The recent case of Stuart Syvret's arrest has highlighted the question of what the police can and cannot do under PACE (Police and Criminal Evidence Act). I've been looking at this, and the police powers - even without a warrant - are actually quite extensive. In answer to a question on Hansard, the Police have:
Powers of entry and search without warrant include the power to enter and search any premises:
for the purpose of making an arrest for an indictable offence, a limited number of summary offences or other specified circumstances (section 17 of PACE).
owned or occupied by a person who has been arrested for an indictable offence (section 18 of PACE).
where a person arrested for an indictable offence was at the time of, or immediately before, their arrest (section 32 of PACE).
Paragraph 5.1 of PACE Code of Practice B requires that if it is proposed to search premises with the consent of a person entitled to grant entry, the officer must make any necessary enquiries to be satisfied the person is in a position to give such consent. This may include the owner, landlord or occupier of the premises.
It seems that if the property in question was not owned by Senator Syvret, but by Deputy Labey, then the police failed under 5.1 to gain consent of the owner, because she would be the person entitled to grant entry.
If a warrant is issued, it comes under Section 8 of PACE.
Search with a warrant - general, Section 8, PACE
Under Section 8 of PACE, magistrates may authorize the police to enter and search premises, where the police reasonably suspect that a "serious arrestable offence" has been committed. They must also have reason to believe that it is not practical to gain entry otherwise and that there is material on the premises likely to be of substantial value to the investigation.
Safeguards for any search with a warrant
When applying for any warrant, the police must specify the reasons they are asking for it, and identify the items or persons sought. The actual warrant must specify: the name of the person who applied for it, the date on which it was issued, the enactment under which it was issued, the premises to be searched and the articles or persons sought. The police are supposed to enter at a reasonable hour, unless this would "frustrate the purpose of the search". They must identify themselves and supply the occupier with a copy of the warrant. If there is no person present on the premises at the time, the police must leave a copy of the warrant in a prominent place. After the search has finished, the police must return it to the magistrates' court where it was issued, where it must be retained for 12 months, during which period the occupier has a right to inspect it.
The police can use reasonable force to exercise the warrant, often at around 6-7am in the morning. It may or may not involve your door being kicked in, depending on the nature of the search and whether or not the police believe that the search will be prejudiced by alerting you to their presence. If they do damage your door, the police are under a duty to secure the property afterwards.
The police may only search for items covered by the warrant and may seize anything for which they are searching under the warrant. But they may also seize anything else under their general power of seizure, which they reasonably regard is evidence in relation to any other offence.
However, if an arrest is made, and an Inspector (such as Inspector Minty) has made written authorisation, then a Section 18 PACE search can be made without a Magistrates warrant provided it is for an arrestable offence.
Section 18, PACE search without warrant after arrest
This entitles a constable to enter and search premises, which are occupied or controlled by someone under arrest for an "arrestable offence", where they reasonably suspect that there is evidence on the premises relating to the offence for which they have been arrested or to some other similar arrestable offence. This power must be authorized in writing by an officer ranked Inspector or higher.
This power is not therefore exercisable where you are under arrest for a non-arrestable offence - eg aggravated trespass. This is why the police sometimes arrest you initially for an "arrestable offence", in order to trigger the Section 18 power of search. For example, they may arrest you for violent disorder (arrestable offence) even though the evidence may only support a charge of threatening behaviour (non-arrestable offence).
The police may only search those parts of the premises occupied or controlled by the suspect. The police would not be able to search a room within the premises occupied or controlled by someone else, but would be able to search communal areas.
Although the police may only search for evidence relating to the offence, they may seize anything which they reasonably believe is evidence relating to any offence, under the general power of seizure.
There is also Section 32, which allows another kind of search without warrant, which would seem to be the argument the Jersey police are using in terms of permission to search, as Stuart Syvret was at the premises searched just before his arrest. That they had to resort to this, rather than a proper search warrant, seems totally disproportionate - he is not a terrorist - and questions should certainly be asked as to why the more formal and transparent approach of an official search warrant was not used. If it had been, then there would have been a clear indication that the police were acting within their powers, whereas in this case it would seem they are abusing a technicality (and without the owners consent, in contravention of paragraph 5.1 of PACE), and provide all the safeguards that a warrant brings.
Section 32 PACE search without warrant upon arrest
This section confers the power on a police officer to search an arrested person, who was not arrested at a police station, for anything which might be evidence relating to an offence or which could be used to assist escape from custody. The officer may also enter and search the premises where the suspect was arrested, or immediately before he was arrested, for evidence relating to the offence for which they have been arrested. The constable may only exercise these powers if he reasonably suspects that he will find on those premises items relating to the offence for which the suspect was arrested. This power is not limited to "arrestable offences", unlike Section 18 PACE above. However, you have to be on the premises at the time of the arrest or immediately before. Case law has also established that the police can only exercise this power at or around the time of the arrest.
Powers of entry and search without warrant include the power to enter and search any premises:
for the purpose of making an arrest for an indictable offence, a limited number of summary offences or other specified circumstances (section 17 of PACE).
owned or occupied by a person who has been arrested for an indictable offence (section 18 of PACE).
where a person arrested for an indictable offence was at the time of, or immediately before, their arrest (section 32 of PACE).
Paragraph 5.1 of PACE Code of Practice B requires that if it is proposed to search premises with the consent of a person entitled to grant entry, the officer must make any necessary enquiries to be satisfied the person is in a position to give such consent. This may include the owner, landlord or occupier of the premises.
It seems that if the property in question was not owned by Senator Syvret, but by Deputy Labey, then the police failed under 5.1 to gain consent of the owner, because she would be the person entitled to grant entry.
If a warrant is issued, it comes under Section 8 of PACE.
Search with a warrant - general, Section 8, PACE
Under Section 8 of PACE, magistrates may authorize the police to enter and search premises, where the police reasonably suspect that a "serious arrestable offence" has been committed. They must also have reason to believe that it is not practical to gain entry otherwise and that there is material on the premises likely to be of substantial value to the investigation.
Safeguards for any search with a warrant
When applying for any warrant, the police must specify the reasons they are asking for it, and identify the items or persons sought. The actual warrant must specify: the name of the person who applied for it, the date on which it was issued, the enactment under which it was issued, the premises to be searched and the articles or persons sought. The police are supposed to enter at a reasonable hour, unless this would "frustrate the purpose of the search". They must identify themselves and supply the occupier with a copy of the warrant. If there is no person present on the premises at the time, the police must leave a copy of the warrant in a prominent place. After the search has finished, the police must return it to the magistrates' court where it was issued, where it must be retained for 12 months, during which period the occupier has a right to inspect it.
The police can use reasonable force to exercise the warrant, often at around 6-7am in the morning. It may or may not involve your door being kicked in, depending on the nature of the search and whether or not the police believe that the search will be prejudiced by alerting you to their presence. If they do damage your door, the police are under a duty to secure the property afterwards.
The police may only search for items covered by the warrant and may seize anything for which they are searching under the warrant. But they may also seize anything else under their general power of seizure, which they reasonably regard is evidence in relation to any other offence.
However, if an arrest is made, and an Inspector (such as Inspector Minty) has made written authorisation, then a Section 18 PACE search can be made without a Magistrates warrant provided it is for an arrestable offence.
Section 18, PACE search without warrant after arrest
This entitles a constable to enter and search premises, which are occupied or controlled by someone under arrest for an "arrestable offence", where they reasonably suspect that there is evidence on the premises relating to the offence for which they have been arrested or to some other similar arrestable offence. This power must be authorized in writing by an officer ranked Inspector or higher.
This power is not therefore exercisable where you are under arrest for a non-arrestable offence - eg aggravated trespass. This is why the police sometimes arrest you initially for an "arrestable offence", in order to trigger the Section 18 power of search. For example, they may arrest you for violent disorder (arrestable offence) even though the evidence may only support a charge of threatening behaviour (non-arrestable offence).
The police may only search those parts of the premises occupied or controlled by the suspect. The police would not be able to search a room within the premises occupied or controlled by someone else, but would be able to search communal areas.
Although the police may only search for evidence relating to the offence, they may seize anything which they reasonably believe is evidence relating to any offence, under the general power of seizure.
There is also Section 32, which allows another kind of search without warrant, which would seem to be the argument the Jersey police are using in terms of permission to search, as Stuart Syvret was at the premises searched just before his arrest. That they had to resort to this, rather than a proper search warrant, seems totally disproportionate - he is not a terrorist - and questions should certainly be asked as to why the more formal and transparent approach of an official search warrant was not used. If it had been, then there would have been a clear indication that the police were acting within their powers, whereas in this case it would seem they are abusing a technicality (and without the owners consent, in contravention of paragraph 5.1 of PACE), and provide all the safeguards that a warrant brings.
Section 32 PACE search without warrant upon arrest
This section confers the power on a police officer to search an arrested person, who was not arrested at a police station, for anything which might be evidence relating to an offence or which could be used to assist escape from custody. The officer may also enter and search the premises where the suspect was arrested, or immediately before he was arrested, for evidence relating to the offence for which they have been arrested. The constable may only exercise these powers if he reasonably suspects that he will find on those premises items relating to the offence for which the suspect was arrested. This power is not limited to "arrestable offences", unlike Section 18 PACE above. However, you have to be on the premises at the time of the arrest or immediately before. Case law has also established that the police can only exercise this power at or around the time of the arrest.
Where are the safeguards for a section 32 PACE search? Is Jersey about to emulate the case of Damian Green? This kind of action, where the police seem not just independent, but unaccountable, will not be good for the public image of the police force.
In contrast, last night's JEP had an extensive section on the work of the honorary police in cracking down on unruly gangs of youngsters (a small minority of young people who cause trouble in St Helier) through what certainly appears to be good old fashioned community policing. Why is it that the honorary police seem so in touch with the community, but with their actions against Stuart Syvret, even people I know who have called him "annoying" or "perverse" and dislike him very much still think the paid police have gone too far in their actions?
In contrast, last night's JEP had an extensive section on the work of the honorary police in cracking down on unruly gangs of youngsters (a small minority of young people who cause trouble in St Helier) through what certainly appears to be good old fashioned community policing. Why is it that the honorary police seem so in touch with the community, but with their actions against Stuart Syvret, even people I know who have called him "annoying" or "perverse" and dislike him very much still think the paid police have gone too far in their actions?
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1 comment:
The Police went on auto overkill.
I would not like to be a policeman/woman in Jersey right now, they must feel like hanging their heads in shame, especially those who are good policemen/women.
I have worked with the Jersey Police over the years with our recovery service, and believe me they do not all agree with the Jersey Way of doing things.
I just wish some of them had the balls to whistle blow on the corrupt ones. Until they do they will have to suffer being tared with the same brush by the majority of the islands residents and beyond.
It says a lot to me that there are not more whistle blowers, but then this island is run on fear.
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