access to the evidence;
(c) that entry to the premises will not be granted unless a warrant is produced;
(d) that the purpose of a search may be frustrated or seriously prejudiced unless a constable arriving at the premises can secure immediate entry to them.

(4) In this Act "relevant evidence", in relation to an offence, means anything that would be admissible in evidence at a trial for the offence.

(5) The power to issue a warrant conferred by this section is in addition to any such power otherwise conferred.

Police and Criminal Evidence Act 1984, s.9
Special provisions as to access

 9. - (1) A constable may obtain access to excluded material or special procedure material for the purposes of a criminal investigation by making an application under Schedule 1 below and in accordance with that Schedule.

(2) Any Act (including a local Act) passed before this Act under which a search of premises for the purposes of a criminal investigation could be authorised by the issue of a warrant to a constable shall cease to have effect so far as it relates to the authorisation of searches -

(a) for items subject to legal privilege; or
(b) for excluded material; or
(c) for special procedure material consisting of documents or records other than documents.

Police and Criminal Evidence Act 1984, Sched. 1
Special Procedure
Making of orders by circuit judge

1. If on an application made by a constable a circuit judge is satisfied that one or other of the sets of access conditions is fulfilled, he may make an order under paragraph 4 below.

2. The first set of access conditions is fulfilled if -

(a) there are reasonable grounds for believing -
(i) that a serious arrestable offence has been committed;
(ii) that there is material which consists of special procedure material or includes special procedure material and does not also include excluded material on premises specified in the application;
(iii) that the material is likely to be of substantial value (whether by itself or together with other material) to the investigation in connection with which the application is made; and
(iv) that the material is likely to be relevant evidence;
(b) other methods of obtaining the material -
(i) have been tried without success; or
(ii) have not been tried because it appeared that they were bound to fail; and
(c) it is in the public interest, having regard -
(i) to the benefit likely to accrue to the investigation if the material is obtained; and
(ii) to the circumstances under which the person in possession of the material holds it,
that the material should be produced or that access to it should be given.

3. The second set of access conditions is fulfilled if -

(a) there are reasonable grounds for believing that there is material which consists of or includes excluded material or special procedure material on premises specified in the application;
(b) but for section 9(2) above a search of the premises for that material could have been authorised by the issue of a warrant to a constable under an enactment other than this Schedule; and
(c) the issue of such a warrant would have been appropriate.

4. An order under this paragraph is an order that the person who appears to the circuit judge to be in possession of the material to which the application relates shall -

(a) produce it to a constable for him to take away; or
(b) give a constable access to it,

not later than the end of the period of seven days from the date of the order or the end of such longer period as the order may specify.

5. Where the material consists of information contained in a computer -

(a) an order under paragraph 4(a) above shall have effect as an order to produce the material in a form in which it can be taken away and in which it is visible and legible; and
(b) an order under paragraph 4(b) above shall have effect as an order to give a constable access to the material in a form in which it is visible and legible.

6. For the purposes of sections 21 and 22 above material produced in pursuance of an order under paragraph 4(a) above shall be treated as if it were material seized by a constable.

Notices of applications for orders.

7. An application for an order under paragraph 4 above shall be made inter partes.

8. Notice of an application for such an order may be served on a person either by delivering it to him or by leaving it at his proper address or by sending it by post to him in a registered letter or by the recorded delivery service.

9. Such a notice may be served -

(a) on a body corporate, by serving it on the body's secretary or clerk or other similar officer; and
(b) on a partnership, by serving it on one of the partners.

10. For the purposes of this Schedule, and of section 7 of the Interpretation Act 1978 in its application to this Schedule, the proper address of a person, in the case of secretary or clerk or other similar officer of a body corporate, shall be that of the registered or principal office of that body, in the case of a partner of a firm shall be that of the principal office of the firm, and in any other case shall be the last known address of the person to be served.

11. Where notice of an application for an order under paragraph 4 above has been served on a person, he shall not conceal, destroy, alter or dispose of the material to which the application relates except -

(a) with the leave of a judge; or
(b) with the written permission of a constable,

until -

(i) the application is dismissed or abandoned; or
(ii) he has complied with an order under paragraph 4 above made on the application.

Issue of warrants by circuit judge

12. If on an application made by a constable a circuit judge -

(a) is satisfied -
(i) that either set of access conditions is fulfilled; and
(ii) that any of the further conditions set out in paragraph 14 below is also fulfilled; or
(b) is satisfied -
(i) that the second set of access conditions is fulfilled; and
(ii) that an order under paragraph 4 above relating to the material has not been complied with,

he may issue a warrant authorising a constable to enter and search the premises.

13. A constable may seize and retain anything for which a search has been authorised under paragraph 12 above.

14. The further conditions mentioned in paragraph 12(a)(ii) above are -

(a) that it is not practicable to communicate with any person entitled to grant entry to the premises to which the application relates;
(b) that it is practicable to communicate with a person entitled to grant entry to the premises but it is not practicable to communicate with any person entitled to grant access to the material;
(c) that the material contains information which -
(i) is subject to a restriction or obligation such as is mentioned in section 11(2)(b) above; and
(ii) is likely to be disclosed in breach of it if a warrant is not issued;
(d) that service of notice of an application for an order under paragraph 4 above may seriously prejudice the investigation.

15. - (1) If a person fails to comply with an order under paragraph 4 above, a circuit judge may deal with him as if he had committed a contempt of the Crown Court.
 (2) Any enactment relating to contempt of the Crown Court shall have effect in relation to such a failure as if it were such a contempt.

Costs
16. The costs of any application under this Schedule and of anything done or to be done in pursuance of an order made under it shall be in the discretion of the judge.

under statutory powers outside of PACE. Examples include the Theft Act 1968 section 26 and the Misuse of drugs Act 1971 section 23

Misuse of Drugs Act 1971, s.23
Powers to search and obtain evidence

 23. - (1) A constable or other person authorised in that behalf by a general or special order of the Secretary of State (or in Northern Ireland either of the Secretary of State or the Ministry of Home Affairs for Northern Ireland) shall, for the purposes of the execution of this Act, have power to enter the premises of a person carrying on business as a producer or supplier of any controlled drugs and to demand the production of, and to inspect, any books or documents relating to dealings in any such drugs and to inspect any stocks of any such drugs.

 (2) If a constable has reasonable grounds to suspect that any person is in possession of a controlled drug in contravention of this Act or of any regulations made thereunder, the constable may -

(a) search that person, and detain him for the purpose of searching him;
(b) search any vehicle or vessel in which the constable suspects that the drug may be found, and for that purpose require the person in control of the vehicle or vessel to stop it;
(c) seize and detain, for the purposes of proceedings under this Act, anything found in the course of the search which appears to the constable to be evidence of an offence under this Act.

 In this subsection "vessel" includes a hovercraft within the meaning of the Hovercraft Act 1968; and nothing in this subsection shall prejudice any power of search or any power to seize or detain property which is exercisable by a constable apart from this subsection.

(3) If a justice of the peace (or in Scotland a justice of the peace, a magistrate or a sheriff) is satisfied by information on oath that there is reasonable ground for suspecting -

(a) that any controlled drugs are, in contravention of this Act or of any regulations made thereunder, in the possession of a person on any premises; or
(b) that a document directly or indirectly relating to, or connected with, a transaction or dealing which was, or an intended transaction or dealing which would if carried out be, an offence under this Act, or in the case of a transaction or dealing carried out or intended to be carried out in a place outside the United Kingdom, an offence against the provisions of a corresponding law in force in that place, is in the possession of a person on any premises, he may grant a warrant authorising any constable acting for the police area in which the premises are situated at any time or times within one month from the date of the warrant, to enter, if need be by force, the premises named in the warrant, and to search the premises and any person found therein and, if there is reasonable ground for suspecting that an offence under this Act has been committed in relation to any controlled drugs found on the premises or in the possession of any such persons, or that a document so found is such a document as is mentioned in paragraph (b) above, to seize and detain those drugs or that document, as the case may be. 

(3A) The powers conferred by subsection (1) above shall be exercisable also for the purposes of the execution of Part II of the Criminal Justice (International Co-operation Act 1990 or section 49 of the Drug Trafficking Act 1994, and subsection (3) above (excluding paragraph (a)) shall apply also to offences under section 12 or 13 of that Act of 1990, taking references in those provisions to controlled drugs as references to scheduled substances within the meaning of that Part.

(4) A person commits an offence if he -

(a) intentionally obstructs a person in the exercise of his powers under this section; or
(b) conceals from a person acting in the exercise of his powers under subsection (1) above any such books, documents, stocks or drugs as are mentioned in that subsection; or
(c) without reasonable excuse (proof of which shall lie on him) fails to produce any such books or documents as are so mentioned where their production is demanded by a person in the exercise of his powers under that subsection.

These types of searches are all regulated under rules in PACE about how the searches should be documented and conducted. See Code B for the Searching of Premises and the Seizure of Property.. It should also be noted that a significant proportion of searches of this kind (perhaps a third) will be undertaken by "consent" of the occupier.

(4) Searches on private property without judicial warrant

These types of search arise in connection with other police operations (such as an arrest) or in an emergency. See PACE sections 17, 18, 19, 32

Police and Criminal Evidence Act 1984, s.17
Entry for purpose of arrest, etc.

 17. - (1) Subject to the following provisions of this section, and without prejudice to any other enactment, a constable may enter and search any premises for the purpose -

(a) of executing -
(i) a warrant of arrest issued in connection with or arising out of criminal proceedings; or
(ii) a warrant of commitment issued under section 76 of the Magistrates' Courts Act 1980;
(b) of arresting a person for an arrestable offence;
(c) of arresting a person for an offence under -
(i) section 1 (prohibition of uniforms in connection with political objects), ... of the Public Order Act 1936;
(ii) any enactment contained in sections 6 to 8 or 10 of the Criminal Law Act 1977 (offences relating to entering and remaining on property);
(iii) section 4 of the Public Order Act 1986 (fear or provocation of violence);
(iv) section 76 of the Criminal Justice and Public Order Act 1994 (failure to comply with interim possession order);
(ca) of arresting, in pursuance of section 32(1A) of the Children and Young Persons Act 1969, any child or young person who has been remanded or committed to local authority accommodation under section 23(1) of that Act;
(cb) of recapturing any person who is, or is deemed for any purpose to be, unlawfully at large while liable to be detained -
(i) in a prison, remand centre, young offender institution or secure training centre, or
(ii) in pursuance of section 53 of the Children and Young Persons Act 1933 (dealing with children and young persons guilty of grave crimes), in any other place;
(d) of recapturing any person whatsoever who is unlawfully at large and whom he is pursuing; or
(e) of saving life or limb or preventing serious damage to property.

(2) Except for the purpose specified in paragraph (e) of subsection (1) above, the powers of entry and search conferred by this section -

(a) are only exercisable if the constable has reasonable grounds for believing that the person whom he is seeking is on the premises; and
(b) are limited, in relation to premises consisting of two or more separate dwellings, to powers to enter and search -
(i) any parts of the premises which the occupiers of any dwelling comprised in the premises use in common with the occupiers of any other such dwelling; and
(ii) any such dwelling in which the constable has reasonable grounds for believing that the person whom he is seeking may be.

(3) The powers of entry and search conferred by this section are only exercisable for the purposes specified in subsection (1)(c)(ii) or (iv) above by a constable in uniform.

(4) The power of search conferred by this section is only a power to search to the extent that is reasonably required for the purpose for which the power of entry is exercised.

(5) Subject to subsection (6) below, all the rules of common law under which a constable has power to enter premises without a warrant are hereby abolished.

(6) Nothing in subsection (5) above affects any power of entry to deal with or prevent a breach of the peace.

 

Police and Criminal Evidence Act 1984, s.18
Entry and search after arrest

 18. - (1) Subject to the following provisions of this section, a constable may enter and search any premises occupied or controlled by a person who is under arrest for an arrestable offence, if he has reasonable grounds for suspecting that there is on the premises evidence, other than items subject to legal privilege, that relates -

(a) to that offence; or
(b) to some other arrestable offence which is connected with or similar to that offence.

(2) A constable may seize and retain anything for which he may search under subsection (1) above.

(3) The power to search conferred by subsection (1) above is only a power to search to the extent that is reasonably required for the purpose of discovering such evidence.

(4) Subject to subsection (5) below, the powers conferred by this section may not be exercised unless an officer of the rank of inspector or above has authorised them in writing.

(5) A constable may conduct a search under subsection (1) above -

(a) before taking the person to a police station; and
(b) without obtaining an authorisation under subsection (4) above,

if the presence of that person at a place other than a police station is necessary for the effective investigation of the offence.

(6) If a constable conducts a search by virtue of subsection (5) above, he shall inform an officer of the rank of inspector or above that he has made the search as soon as practicable after he has made it.

(7) An officer who -

(a) authorises a search; or
(b) is informed of a search under subsection (6) above,

shall make a record in writing -

(i) of the grounds for the search; and
(ii) of the nature of the evidence that was sought.

(8) If the person who was in occupation or control of the premises at the time of the search is in police detention at the time the record is to be made, the officer shall make the record as part of his custody record.

 

Police and Criminal Evidence Act 1984, s.19
General power of seizure, etc.

19. - (1) The powers conferred by subsections (2), (3) and (4) below are exercisable by a constable who is lawfully on any premises.

(2) The constable may seize anything which is on the premises if he has reasonable grounds for believing -

(a) that it has been obtained in consequence of the commission of an offence; and
(b) that it is necessary to seize it in order to prevent it being concealed, lost, damaged, altered or destroyed.

(3) The constable may seize anything which is on the premises if he has reasonable grounds for believing -

(a) that it is evidence in relation to an offence which he is investigating or any other offence; and
(b) that it is necessary to seize it in order to prevent the evidence being concealed, lost, altered or destroyed.

(4) The constable may require any information which is contained in a computer and is accessible from the premises to be produced in a form in which it can be taken away and in which it is visible and legible if he has reasonable grounds for believing-

(a) that -
(i) it is evidence in relation to an offence which he is investigating or any other offence; or
(ii) it has been obtained in consequence of the commission of an offence; and
(b) that it is necessary to do so in order to prevent it being concealed, lost, tampered with or destroyed.

(5) The powers conferred by this section are in addition to any power otherwise conferred.

(6) No power of seizure conferred on a constable under any enactment (including an enactment contained in an Act passed after this Act) is to be taken to authorise the seizure of an item which the constable exercising the power has reasonable grounds for believing to be subject to legal privilege.

 

Police and Criminal Evidence Act 1984, s.32
Search upon arrest

32. - (1) A constable may search an arrested person, in any case where the person to be searched has been arrested at a place other than a police station, if the constable has reasonable grounds for believing that the arrested person may present a danger to himself or others.

(2) Subject to subsections (3) to (5) below, a constable shall also have power in any such case -

(a) to search the arrested person for anything -
(i) which he might use to assist him to escape from lawful custody; or
(ii) which might be evidence relating to an offence; and
(b) to enter and search any premises in which he was when arrested or immediately before he was arrested for evidence relating to the offence for which he has been arrested.

(3) The power to search conferred by subsection (2) above is only a power to search to the extent that is reasonably required for the purpose of discovering any such thing or any such evidence.

(4) The powers conferred by this section to search a person are not to be construed as authorising a constable to require a person to remove any of his clothing in public other than an outer coat, jacket or gloves but they do authorise a search of a person's mouth.

(5) A constable may not search a person in the exercise of the power conferred by subsection (2)(a) above unless he has reasonable grounds for believing that the person to be searched may have concealed on him anything for which a search is permitted under that paragraph.

(6) A constable may not search premises in the exercise of the power conferred by subsection (2)(b) above unless he has reasonable grounds for believing that there is evidence for which a search is permitted under that paragraph on the premises.

(7) In so far as the power of search conferred by subsection (2)(b) above relates to premises consisting of two or more separate dwellings, it is limited to a power to search -

(a) any dwelling in which the arrest took place or in which the person arrested was immediately before his arrest; and
(b) any parts of the premises which the occupier of any such dwelling uses in common with the occupiers of any other dwellings comprised in the premises.

(8) A constable searching a person in the exercise of the power conferred by subsection (1) above may seize and retain anything he finds, if he has reasonable grounds for believing that the person searched might use it to cause physical injury to himself or to any other person.

(9) A constable searching a person in the exercise of the power conferred by subsection (2)(a) above may seize and retain anything he finds, other than an item subject to legal privilege, if he has reasonable grounds for believing -

(a) that he might use it to assist him to escape from lawful custody; or
(b) that it is evidence of an offence or has been obtained in consequence of the commission of an offence.

(10) Nothing in this section shall be taken to affect the power conferred by section 15(3), (4) and (5) of the Prevention of Terrorism (Temporary Provisions) Act 1989.

(5) Stop and search powers

These differ from the above in that they are powers to search people rather than places. They are therefore controversial because they are very intrusive. They are also subject to criticism because they are far more frequently used than other forms of search yet do not ofetn produce evidence of a crime (only in around 15% of stops is the person even arrested). The powers are mainly in PACE sections 1 to 4:

Police and Criminal Evidence Act 1984, s.1
Power of constable to stop, search persons, vehicles etc.

1. - (1) A constable may exercise any power conferred by this section -

(a) in any place to which at the time when he proposes to exercise the power the public or any section of the public has access, on payment or otherwise, as of right or by virtue of express or implied permission; or
(b) in any other place to which people have ready access at the time when he proposes to exercise the power but which is not a dwelling.

(2) Subject to subsection (3) to (5) below, a constable -

(a) may search
(i) any person or vehicle;
(ii) anything which is in or on a vehicle,
for stolen or prohibited articles or any article to which subsection (8A) below applies; and
(b) may detain a person or vehicle for the purpose of such a search.

(3) This section does not give a constable power to search a person or vehicle or anything in or on a vehicle unless he has reasonable grounds for suspecting that he will find stolen or prohibited articles or any article to which subsection (8A) below applies.

(4) If a person is in a garden or yard occupied with and used for the purposes of a dwelling or on other land so occupied and used, a constable may not search him in the exercise of the power conferred by this section unless the constable has reasonable grounds for believing -

(a) that he does not reside in the dwelling; and
(b) that he is not in the place in question with the express or implied permission of a person who resides in the dwelling.

(5) If a vehicle is in a garden or yard occupied with and used for the purposes of a dwelling or on other land so occupied and used, a constable may not search the vehicle or anything in or on it in the exercise of the power conferred by this section unless he has reasonable grounds for believing -

(a) that the person in charge of the vehicle does not reside in the dwelling; and
(b) that the vehicle is not in the place in question with the express or implied permission of a person who resides in the dwelling.

(6) If in the course of such a search a constable discovers an article which he has reasonable grounds for suspecting to be a stolen or prohibited article or an article to which subsection (8A) below applies, he may seize it.

(7) An article is prohibited for the purposes of this Part of this Act if it is -

(a) an offensive weapon; or
(b) an article -
(i) made or adapted for use in the course of or in connection with an offence to which this sub-paragraph applies; or
(ii) intended by the person having it with him for such use by him or by some other person.

(8) The offences to which subsection (7)(b)(i) above applies are -

(a) burglary;
(b) theft;
(c) offences under section 12 of the Theft Act (taking motor vehicle or other conveyance without authority); and
(d) offences under section 15 of that Act (obtaining property by deception).

(8A) This subsection applies to any article in relation to which a person has committed, or is committing or is going to commit an offence under section 139 of the Criminal Justice Act 1988.
 (9) In this Part of this Act "offensive weapon" means any article -

(a) made or adapted for use for causing injury to persons; or
(b) intended by the person having it with him for such use by him or by some other person.

 

Police and Criminal Evidence Act 1984, s.3
Duty to make records concerning searches

 3. - (1) Where a constable has carried out a search in the exercise of any such power as is mentioned in section 2(1) above, other than a search -

(a) under section 6 below; or
(b) under section 27(2) of the Aviation Security Act 1982, he shall make a record of it in writing unless it is not practicable to do so.

(2) If -

(a) a constable is required by subsection (1) above to make a record of a search; but
(b) it is not practicable to make the record on the spot,

he shall make it as soon as practicable after the completion of the search.

(3) The record of a search of a person shall include a note of his name, if the constable knows it, but a constable may not detain a person to find out his name.

(4) If a constable does not know the name of a person whom he has searched, the record of the search shall include a note otherwise describing that person.

(5) The record of a search of a vehicle shall include a note describing the vehicle.

(6) The record of a search of a person or a vehicle -

(a) shall state -
(i) the object of the search;
(ii) the grounds for making it;
(iii) the date and time when it was made;
(iv) the place where it was made;
(v) whether anything, and if so what, was found;
(vi) whether any, and if so what, injury to a person or damage to property appears to the constable to have resulted from the search; and
(b) shall identify the constable making it.

(7) If a constable who conducted a search of a person made a record of it, the person who was searched shall be entitled to a copy of the record if he asks for one before the end of the period specified in subsection (9) below.

(8) If -

(a) the owner of a vehicle which has been searched or the person who was in charge of the vehicle at the time when it was searched asks for a copy of the record of the search before the end of the period specified in subsection (9) below; and
(b) the constable who conducted the search made a record of it,

the person who made the request shall be entitled to a copy.

(9) The period mentioned in subsections (7) and (8) above is the period of 12 months beginning with the date on which the search was made.

(10) The requirements imposed by this section with regard to records of searches of vehicles shall apply also to records of searches of vessels, aircraft and hovercraft.

 

Police and Criminal Evidence Act 1984, s.4
Road checks

 4. - (1) This section shall have effect in relation to the conduct of road checks by police officers for the purpose of ascertaining whether a vehicle is carrying -

(a) a person who has committed an offence other than a road traffic or a vehicle excise offence;
(b) a person who is a witness to such an offence;
(c) a person intending to commit such an offence; or
(d) a person who is unlawfully at large.

(2) For the purposes of this section a road check consists of the exercise in a locality of the power conferred by section 163 of the Road Traffic Act 1988 in such a way as to stop during the period for which its exercise in that way in that locality continues all vehicles or vehicles selected by any criterion.

(3) Subject to subsection (5) below, there may only be such a road check if a police officer of the rank of superintendent or above authorises it in writing.

(4) An officer may only authorise a road check under subsection (3) above -

(a) for the purpose specified in subsection (1)(a) above, if he has reasonable grounds -
(i) for believing that the offence is a serious arrestable offence; and
(ii) for suspecting that the person is, or is about to be, in the locality in which vehicles would be stopped if the road check were authorised;
(b) for the purpose specified in subsection (1)(b) above, if he has reasonable grounds for believing that the offence is a serious arrestable offence;
(c) for the purpose specified in subsection (1)(c) above, if he has reasonable grounds -
(i) for believing that the offence would be a serious arrestable offence; and
(ii) for suspecting that the person is, or is about to be, in the locality in which vehicles would be stopped if the road check were authorised;
(d) for the purpose specified in subsection (1)(d) above, if he has reasonable grounds for suspecting that the person is, or is about to be, in that locality.

(5) An officer below the rank of superintendent may authorise such a road check if it appears to him that it is required as a matter of urgency for one of the purposes specified in subsection (1) above.

(6) If an authorisation is given under subsection (5) above, it shall be the duty of the officer who gives it -

(a) to make a written record of the time at which he gives it; and
(b) to cause an officer of the rank of superintendent or above to be informed that it has been given.

(7) The duties imposed by subsection (6) above shall be performed as soon as it is practicable to do so.

(8) An officer to whom a report is made under subsection (6) above may, in writing, authorise the road check to continue.

(9) If such an officer considers that the road check should not continue, he shall record in writing -

(a) the fact that it took place; and
(b) the purpose for which it took place.

(10) An officer giving an authorisation under this section shall specify the locality in which vehicles are to be stopped.

(11) An officer giving an authorisation under this section, other than an authorisation under subsection (5) above -

(a) shall specify a period, not exceeding seven days, during which the road check may continue; and
(b) may direct that the road check -
(i) shall be continuous; or
(ii) shall be conducted at specified times,
during that period.

(12) If it appears to an officer of the rank of superintendent or above that a road check ought to continue beyond the period for which it has been authorised he may, from time to time, in writing specify a further period, not exceeding seven days, during which it may continue.

(13) Every written authorisation shall specify -

(a) the name of the officer giving it;
(b) the purpose of the road check; and
(c) the locality in which vehicles are to be stopped.

(14) The duties to specify the purposes of a road check imposed by subsections (9) and (13) above include duties to specify any relevant serious arrestable offence.

(15) Where a vehicle is stopped in a road check, the person in charge of the vehicle at the time when it is stopped shall be entitled to obtain a written statement of the purpose of the road check if he applies for such a statement not later than the end of the period of twelve months from the day on which the vehicle was stopped.

(16) Nothing in this section affects the exercise by police officers of any power to stop vehicles for purposes other than those specified in subsection (1) above.

 

There is some regulation of these powers by Code A for the Exercise by Police Officers of Statutory Powers of Stop and Search (the "Stop Code").

(6) Bodily searches following arrest

The first such search is a routine search under section 54 of PACE.

Police and Criminal Evidence Act 1984, s.54
Searches of detained persons

 54. - (1) The custody officer at a police station shall ascertain and record or cause to be recorded everything which a person has with him when he is -

(a) brought to the station after being arrested elsewhere or after being committed to custody by an order or sentence of a court; or
(b) arrested at the station or detained there, as a person falling within section 34(7), under section 37 above.

(2) In the case of an arrested person the record shall be made as part of his custody record.

(3) Subject to subsection (4) below, a custody officer may seize and retain any such thing or cause any such thing to be seized and retained.

(4) Clothes and personal effects may only be seized if the custody officer -

(a) believes that the person from whom they are seized may use them -
(i) to cause physical injury to himself or any other person;
(ii) to damage property;
(iii) to interfere with evidence; or
(iv) to assist him to escape; or
(b) has reasonable grounds for believing that they may be evidence relating to an offence.

(5) Where anything is seized, the person from whom it is seized shall be told the reason for the seizure unless he is -

(a) violent or likely to become violent; or
(b) incapable of understanding what is said to him.

(6) Subject to subsection (7) below, a person may be searched if the custody officer considers it necessary to enable him to carry out his duty under subsection (1) above and to the extent that the custody officer considers necessary for that purpose.

(6A) A person who is in custody at a police station or is in police detention otherwise than at a police station may at any time be searched in order to ascertain whether he has with him anything which he could use for any of the purposes specified in subsection (4)(a) above.

(6B) Subject to subsection (6C) below, a constable may seize and retain, or cause to be seized and retained, anything found on such a search.

(6C) A constable may only seize clothes and personal effects in the circumstances specified in subsection (4) above.

(7) An intimate search may not be conducted under this section.

(8) A search under this section shall be carried out by a constable.

(9) The constable carrying out a search shall be of the same sex as the person searched.

There are then more specialised bodily searches . Section 55 allows close examination of the body of the suspect (ususally for drugs)

Police and Criminal Evidence Act 1984, s.55
Intimate searches

 55. - (1) Subject to the following provisions of this section, if an officer of at least the rank of superintendent has reasonable grounds for believing -

(a) that a person who has been arrested and is in police detention may have concealed on him anything which -
(i) he could use to cause physical injury to himself or others; and
(ii) he might so use while he is in police detention or in the custody of a court; or
(b) that such a person -
(i) may have a Class A drug concealed on him; and
(ii) was in possession of it with the appropriate criminal intent before his arrest,

he may authorise an intimate search of that person.

(2) An officer may not authorise an intimate search of a person for anything unless he has reasonable grounds for believing that it cannot be found without his being intimately searched.

(3) An officer may give an authorisation under subsection (1) above orally or in writing but, if he gives it orally, he shall confirm it in writing as soon as is practicable.

(4) An intimate search which is only a drug offence search shall be by way of examination by a suitably qualified person.

(5) Except as provided by subsection (4) above, an intimate search shall be by way of examination by a suitably qualified person unless an officer of at least the rank of superintendent considers that this is not practicable.

(6) An intimate search which is not carried out as mentioned in subsection (5) above shall be carried out by a constable.

(7) A constable may not carry out an intimate search of a person of the opposite sex.

(8) No intimate search may be carried out except -

(a) at a police station;
(b) at a hospital;
(c) at a registered medical practitioner's surgery; or
(d) at some other place used for medical purposes.

(9) An intimate search which is only a drug offence search may not be carried out at a police station.

(10) If an intimate search of a person is carried out, the custody record relating to him shall state -

(a) which parts of his body were searched; and
(b) why they were searched.

(11) The information required to be recorded by subsection (10) above shall be recorded as soon as practicable after the completion of the search.

(12) The custody officer at a police station may seize and retain anything which is found on an intimate search of a person, or cause any such thing to be seized and retained -

(a) if he believes that the person from whom it is seized may use it -
(i) to cause physical injury to himself or any other person;
(ii) to damage property;
(iii) to interfere with evidence; or
(iv) to assist him to escape; or
(b) if he has reasonable grounds for believing that it may be evidence relating to an offence.

(13) Where anything is seized under this section, the person from whom it is seized shall be told the reason for the seizure unless he is -

(a) violent or likely to become violent; or
(b) incapable of understanding what is said to him.

(17) In this section -

"the appropriate criminal intent" means an intent to commit an offence under -
(a) section 5(3) of the Misuse of Drugs Act 1971 (possession of controlled drug with intent to supply to another); or
(b) section 68(2) of the Customs and Excise Management Act 1979 (exportation etc. with intent to evade a prohibition or restriction);
"Class A drug" has the meaning assigned to it by section 2(1)(b) of the Misuse of Drugs Act 1971;
"drug offence search" means an intimate search for a Class A drug which an officer has authorised by virtue of subsection (1)(b) above; and
"suitably qualified person" means -
(a) a registered medical practitioner; or
(b) a registered nurse.

Sections 61 to 64 deal with bodily samples, which range from traditional fingerprints to tissue samples to be used for DNA profiling and other forensic testing. See generally The Forensic Science Service pages.

Police and Criminal Evidence Act 1984, s.62
Intimate samples

62. - (1) An intimate sample may be taken from a person in police detention only -

(a) if a police officer of at least the rank of superintendent authorises it to be taken; and
(b) if the appropriate consent is given.

(1A) An intimate sample may be taken from a person who is not in police detention but from whom, in the course of the investigation of an offence, two or more non-intimate samples suitable for the same means of analysis have been taken which have proved insufficient -

(a) if a police officer of at least the rank of superintendent authorises it to be taken; and
(b) if the appropriate consent is given.

(2) An officer may only give an authorisation under subsection (1) or (1A) above if he has reasonable grounds -

(a) for suspecting the involvement of the person from whom the sample is to be taken in a recordable offence; and
(b) for believing that the sample will tend to confirm or disprove his involvement.

(3) An officer may give an authorisation under subsection (1) or (1A) above orally or in writing but, if he gives it orally, he shall confirm it in writing as soon as is practicable.

(4) The appropriate consent must be given in writing.

(5) Where -

(a) an authorisation has been given; and
(b) it is proposed that an intimate sample shall be taken in pursuance of the authorisation,

an officer shall inform the person from whom the sample is to be taken -

(i) of the giving of the authorisation; and
(ii) of the grounds for giving it.

(6) The duty imposed by subsection (5)(ii) above includes a duty to state the nature of the offence in which it is suspected that the person from whom the sample is to be taken has been involved.

(7) If an intimate sample is taken from a person -

(a) the authorisation by virtue of which it was taken;
(b) the grounds for giving the authorisation; and
(c) the fact that the appropriate consent was given,

(7A) If an intimate sample is taken from a person at a police station -

(a) before the sample is taken, an officer shall inform him that it may be the subject of a speculative search; and
(b) the fact that the person has been informed of this possibility shall be recorded as soon as practicable after the sample has been taken.

shall be recorded as soon as is practicable after the sample is taken.

(8) If an intimate sample is taken from a person detained at a police station, the matters required to be recorded by subsection (7) of (7A) above shall be recorded in his custody record.

(9) An intimate sample, other than a sample of urine or a dental impression, may only be taken from a person by a registered medical practitioner and a dental impression may only be taken by a registered dentist.

(10) Where the appropriate consent to the taking of an intimate sample from a person was refused without good cause, in any proceedings against that person for an offence -

(a) the court, in determining -
(i) whether to commit that person for trial; or
(ii) whether there is a case to answer; and
(aa) a judge, in deciding whether to grant an application made by the accused under -
(i) section 6 of the Criminal Justice Act 1987 (application for dismissal of charges of serious fraud in respect of which notice of transfer has been given under section 4 of that Act); or
(ii) paragraph 5 of Schedule 6 to the Criminal Justice Act 1991 (application for dismissal of charge of violent or sexual offence involving child in respect of which notice of transfer has been given under section 53 of that Act); and
(b) the court or jury, in determining whether that person is guilty of the offence charged,

may draw such inferences from the refusal as appear proper... .

(11) Nothing in this section affects sections 4 to 11 of the Road Traffic Act 1988.

(12) Nothing in this section, except as provided in section 15(11) and (12) of, and paragraph 7(6A) and (6B) of Schedule 5 to, the Prevention of Terrorism (Temporary Provisions) Act 1989, applies to a person arrested or detained under the terrorism procedures.

(7) Bugging and spying

As mentioned earlier, the law has taken a long time to regulate these forms of searches. In outline, forms of telephone interception are governed by the Interception of Communications Act 1985 section 2.

A wide variety of bugging by the Security Service (MI5) is dealt with by the Security Service Act 1989 section 3.

More recently, similar regulations to the 1985 Act have been applied to police bugging under the Police Act 1997 Part III


Last Updated October 1998

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