Police Stops and Right to Silence

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.

Police Role

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]

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’s I proclamation: “[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]

Rights and Power

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., ‘Judges Rules’. [3] Examples from different eras are numerous, such as the Vagrancy Act 1824 [4] and 1935 [5] (as amended); the Metroplitan Police Act 1839 [6] and the Misuse od Drugs Act 1971. [7] These newfounded powers know as ‘sus’ laws, ultimately resulted in accusations of misuses of power and other miscarriages of justice.

During the 1980’s, the judiciary paid little attention at how evidence was obtained. This is evident in the case of R v Sang, where “police lured citizens into comitting illegal acts and then seek to prosecute them for doing so.” [8] But as public outrage mounted in opposition to police ‘sus’ law actions, their approaches began to be questioned. Frequent incidents of police harrassments also led to the creation of a group referred to as ‘Scrap sus’. “Led largely by black people, it’s 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]

These public outcries of discrimination and miscarriages of justice prompted Parliament to create the 1978 Royal Commission. In 1981, after reviewing police use of ‘sus’ and other legislation, the Phillips Report helped define ‘a balance between individual rights and the security of society and state.’ It also influenced Parliament to enact the Police and Criminal Act 1984 (PACE 1984)

Primary Legislation

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 “public places…[including]..car parks, and evn private gardens.” [10]

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 ‘arrestable’ 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.

PACE 1984 encouraged officers to remain objective as they used these powers on persons deemed ‘incorrigible rogue[s]’ (purely on suspicion). This was evident in Murray v Ministry of Defences: Army patrols entered Mrs. Murray’s 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]

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 “prepared 70 recommendations of elimination of racist prejudice and disadvantage and the demonstartion of fairness in all aspects of policing,” [12] where “the use of stop and search has been used disproportionately against ethnic minorities and that discrimination was likely.” [13]

Macpherson’s report influenced the creation of Code A which stipulates that ‘reaonable grounds’ 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 …Mr. Osman could not be guilty of assulting the police…when he resisted the search [14] and more strongly in Moss v McLachlan, where police did whatever they thought reasonable to prevent a breach of the peace. [15]

Other statutes

In short, changes to PACE 1984 curtailed over-zealous police usage of the archaic ‘sus’ 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).

Under s 60, police receive further powers of stop, search and arrest which no longer require ‘reasonable’ or ‘suspicion’ as previously stipulated. Police can now ‘anticipate’ 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’t charged. [16]

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 “the Irish Republican Army declared war against the UK, planting boombs, and killing and injuring…innocents. This led to Parliament extending powers through the Prevention of Terrorism (Temporary Provisions) Act 1976 (re-enacted in 1984″ [17] However, it was the radical 911 terrorist attacks on the US and the 2005 London’s Bombing’s which influenced the UK to amend legislation such as part v of the Terrorism Act, part 10 of the Anti –Terrorist Act, ss 5 of the Crime & Security Act 2001 and part II of the Terriorism Act 2006.

But despite widespread terrorism attacks during the Northern Ireland Affair and the 2005 London Bombing’s, it was the ‘2007 failed bomb attack against the Tiger Nightclub in London’s Haymarket’, 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]

Cristicisms

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]

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] The Court of Appeal offered a non-exhausted list of factors to be taken into account when assessing the ‘reaonableness’ requirement in R v Argent, [21] including the defendants age, experience with police ‘dealings’, state of health and sobriety.

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] 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] 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] This erodes the rights of the accused and many would argue that s 34(2) and the drawing of ‘adverse inferences’ 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.

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 £42,000 to each applicant.” [25]

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.,’terrorism’, illustrated by the loss of liberty experienced in the Northern Ireland conflict wherein residents’ movements were restricted. [26] Similarly, current terrorism bills erode individual freedom and rights to association as evident in the 2003 Defence & Equipment International Arms Fair (DESI). “Police arrested 144 people for being at/near the DESI show in London’s docklands a display of high tech weaponary that attracts buyers from around the world.” [27] 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]

This judgment influenced UK’s 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]

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, “A secret police operation to place thousands of Muslims living Birmingham under permanent surveillance was implemented with virtually no…regard for the law…The scheme was supported by the Association of Chief Police Officers in direct response to the perceived concentration of terrorist threats in 2007.” [30]

Conclusion

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 ‘sus law’ which was disproportionately used against ethnic minorities.

The very basis of many of these provisions requires police officers to act on “reasonable grounds” in stopping and searching, or arresting, suspects. Section 1 of PACE, for example, states that officers must have “reasonable grounds for suspicion.” [31] Nothwithstanding this requirement (and it is important to note that “reasonable 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.

Yet, police powers are largely governed by the provisions of PACE 1984, they remain subject to the supervision of the courts, safeguarding suspects’ 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]

Most alarming are statistics, revealing that in 2008/09 2010, 013 searches under section 44 rose by 66% from 2007/2008. [33] These figures emphasises the view that “police continues to stop and search people for longer than authorized by the law.” [34]

Nothwithstanding such findings, the ‘law of war’ and other realites indeed defends Lord Jelloce belief, “that security of the state takes priority over the freedoms of the individual,” [35] as established in cases from World War II under Regulations 18B, like Liversidge v Anderson. [36] But the traditional adage cited in English Criminal law remains; the suspect is ‘innocent until proven guilty,’ 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] 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.

Over time a pendulum effect has occurred wherby the suspects’ rights have both increased and decreased in intensity, as opposed to a ‘gradual eroison’ of the rights of those suspected of committing crimes.

Logically, excersing the right to silence only becomes relevant after a ‘suspect’ is stopped/searched and/or arrested. This view is supported by Lord Harris of Greenwich who holds: “As a result of exclusion powers being on the statute books a number of people are alive today who otherwise would have been dead.” [38]

Yet the problem of finding a balance between ensuring effective justice while protecting the rights of suspects remains. In recent years the balance has tilted away from protecting suspects’ rights- as when innocent bystander, Ian Tomlinson, collapsed and died in 2009-attributed to powers exercised by an over-zealous police officer. This is indeed telling testimony to what might be considered to be a speedier, rather than a ‘slow erosion’ of the rights of the suspect!