<\/p>\n
The purpose of this paper is to critically consider how police powers of stop, search and arrest, along with changes to the right to silence, have led to a slow erosion of the rights of the suspect. Attention is drawn to the role of police officers, their rights and powers; as well as primary legislation, important statutes, criticism against the law and the impact of the European Union Law of Human Rights.<\/p>\n
Police Role<\/p>\n
Throughout history and community development, violations of cultural norms have led to the creation of laws. These have customarily regulated or governed societal norms and behaviours, aided by police officers and other elements of the criminal justice system. [1<\/a>]<\/span><\/p>\n In order to highlight the importance of the police role, the statute of Winchester 1285 was introduced. Its fundamental aim was to bridge the gap between the criminal justice system and society. It was reinforced by King Henry\u2019s I proclamation: \u201c[any] disturbance of the peace [is] not only an offence against the persons aggrieved there but [is] also an affront to the king himself, and the royal power [will] be deployed against the wrongdoer.” [2<\/a>]<\/span><\/p>\n Rights and Power<\/p>\n As societies developed major crimes escalated, encouraging police to use extreme measures in their efforts to maintain societal stability. Police claimed ad hoc powers of stop, search and arrest, validated by Parliament Acts, local by-laws, common laws and judicial directives, e.g., \u2018Judges Rules\u2019. [3<\/a>]<\/span> Examples from different eras are numerous, such as the Vagrancy Act 1824 [4<\/a>]<\/span> and 1935 [5<\/a>]<\/span> (as amended); the Metroplitan Police Act 1839 [6<\/a>]<\/span> and the Misuse od Drugs Act 1971. [7<\/a>]<\/span> These newfounded powers know as \u2018sus\u2019 laws, ultimately resulted in accusations of misuses of power and other miscarriages of justice.<\/p>\n During the 1980\u2019s, the judiciary paid little attention at how evidence was obtained. This is evident in the case of R v Sang, where \u201cpolice lured citizens into comitting illegal acts and then seek to prosecute them for doing so.” [8<\/a>]<\/span> But as public outrage mounted in opposition to police \u2018sus\u2019 law actions, their approaches began to be questioned. Frequent incidents of police harrassments also led to the creation of a group referred to as \u2018Scrap sus\u2019. \u201cLed largely by black people, it\u2019s goal was the repeal of s. 24 of the 1824 Vagrancy Act under which people (and dispropotionately black people) were arrested by the police on suspicion of being about to commit an offence.” [9<\/a>]<\/span><\/p>\n These public outcries of discrimination and miscarriages of justice prompted Parliament to create the 1978 Royal Commission. In 1981, after reviewing police use of \u2018sus\u2019 and other legislation, the Phillips Report helped define \u2018a balance between individual rights and the security of society and state.\u2019 It also influenced Parliament to enact the Police and Criminal Act 1984 (PACE 1984)<\/p>\n Primary Legislation<\/p>\n Pace 1984 was intended to create uniformity and standardise police powers. In sub-section 1-7 and s 66 of Code Practice A, police are empowered to stop, search at any stage of their investigations. Albeit suspicion is required up to 24 hours to proceed with an investigation. However, under s 1(2) and s 4, restricts the stop and search powers to \u201cpublic places\u2026[including]..car parks, and evn private gardens.” [10<\/a>]<\/span><\/p>\n Additionally, the power of arrest was orginally governed under section 1 of the Magistate Court Act 1980 and then expressly implied by PACE 1984 under s. 24 (4-7). PACE also re-enacted s 2 of the Criminal Law Act 1967, clarifying how police can arrest without warrents. S 24 (1)-(3) lists arrest rationale and identifies offences categorized as \u2018arrestable\u2019 along with 41-44 which specifies the time suspects can be held. But it is s 25 that grants the power to arrest for any offence. However, it is subsections 17-117 that really extends the power of arrest, enabling police to enter a suspects premises and use force if necessary, to arrest someone for an arrestable offence.<\/p>\n PACE 1984 encouraged officers to remain objective as they used these powers on persons deemed \u2018incorrigible rogue[s]\u2019 (purely on suspicion). This was evident in Murray v Ministry of Defences: Army patrols entered Mrs. Murray\u2019s house to arrest her. When she asked whether she was under arrest, she was not told until half hour later. Yet the courts held that the arrest was lawful.” [11<\/a>]<\/span><\/p>\n However, it was the racially-motivated 1993 murder of Stephen Lawerence that brought the issue of police powers into question. The murder led to judicial inquiry and a report by Sir William Macpherson who \u201cprepared 70 recommendations of elimination of racist prejudice and disadvantage and the demonstartion of fairness in all aspects of policing,” [12<\/a>]<\/span> where \u201cthe use of stop and search has been used disproportionately against ethnic minorities and that discrimination was likely.” [13<\/a>]<\/span><\/p>\n Macpherson\u2019s report influenced the creation of Code A which stipulates that \u2018reaonable grounds\u2019 of stop and search should be incorporated to reduce discrimination. This stance was supported in cases where police abuses were evident such as Osman v DPP, where officers failed to give their names to the station; the Divisional Court held that this made the search unlawful and \u2026Mr. Osman could not be guilty of assulting the police\u2026when he resisted the search [14<\/a>]<\/span> and more strongly in Moss v McLachlan, where police did whatever they thought reasonable to prevent a breach of the peace. [15<\/a>]<\/span><\/p>\n Other statutes<\/p>\n In short, changes to PACE 1984 curtailed over-zealous police usage of the archaic \u2018sus\u2019 law. The changes benefited both police and accused alike, by clarifying and defining the rules. However, crime continued to escalate and unanticipated violence led to additional legislation, the Criminal Justice and Public Order Act 1994 (CJPOA 1994).<\/p>\n Under s 60, police receive further powers of stop, search and arrest which no longer require \u2018reasonable\u2019 or \u2018suspicion\u2019 as previously stipulated. Police can now \u2018anticipate\u2019 acts of violence. And under s 46A, police can arrest without a warrant, for collective and aggravated tresspass, plus a wider ranges of offences not listed under PACE 1984. This is illuastrated when CJPOA amended PACE to allow the retention of fingerprints even if the suspect isn\u2019t charged. [16<\/a>]<\/span><\/p>\n Historically, police powers changes were influenced by racial and social tensions. More recently, the spread of international terrorism increased police powers without discretion, although terrorism already became familiar when \u201cthe Irish Republican Army declared war against the UK, planting boombs, and killing and injuring\u2026innocents. This led to Parliament extending powers through the Prevention of Terrorism (Temporary Provisions) Act 1976 (re-enacted in 1984″ [17<\/a>]<\/span> However, it was the radical 911 terrorist attacks on the US and the 2005 London\u2019s Bombing\u2019s which influenced the UK to amend legislation such as part v of the Terrorism Act, part 10 of the Anti \u2013Terrorist Act, ss 5 of the Crime & Security Act 2001 and part II of the Terriorism Act 2006.<\/p>\n But despite widespread terrorism attacks during the Northern Ireland Affair and the 2005 London Bombing\u2019s, it was the \u20182007 failed bomb attack against the Tiger Nightclub in London\u2019s Haymarket\u2019, that renewed focus on the dangers of terrorism. That event led to increases in police stop, search and arrest under s 44 of the Terrorism Act 2000. [18<\/a>]<\/span><\/p>\n Cristicisms<\/p>\n Clearly, these extensions of powers eroded the rights of the suspects relative to traditional rights to silence as established by earlier cases such as Rice v Connolly. Where, the courts held that prosecution of such a person or obstructing the police in the extension of their duty failed because the duty of the citizen to assist the police was a moral not a legal duty.” [19<\/a>]<\/span><\/p>\n While the CJPOA 1994 does not abolish the historic common law right of suspects to silence, it does impose certain restrictions on these rights. According to the Act, adverse inferences may only be drawn where, in the circumstances, the suspect could reasonably have been expected to mention information. [20<\/a>]<\/span> The Court of Appeal offered a non-exhausted list of factors to be taken into account when assessing the \u2018reaonableness\u2019 requirement in R v Argent, [21<\/a>]<\/span> including the defendants age, experience with police \u2018dealings\u2019, state of health and sobriety.<\/p>\n However, since the enactment of the CJPOA 1994, the right of a suspect to silence during questioning can now lead to adverse court inferences if the suspect is subsequently charged and advances a defence at trial. [22<\/a>]<\/span> This was seen in the case of R v Friend, where a fifteen-year-old with the mental age of nine remained silent and gave no evidence in court; the courts held that an adverse inference could be drawn and a murder conviction was upheld.” [23<\/a>]<\/span> Further adverse inferences may be drawn if a suspect fails to account for objects found on him, or if he does not explain his presence at a particular site. [24<\/a>]<\/span> This erodes the rights of the accused and many would argue that s 34(2) and the drawing of \u2018adverse inferences\u2019 offends Article 6 of the European Convention of Human Rights 1950 (the right to a fair trial), as incorporated into domestic law by the Human Rights Act 1998.<\/p>\n Under section 110 of the Serious Organized Crime and Police Act 2005, changes to police powers led to numerous suspects being arrested and detained by police on suspicion alone. Yet such arrest do not prove whether suspects are enemies or criminals and theire is no justification for police collecting fingerprints from innocent persons and recording them in a DNA datatbase – surley infinging privacy rights! This view is defended by the European Courts of Human Rights in the case of S an Marper v United Kingdom, where two boys age 11 was charged for attempted robbery. Fingerprints and DNA was retained by police, but they were acquitted of all charges. The boys claimed that their inclusion within the National DNA Database continue to cast suspicion. The courts found that the police had breached their rights to respect for their private life, which was protected by Article 8 of the ECHR and awarded \u00a342,000 to each applicant.” [25<\/a>]<\/span><\/p>\n It is evident that abuses caused by extended powers lead to the curtailment of individual liberties. This especially applies to police powers that inlude words that are ambgious and therefore open to interpretation, e.g.,\u2019terrorism\u2019, illustrated by the loss of liberty experienced in the Northern Ireland conflict wherein residents\u2019 movements were restricted. [26<\/a>]<\/span> Similarly, current terrorism bills erode individual freedom and rights to association as evident in the 2003 Defence & Equipment International Arms Fair (DESI). \u201cPolice arrested 144 people for being at\/near the DESI show in London\u2019s docklands a display of high tech weaponary that attracts buyers from around the world.” [27<\/a>]<\/span> This led to the famous case of Gillan and Quinton v The United Kingdom, where the ECHR ruled that section 44 of the Terrorism act violates the right to respect for private life guranteed by Article 8 of the Convention on Human Rights. [28<\/a>]<\/span><\/p>\n This judgment influenced UK\u2019s Home Secretary to declare on the 8th July 2010 that she would discontinue the use of section 44 powers in contravention with the European Courts ruling and, more importantly, in contravention of the civil liberities of individuals. [29<\/a>]<\/span><\/p>\n ECHR recognises that extended powers permit officers to arrest anyone for any, even trivial, offence, they likewise encourages discrimination. This view was supported in the aftermath of the 911 US attacks and the 2005 London bombings, when innocent East Indian males were targeted, based only on beard length! Harassment continues, with men being stopped, removed from public transport and-most recently-having hidden cameras installed in their communities. According to the Guardian newspaper, \u201cA secret police operation to place thousands of Muslims living Birmingham under permanent surveillance was implemented with virtually no\u2026regard for the law\u2026The scheme was supported by the Association of Chief Police Officers in direct response to the perceived concentration of terrorist threats in 2007.” [30<\/a>]<\/span><\/p>\n Conclusion<\/p>\n History seems to uphold the concept that police require the powers of stop, search and arrest to more effectively prevent and detect crime, especially when operating in situations of low visability-and within broad discretaionary mandate- as illustrated by leading cases such as Albert v Lavin [1982]AC 546. Unfortunately however, because powers were taken from different legislation, numerous instances of police abuses and other miscarriages of justice have occurred- as illustrated by the \u2018sus law\u2019 which was disproportionately used against ethnic minorities.<\/p>\n The very basis of many of these provisions requires police officers to act on \u201creasonable grounds” in stopping and searching, or arresting, suspects. Section 1 of PACE, for example, states that officers must have \u201creasonable grounds for suspicion.” [31<\/a>]<\/span> Nothwithstanding this requirement (and it is important to note that \u201creasonable grounds” cannot be based on personal characteristics of the suspect alone), it is clear that this undermines the presumption of innocence, as in order to conduct a stop-and-search, there must at least be a suspicion of guilt.<\/p>\n Yet, police powers are largely governed by the provisions of PACE 1984, they remain subject to the supervision of the courts, safeguarding suspects\u2019 rights, as illustrated in Lindley v Rutter, in which the courts found that police officers had not acted properly when forcing a female suspect to remove her brassiere. [32<\/a>]<\/span><\/p>\n Most alarming are statistics, revealing that in 2008\/09 2010, 013 searches under section 44 rose by 66% from 2007\/2008. [33<\/a>]<\/span> These figures emphasises the view that \u201cpolice continues to stop and search people for longer than authorized by the law.” [34<\/a>]<\/span><\/p>\n Nothwithstanding such findings, the \u2018law of war\u2019 and other realites indeed defends Lord Jelloce belief, \u201cthat security of the state takes priority over the freedoms of the individual,” [35<\/a>]<\/span> as established in cases from World War II under Regulations 18B, like Liversidge v Anderson. [36<\/a>]<\/span> But the traditional adage cited in English Criminal law remains; the suspect is \u2018innocent until proven guilty,\u2019 with the burden of proof being on the prosecution. Indeed, this paradigm prevails in most jurisdictions. And as the Universal Declaration of Human Rights states: Everyone charged with a penal offence has the right to be presumed innocent until proven guilty to law in a public trial at which they have all the guarntees necessary for their defences.” [37<\/a>]<\/span> However, some argue that this fundamental assumption has been undermined in recent years by increasing powers of the police regarding suspects, and that traditional rights to silence have accordingly diminshed.<\/p>\n Over time a pendulum effect has occurred wherby the suspects\u2019 rights have both increased and decreased in intensity, as opposed to a \u2018gradual eroison\u2019 of the rights of those suspected of committing crimes.<\/p>\n