Stop and Search Demonstrations

Public law– Stop and Search and Arrest

I would advise Norbert that there are several factors that need to be considered before concluding if his search was legal. Firstly the question arises that did the policemen have the right to stop and search Norbert. It can be argued that the police did have the right to stop Norbert under PACE (s 1(3)) as they were suspicious that Norbert was involved in the theft that had taken place in the next street and Norbert was a well known burglar (Bentley v Brudzinski ), however it can also be argued that Norbert was coincidently there to meet his posh new girlfriend and “reasonable suspicion can never be supported on the fact that the person is known to have a previous conviction, this cannot be used alone as the reason for searching” Norbert. R v Bristol.

When Norbert is approached by the police and asked questions, he has the legal right to remain silent and not to answer any questions unless he is arrested as confirmed by the judgment made in the case of Rice v Connolly. He is within his rights at common law to remain silent however Norbert cooperates with the police and answers their questions.

Norbert denies any knowledge about the theft and refuses a request to turn out his pockets, another question arises here because if Norbert was not guilty then he would not have hesitated to empty out his pockets, and this has lead to the police becoming more suspicious that Norbert was involved in the theft. However Norbert can argue that he did not believe that the two men he was approached by were policemen as they did not introduce themselves, and therefore refused to turn out his pockets Kenlin v Gardiner (1967). Because of the limited information that we have been given I am assuming that the policemen were not wearing uniform, the case study also does not mention whether a warrant card was shown or not and therefore I am assuming that it wasn’t. Legally if a police man is not wearing uniform then a warrant card must be shown under the Police Return Act 2002 SCH 4 para 15.

“Under section 2 of PACE 1984, a police officer who proposes to carry out a stop and search must state his name and police station and the purpose of the search” in this case PC Mallard and PC Drake have not introduced themselves and have not told Norbert about the purpose of the search, and legally they were supposed to. (DPP v Avery). However it can be argued that because Norbert is well known to the 2 police officers, the police officers did not consider re introducing themselves, although legally they should have.

The second factor that Norbert needs to consider on the legality of the search is that a street search “must be limited to outer clothing, the searched person cannot be required to remove any article of clothing other than a jacket, outer clothes or gloves” in this case PC Drake removes Norbert’s hat, coat and shoes as well as searching his sports bag in a bus shelter. The police legally had the right to remove Norbert’s coat and hat however they did not legally have the right to remove his shoes in the bus stop and also to search his bag under PACE section 2 (3) (c). And therefore this search was unlawful R v Fennelly). A bus shelter is a public place and therefore it should not have been used to search Norbert, the officers should have also tried to reduce the embarrassment that Norbert had experienced, they could have easily been able to do this by searching Norbert in a police van or at the police station rather than conducting the search in the bus shelter. This also affected other individuals as those who wanted to wait for the bus couldn’t, as PC Mallard motioned them away.

During the stop and search PC Drake finds a screwdriver and a pair of wire cutters in Norbert’s pockets. The items found are not offensive weapons but can be intended to use as such, it is an offence to possess such items without good reason. It can be argued that Norbert was carrying these items to try and fix his girlfriends walkman which was broken and it was not intended to use these items as offensive weapons. “An offensive weapon is defined meaning any article made or adapted for use for causing injury to persons or intended by the person having it with him to use”. According to section 1 (6) any items found can be seized, if these items were seized then it would be lawful and the correct procedures of PACE would have been followed.

In this case PC Mallard and PC Drake had the right under PACE section 24 to arrest Norbert as they were suspicious that Norbert was involved in the burglary that took place in the next street and Norbert is a prolific burglar, if it was the PCSO then they would not have the right to arrest Norbert. However reasonable suspicion cannot be supported because of the fact that Norbert was previously involved in burglaries in the city centre, this could not be used alone as the reason for searching Norbert.

After the search took place Norbert is arrested. “Under section 24 of PACE, a constable may arrest without warrant to anyone whom he has reasonable grounds for suspecting to be about to commit an offence.” According to this section of PACE PC Mallard and PC Drake lawfully had the right to arrest Norbert as they were suspicious that he was involved with the burglary, however the arrest was unlawful as Norbert was not informed of the grounds of the arrest at the time of or as soon as practicable after the arrest Christie v Leachinsky . Under PACE section 28 it clearly states that no arrest is lawful unless the person arrested is informed of the grounds of the arrest.

Another question arises here, was Norbert given the opportunity to consult a solicitor, friend or relative when held in custody at a police station or other premises. According to section 56 of PACE Norbert had the right to inform someone when arrested as highlighted in the case of R v Kerawalla According to section 58 of PACE Norbert had the right to consult a solicitor privately at any time. Due to the limited information that we have been given I do not know whether Norbert had access to this or not but if he did not then the fairness of the proceedings would have to be questioned. R. v. Samuel.

Looking at the case and PACE facts it can be concluded that the arrest was unlawful because firstly when Norbert was first approached by the police he was not told the purpose of the search, the two police officers searched him although according to PACE they lawfully could not search him to see whether he was carrying stolen property or not as highlighted in the case of Jackson v Stevenson. The search was also unlawful because whilst conducting the search Norbert’s shoes were removed and according to PACE section 1, outer clothing can only be removed such as coat, jacket or gloves.

The arrest was also unlawful because the grounds of arrest were not stated and also because of the limited information that we have been given we do not whether Norbert was cautioned using the following terms, “you do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence”

--------------------------------------------
[ 1 ]. Bentley v Brudzinski [1982] Crim LR 825
[ 2 ]. Gary Slapper and David Kelly (2009). The English Legal System. 9th ed. USA and Canada: Routledge-Cavendish. Page 445
[ 3 ]. R v Bristol (2007) EWCA Crim 3214 CA)
[ 4 ]. Rice v Connolly (1966) 2 QB414
[ 5 ]. Kenlin v Gardiner [1967] 2 QB 510; [1967] WLR 129; [1966] 3 All ER 931
[ 6 ]. Gary Slapper and David Kelly (2009). The English Legal System. 9th ed. USA and Canada: Routledge-Cavendish. Page 444
[ 7 ]. DPP v Avery [2002] Crim LR 142
[ 8 ]. Gary Slapper and David Kelly (2009). The English Legal System. 9th ed. USA and Canada: Routledge-Cavendish. Page 444
[ 9 ]. R v Fennelly [1989] Crim LR 142
[ 10 ]. Gary Slapper and David Kelly (2009). The English Legal System. 9th ed. USA and Canada: Routledge-Cavendish. Page 443
[ 11 ]. Gary Slapper and David Kelly (2009). The English Legal System. 9th ed. USA and Canada: Routledge-Cavendish. Page 436.
[ 12 ]. Christie v Leachinsky (1947) CA 573, 593,
[ 13 ]. R v Kerawalla (1991) Crim LR 451.
[ 14 ]. R. v. Samuel [1988] 2 W.L.R. 920
[ 15 ]. Jackson v Stevenson (1879) 2 Adam 255
[ 16 ]. Chris Taylor (2009). Constitutional And Administrative Law. London: Pearson Education Limited 2008,2009. Page 102.