The powers of the police in England and Wales are defined largely by statute law, with the main sources of power being the Police and Criminal Evidence Act 1984 and the Police Act 1996. This article covers the powers of territorial police forces only. In law, police powers are given to "constables"; this means both full-time and volunteer police officers (known as special constables). There are four main powers that constables have that normal members of the public do not: the power to detain people, the power to search people/vehicles/objects and places, the power to arrest people and the power to enter property. Typically, the level of power available varies with the status of the person it is being used against; the police have different powers over people they have arrested compared with those who have not been arrested.
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The basic powers of constables derive from the Police Act 1996, which covers attestation (section 29), jurisdiction (section 30) and a number of other matters.
There are three different types of detention:
Detention without arrest is only permitted in certain circumstances, and is not a generally available power as in some other jurisdictions. In addition to the power to detain during a search (as described below) a constable may detain a person under the following provisions:
| Section and Act | Purpose | Duration | Notes |
|---|---|---|---|
| section 12 of the Contempt of Court Act 1981 | for contempt of court | until the court rises (end of the day) | when ordered by the court |
| section 136 of the Mental Health Act 1983 | people suffering from mental disorders in a public place and in immediate need of care or control | for 72 hours | commonly known as "being sectioned" |
| section 138 or section 18 of the Mental Health Act 1983 | people who have absconded from detention under the Act | to return them to lawful custody | |
| section 118 of the County Courts Act 1984 | for contempt of court | until the court rises (end of the day) | when ordered by the court |
| section 136 of the Magistrates' Courts Act 1980 | for non-payment of a fine | until 8am the next morning | when ordered by the court |
| section 21A of the Football Spectators Act 1989 | to determine whether a football banning order should be made | for four hours (six with permission of an Inspector) | British citizens only[1] |
Where a person is arrested for an offence, they will be taken to a police station. The Custody Officer at that police station must determine whether he has sufficient evidence to charge the detainee for the offence and may keep the detainee in custody until he can make this decision.[2] The Custody Officer has sufficient evidence if he has sufficient evidence to provide a reasonable prospect of conviction.[3] If the Custody Officer determines that he does have sufficient evidence, he must charge the person or release him.[2] If he determines he does not have enough evidence to charge him he must release him unless he has reasonable grounds for believing that his detention without being charged is necessary to secure or preserve evidence relating to an offence for which he is under arrest or to obtain such evidence by questioning him.[2]
In terrorism cases, a person may be detained for a maximum of 28 days.[4] Otherwise (and subject to exceptions), a person may be detained for a maximum of 96 hours from the relevant time (normally the time an arrested person arrives at the first police station that he is taken to)[5], in line with the following restrictions:
| Authorising person | Test to be applied | Requirement for review | Maximum limit |
|---|---|---|---|
| Custody Officer |
|
||
| Review Officer[7] |
|
6 hours after the decision to detain or 9 hours after the last review | 24 hours from the relevant time[5] |
| Superintendent or above |
|
36 hours from the relevant time[8] | |
| Magistrates' Court |
|
The Magistrates' Court can only grant or extend a warrant for up to 36 hours. | 96 hours from the relevant time[9] |
On expiry of the time limit, the arrested person must be released, either on or without police bail[5] and may not be rearrested without warrant for the same offence unless new evidence has come to light since the original arrest.[5][8][9]
Following charge, a person may be detained in custody pending their trial or during their trial before sentencing.
Immediately after charge, if the detainee is not released (either on police bail or without bail), he must be brought before a Magistrates' Court as soon as is practicable (first appearance).[10]. From this point, the following time limits apply[11], unless extended by the court[12]:
| Offence type | Mode of trial | Limit in Magistrates' Court | Limit in Crown Court |
|---|---|---|---|
| Summary only | Summary trial | First appearance to trial: 56 days | |
| Either way | Summary trial | First appearance to trial: 56 days | |
| Either way | Trial on indictment | First appearance to committal: 70 days | Committal to trial: 112 days |
| Indictable only | Trial on indictment | Sent to Crown Court forthwith[13] | Sent from Magistrates' Court to trial: 182 days |
The treatment of suspects held in detention is governed by Code H to the Police and Criminal Evidence Act 1984 in the case of suspects related to terrorism and by Code C in other cases. It is generally the responsibility of a designated Custody Officer to ensure that the provisions of the relevant Code and of the Police and Criminal Evidence Act 1984 are not breached.[14]
In particular, a person detained has the following rights; and must be informed of these rights at the earliest opportunity:
A constable may enter and search any premises occupied or controlled by a person who is under arrest for an indictable offence, if he has reasonable grounds for suspecting that there is on the premises evidence (other than items subject to legal privilege) that relates to that offence, or to some other indictable offence which is connected with or similar to that offence.[17] A constable also has the power, if a person has been arrested for an indictable offence, to enter and search any premises in which he was when arrested or immediately before he was arrested for evidence relating to the offence. [18]
The Police and Criminal Evidence Act 1984 (PACE) was enacted to correct perceived problems with the implementation of the powers previously granted to the police, the Judges' rules. The 'sus' law allowed police to stop, search, and subsequently arrest a 'suspected person' without warrant. Due to perceived unfair implementation of this law within the black community, there were riots in some parts of the country in majority black areas (Brixton, Handsworth, Toxteth, Southall & Moss Side) in the early 1980s and "sus" was repealed in 1981[19]. The vast majority of search powers now require 'reasonable suspicion' of an offence to be present. [20] Constables cannot carry out 'consensual' searches of a person.[21]
Before searching anyone or anything (except an unattended vehicle), a constable in plain clothes must identify himself as a constable and show his warrant card or similar, and a constable (in uniform or otherwise) must state:[22]
Before searching an unattended vehicle, a constable must leave a notice (inside the vehicle unless it is not reasonably practicable to do so without damaging the vehicle) stating:[22]
The above provisions do not apply to searches under section 6 of PACE or section 27(2) of the Aviation Security Act 1982, which both relate to vehicles leaving goods handling areas where searches are routine.[22]
A search without arrest is unlawful if it appears to the constable, after first detaining the person or vehicle, that the search is not required or it is impracticable.[22] A person or vehicle may be detained for the purposes of a search for as long as is reasonably required to permit a search to be carried out either at the place where the person or vehicle was first detained or nearby.[22] Whilst in public, a constable cannot require a person to remove any of his clothing other than an outer coat, jacket or gloves[22] (except in the case of a search under section 47A of the Terrorism Act 2000, which additionally permits the removal of footwear and headgear[23]). Recently a group of civil, academic and legal organisations have united to form StopWatch an organisation that aims to monitor the use of stop and search powers, reduce ethnic dis-proportionality and promote good practice in their deployment. The powers to search are as follows:
| Section and Act | Where | What can be searched | What it/they can be searched for | Grounds for conducting the search | Notes |
|---|---|---|---|---|---|
|
|
|||||
| section 2 of the Poaching Prevention Act 1862 | any highway, street, or public place | any person (or any person aiding or abetting such person) or vehicle | unlawfully obtained game, or any gun, part of gun, or nets or engines used for the killing or taking game | good cause to suspect of coming from any land where he shall have been unlawfully in search or pursuit of game | |
| section 12 of the Deer Act 1991 | anywhere | any vehicle, animal, weapon or other thing | evidence of the commission of an offence under the Act | suspects with reasonable cause of committing or having committed an offence under the Act | |
| section 4 of the Conservation of Seals Act 1970 | anywhere | any vehicle or boat | used by a person suspected to be committing an offence under the Act | suspects with reasonable cause of committing an offence under the Act | |
| section 11 of the Protection of Badgers Act 1992 | anywhere | any person, vehicle or article | evidence of the commission of an offence under the Act, or under the Badgers Act 1973 | reasonable grounds for suspecting of committing an offence under the Act | |
|
|
|||||
| section 6 of the Public Stores Act 1875 | anywhere | any person, vessel, boat or vehicle | stolen government property | reason to suspect that stolen government property may be found | Metropolitan Police constables only, unless specifically authorised |
| section 23 of the Misuse of Drugs Act 1971 | anywhere | any person or vehicle | controlled drugs | reasonable grounds to suspect that that person, or a person inside that vehicle, is in possession of controlled drugs | |
| section 163 of the Customs and Excise Management Act 1979 | anywhere | any vehicle, vessel or non-airborne aircraft | goods which are:
|
reasonable grounds to suspect the vehicle or vessel is carrying such goods | |
| section 24B of the Aviation Security Act 1982 | any aerodrome | any person, vehicle or aircraft, or anything which is in or on a vehicle or aircraft | stolen or prohibited articles | reasonable grounds for suspecting the finding of stolen or prohibited articles | meaning of "prohibited" given by subsection (5) of that section |
| section 27 (2) of the Aviation Security Act 1982 | any cargo area of an aerodrome which is a designated airport | any vehicle or aircraft and any goods carried by people (but does not include people) | general power of inspection | no need for suspicion | |
| section 1 of the Police and Criminal Evidence Act 1984 | a public place | any person or vehicle, or anything which is in or on a vehicle |
|
reasonable grounds for suspecting the finding of such items | commonly known as "stop and search" |
| section 7 of the Sporting Events (Control of Alcohol etc.) Act 1985 | anywhere | any person, public service vehicle or train | the person is committing or has committed an offence under the Act, or an offence under the Act is being committed or has been committed on the vehicle or train | reasonable grounds to suspect the person is committing of has committed an offence under the Act | offences under the Act include possession of alcohol or flares and being drunk on transport to football matches, or whilst in or attempting to enter the football ground |
| section 34B of the Environmental Protection Act 1990 | anywhere | any vehicle used to dump waste unlawfully | general power of inspection | reasonable belief that an unlawful dumping offence has been, is being or is about to be committed | |
|
|
|||||
| section 47 of the Firearms Act 1968 | any public place | any person or vehicle | firearms or ammunition | reasonable cause to suspect of possession | |
| section 47 of the Firearms Act 1968 | anywhere other than a public place | any person or vehicle | committing or being about to commit offences under section 18 and section 20 | reasonable cause to suspect of committing or being about to commit such offences | |
| section 4 of the Crossbows Act 1987 | anywhere | any person aged under 17 | a crossbow (or part of) | suspects with reasonable cause that a person has or has had a crossbow | does not apply where that person is or was under the supervision of a person aged 21+ |
| section 4 of the Crossbows Act 1987 | anywhere | any vehicle | a crossbow (or part of) connected with an offence under section 3 of that Act | suspects with reasonable cause that a person under 17 has or has had a crossbow | does not apply where that person is or was under the supervision of a person aged 21+ |
| section 139B of the Criminal Justice Act 1988 | school premises | the premises and any person on them | offensive weapons or objects with blades or sharp points | reasonable grounds for suspecting that a person has or has had such an item on the premises | |
| section 60 of the Criminal Justice and Public Order Act 1994 | anywhere specified by an authorisation | any pedestrian (or anything carried by him) and any vehicle, its driver and any passenger | offensive weapons or objects with blades or sharp points | if an authorisation has been given under that section (no need for suspicion) | |
|
|
|||||
| section 43 of the Terrorism Act 2000 | anywhere | any person | evidence that that person is a terrorist (defined by section 40) | reasonably suspects that person to be a terrorist | |
| section 47A of the Terrorism Act 2000 | anywhere specified by an authorisation | a vehicle (including the driver of the vehicle, a passenger in the vehicle, anything in or on the vehicle or carried by the driver or a passenger) or a pedestrian (and anything carried by the pedestrian) |
evidence that:
|
if an authorisation has been given under that section (no need for suspicion) | |
A constable may search a person who has been arrested (unless the arrest was at a police station) if the constable has reasonable grounds for believing that the arrested person may present a danger to himself or others.[24] A constable may also (unless the arrest was at a police station) search an arrested person for anything which he might use to assist him to escape from lawful custody, or which might be evidence relating to an offence.[25]
This power is given to officers by Section 32 of the Police and Criminal Evidence act 1984.
A constable may search a person arrested under section 41 of the Terrorism Act 2000 to discover whether he has in his possession anything which may constitute evidence that he is a terrorist (defined by section 40).[26]
The Custody Officer must record everything which an arrested person has with him at the police station and may search a person to the extent that he considers it necessary to do so, but may not conduct an intimate search for these purposes. The Custody Officer may seize anything, but may only seize clothes or personal effects if the Custody Officer:[27]
An Inspector also has a limited power to order a search of an arrested person in order to facilitate establishing the identity of a person, particularly by discovering tattoos or other marks.[28] Where such a search requires more than the removal of the arrested person's outer clothing, the provisions of Code C to the Police and Criminal Evidence Act 1984 relating to strip searches apply.
An intimate search is a search of the bodily orifices (other than the mouth). It should be conducted by a suitably qualified person unless this is impracticable and done in the presence of two other people. An intimate search requires the authorisation of an inspector and may only be made in one of the following circumstances:[29]
| Condition | Consent | Place |
|---|---|---|
The inspector reasonably believes
|
Consent is not necessary for the search to take place and reasonable force may be used to conduct the search. | Police station, hospital, surgery or other medical premises. |
The inspector reasonably believes
|
Consent for the search is necessary. If the detainee refuses to give consent, proper inferences may be drawn but force may not be used. | Hospital, surgery or other medical premises. |
The only powers of detention that are available to a constable in England and Wales are discussed above. Therefore, when a person's liberty is deprived he is thus under arrest, and:
A person must be 'cautioned' when being arrested unless this is impractical due to the behaviour of the arrestee i.e. violence or drunkenness. The caution is:
You do not have to say anything, but it may harm your defence if you do not mention when questioned something which you may later rely on in court. Anything you do say may be given in evidence.[32]
Deviation from this accepted form is permitted provided that the same information is conveyed.
There are three general means of arresting without warrant: firstly in relation to a criminal offence, secondly in relation to a breach of the peace and thirdly for miscellaneous purposes.
Prior to 1967, the only general power of arrest for offences was that which existed for felonies.[33] In 1964, Home Secretary Rab Butler asked the Criminal Law Revision Committee to look into the distinction between felonies and misdemeanours, and their recommendation was that the distinction be abolished, as it was obsolete. As most powers of arrest relied on the offence being a felony, a new set of arrest criteria were introduced by the Criminal Law Act 1967, which created the arrestable offence (defined as an offence where an adult could be sentenced to imprisonment for five years or more).
These arrest powers were later re-enacted by the Police and Criminal Evidence Act 1984 (PACE), which also created an alternative set of arrest criteria (the "general arrest criteria") which applied in particular circumstances, such as where the person's name or address were not known. As time went on, the number of offences that were defined as "arrestable" grew significantly, to the point where the distinction was becoming confusing and unworkable.
In 2005, the PACE powers of arrest were repealed by the Serious Organised Crime and Police Act, which also abolished the arrestable offence and instead replaced it with a need-tested system for arrest which applied to every offence.
A constable may therefore arrest (without a warrant):[34]
Additionally, if a constable suspects that an offence has been committed, then:[34]
But a constable may only use the powers of arrest given above:[34]
Breach of the peace is one of the oldest, and most basic offences still in existence in England & Wales. It is an offence at common law, not codified, so it cannot be found in any act of Parliament. The power of arrest in relation to breach of the peace is available to anyone (regardless of whether they are a constable or not), who may arrest without warrant:[35]
However, the Court of Appeal laid down the following conditions:[35]
There are few powers of arrest without warrant where an offence is not either known or suspected to have been committed. A constable may arrest a person:
A constable has the power, at common law, to enter premises to deal with or prevent a breach of the peace.[58] A constable may also enter and search any premises for the purpose:[58]
A constable also has the power to enter any place in order to carry out a search under section 47 of the Firearms Act 1968.[59]
A uniformed constable may stop any vehicle at any time under section 163 of the Road Traffic Act 1988. However, if a constable wishes, for one of the reasons given below, to stop all vehicles or certain vehicles selected by any criterion, then they must do so under the power granted by section 4 of the Police and Criminal Evidence Act 1984.[60] A road check is normally only authorised by a police officer of the rank of superintendent or above, in which case the restrictions given in the second column apply.[60] However, if it appears to an officer below the rank of superintendent that a road check is required (for one of the reasons below) as a matter of urgency, then he may authorise it himself.[60] In this case, the conditions given in the second column do not apply.[60]
| Reason | Conditions for authorisation by superintendent |
|---|---|
| a person who has committed an offence (other than a road traffic offence or a vehicle excise offence) | if he has reasonable grounds:
|
| a person who is a witness to an offence (other than a road traffic offence or a vehicle excise offence) | if he has reasonable grounds for believing that the offence is an indictable offence |
| a person intending to commit an offence (other than a road traffic offence or a vehicle excise offence) | if he has reasonable grounds:
|
| a person who is unlawfully at large | if he has reasonable grounds for suspecting that the person is, or is about to be, in that locality. |
If an officer below the rank of superintendent gives authorisation, it must be referred to a superintendent as soon as it is practicable to do so.[60] Where a superintendent gives authorisation for a road check, he:[60]
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 specify a further period, not exceeding seven days, during which it may continue.[60]
In addition to the powers to conduct road checks given above, the police have a common law power to set up road checks and search vehicles stopped at them in order to prevent a breach of the peace.[35]
Under section 60AA Criminal Justice and Public Order Act 1994, if:[61]
then a constable in uniform can:[61]
Authorisations apply to one locality only, last for 24 hours, and the inspector who gives them must inform a superintendent as soon as possible.[61] A superintendent can extend the authorisation for a further 24 hours.[61] Failure to remove a disguise when required is an offence.[61]