Please enable JavaScript.
Coggle requires JavaScript to display documents.
Powers of the Police - Filletti - Coggle Diagram
Powers of the Police
- Filletti
Importance
Powers of the police linked with the law of evidence
Everything in relation to criminal starts with the police - first point of contact
Role of police is to collect and gather evidence al tempo vergine and presented to present in court
Lawyers need to know to how guide a client when arrested
Representing a client is done through evidence - e.g. to prove insanity
Law of evidence and powers of the police both necessary for lawyers to do thier jobs
Law of evidence regulated the way you produce evidence in court
The police have to collect all evidence, both in favourt and against
Saying that prosecution if the accused's best frient
Investigation is to see what happened not to convict, so they investigate and produce all evidence
General Information
Duties of the police
Duty of the police to preserve public order, prevent and detect and investigate offences, to collect all evidence -
Article 346(1)
All distinct powers
Protecting the public peace and order
Shows that police officer is in charge of taking care of public space
Can give an order when one is in a public space
Detecting and investigating crime
Police can always contintue to investigate becuase they are duty bound to investigate all crime
Question of if the there is the bar for prosecution
Arraigning people and bringing them to justice
Police can arriagn people (small crimes) - has been taken over by AG in certain cases (serious crimes)
All powers are dealt with in specific provisions which give powers to the police
Powers are vested with all police officers, regardless if thery are working
One expects but intervention but
Article 346(2)
speaks of delayed intervention
Police does not have a right to delay intervention - law must explicity state this
Postal Act
Chapter 101 - drug traffiking - control delivery
To catch a big fish - intent of the law is always to prevent bigger offence
Instituting proceedings
Some cases the police can only institute cases on a complaint -
Article 347
Generally police have the power to institute proceedings against a person - prosecute ex officio
AG has the power to delegate to the Commissioner of Police prosecutorial functions vested in the AG and to prosecute any offence alone or toghether with executive police -
Article 347A
Maybe a situation where the police arraign but need express delegation by the AG
Definitions
List of defintions in
Article 350
which are quite crutial
Intimate search - specifically excludes the mouth
Consent is necessary
Search which consists of the physical examination of a person's body orfices other than mouth
Non-intimate search
Do not require the consent of the a subject
In a case of rape the first thing that they will do is comb the public (both victim and aggressor) hair and scrape under the fingernails as both are an non-intimate search
Samples
Intimate sample
Blood, semen or any other tissue fluid, pubic hair and a swab from any orfice other than mouth
Non-intimate sample
Hair sample not pubic hair
Sample from nail or under
Swab, including mouth but not any orfice
Urine or saliva
Foot print or impression other than hand
Voice sample
The more objective and scientific evidence which is found, the stronger the case becomes, so knowing what the police can and cannot take is essential
Appropriate consent
The consent of the person who has attained 18 years of age
A person who is between 14 and 18 - the consent of the parent / guardian and himself
A person under 14 years - consent of his parent / guardian
Police station
If one is detained more than 6 hours then one would need to go to a designated police station (depo).
Designated police station - a police station designated by the Minister responsible published in the Gazette
Power to Stop, Search and Entry
Criminal Code starts amlifiying some of the individual powers
The Power of Entry, Search and Seizure in Property
Searching a property is found in 3 distinct situations
Police can search with or without a warrant
Changed in 2002 because searched used to be done with a warrant and there was an element of reasonable suspicion (which there is no definition of) but now there is a more objective threshold
Specific circumstances where one can with a warrant and specific circumstances where one cannot act without a warrant
The duty magistrate will issue the warrant and will decide if there is ground to issue a warrant or not
Hard to determine whether there was an abuse of procedure or abuse of power as it could be that the magistrate was acting on the basis of false information and nothing is written or recorded
Magistrate can request the police officer to confirm what they are saying on oath before issuing the warrant so there can be crime of false swearing
Mechanism to control that the warrants are being issued in a correct manner
Arrest
Without a warrant
With a warrant
Can get permission in case of an arrest when there is a reat
Rule of thumb is that searches ought to be executed with a warrant - default position -
Article 355E
focuses on the exception rather than the rule
Article 355E(1)
- a police officer cannot enter into a house or premise for arresting someone without a warrant from a Magistrate with certain exceptions
Exceptions
(a) - the criminal escapes or the corpus delicti is being destroyed
(b) - person is detected in the very act of committing a crime - in flagrante delicto
(c) - Police intervention is necessary to prevent the commission of the crime
(d) - entry is necessary for the execution of warrant or order issues by any other competent authority in the cases prescribed by law
(e) - arrest is for the purpose of apprehending a person who is unlawful at large after escapting from the lawful arrest or detention
(f) - entry is necessary for purposes of
(i) - executing the arrest or ascertating the whereabouts of a person in respect of whom an alert has been entered
(ii) - discovering any property in respect of which an alert has been entered and there is an imminent danger that the property may be concealed, lost, damaged, altered or damaged
(g) - the entry is necessary for the protection of any person
Article 355E(3)
- warrant may be issued also for affecting the arrest or ascertaining the whereabouts of a person in respect of whom an alert has been entered or discovering and seizing any property in respect of which an alert has been entered
These are the exceptions to the rule and one can act without asking a magistrate for a warrant. If one
has a warrant or if you fall within the exempted categories one can perform an entry and a search.
A warrant should contain an address and a general description of the offence
Article 355J
- a search under a warrant may only be a search to the extent required for the purpose of which the warrant was issued and if another crime is found this warrant will extend to cover the new evidence found
So
Article 355E
speaks to when the police can act with and without a warrant and
Article 355J
speaks to the evidence of another crime
(PAGE 19)
There are caveats and restrictions but a breach or omission of any formality by the police in the execution of their duties and the collection of evidence does not constitute as a bar to present the evidence so collected in trial even if it was collected in breach of law -
Article 349(2)
Power to stop and search is general and deal with public order but it may lead to an investigation
Right to stop and search is not absolute so muc be done with amongst other in the public interest
Constitution protects fundamental right from arbitrary interfence -
Article 38 Constitution
Right is not absolute but would have to see the contest
Notable limitation / exeption is the power to stop and search
Categories of the power to stop and search
The power to stop and search (
Article 351 - 354
)
Force which can be used
General proviso -
Article 355AB
- shall not use harshness or a means of restrains if not necessary to
The general rule is that the minimum force is to be used to overcome the resistance
Public place
Police can in any public space, even against a fee search any person or vehicle if there is reasonable suspicsion -
Article 351(1)
The issue of a public place has been debated
Best way to decide if a place if public or private is to look at the destination of the property
If it is a public place the general public can be admitted and restrictions to admittance do not make it less of a public place
General feeling of the public coming in - the general public is invited
Places can change from being private to public depending on circumstance
Having an operating licence helps to define a place as a public place
Reasonable suspicion
This is a topic which is discussed in court
Court said that if a situation was read completely wrong this does not mean that there is an abuse of power
If they have to always be a 100% certain than the police cannot work
Reasonable suspicion - one understands that they must be reasonable to the officer in those circumstances as presented to him
There is both a subjective and objective element - for objective test a reasonable man would say I can understand why the police officer though that by putting the person in the situation the officer was in
Reasonable suspicion is the oposite of profiling
If there is no objective reason, so profiling then it would be abusive
If the police search the person and find evidence of a crime it is to be seized and preserved and the Police who did the search has to draw up a report stating all the particulairs of the search and a detailes list of things seized-
Article 354
Intimate vs. non-intimate search
A search is the next step after being stopped
If drugs are found through an airport scan they will give the person a potty and the officer will have to go through the fecal matter
Non-intimate search
A non-intimate search which is forced upon a person must be done by an officer of the same sex and be wearing a uniform or be clearly identifiable as being a police officer
A person of the opposite sex or a police out of uniform cannot do a search unless production of a police identity card except in urgent cases when a person is apprehended in flagrante delicto -
Article 353
This is so that he does not destroy the corpus delicti or to hurt himself
Intimate search
Usually done by a doctor or in a hospital or policlinic
To protect a person's dignity and for safety
Can be forced but according to
Article 355AP
the police officer has to inform a magistrate who must be convinced that there are reasons for performing such intimate search and would authorize it by giving the necessary order
Magistrate gives the power to issue the necessary order for intimate search to take place and appoint an expert and there would be a report for his findings - the expert has to be of the same sex unless a medical practitioner -
Article 355AQ
Anything found a result of the intimate search can be retained and seized and a receipt is given to the detained person -
Article 355AR
Road checks (
Article 355 - 335D
)
The powers of entry, search and seizure with warrant (
Article 355E - 355J
)
The powers of entry, search and seizure without a warrant (
Article 355K - 355O
)
Seizure and retention (
Article 355P - 355U
)
If it is relevant to the investigation which can ultimately lead to a prosecution, you need to retain it and seize it in the format provided for the evidence to be admissable
This power is necessary because one can start investigation and searches if there is a suspicion or they can be looking for something and they do not know who
It is not always the case that the police have a crime reported to them and they have a suspect
The police have the power generally to stop and search you even if they do not have reasonable suspicision
The Power of Arrest