Update: PACE

Stop and search and fingerprints

Sections 1 to 7 of the Crime and Security Act 2010 came into force on 7 March 2011. Section 1 amends section 3 of PACE regarding the requirements to record information following a stop and search encounter, and sections 2 to 7 amend the power to take fingerprints and samples under sections 61, 62 and 63 of PACE. The changes include the following:

• Reducing the amount of information that must be recorded following a stop and search encounter so that, while the police are still required to record the ethnicity of the person searched, they are no longer required to record their details (section 1).
• Providing powers to the police to take fingerprints and DNA samples without consent from arrested persons who have been either released on bail before samples were taken or if the samples taken had proved unsuitable (section 2). Samples can also now been taken from those charged or convicted of a 'qualifying offence' abroad (section 3).
• Specifying the information that must be recorded on the taking of the samples (section 4) and conferring powers upon the police to use these samples to conduct speculative searches (section 5).
• Requiring arrested people to attend a police station for the purpose of taking fingerprints or samples (section 6).

Changes to PACE codes

As a result of this legislation, amendments have also been made to the PACE codes of practice. These amendments also came into force on 7 March 2011.

Code A has been amended to reflect the significant reduction in the quantity of information the police are required to record after a stop and search of a vehicle. While officers are still required to record the ethnicity of the occupant, they are no longer required to record their details, the registration number of the vehicle or even any injury or damage caused.

The government's justification for this is the reduction in police bureaucracy. However, there is concern that no longer recording this information leaves the door open to the potential abuse of stop and search powers and, importantly, the perception of abuse. The amendments to code A also remove the requirement for officers to record 'stops'. Police forces are now free to decide in consultation with their local communities whether to continue monitoring the stops on a local level. Amendments have also been made to code D of the PACE codes to reflect the changes implemented by the Crime and Security Act regarding the power to take fingerprints and samples.

Section 117 of the Serious Organised Crime and Police Act 2005 is also in force as of 7 March and amends section 61 of PACE. Section 117 allows fingerprints to be taken on the street following arrest by officers using mobile fingerprint technology in circumstances when identification is in issue.

Code D of the PACE codes has been revised to reflect this amendment. However, unlike the standard provision for the taking of fingerprints in the course of an investigation pursuant to PACE section 61(6C), under code D such samples cannot be retained after they have been checked.

The code also provides additional guidance regarding the circumstances in which the police may use the finger-print technology, including what might constitute reasonable doubt around identity and when identity cannot reasonably be ascertained.

Other code amendments

Code A has also been amended to introduce detailed guidance on the use of the stop and search powers under section 60 of the Criminal Justice and Public Order Act 1994. These powers allow a senior police officer to authorise the stop and search of people and vehicles without reasonable grounds for up to 24 hours and within a defined locality. In order for these powers to be granted, there must be reasonable belief that to do so would help prevent serious violence or that a person is carrying offensive weapons.

The previous code A did not set out any explicit restrictions, nor did it give any guidance regarding the identification of who may be stopped under these powers. Additional provisions in the code now provide guidance as to the risks of unlawful discrimination and draw attention to the 'protected characteristics' as set out in section 4 of the Equality Act 2010.

Concerns have been raised regarding the potential abuse of these powers where their exercise is based upon the ethnicity of the occupant of the vehicle to be searched. Although paragraph 2.14A of the code has been redrafted to provide guidance regarding unlawful discrimination, the risk of de facto discrimination under section 60 remains. It should be noted that although amendments to code A also impose requirements which are not present in sections 44 to 47 of the Terrorism Act 2000, the effect of these sections and guidance in the code have been superseded by a remedial order issued under the Human Rights Act on 18 March 2011.

Amendments to code B extend the conditions which must be met in order for a search under section 18 of PACE to be authorised. Under the previous version of the code, paragraph 4.3 required that the authorising officer (of the rank of inspector or above) be satisfied that the necessary grounds under section 18 existed. This paragraph has now been extended to require the inspector to be satisfied, in addition to the grounds set out in section 18, 'that the premises are occupied or controlled by the arrested person'.

This reflects the judgement in Khan v Commissioner of Police of the Metropolis [2008] EWCA Civ 723. A suspect had falsely provided Mr Khan's address as his own upon arrest. Entry and search of this address was duly authorised and undertaken under section 18. The commissioner argued that section 18 should be interpreted so as to qualify the requirement of occupation and control by the suspect by reference to the belief of knowledge of the officer. The Court of Appeal rejected this submission and, dismissing the commissioner's appeal, found that there was no justification for such a reading and that 'the requirement for occupation or control is central and fundamental to the operation of section 18'.

The amended code is an attempt to achieve what the Metropolitan Police Commissioner failed to do in Khan: that is, to circumvent the clear wording of section 18 to protect the police from claims for damages in circumstances where the wrong address is searched in good faith. However, it remains to be seen whether an inspector's confirmation that he is satisfied that the premises are occupied or controlled by the suspect, pursuant to the revised code, will be held to comply with the court's interpretation of section 18.

Finally, a new safeguard has been introduced under code D for identification procedures to minimise the risks of collusion and mistaken recognition. Witnesses are now to be asked whether they recognise the individual and records are to be kept of information provided in advance of any identification process.

Necessity of arrest

Defence practitioners will welcome the decision of the High Court in Mark Richardson v The Chief Constable of West Midlands Police [2011] EWHC 773 (QB).

The claimant sought damages for false imprisonment. He claimed that his arrest was unlawful on the grounds that the arresting officer had no, or no reasonable, grounds for considering that it was 'necessary' under section 24(4) of PACE.

The claimant, a teacher, faced an allegation of assault by a pupil. He had agreed to attend police station A by appointment with his solicitor. The solicitor made representations to the effect that arrest was not necessary on the basis that the claimant was content to be interviewed on a voluntary basis.

The claimant was informed that he would be arrested. As the custody block at police station A closed, he was asked to travel to police station B in order to be arrested and questioned, to which he agreed. He was duly arrested on his arrival at police station B. According to the custody record, the arresting officer was of the view that the arrest was necessary for the 'prompt and effective investigation of the offence' (as per section 24(5)(e) of PACE). The custody sergeant noted on the record that the arrest was necessary on the basis that the claimant would have to be arrested should he attempt to leave during the course of the voluntary interview.

The claimant was released on bail and, in due course, informed that the police had decided to take no further action. He then challenged the lawfulness of the arrest by means of judicial review.

It was held that the arrest was unlawful as the defendant had failed to establish that the 'necessity' requirement of section 24(4) had been satisfied. There was no evidence as to whether, and if so why, the arresting officer considered it necessary to arrest the claimant. There was no evidence that an evaluation was made of the need to arrest, taking into account all relevant circumstances including his voluntary attendance at two police stations and the absence of any evidence to suggest he was likely to leave before the end of the interview.

The court found that the arresting officer's belief that arrest was necessary would have been unreasonable. On a point of detail, the custody sergeant had provided a witness statement for the purposes of the proceedings which purported to set out the reasons for the arrest. However, the court held that there was no evidence that these further reasons were the reasons why the arresting officer had in fact believed at the time that the arrest was necessary.

Defence solicitors should take a copy of this decision with them when attending the police station if it is anticipated that representations as to the necessity to arrest may be appropriate. A practice has developed at certain police stations of declaring an arrest to be necessary for a prompt and effective investigation, supporting this with a perfunctory reference to the seriousness of the matter or the hypothetical risk of the volunteer leaving mid-interview.

However, this case demonstrates that courts will expect contemporaneous evidence that the necessity test was given proper consideration by the arresting officer and that there was a proper evaluation of all the relevant circumstances.

It is now clear that an unsubstantiated assertion that the volunteer may choose to leave mid-interview, in the absence of any evidence in support of this contention, is unlikely to satisfy the necessity requirement.

Accordingly, it is crucial that advisers ensure that all relevant circumstances are brought to the attention of the arresting officer and that any representations are fully endorsed on the custody record.