Powers of the Police

Powers of the Police - Filletti

Importance

General Information

Power to Stop, Search and Entry

The Power of Arrest

Powers of the police linked with the law of evidence

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

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

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

Duties of the police

Instituting proceedings

Definitions

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

Detecting and investigating crime

Arraigning people and bringing them to justice

Police can always contintue to investigate becuase they are duty bound to investigate all crime

Shows that police officer is in charge of taking care of public space

Can give an order when one is in a public space

Police can arriagn people (small crimes) - has been taken over by AG in certain cases (serious crimes)

Question of if the there is the bar for prosecution

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

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

List of defintions in Article 350 which are quite crutial

Intimate search - specifically excludes the mouth

Non-intimate search

Do not require the consent of the a subject

Samples

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

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

Consent is necessary

Appropriate consent

Police station

If one is detained more than 6 hours then one would need to go to a designated police station (depo).

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

Designated police station - a police station designated by the Minister responsible published in the Gazette

Intimate sample

Blood, semen or any other tissue fluid, pubic hair and a swab from any orfice other than mouth

Search which consists of the physical examination of a person's body orfices 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

Criminal Code starts amlifiying some of the individual powers

The Power of Entry, Search and Seizure in Property

Power to stop and search is general and deal with public order but it may lead to an investigation

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

Right to stop and search is not absolute so muc be done with amongst other in the public interest

Categories of the power to stop and search

The power to stop and search (Article 351 - 354)

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

Force which can be used

Public place

Reasonable suspicion

Intimate vs. non-intimate search

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

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

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

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

If they have to always be a 100% certain than the police cannot work

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

A search is the next step after being stopped

Non-intimate search

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

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

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

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

Arrest

Without a warrant

With a warrant

Can get permission in case of an arrest when there is a reat

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

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)

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

(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)