Human Rights in English Law
Restrictions to Articles 5 and 6 ECHR
Police Powers under Police And Criminal Evidence Act 1984 give the police powers to
Kettle, Stop and Search, Arrest, Detain and Exclude Evidence.
Kettling
Kettling is a form of lawful deprivation of liberty under Article 5 ECHR, where a group of
people in a demonstration and/or protest are held by the police as a control measure,
preventing their departure. In order for this lawful deprivation, it must be sanctioned by the
state, against the will of the detainees, for a set period of time. This must be a necessary
and proportionate response to a perceived risk (Austin v Commissioner of the Police of
the Metropolis), and used only as a last resort, against an identifiable risk (R v
Commissioner of Police of the Metropolis).
Stop and Search
- Under S1 PACE 1984, a constable may search any person or vehicle if he has
reasonable grounds for suspecting that he will find stolen or prohibited articles.
Reasonable grounds are not defined under the act, but must be based more on
personal factors.
- Under S2 PACE 1984, the name and station of officer, and reason for stop and
search must be given.
- Under S3 PACE 1984, they are required to give a copy of the stop and search.
- Under S117 PACE 1984, the police may use reasonable force in conducting the stop
and search.
These must all adhere to the limitations under the conditions of restriction under Article 5(1)
ECHR.
This means that there must be evidence of suspicious activity to warrant the stop and search
(R (Gillian) v Commissioner of Police of the Metropolis): proportionate threat to the
capital.
Under S60 Criminal Justice Public Order Act 1994, the police have the right to search
people without particular suspicion in a particular area where they believe with good reason
that: serious violence will take place and act to prevent it; person is carrying dangerous
object/weapon; incident involving serious violence with a weapon has or is about to occur,
and they use to recover it (R (Roberts) v Commissioner of the Police of the Metropolis):
no breach, done in accordance with law, not racial discrimination.
, Human Rights in English Law
Arrest
PACE 1984, provides statutory authority on a person’s rights upon arrest and sets out a
number of rights afforded to a detained person under their Codes of Practice.
Under S24 PACE, a constable may arrest without a warrant, anyone who is about to commit
an offence, anyone who is in the act of committing an offence, anyone whom he has
reasonable grounds for suspecting to commit an offence, or anyone who he has reasonable
grounds for suspecting to be committing an offence.
Reasonable grounds are defined as when a mere opportunity to commit an offence could
constitute sufficient grounds for suspicion of guilt for an arrest (Cumming and Others v
Chief Constable of Northumbria Police).
When someone is arrested, under S28 PACE states that they must be told of the grounds of
their arrest, they should be properly cautioned (given their Miranda Rights), they should be
informed of their right to silence and warned of the inferences drawn under s37 CJPOA
1994, and they must be told of their right to private legal consultation under s58 CJPOA
1994. (R v Samuel): denied access to lawyer so police breached their duty
Under s37 PACE 1984, when someone is detained, the custody officer will decide whether
there is sufficient evidence to charge a suspect, if so, detained under s38 PACE 1984. They
can be detained for up to 24 hours.
Under s76 PACE 1984, a confession can be excluded if it has been obtained by oppression
or deception.
McKay v UK: two periods of arrest.
Arrest: suspect must be brought “promptly” before the courts
Pre-trial/remand: trial must take place within “reasonable time / release pending trial”
