PROCESS: (1) THE
INVESTIGATION OF CRIME 7
The criminal justice system has unceasingly been the subject of widespread heated debate in parliament, the broadcast media and the print media, and in academic and professional journals. The Criminal Justice Act 2003, for example, had 339 sections and made hundreds of quite significant changes to the operation of the criminal justice system. It was followed shortly afterwards by the Serious Organised Crime and Police Act 2005. The changes made by these statutes span many areas, including those of criminal evidence, bail, juries, and appeals. We examine some of these, where relevant, in this chapter and in Chapter 8.
Police-recorded crime may not adequately represent all crime. The British Crime Survey is based on interviews conducted throughout the year, and includes crimes that are not reported to the police. Nevertheless, police-recorded crime in England and Wales has been falling; in 2009/10 there were 4.3 million police-recorded crimes, compared with 4.2 million in 2010/11. This represents a fall of 2 per cent and puts police-recorded crime at its lowest since the National Crime Recording Standard was introduced in April 2002 (Tenth report, Crime in England and Wales 2010–11, Home Office, July 2011, p 15). Similarly, incidents of crime have, according to the British Crime Survey (BCS) 2010/11, fallen by 50 per cent since 1995, representing nearly 10 million fewer crimes in 2010/11 compared with 1995. BCS crime now remains around the lowest level ever reported. The most striking new finding within the report is that both the 2010/11 BCS and police-recorded crime are consistent in showing falls in overall crime compared with previous years of the BCS. Property crime has increased by 14 per cent in 2010/11 but this must be considered against the backdrop of the property crime figures of the 2009/2010 BCS, being one of the lowest since the survey began; the 2010/11 figures are more consistent with previous trends. The authors of the report state that “it would be premature to view this as evidence of a newly rising trend in domestic burglary” (Tenth report, Crime in England and Wales 2010–11, Home Office, July 2011, p 18). Overall there have been notable falls in crime rates. Both sources are consistent in showing marked falls in vehicle crime.
This latest report also represents the second report by the UK Cards Association to show a reduction in levels of credit card fraud. In real terms, this reduction represents a fall of 1.2 per cent. The number of fraud offences has fallen to 145,841 in 2010/11 from 152, 241 in 2009/10.
A special data subset pertaining to knife crime was started in 2007/08. In 2009/10, for the selected offences of attempted murder, GBH with intent, GBH without intent, robbery, threats to kill, ABH, sexual assault and rape, the police recorded 33,566 offences. Where a knife or sharp instrument was involved, a fall of 3 per cent was seen from 2009/2010, following a fall of 7 per cent from the previous year. That represents around 6 per cent of the total offences in the selected categories – and 0.8 per cent of all offences (Tenth report, Crime in England and Wales 2010–11, Home Office, July 2011, p 18).
The British Crime Survey is a face-to-face victimisation survey in which people resident in households in England and Wales are asked about their experiences of crime in the 12 months prior to interview. Respondents to the survey are also asked about their attitudes towards different crime-related issues, such as the police, criminal justice system, and perceptions of crime and anti-social behaviour. Until recently, the BCS did not cover crimes against those aged under 16 (see the submissions made during the consultation process by The Children’s Society, http://www.childrenssociety.org.uk/resources/documents/Policy/8683_full.pdf). Since January 2009, interviews have been carried out with children aged as young as 10. For the first time in 2011 the BCS provided statistics on crimes against children; it estimated that there were 878,000 offences against 10–15 year olds in 2010/11 and that children were more likely than adults to be the victims of violent crime (3.1 per cent of adults were victims of a violent crime compared to 6.9 per cent of 10 to 15 year olds) (Tenth report, Crime in England and Wales 2010–11, Home Office, July 2011, p 20). The BCS provides a better reflection of the true extent of crime because it includes incidents that are not reported to the police and crimes which are not recorded by them (see an overview of the methodological information selected by the Home Office at http://rds.homeoffice.gov.uk/rds/bcs-methodological.html).
Crime involving weapons (such as knives and guns) represents a sample area in which the rate of crime has consistently dropped since 2005/06; gun crime has fallen by 37 per cent since 2005/06 and knife crime also demonstrates a downward trend (Tenth report, Crime in England and Wales 2010–11, Home Office, July 2011, p 18).
This chapter and the following one refer to the ‘criminal justice system’. This has been for many years an accepted descriptive term used by social scientists, journalists and, occasionally, lawyers. Officially, however, there is no such thing as the ‘criminal justice system’. Governmental responsibilities, for example, overlap in this area. The Home Secretary is responsible for the Metropolitan Police, criminal statistics, the probation service and the Crown Prosecution Service (CPS) (and, more broadly, for ‘law and order’). The Lord Chancellor is responsible for all the criminal law courts, the appointment of magistrates and the judges. Nonetheless, in recent times, there has been increasing governmental recognition of something called the ‘criminal justice system’. On 30 December 1998, for example, a single official statement entitled ‘Joint Press Release on the Criminal Justice System Public Service Agreement’ was issued on behalf of the Home Office, the Lord Chancellor’s Department (LCD) (now the Ministry of Justice) and the Attorney General’s Office. It stated:
The overarching aims, objectives and performance measures for the criminal justice system have been published for the first time in a cross departmental Public Service Agreement. The three Departments, and their respective services, will be working more closely than ever before to ensure that the criminal justice system protects the public and delivers justice. Inter-agency co-operation will be promoted at regional, local, as well as at the national level. Ministers believe that these arrangements are a good example of ‘joined-up government’ in practice.
The aims and objectives of the criminal justice system have now been refined. The official statement says (see http://www.justice.gov.uk/index.htm):
The purpose of the Criminal Justice System (CJS) is to deliver justice for all, by convicting and punishing the guilty and helping them to stop offending, while protecting the innocent. It is responsible for detecting crime and bringing it to justice; and carrying out the orders of court, such as collecting fines, and supervising community and custodial punishment.
The key goals for the CJS are:
• to improve the effectiveness and efficiency of the CJS in bringing offences to justice;
• to increase public confidence in the fairness and effectiveness of the CJS;
• to increase victim satisfaction with the police, and victim and witness satisfaction with the CJS;
• to consistently collect, analyse and use good quality ethnicity data to identify and address race disproportionality in the CJS; and
• to increase the recovery of criminal assets by recovering £250m of assets acquired through crime by 2009/10.
There exists mistrust of the criminal justice system from both those who believe innocent people have been convicted and those who think guilty people escape justice. The number of exposed miscarriages of justice involving malpractice and disastrous errors by agencies of the criminal justice system has grown rapidly. On 19 March 1991, the day the Birmingham Six were released from prison having wrongly served 16 years in jail, the Home Secretary announced a Royal Commission on Criminal Justice to examine the system with a view to reducing the chances of wrongful conviction. The Commission published its report with 352 recommendations in July 1993. Some of these recommendations have been implemented in subsequent legislation (like the establishment of the Criminal Cases Review Commission (CCRC) by the Criminal Appeal Act (CAA) 1995). For a useful discussion of these issues, see Annabelle James, ‘Miscarriages of justice in the 21st century’ (2002) 66(4) Journal of Criminal Law, pp 326–37. Great concern was expressed by pressure groups about the government’s rejection of the Royal Commission’s findings in relation to the so-called ‘right to silence’.
This right was effectively undermined by ss 34–37 of the Criminal Justice and Public Order Act (CJPOA) 1994, and this change will arguably increase the chances of miscarriages occurring rather than reduce them. Confidence in the criminal justice system appears to be in decline. In a national survey for the 1962 Royal Commission on the Police (Cmnd 1728, 1962, HMSO), 83 per cent of respondents indicated that they had ‘a great deal of respect’ for the way the police operated. In a national poll in 1993, conducted by MORI for The Sunday Times and the Police Federation, under 50 per cent of respondents indicated that they had ‘a great deal of respect’ for the way the police operated. The poll also showed that one in six adults (7 million people) actually distrust the police (The Sunday Times, 25 July 1993). In another nationwide poll (The Independent, 21 June 1993), 28 per cent of respondents indicated that they would be ‘concerned at what might be going to happen’ if stopped by the police, with only 36 per cent of respondents indicating they would be confident that they would be treated fairly. Recently, two criminologists have challenged the current government’s proposed policy to cut ‘red tape’ associated with stop-and-search paperwork. As announced by Teresa May, the Home Secretary, the government’s appetite to slash the bureaucracy of stop-and-searches has been hailed by Ben Bowling and Rebekah Delsol as removing a monitoring system that has rendered policing more accountable. (See ‘Reducing stop-and-search paperwork undermines fairness’, guardian.co,uk, 26 May 2010, http://www.guardian.co.uk/commentisfree/liberty-central/2010/may/26/stop-and-search-reform-theresa-may).
The BCS reports on public confidence in seven different aspects of the criminal justice system (CJS) such as how well the system deals with young people accused of crime, how well it meets the needs of victims, and how effective it is in reducing crime. The 2007/08 BCS shows that, compared with 2006/07, public confidence in the CJS had improved in five of the seven aspects covered. These increases follow a period where confidence fell in most aspects of the CJS between 2005/06 and 2006/07. Prior to this there had been general improvements between 2002/03 and 2005/06. The report Crime in England and Wales 2009/10 (Tenth report, Home Office, July 2011, p 15) notes that:
• According to the 2010/11 BCS, 61 per cent of people thought that the CJS as a whole was fair, an increase from 59 per cent in 2009/10, and 43 per cent were confident in the effectiveness of the CJS in bringing people who commit crimes to justice, an increase from 41 per cent in 2009/10. The disparity in these figures for fairness and effectiveness is itself interesting: it suggests that the public generally value a State prosecution service that is fair, even if it is not at all times effective. This observation needs to fit, however, within a system that recognises that delay in awaiting trial is a ground of unfairness – for defendants (especially those remanded in custody) and witnesses alike.
• The 2010/11 BCS shows that 59 per cent of people thought the police in their local area were doing a good or excellent job, a significant improvement on the 56 per cent who held that view in 2009/10 and the 53 per cent in 2008/09. Overall confidence in the local police in 2010/11 rose to 72 per cent, as compared with 69 per cent in 2009/10. Levels of confidence in the CJS varied by demographic and socio-economic characteristics: the proportion of participants who had confidence in stating that the CJS is fair or effective was higher amongst younger people.
7.2.1 A CONTRADICTION
There is a friction between the sorts of policies that these two concerns generate – that is, first, that people seem to want the police to have greater powers to combat crime. Yet, contradictorily, the public want greater controls on the police and evidence so as to avoid more miscarriages of justice. Unjust convictions lay against the Winchester Three, the Guildford Four, the Birmingham Six, the Maguire Seven, the Tottenham Three, Stefan Kiszko, Judith Ward, and the Bridgewater Three (The Guardian, 21, 22 February 1997). It is argued that, if we wish to avoid similar instances of injustice, we should tighten the rules of evidence and procedure that govern the investigation and prosecution of crime. Against this, it has been argued that the police should have greater powers and that the trial process should be tilted less in favour of the defendant. (For example, see Charles Pollard, Chief Constable of the Thames Valley Police: letter, The Times, 12 April 1995; article, The Sunday Times, 9 July 1995.) The rules on disclosure of evidence in criminal trials, for example, have been radically changed by the Criminal Procedure and Investigations Act (CPIA) 1996. In particular, the material the prosecution has to disclose to the defence is staged (albeit that the CPS have a duty of continuous review) and brought within a more restrictive framework.
Now, for the first time, the defence has a duty to disclose its case in advance of trial, in the form of what is called a Defence Statement or commonly but incorrectly called a ‘DCS’. It is incumbent on all defendants to comply with the requirements of ss 5(5) and 6A of the Criminal Procedure and Investigations Act 1996, even if no positive defence is asserted by them (and so their case is conducted solely by means of putting the prosecution to proof). Failure to comply with these provisions may lead a jury to draw an adverse inference against a defendant should they wish to do so. A defendant is statutorily obliged to set out the nature of their defence ahead of trial. It is wrong for a barrister or solicitor (or for a barrister to advise his professional client, the solicitor) to advise a defendant not to prepare or cooperate in the writing of a Defence Statement. However, where a defendant chooses not to set out the nature of his defence, neither he nor his legal representative are liable for contempt of court proceedings (R v Rochford (2010).
One problem, therefore, in this area of the English legal system is that as the growing problems of crime, and the fear of crime, become more important concerns of government, there are emerging two lobbies for change. Those lobbies are diametrically opposed.
The criminal process is examined here in three chapters. This chapter considers the law relating to important pre-trial matters up to and including the admissibility of confession evidence in court. Chapters 8 and 11 look at institutional and procedural aspects of prosecution and matters relating to bail, the classification of offences, trials, plea bargaining, and the jury. In examining all these topics, it is important to keep in mind the various aims of the criminal justice system and the extent to which the existing law serves these aims. Among the aims to be borne in mind are the following:
• to detect crime and convict those who have committed it;
• to have rules relating to arrest, search, questioning, interrogation and admissibility of evidence which do not expose suspects to unfair treatment likely to lead to unjust convictions;
• to have rules as above which do not unnecessarily impede the proper investigation of crime;
• to ensure that innocent persons are not convicted;
• to maintain public order;
• to maintain public confidence in the criminal justice system;
• to properly balance considerations of justice and fair procedure with those of efficiency and funding.
7.2.2 CONTEMPORARY ISSUES
The criminal justice system is bearing signs of strain as it tries to cope with a society in the throes of major transitions. These include: changes in the pattern of family life; changes in the nature of employment expectations; and a revolution in information and communications technology.
In 1993, the prison population of England and Wales was 42,000 (this includes those incarcerated in young offender institutions). In December 2010, the prison population was 84,548 (National Offender Management Service, Prison Population and Accommodation Briefing, 17 December 2010).
The Police and Magistrates’ Courts Act 1994 amended the Police Act 1964, permitting Home Secretaries to ‘determine objectives for the policing of all of the areas of all police authorities’. Under this power, a new police mission statement was announced in 1999. The purpose of the police according to this is ‘to help secure a safe and just society in which the rights and responsibilities of individuals, families and communities are properly balanced’. This raises many contentious issues. The determination of, for example, what is a ‘just society’ has become something that is more overtly a matter for policing policy than in previous times. The police role was more simply, in the words of Robert Peel, the nineteenth century founder of modern policing, to ‘prevent and detect crime’.
Can 135,000 police officers do well enough to retain credibility in a society of 60 million people undergoing all sorts of social upheavals? In 1998, the police had to respond to 17.8 million incidents and 7.5 million 999 calls. The racist canteen culture revealed in the wake of the Stephen Lawrence Inquiry (see above, at 1.3.5), and the recognition in 1998 by the Commissioner for the Metropolitan Police that he probably had 250 corrupt officers on his force, did not help raise public confidence. In October 2003, BBC1 broadcast an extremely disturbing undercover documentary titled Secret Policeman. It revealed strong evidence of racism among new recruits at a police training centre in Cheshire.
It is not clear yet what is the main thrust of governmental policy in relation to the criminal justice system. Thus far, we have seen an unusual cocktail consisting of several privatisation measures and a good dose of centralisation.
Criminal justice has historically been regarded by government as a matter for the State. Recently, however, first under the Conservative government in the early 1990s, then under Labour, and now under the coalition government, various parts of the system have been privatised. Such moves have not generally been seen as runaway successes. In November 1998, there was public scandal at the extent of injury to prison officers and trainers and damage to the premises of the country’s leading private institution for young offenders. It was revealed that over £100,000 of damage had been wrought by wild 12–14 year olds at the Medway Secure Training Centre in Kent. After more than one fiasco, privatised prison escort services have come in for severe criticism. A provision of the CJPOA 1994 allowing for private sponsorship of police equipment has been a boon for satirical cartoonists.
By contrast, there are several ways in which aspects of the criminal justice system, historically all independent from each other and detached from governmental control, have been drawn within the influence of central government. It has, for example, been a hallowed precept of the British constitution that police forces are local and not governmental agencies. Yet, under Conservative legislation, the Home Secretary became allowed to ‘determine objectives for the policing of the areas of all police authorities’.
There is also reason for disquiet about the law contained in the Terrorism Act 2000, which makes the opinion of a police officer admissible evidence in court. Proof of membership of a proscribed organisation may be based in part upon the opinion of a senior police officer. Considerable evidence – from miscarriage of justice cases, especially those involving suspects of terrorism from Northern Ireland – showed that some police officers were apparently prepared to lie and falsify evidence to secure convictions. The new law has hence caused some people to become alarmed at the prospect that a person could be convicted of a serious offence on evidence taken mainly from the opinion of a police officer.
Proactive ‘intelligence-led’ policing has become increasingly commonplace in recent years, especially in relation to drugs and organised crime. Such techniques inevitably involve deception by police officers and their informers (see C Dunnighan and C Norris, ‘A risky business: the recruitment and running of informers by English police officers’ (1996) 19 Police Studies 1). This may involve testing whether a person is willing to commit an offence. Although English law has never recognised a defence of entrapment, entrapment may be a mitigating factor and a ground for excluding evidence: R v Looseley; Attorney General’s Reference (No 3 of 2000) (2002). (See A. Ashworth, ‘Re-drawing the boundaries of entrapment’  Crim LR 161–79.)
Until recently, foreign persons – that is, non-British nationals – suspected of involvement in terrorist activities could be detained without trial under the provisions of Part 4 of the Anti-terrorism, Crime and Security Act 2001. Detention without trial obviously breached Art 5(1) of the European Convention on Human Rights. The policy was justified under Art 15 which permits derogation from Art 5(1) in time of war ‘or other public emergency threatening the life of the nation’. The House of Lords addressed the issue in 2004: A and X and Others  UKHL 56. Their Lordships decided the case against the Government. Lord Hoffmann rejected the view that modern terrorists were a threat to the life of the nation (and therefore that a ‘state of emergency’ was appropriate): ‘The real threat to the life of the nation […] comes not from terrorism but from laws such as these’ (see P Mendelle, ‘No detention please, we’re British?’ (2005) 155 NLJ 77). Although the government could (theoretically) have ignored this decisive rebuff, it accepted the constitutional reality that the law had to change and introduced legislation providing for control orders. Control orders were extremely controversial. According to Doug Jewell, Liberty’s campaign director: ‘The Prevention of Terrorism Act 2005 is a fundamentally flawed piece of legislation. No one knows how [the orders] are going to be enacted … It’s going to be a policing nightmare.’ See ‘“Profound unease” over control orders’ (2005) 155 NLJ 394. The coalition government has subsequently re-branded control orders as ‘terrorist prevention and investigation measures’, which will have a qualified limitation period of two years in the Protection of Freedoms Bill 2011. The Bill is expected to receive Royal Assent in 2012.
According to AV Dicey, ‘individual rights are the basis not the result of the law of the constitution’ (Law of the Constitution, 6th edn, p 203; cited by Judge LJ in R v Central Criminal Court ex p The Guardian, The Observer and Bright (2002)). Before considering the rights of the citizen and the law governing arrest and detention, what happens in the police station and what evidence is admissible in court, it is appropriate to look first at what the citizen can do if those rights are violated.
7.3.1 REMEDIES FOR UNLAWFUL ARREST
Like other areas of law where the liberty of the subject is at stake, the law relating to arrest is founded upon the principle of justification. If challenged, the person who has attempted to make an arrest must justify his actions and show that the arrest was lawful. Failing this, the arrest will be regarded as unlawful. In Roberts v Chief Constable of Cheshire Police (1999), the Court of Appeal held that a failure to carry out a review of detention in accordance with s 40 of PACE 1984 rendered a subsequent period of detention unlawful.
There are four possible remedies:
• The person, or someone on his behalf, can bring proceedings of habeas corpus. This ancient prerogative writ used to begin with the words ‘habeas corpus’, meaning ‘you must have the body’ and ‘produce the body’. It is addressed to the detainer and asks him to bring the detainee in question before the court at a specified date and time. The remedy protects the freedom of those who have been unlawfully detained in prison, hospital, police station or private custody. The writ is applied for from a judge in chambers and can, in emergencies, be made over the telephone. It must be issued if there is prima facie evidence that the detention is unlawful. As every detention is unlawful, the burden of proof is on the detainer to justify his conduct. If issued, the writ frees the detainee and thus allows him to seek other remedies (below) against the detainer.
• To use the illegality of the detention to argue that any subsequent prosecution should fail. This type of argument is very rarely successful as illegally obtained evidence is not, ipso facto, automatically rendered inadmissible. The House of Lords ruled in R v Sang (1979) that no discretion existed to exclude evidence simply because it had been illegally or improperly obtained. A court could only exclude relevant evidence where its effect would be ‘unduly prejudicial’. This is reflected in s 78(1) of the Police and Criminal Evidence Act (PACE) 1984. This perhaps surprising rule was supported by the Royal Commission on Criminal Justice (although the argument there was chiefly focused on the admissibility of confession evidence). Professor Zander, however, in a note of dissent, contested the idea that a conviction could be upheld despite serious misconduct by the prosecution if there is other evidence against the convicted person. He states: ‘I cannot agree. The moral foundation of the criminal justice system requires that, if the prosecution has employed foul means, the defendant must go free if he is plainly guilty […] the conviction should be quashed as an expression of the system’s repugnance.’ An extreme case might involve the admissibility of confession evidence obtained by torture by the authorities in another country (see for example Gäfgen v Germany (2011)). Since the Human Rights Act (HRA) 1998 became fully operative in October 2000, it has no longer been possible to treat such issues merely as involving interpretation of s 78(1) of PACE 1984 itself. Additionally, any court must take Art 6 of the European Convention on Human Rights (ECHR) into account in appropriate circumstances. For further discussion of this aspect, see above, at 22.214.171.124–126.96.36.199, and below, at 15.4.
• An action for damages for false imprisonment. In some cases, the damages for such an action would be likely to be nominal if the violation by the detainer does not have much impact on the detainee. Consider cases under this heading like Christie v Leachinsky (1947). Damages can, however, be considerable. In Reynolds v Commissioner of Police for the Metropolis (1982), a jury awarded £12,000 damages to the plaintiff. She had been arrested in the early hours in connection with charges of arson for gain, that is, that insured houses, which had been set alight deliberately, would be the subject of ‘accidental fire’ insurance claims. She was taken by car to a police station, a journey which took two and a half hours. She was detained until about 8.00 pm when she was told there was no evidence against her. She arrived home about 11.00 pm. The judge, Caulfield J, ruled that the police had no reasonable grounds for suspecting the plaintiff of having committed an arrestable offence and he directed the jury in relation to damages. The jury awarded £12,000 and the defendant’s appeal against this sum as excessive was dismissed.
• A judicial review of the detention. A judicial review of a decision to detain someone can be brought in the High Court on the ground that the detention is unlawful. The judicial review may include a claim under the Human Rights Act 1998 that the detention is in violation of Art 5 ECHR. If the High Court finds in favour of the detainee, it has the power to quash the decision to detain, order that the detainee be released and, in some limited circumstances, to award damages.
In a review of trends in actions against the police, S Khan and M Ryder ((September 1998) Legal Action 16) comment on two cases in relation to damages. In Goswell v Commissioner of Police for the Metropolis (1998), a jury awarded damages totalling £302,000 to Mr Goswell, comprising £120,000 for assault, £12,000 for false imprisonment and £170,000 exemplary damages. On appeal, Simon Brown LJ held that £100 was an appropriate award for basic damages for false imprisonment for 20 minutes. He allowed for the fact that the unlawfulness of the detention was a consequence of a breach of s 28 of PACE 1984 and expressed the opinion that the case ‘does not in the fullest sense involve a wrongful deprivation of liberty’. Basic damages were assessed at £22,500, aggravated damages at £10,000 and £15,000 for exemplary damages. Overall, the figure was reduced from £302,000 to £47,500. In a second case against the police, Commissioner of Police for the Metropolis v Gerald (1998), an initial award by a jury of £125,000 for assault, false imprisonment and malicious prosecution was reduced to £50,000 on appeal by the Commissioner.
Apart from the question of civil remedies, it is important to remember the following:
• If the arrest is not lawful, there is the right to use reasonable force to resist it: R v Waterfield (1964); Kenlin v Gardiner (1967). This is a remedy, however, of doubtful advisability, as the legality of the arrest will only be properly tested after the event in a law court. If a police officer was engaged in what the courts decide was a lawful arrest or conduct, then anyone who uses force against the officer might have been guilty of an offence of assaulting an officer in the execution of his duty, contrary to s 89(1) of the Police Act 1996.
• That, for our purposes in considering the consequences for an unlawfully arrested person faced with prosecution, s 78 of PACE 1984 states:
78(1) In any proceedings, the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
7.3.2 GENERAL POWERS OF ARREST
In Spicer v Holt (1977), Lord Dilhorne stated:
Whether or not a person has been arrested depends not upon the legality of the arrest, but on whether he has been deprived of his liberty to go where he pleases.
So, a person detained by the police against his will is arrested. Whether this arrest is lawful will depend on whether the conditions for a lawful arrest have been satisfied.
Lawful arrests are those: (1) under warrant; (2) without warrant at common law; or (3) without warrant under legislation.
7.3.3 ARREST UNDER WARRANT
The police lay a written information on oath before a magistrate that a person ‘has, or is suspected of having, committed an offence’ (s 1 of the Magistrates’ Courts Act 1980). The Criminal Justice Act (CJA) 1967 provides that warrants should not be issued unless the offence in question is indictable or is punishable with imprisonment.
Until recently, complex extradition arrangements existed between the Member States of the European Union (EU). In December 2001, the EU agreed in principle to introduce European arrest warrants. The decision was formally adopted in June 2002. The traditional approach (found in extradition agreements) embodied the principle of ‘dual criminality’ – that is, a person would not be extradited from one State to another unless his alleged offence was an extraditable crime in both countries. This requirement has now been removed from a list of 32 offences. The inclusion of ‘racism and xenophobia’ has aroused some controversy. (See S Allegre, ‘The myth and the reality of a modern European judicial space’ (2002) 152 NLJ 986–7).
7.3.4 COMMON LAW ARRESTS
The only power to arrest at common law is where a breach of the peace has been committed and there are reasonable grounds for believing that it will be continued or renewed, or where a breach of the peace is reasonably apprehended. Essentially, it requires conduct related to violence, real or threatened. A simple disturbance does not, in itself, amount to a breach of the peace unless it results from violence, real or threatened.
In 1981, two cases decided within months of each other offered definitions of a breach of the peace, in an attempt to bring some clarification to an area of law that previously was in doubt. In R v Howell (1981), the defendant was arrested after being involved in a disturbance at a street party in the early hours of the morning. Watkins LJ, who delivered the judgment of the court, observed that there was a power of arrest for anticipated breach of the peace, provided the arrestor had been witness to the earlier shouting and swearing of H. It followed that there must be reasonable grounds for belief, and the arrestor must believe at the time that the defendant’s conduct, either alone or as part of a general disturbance, was likely to lead to the use of violence by the defendant or someone else in the officer’s presence.
The court adopted the following definition of ‘breach of the peace’. It occurs:
Wherever harm is actually done or is likely to be done to a person or in his presence his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance.
In the second of the two cases, R v Chief Constable of the Devon and Cornwall Constabulary ex p Central Electricity Generating Board (CEGB) (1981), Lord Denning MR suggested that breach of the peace might be considerably wider than this. This case involved a group of protesters who had occupied private land in order to prevent CEGB employees from carrying out a survey to assess its suitability for a nuclear power station. The protest was intended to be peaceful and non-violent. Lord Denning MR suggested that:
There is a breach of the peace whenever a person who is lawfully carrying out his work is unlawfully and physically prevented by another from doing it … If anyone unlawfully and physically obstructs the worker, by lying down or chaining himself to a rig or the like, he is guilty of a breach of the peace.
He appears to have been saying (Feldman, Civil Liberties and Human Rights in England and Wales (1993), pp 788–9) not that a breach of the peace is automatic in such circumstances. Instead, in the context of the CEGB case, any obstruction or unlawful resistance by the trespasser could give the police a reasonable apprehension of a breach of the peace, in the sense of violence.
However, in cases that have followed (such as Parkin v Norman (1982); Percy v DPP (1995); and Foulkes v Chief Constable of Merseyside Police (1998)), it is the definition in R v Howell that has been preferred. Despite earlier doubts, argues Parpworth (‘Breach of the peace: breach of human rights?’ (1998) 152 JP 6, 7 November), the decision of the European Court of Human Rights (ECtHR) in Steel and Others v UK (1998) brings clear and authoritative clarification to this area of law. This case represents ‘a clear endorsement by a court largely unfamiliar with the common law concept of a breach of the peace that such a concept is in accordance with the terms of the European Convention on Human Rights’.
At common law, a constable may arrest a person for conduct that he genuinely suspects might be likely to cause a breach of the peace even on private premises where no member of the public is present: McConnell v Chief Constable of Manchester (1990). Although mere shouting and swearing alone will not constitute a breach of the peace, it is an offence under s 28 of the Town Police Causes Act 1847 and could lead to an arrest under s 25 of PACE 1984 (general arrest conditions). If it causes harassment, alarm or distress to a member of the public, it may constitute an offence under s 5 of the Public Order Act 1986.
7.3.5 ARREST UNDER LEGISLATION
The right to arrest is generally governed by s 24 of PACE 1984 (as amended by SOCPA below).
Serious Organised Crime and Police Act 2005 (SOCPA)
Part 3 of this Act, which came into force in January 2006, makes a number of changes to police powers set out in the Police and Criminal Evidence Act 1984 (PACE) and extends the powers of Community Support Officers (CSOs) and other persons designated or accredited under the provisions of the Police Reform Act 2002.
Sections 110, 111, 113 and 114 and Sched 7 revise the framework of arrest and search powers in PACE. In particular they provide, in the case of a constable’s power of arrest, for all offences to be ‘arrestable’ subject to a necessity test. This means that someone who has committed a relatively low order criminal offence, like littering, could, in theory, be arrested if an officer deemed it necessary and was able to satisfy his or her desk sergeant at the police station that this was so. That might occur, for example, if the person being requested to pick up the litter refused to do so, and then refused to give his or her name to the officer.
Section 110 states:
(1) For section 24 of PACE (arrest without warrant for arrestable offences) substitute—
24 Arrest without warrant: constables
(1) A constable may arrest without a warrant—
(a) anyone who is about to commit an offence;
(b) anyone who is in the act of committing an offence;
(c) anyone whom he has reasonable grounds for suspecting to be about to commit an offence;
(d) anyone whom he has reasonable grounds for suspecting to be committing an offence.
(2) If a constable has reasonable grounds for suspecting that an offence has been committed, he may arrest without a warrant anyone whom he has reasonable grounds to suspect of being guilty of it.
(3) If an offence has been committed, a constable may arrest without a warrant—
(a) anyone who is guilty of the offence;
(b) anyone whom he has reasonable grounds for suspecting to be guilty of it.
(4) But the power of summary arrest conferred by subsection (1), (2) or (3) is exercisable only if the constable has reasonable grounds for believing that for any of the reasons mentioned in subsection (5) it is necessary to arrest the person in question.
(5) The reasons are—
(a) to enable the name of the person in question to be ascertained (in the case where the constable does not know, and cannot readily ascertain, the person’s name, or has reasonable grounds for doubting whether a name given by the person as his name is his real name);
(b) correspondingly as regards the person’s address;
(c) to prevent the person in question—
(i) causing physical injury to himself or any other person;
(ii) suffering physical injury;
(iii) causing loss of or damage to property;
(iv) committing an offence against public decency (subject to subsection (6)); or
(v) causing an unlawful obstruction of the highway;
(d) to protect a child or other vulnerable person from the person in question;
(e) to allow the prompt and effective investigation of the offence or of the conduct of the person in question;
(f) to prevent any prosecution for the offence from being hindered by the disappearance of the person in question.
(6) Subsection (5)(c)(iv) applies only where members of the public going about their normal business cannot reasonably be expected to avoid the person in question.
24A Arrest without warrant: other persons
(1) A person other than a constable may arrest without a warrant—
(a) anyone who is in the act of committing an indictable offence;
(b) anyone whom he has reasonable grounds for suspecting to be committing an indictable offence.
(2) Where an indictable offence has been committed, a person other than a constable may arrest without a warrant—
(a) anyone who is guilty of the offence;
(b) anyone whom he has reasonable grounds for suspecting to be guilty of it.
(3) But the power of summary arrest conferred by subsection (1) or (2) is exercisable only if—
(a) the person making the arrest has reasonable grounds for believing that for any of the reasons mentioned in subsection (4) it is necessary to arrest the person in question; and
(b) it appears to the person making the arrest that it is not reasonably practicable for a constable to make it instead.
(4) The reasons are to prevent the person in question—
(a) causing physical injury to himself or any other person;
(b) suffering physical injury;
(c) causing loss of or damage to property; or
(d) making off before a constable can assume responsibility for him.
Section 112 introduces a new offence of failing to obey a police direction to leave an exclusion area. Section 115 extends the powers of the police, in s 1 of PACE, to stop and search persons suspected of carrying prohibited fireworks.
Sections 116 to 118 enable the police to take photographs and fingerprints of persons away from a police station and to take impressions of a person’s footwear at a police station. The power to take photographs is extended to Community Support Officers (CSOs) and accredited persons in limited circumstances. Section 116(3) amends s 64A of PACE to allow the police to pass a photograph to the court for the purposes of enforcing the orders of the court. This new power is in addition to that which already allows the police to pass a photograph to the court for the purposes of prosecution. Section 119 amends the definition of an intimate and non-intimate sample.
Sections 120 and 121 create a new category of designated person under the Police Reform Act 2002, namely a ‘staff custody officer’, thereby enabling police staff to undertake custody functions previously restricted to police officers.
Sections 122 and 123 and Scheds 8 and 9 extend the powers of CSOs, other designated police staff, and accredited persons. Those provisions enable police staff to access certain information relating to drivers, vehicle registration plate suppliers and motor insurance.
These are highly controversial new powers. The case to extend powers for the police is built on the idea that those who have done nothing wrong will have nothing to fear from the exercise of the powers. The extension of police powers is also defended on the grounds that any arrest, to be lawful, must be ‘necessary’ (see s 24(5) of PACE as amended, above, by s 110 of the Serious Organised Crime and Police Act).
There are, however, clear reasons for concern at this development. A society in which the police have unlimited powers can be described as a ‘police state’, and such tyranny is almost universally disfavoured. That, of course, is very far from the position now in the UK, a country that has what are among the best-protected liberties in the world. However, the closer that law in the UK moves towards giving the police very wide powers to arrest, the greater the need for concern. A society in which people can be arrested for any offence, in which CCTV is ubiquitous (Surveillance UK, The Independent, 22 December 2005), and in which police ‘success’ is progressively measured by how many arrests and crimes solved, might reduce certain sorts of offending (although many sorts of criminality are not reduced by such policies). But how comfortable a place would it be to live? The inhabitants of many countries in which there are dictatorial governments and no respect for civil liberties do not seem to rejoice in the crime-free streets. At all events, the most desirable balance between freedom not to be interfered with by police officers, and policing that improves society by effectively reducing crime, is ultimately a political question for the public, rather than the small section of the public comprised by judges, lawyers, and police officers. The cases below are included to illustrate the operation of s 24 of PACE (although note that they were decided before SOCPA came into force).
7.3.6 G v DPP (1989)
In G v DPP (1989), the appellant (G) with other juveniles, including a co-accused, Gill, went to a police station to complain about being ejected from a public service vehicle. On being asked for their names and addresses by the officer, G, the appellant, refused to do so; some of the others gave false particulars, but Gill gave his real name and address. The officer did not accept that Gill’s particulars were correct because in his experience people who committed offences did not give correct details (even though the juveniles had only gone to the police station to complain about the way they had been treated on the bus). The juveniles would not accept the officer’s advice about their complaint and became threatening and abusive. Gill was arrested for ‘disorderly behaviour in a police station’ and he struggled and resisted; the appellant joined in, punching the officer and causing him to lose hold of Gill. Both Gill and G were convicted of assaulting a police officer in the execution of his duty. The Divisional Court quashed their convictions. The offence of ‘violent behaviour’ or ‘disorderly behaviour’ under the Town Police Causes Act 1847 was not an arrestable offence. The only power the officer therefore had to arrest Gill was under s 25(3) of PACE 1984, if there were genuine doubts about Gill’s name and address. But the ground given by the officer – an account about people who commit offences not giving their proper name, and so on – was not a proper ground because there was no evidence that the youths had committed any offences; they had gone to the police simply to complain. Therefore, in purporting to arrest Gill, the officer had not been acting in the execution of his duty and the appellant could not, therefore, have been guilty of obstructing him in the performance of such duty.
It should be noted, in particular that, under s 24(6), no offence need actually have been committed. All that is required is that the police officer reasonably believes that an arrestable offence has been committed.
The differences in the powers of arrest in s 24 are based on whether an offence:
• is being committed: anyone may make the arrest; see s 24(4);
• has been committed: anyone may make the arrest; see s 24(5) or the wider powers of the police (s 24(6)) who can arrest where they have ‘reasonable grounds for suspecting that an arrestable offence has been committed’ whether one has in fact been committed or not;
• is about to be committed: only a police officer may act here; see s 24(7).
PACE 1984 preserves an old common law distinction in respect of the powers of constables and private individuals when making such arrests. Where an arrest is being made after an offence is thought to have been committed, then PACE 1984 confers narrower rights upon the private individual than on the police officer.
7.3.7 WALTERS v WH SMITH & SON LTD (1914)
In Walters v WH Smith & Son Ltd (1914), the defendants had reasonably suspected that Walters had stolen books from a station bookstall. At his trial, Walters was acquitted, as the jury believed his statement that he had intended to pay for the books. No crime had therefore been committed in respect of any of the books. Walters sued the defendants, inter alia, for false imprisonment, a tort which involves the wrongful deprivation of personal liberty in any form, as he had been arrested for a crime that had not in fact been committed. The Court of Appeal held that, to justify the arrest, a private individual – as opposed to police officer – had to show not only reasonable suspicion but also that the offence for which the arrested person was given over into custody had in fact been committed, even if by someone else. A police officer making an arrest in the same circumstances could legally justify the arrest by showing ‘reasonable suspicion’ alone, without having to show that an offence was, in fact, committed.
This principle is now incorporated in s 24 of PACE 1984. It is worthy of note that the less prudent arrestor who acts against a suspect when the latter is suspected of being in the act of committing an arrestable offence (s 24(4)) can justify his conduct simply by showing that there were ‘reasonable grounds’ on which to base the suspicion. They need not show that an offence was in fact being committed. If the arrestor waits until he thinks the crime has been committed, then, whereas a police officer will only have to show ‘reasonable grounds for suspecting that an arrestable offence has been committed’ (s 24(6)), a citizen can only justify his behaviour if an offence ‘has been committed’ (s 24(5)).
7.3.8 R v SELF (1992)
This analysis is supported by the decision in R v Self (1992). The defendant was seen by a store detective in Woolworths to pick up a bar of chocolate and leave the store without paying. The detective followed him out into the street and, with the assistance of a member of the public, she arrested the suspect under the powers in s 24(5) of PACE 1984. The suspect resisted the arrest and assaulted both his arrestors. He was subsequently charged with theft of the chocolate and with offences of assault with intent to resist lawful apprehension or detainer, contrary to s 38 of the Offences Against the Person Act 1861. At his trial, he was acquitted of theft (apparently for lack of mens rea), but convicted of the assaults. These convictions were quashed by the Court of Appeal on the grounds that, as the arrest had not been lawful, he was entitled to resist it. The power of arrest conferred upon a citizen (s 24(5)) in circumstances where an offence is thought to have been committed only applies when an offence has been committed. As the jury decided that Mr Self had not committed any offence, there was no power to arrest him.
It is not easy to justify the considerable legal protection available to police officers when compared with the near total lack of protection available to ordinary British subjects/citizens. In the article mentioned above, Professor Spencer states: ‘[I]f a citizen, reacting to the words “Stop thief!” tackles someone who looks for all the world like a fleeing robber, he has no defence if it later turns out that no robbery has actually occurred. The person he tackles can hit him with impunity, and sue him for damages at leisure later’ (‘Extending the Police State’, ibid). This seems far from satisfactory.
7.3.9 JOHN LEWIS & CO v TIMS (1952)
In John Lewis & Co v Tims (1952), Mrs Tims and her daughter were arrested by store detectives for shoplifting four calendars from the appellant’s Oxford Street store. It was a regulation of the store that only a managing director or a general manager was authorised to institute any prosecution. After being arrested, Mrs Tims and her daughter were taken to the office of the chief store detective. They were detained there until a chief detective and a manager arrived to give instructions whether to prosecute. They were eventually handed over to police custody within an hour of arrest. In a claim by Mrs Tims for false imprisonment, she alleged that the detectives were obliged to give her into the custody of the police immediately upon arrest. The House of Lords held that the delay was reasonable in the circumstances. There were advantages in refusing to give private detectives a ‘free hand’ and leaving the determination of such an important question as whether to prosecute to a superior official.
7.3.10 WHAT IS THE MEANING OF ‘REASONABLE GROUNDS FOR SUSPECTING’?
Many of the powers of the police in relation to arrest, search and seizure are founded upon the presence of reasonable ‘suspicion’, ‘cause’ or ‘belief’ in a state of affairs, usually that a suspect is involved actually or potentially in a crime.
In Castorina v Chief Constable of Surrey (1988), detectives reasonably concluded that the burglary of a company’s premises was an ‘inside job’. The managing director told them that she had recently dismissed someone (the plaintiff), although she did not think it would have been her, and that the documents taken would be useful to someone with a grudge. The detectives interviewed the plaintiff, having found out that she had no criminal record, and arrested her under s 2(4) of the Criminal Law Act (CLA) 1967 (which has now been replaced by s 24(6) of PACE 1984). She was detained at the police station for almost four hours, interrogated and then released without charge. On a claim for damages for wrongful arrest and detention, a jury awarded her £4,500. The trial judge held that the officers had had a prima facie case for suspicion, but that the arrest was premature. He had defined ‘reasonable cause’ (which the officers would have needed to show they had when they arrested the plaintiff) as ‘honest belief founded upon reasonable suspicion leading an ordinary cautious man to the conclusion that the person arrested was guilty of the offence’. He said an ordinary man would have sought more information from the suspect, including an explanation for any grudge on her part. In this, he relied on the dicta of Scott LJ in Dumbell v Roberts (1944) that the principle that every man was presumed innocent until proved guilty also applied to arrests. The Court of Appeal allowed an appeal by the chief constable. The court held that the trial judge had used too severe a test in judging the officers’ conduct.
Purchas LJ said that the test of ‘reasonable cause’ was objective and therefore the trial judge was wrong to have focused attention on whether the officers had ‘an honest belief’. The question was whether the officers had had reasonable grounds to suspect the woman of the offence. There was sufficient evidence that the officers had had sufficient reason to suspect her.
Woolf LJ thought there were three things to consider in cases where an arrest is alleged to be unlawful:
• Did the arresting officer suspect that the person who was arrested had committed the offence? This was a matter of fact about the officer’s state of mind.
• If the answer to the first question is yes, then was there reasonable proof of that suspicion? This is a simple objective matter to be determined by the judge.
• If the answers to the first two questions are both yes, then the officer did have a discretion to arrest, and the question then was whether he had exercised his discretion according to Wednesbury principles of reasonableness.
This case hinged on the second point and, on the facts, the chief constable should succeed on the appeal.
Note : The Wednesbury principles come from Associated Provincial Picture Houses Ltd v Wednesbury Corp (1948). Lord Greene MR laid down principles to determine when the decision made by a public authority could be regarded as so perverse or unreasonable that the courts would be justified in overturning that decision. The case actually concerned whether a condition imposed by a local authority on cinemas operating on Sundays was reasonable. Lord Greene MR said:
[…] a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may be truly said, and often is said, to be acting ‘unreasonably’.
Sir Frederick Lawton, the third judge in the Court of Appeal in Castorina, agreed. The facts on which ‘reasonable cause’ was said to have been founded did not have to be such as to lead an ordinary cautious man to conclude that the person arrested was guilty of the offence. It was enough if they could lead an ordinary person to suspect that he was guilty.
This creates quite some latitude for the police. Additionally, the House of Lords has decided in Holgate-Mohammed v Duke (1984) that, where a police officer reasonably suspects an individual of having committed an arrestable offence, he may arrest that person with a view to questioning him at the police station. His decision can only be challenged on Wednesbury principles if he acted improperly by taking something irrelevant into account. The police arrested a former lodger for theft of jewellery from the house where she had lived in order to question her at the police station. The trial judge awarded her £1,000 damages for false imprisonment. The Court of Appeal set aside the award and the decision was upheld by the House of Lords. The following passage from a judgment in the Court of Appeal in Holgate-Mohammed was approved in the House of Lords:
As to the proposition that there were other things which [the police officer] might have done. No doubt there were other things which he might have done first. He might have obtained a statement from her otherwise than under arrest to see how far he could get. He might have obtained a specimen of her handwriting and sent that off for forensic examination against a specimen of the writing of the person who had obtained the money by selling the stolen jewellery, which happened to exist in the case. All those things he might have done. He might have carried out fingerprint investigations if he had first obtained a print from the plaintiff. But, the fact that there were other things which he might have done does not, in my judgment, make that which he did do into an unreasonable exercise of the power of arrest if what he did do, namely, to arrest, was within the range of reasonable choices open to him.
It has been forcefully contended, however, that, in some circumstances, a failure to make inquiries before making an arrest could show that there were insufficient grounds for the arrest. See Clayton and Tomlinson, ‘Arrest and reasonable grounds for suspicion’ (1988) Law Soc Gazette, 7 September.
Note, however, that the powers are discretionary. See Simpson v Chief Constable of South Yorkshire Police (1991).
7.3.11 DETENTION SHORT OF ARREST
For there to be an arrest, the arrestor must regard his action as an arrest. If he simply detains someone to question him without any thought of arrest, the action will be unlawful. It is often reported in criminal investigations that a person is ‘helping police with their inquiries’. In R v Lemsatef (1977), Lawton LJ said:
It must be clearly understood that neither customs officers nor police officers have any right to detain somebody for the purposes of getting them to help with their inquiries.
There is no police power to detain someone against his will in order to make inquiries about that person. See also Franchiosy (1979). This is confirmed by s 29 of PACE 1984, which states that where someone attends a police station ‘for the purpose of assisting with an investigation’, he is entitled to leave at any time unless placed under arrest. He must be informed at once that he is under arrest ‘if a decision is taken by a constable to prevent him from leaving at will’. There is, however, no legal duty on the police to inform anyone whom they invite to the station to help with their inquiries that he may go.
7.3.12 SUSPECTS STOPPED IN THE STREET
In Kenlin v Gardiner (1967), a police officer took hold of the arm of a boy he wanted to question about the latter’s suspicious conduct. The boy did not believe the man was a policeman, despite having been shown a warrant card, and punched the officer in order to escape. The other boy behaved similarly but their convictions for assaulting an officer in the execution of his duty were quashed by the Divisional Court. The court held that the boys were entitled to act as they did in self-defence as the officer’s conduct in trying to physically apprehend them had not been legal. There is no legal power of detention short of arrest. As Lawton LJ observed in R v Lemsatef (see above), the police do not have any powers to detain somebody ‘for the purposes of getting them to help with their inquiries’.
It is important, however, to examine the precise circumstances of the detaining officer’s conduct. There are cases to suggest that if what the officer does amounts to only a de minimis interference with the citizen’s liberty, then forceful ‘self-defence’ by the citizen will not be justified. In Donnelly v Jackman (1970), an officer approached a suspect to ask some questions. The suspect ignored the request and walked away from the officer. The officer followed and made further requests for the suspect to stop and talk. He tapped the suspect on the shoulder and the suspect reciprocated by tapping the officer on the shoulder and saying ‘Now we are even, copper’. The officer tapped the suspect on the shoulder again, which was replied to with a forceful punch. Mr Donnelly’s conviction was upheld and the decision in Kenlin v Gardiner was distinguished as, in the earlier case, the officer had actually taken hold of the boys and detained them. The court stated that, ‘it is not every trivial interference with a citizen’s liberty that amounts to a course of conduct sufficient to take the officer out of the course of his duties’.
In Bentley v Brudzinski (1982), the facts were very close to those above. A constable stopped two men who had been running barefoot down a street in the early hours. He questioned them about a stolen vehicle as they fitted the description of suspects in an earlier incident. They waited for about 10 minutes while the officer checked their details over a radio and then they began to leave. Another constable, who had just arrived on the scene, then said, ‘Just a minute’, and put his hand on the defendant’s shoulder. The defendant then punched that officer in the face. Unlike the decision in Donnelly v Jackman, the Divisional Court held that the officer’s conduct was more than a trivial interference with the citizen’s liberty and amounted to an unlawful attempt to stop and detain him. The respondent was thus not guilty of assaulting an officer in the execution of his duty.
Note, also, that a person may be arrested for being silent or misleading under s 25 of PACE 1984, if the officer has reasonable doubts about the suspect’s name and address or whether the summons procedure can be used at the address given.
7.3.13 STOP AND SEARCH
PACE 1984 gives the police power to search ‘any person or vehicle’ and to detain either for the purpose of such a search (s 1(2)). A constable may not conduct such a search ‘unless he has reasonable grounds for suspecting that he will find stolen or prohibited articles’ (s 1(3)). Any such item found during the search can be seized (s 1(6)). An article is ‘prohibited’ if it is either an offensive weapon or it is ‘made or adapted for use in the course of or in connection with burglary, theft, taking a motor vehicle without authority or obtaining property by deception or is intended by the person having it with him for such use by him or by some other person’ (s 1(7)). An offensive weapon is defined as meaning ‘any article made or adapted for use for causing injury to persons or intended by the person having it with him for such use by him or by some other person’ (s 1(9)). This definition is taken from the Prevention of Crime Act 1953. It has two categories: things that are offensive weapons per se (that is, in themselves), like a baton with a nail through the end or knuckle-dusters, and things that are not offensive weapons, like a spanner, but which are intended to be used as such. If the item is in the first category, then the prosecution need prove only that the accused had it with him to put the onus onto the accused to show that he had a lawful excuse. Stop and search powers can now also be exercised under s 8A regarding items covered by s 139 of the CJA 1988. These items are any article that has a blade or is sharply pointed, except folding pocket knives with a blade of less than three inches. It is an offence to possess such items without good reason or lawful authority, the onus of proof being on the defendant. The courts will not accept the carrying of offensive weapons for generalised self-defence unless there is some immediate, identifiable threat.