Police powers relating to Article 5 and 6:

• Articles 5 & 6


  Relate to police powers and the right to a fair trial
• Police Powers


  1. Arrest and detain a person

  2. Provide access to a fair legal system and fair trial
• Sections 1 and 2 of the Police and Criminal Evidence Act 1984 (PACE) contain the power for the police to stop and search a suspect
• Sections 1 and 2 of the Police and Criminal Evidence Acts 1984 (PACE)

  • Contains the power to stop and search 'any person or vehicle'
  • Requires a constable to have reasonable grounds for suspecting that he or she will find stolen or prohibited articles
  • Reasonable suspicion is not identified by PACE, so becomes problematic to interpret
  • It must rely on intelligence or information about, or some specific behaviour by, the person concerned
  • The person has not been detailed, but is not free to go until the search has been carried out
  • The primary purpose is to enable officers to allay or confirm suspicions about individuals without exercising their power of arrest
• This power must be exercised lawfully
• According to the College of Policing website, guidance suggests that each encounter must 'be lawful as well as necessary and proportionate. Officers should apply the National Decision Model (NDM) to actively consider, on a case-by-case basis, whether stop and search is the best response to the particular circumstances they are facing. What are the officer's options for handling the situation, and is stop and search lawful, necessary and proportionate to those circumstances?'
• Section 60 of the Criminal Justice and Public Order Act 1994


  • Gives the police the power to search people in a defined area during a specific time period, when they believe, with good reason, that: Serious violence will take place and it is necessary to use power to prevent violence
  • A person is carrying a dangerous object or offensive weapon
  • An incident involving serious violence has taken place and a dangerous instrument or offensive weapon used in the incident is being carried
• The Power of Arrest

  • Contained in section 24 Police and Criminal Evidence Act 1984 (PACE), as amended by the Serious Organised Crime and Police Act (2005)
  • 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 or she has reasonable grounds for suspecting may be about to commit an offence
  • Anyone whom he or she has reasonable grounds for suspecting to be committing an offence
• Reasonable suspicion or grounds

  • R v Samuel (1988) - Man arrested and interviewed four times over two days. He was denied access to a solicitor on the grounds that it would lead to the alerting of other suspects. On the fifth interview the defendant confessed to the robbery. The Court of Appeal quashed his conviction for robbery, as the man's right to legal advice was 'one of the most important and fundamental rights of a citizen' and he had been denied a legal right under Article 6.
  • Cumming and Others v Chief Constable of Northumbria Police (2003) - All of the CCTV controllers at a local authority were arrested on suspicion of perverting the course of justice as it was believed that they had tampered with the footage of a crime. They were all proved innocent and sought damages for false imprisonment. Their claims failed, but the courts warned that Article 5 must be held into account in these situations.
  • The court must consider whether or not the decision to arrest was one which no police officer, applying his mind to the matter could reasonably take, bearing in mind the effect on the appellant's right to liberty
• Lawful Detention


  • A person arrested should be charged or released.
  • Under s 37 of PACE a custody officer decides if there is sufficient evidence to charge or release.
  • A person may be detailed for 24 hours under initial police detention.
  • This can be extended up to 36 hours by a senior police officer.
  • Further detention, beyond 36 hours requires a magistrate's warrant.
  • A warrant can be renewed up to a maximum of 96 hours.
• Exclusion of Evidence


  • Unfairly obtained evidence can form the basis of a claim of a violation under Article 6, if this leads to a detention or arrest, Article 5 too.
  • Evidence may be excluded from the trial by the judge for two main reasons: 1) Under s76 PACE 1984 – where a confession was obtained by oppression or as a consequence of anything being said or done which would render the confession unreliable. 2) s 78 PACE – the court may refuse any evidence obtained by the prosecution, having regard to all of the circumstances, if the evidence would have such an adverse effect on the fairness of proceedings that the court ought not to admit it.