New psychological domestic abuse law now in force
“controlling or coercive behaviour in an intimate or family relationship” includes continuous or persistent:
• Isolating a person from their friends and family
• Controlling what they do, where they go, who they can see, what they wear and when they sleep
• Repeatedly putting them down, such as telling them they are worthless
• Enforcing rules and activity which humiliate, degrade or dehumanise the victim
• Financial abuse
• Threats to reveal or publish private information
Breach of the Peace -This is used less and less these days. In the days before specific legislation giving the police powers of entry, search and arrest that they have now, this was a fall back power when nothing else existed. A breach of the peace occurs when an act or threat may cause harm to a person or in his presence his property, or actions which are likely to provoke such harm. A breach of the peace may occur on either public or private property. There exists with it police powers of arrest and entry to make that arrest of a person committing a breach of the peace. There is also police powers of arrest of someone who the police have reasonable cause to believe is about to commit a breach of the peace. An arrest for an anticipated breach of the peace will only be lawful if the threat of the breach is imminent. There are no police powers of arrest once the breach has finished, so any arrest occurring after the breach of the peace will be unlawful. The arrested person should be released as soon as the likelihood of such breach of the peace has passed (unless arrested for an offence). Breach of the peace police powers of entry and arrest can be used when for instance a police officer hears a domestic argument from the street, and he fears for the safety of those within the building. As with other police powers of entry, providing the entry is lawful, then the police are not liable for damage they cause. All citizens, not just the police, are able to make an arrest to stop or prevent a breach of the peace. However, extreme caution should be taken before making such an arrest, because if the arrest is not lawful the individual making the arrest could be liable for false imprisonment. A breach of the peace is not an offence, however if a complaint of a breach of the peace is made to the court then the Justices of the Peace Act 1361 gives courts the power to bind over offenders to keep the peace.
Police Use of Force – police brutality – reasonable force. The police have powers to arrest, enter, search, prevent offences being committed, and prevent escape. There would be little point in the having these powers if the application of such police powers were dependent upon the consent of the subject. Let’s face it, would the drug dealer consent to a search if he were carrying drugs? Would the aggressive drunk persons arrest be practical if there were no police powers to place him in the back of the van and drive him to the police station?
For this reason the police are provided with a power to use physical reasonable force. The law does not stipulate the level of force, it says:
All uses of force by the police require that the use of force should be ‘reasonable’ in the circumstances. What is reasonable varies depending on circumstance, and legal advice can be sought on what reasonable force actually means.
Excessive use of force is unlawful. This often referred to in the media as police brutality. The police are liable for prosecution if the force used is excessive, unreasonable or unnecessary. No two sets of circumstances are the same and expert legal advice should be sought if you believe excessive force has been used.
The level of force used by police can range from taking someone’s arm to shooting them dead, depending on the circumstances.
Arrested persons often feel aggrieved when they wake up in the cells in the morning, not only with a hangover but with handcuff burns to their wrists, and grazed knees from the floor of the police van. This is often a natural consequence of a difficult arrest of a non-compliant person and does not necessarily constitute unlawful or excessive use of force by the police, or police brutality. Nor does it negate what the arrested person actually did to get arrested in the first place! Police are now equipped with such things as Tasers, CS gas, and leg restraints all of which are designed to cause less injury to the suspect as opposed to the crushing blow of a wooden truncheon – in living memory of the author. If you believe that the police have used excessive force or wish to make allegations of police brutality then you should seek expert legal advice.
Search warrant – police powers. The most well-known method whereby police can enter and search premises is with a search warrant. A search warrant is a legal document that gives the police powers to enter and search premises for items of property. A search warrant is issued by a Magistrate following an application by the police made on oath. The police tell the Magistrate what they are looking for and why they think that the items are there, and if the magistrate thinks it appropriate then a search warrant is issued. The occupant of the premises is entitled to a copy of the search warrant, but not the reason why it was issued. A search warrant can be issued under all sorts of enactments. For instance a Theft Act search warrant would allow entry and search for stolen property, or an Obscene Publications Act search warrant for indecent material etc. However due to a change in the law in 2005 a search warrant is usually applied for and issued under S.8 PACE. This is because S8 is more far reaching being non-specific stating that the items sought need only to be likely to be of substantial value (whether by itself or together with other material) to the investigation of the offence. A search warrant is usually valid for up to three months and allows multiple entries. This means that the police can come back next week and search your house again without getting a new search warrant, although they are not supposed to use this as an excuse for fishing expeditions. There are police powers to seize anything that they believe is evidence of an offence, even if it is not mentioned on the search warrant. Police can force their way in and they do not have to pay for the damage even if they don’t find or seize anything. The occupant does not have to be there, the police are allowed to search if no one is at home, and sometimes they prefer it, as there is no one to get in the way. If the police search an unoccupied property then they have to leave a copy of the search warrant. Police also have to make a list of what they take, but this is not always provided at the time and may be left until a later interview under caution with anyone who is arrested. If the occupant is there, then the police do not have to wait for the person to obtain legal advice before they execute the search warrant and start searching.
The law on drugs – police powers to search. Police can stop and search a person or vehicle for controlled drugs. The law on drugs says that if an officer has reasonable grounds to suspect that a person is in possession of controlled drugs then they may be subjected to a search. This is covered in Section 23 Misuse of Drugs Act and is referred to as a “section 23 search”.
The law on drugs says that this can be anywhere, not just in a public place, providing that the police are there lawfully. Lawfully means with permission or exercising some lawful power such as with a search warrant. The person’s demeanour may supply the officer with the requisite suspicion. If for instance, displaying signs of drug intoxication such as dilated pupils or bizarre and irrational behaviour. The law on drugs allows the Police to apply for a search warrant under the Misuse of Drugs Act when they suspect that controlled drugs are present on any premises. The search warrant allows them to enter premises which include people’s houses to search for drugs. It is usual for the police to force an entry to the premises when executing drugs search warrants, often causing damage. This is so the persons on the premises don’t have time to dispose of the drugs down the toilets or elsewhere. Police will then search and will seize anything that is drug related. They call this drugs paraphernalia and includes such things as scales, deal lists, phones and money. Police will also note or even seize expensive items such as televisions and computers to demonstrate that the occupant is living above their means. This is evidence of drug supply and can also be used for a “Proceeds of Crime Act” application (POCA).
The law on drugs allows anyone in the premises to be searched by police, including people arriving at the address. Police to not have to compensate or repair damage they cause even when no drugs are found. People arrested for drugs offences will be interviewed by the police. Police will try to establish through questioning if any drugs seized are for personal use or supply. It is usually for people arrested for drug offences to be police bailed following interview, with a duty to return to the police station at a later time. This allows the police time to test the drugs, examine phones, and make financial enquiries before making charging decisions. Expert police witnesses will provide valuations for drugs seized.
Interview Under Caution – Changes. As of 2 February 2016 certain safeguards have been removed and it will now not be necessary for the police to audio record an interview under caution with suspects for minor offences when not interviewed at the police station. Code E of PACE has previously stipulated that an interview under caution of a suspect detained in relation to indictable offences must be audio recorded. Since October 2013 this principle applies to interviews which take place at a location other than a police station. This includes includes a voluntary interview under caution when not under arrest.
However now, if a person is not arrested and is interviewed elsewhere, such as in a shop, a nightclub or even the street, no audio recording is required if the offence suspected is on the list.
• Possession of cannabis (personal use)
• Possession of khat (personal use)
• Shoplifting (Under £100)
• Criminal damage (Under £300)
• Appears to be aged 18 or over;
• Does not require and appropriate adult;
• Appears to be able to appreciate the significance of questions and their answers;
• Does not appear to be unable to understand what is happening because of the effects of alcohol, drugs or illness;
• Does not require an interpreter.
It will also be necessary to establish that the alleged offence did not result in injury to any person, did not involve any realistic threat of injury to any person and did not cause any substantial financial or material loss to the private property of any individual.
These changes are intended to facilitate the out of court disposal of four of the most common types of indictable offences allowing the police to allocate resources to tackling more serious crime. However, the audio recording of an interview under caution was introduced in the first place as a safeguard. There is now there is a risk that this note taking process may not capture important comments made by the suspect. Comments which may potentially prejudice a suspect’s defence should the matter proceed to court. There is also significant pressure on the police officer to make the correct judgement call. The judgement call in respect of the suspect’s age, understanding of English, welfare and necessity for an appropriate adult is normally reserved for a more senior and specially trained custody officer when a suspect is taken to the police station. An incorrect assessment by an officer could lead to unjust outcomes. For example someone could end up accepting a caution for an indictable offence without fully understanding the potential implications.
A suspect will still be entitled to legal advice and will be informed of this at the time of the interview. However, is it practical for a duty solicitor to attend a supermarket for a shoplifter, or a night club for a simple drugs possession? Is this likely to lead to the suspect declining this right when faced with the alternative of being taken to the police station?
Car accident. Should I report it? The answer is “it depends”. If you’re the driver of a mechanically propelled vehicle (car, motorcycle, bus, lorry etc.) that’s involved in a car accident on a road or public place and a person other than yourself is injured, or damage is caused to another vehicle or to someone else’s property – including street lamps, signs, bollards etc. or an animal, other than one in your own vehicle/trailer, has been killed or injured (animal means any horse, cattle, ass, mule, sheep, pig, goat or dog, but not a cat) then this is called a reportable accident and you must stop and provide your details to the other party. In some cases you must produce your insurance certificate. If you don’t provide your details to the other party then the car accident must be reported to the police – it’s against the law not to. Reports of a car accident cannot be made by phone, post or e-mail – a car accident report must be made in person. Car parks can be classed as public places e.g. supermarket and some multi story car parks. However, car parks belonging to private organisations where members of the public would not ordinarily be permitted are not classed as public places and a car accident occurring there should be reported directly to your insurance company. If in doubt it is better to report the car accident to the police and be guided by their advice. You should report every car accident to your insurance company even if you were not at fault. The insurance company bases your quote and policy on information provided to them and if that changes it could invalidate your insurance policy. Reportable road traffic accidents have to be reported as soon as is reasonably practicable and in any case, within twenty-four hours. If the police suspect you are at fault then they may conduct an interview under caution with you. If this happens then you should seek legal advice.
The number of law centres and free legal advice agencies has more than halved in the past decade, while demands for their services have increased in the wake of recent cuts to legal aid. A Ministry of Justice report released yesterday showed that the not-for-profit legal advice sector had contracted by 55 per cent in the past 10 years. More and more people are turning to the internet for help, and searching for expert legal advice online. Despite this, the number of solicitors offering legal advice online has not significantly increased.
A man accused of stealing a crate of fizzy drink while riding a hoverboard to be the first person prosecuted for riding the device on the pavement after new laws were introduced in October
Reasonable Suspicion – Search by Police Officer.
In order to search a person or vehicle for stolen property offensive weapon, prohibited articles, or controlled drugs, a Police Officer must have reasonable suspicion that you possess them.
Reasonable suspicion does not require certainty that an unlawful item is being carried. Reasonable suspicion does not mean that the police officer has to be satisfied of this beyond reasonable doubt. Reasonable suspicion must be founded on a fact related to that individual and would later stand up to scrutiny. A police officer’s hunch or instinct is not reasonable suspicion.
The police officer must have formed a genuine suspicion in his own mind that he will find the object that he is allowed to search for. The suspicion that the object will be found must reasonable. This means that there must be an objective basis for that suspicion. This means that a reasonable person would be entitled to reach the same conclusion based on the same facts.
External factors may enhance the reasonable suspicion, such as the time of day or night, and the location of the person.
Reasonable suspicion cannot be based on a person’s ethnicity, or membership of a particular group.
The reasonable suspicion is the police officer’s state of mind, not the subject’s. Challenging the police officer’s state of mind is unlikely to change it, unless supported by some fact or another. For instance, if a police officer suspects that you are carrying a weapon by the shape of the carrier bag that you are holding, and wishes to exercise his power of search under section 1 of PACE, an explanation from you may change his mind. If for instance you are walking home from cricket practice, sight of the cricket bat in your bag may sufficiently challenge his state of mind to make the search unnecessary or even unlawful.
The suspicion may not exist before the start of the encounter. A police officer may speak with the subject and become suspicious during the encounter. For instance the subject may be nervous and apparently lie about the reasons for his presence. The person may simply display signs of intoxication caused by drugs. However there is no power for a police officer to stop and detain to discover suspicion.
You do not have to give your name and address when searched by a police officer. However if you are carrying something illegal then a police officer does have a power to demand your name and address and if you don’t provide it you may be arrested.
If all conditions are met, i.e. the reasonable suspicion is lawful and the police officer provides the correct information, (his name, station, grounds and object of search) then you may be searched and detained for that purpose. The police officer may use force. Obstructing or otherwise not permitting a lawful search could amount to “obstructing a police officer” for which you may be arrested.