'Powers of the Police' from Civil Liberties in Northern Ireland by Brice Dickson
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CIVIL LIBERTIES IN NORTHERN IRELAND:
In all democracies the law is part and parcel of a wider notion
called "the rule of law". By this is meant that no-one,
whether an individual, a company, a private body or an organ of
the government, can be above the law: the law must apply to everyone
equally, without any unfair discrimination. Hand in hand with
this principle runs the understanding that all individuals have
certain basic rights - or fundamental civil liberties - which
the state must not take away. It is those rights and liberties
which form the subject-matter of this book.
The development of human rights law
After the end of the Second World War, which brought to light horrific violations of human rights in Germany and elsewhere, nations around the world were determined to take steps to guarantee protection to human rights in international and national law. The first concrete manifestation of this was the American Declaration of the Rights and Duties of Man, drawn up by the Organisation of American States in 1948. This was followed in the same year by the Universal Declaration of Human Rights, produced under the auspices of the newly-created United Nations. The Declaration was proclaimed on 10 December, which is now known worldwide as international human rights day. In 1950 the member states of the Council of Europe, meeting in Rome, adopted the European Convention for the Protection of Human Rights and Fundamental Freedoms. All of these documents concentrated on protecting civil and political rights, such as freedom of expression, freedom of religion and freedom of association. But the American Declaration and the Universal Declaration also embraced social, economic and cultural rights, such as the right to the preservation of health, the right to education and the right to work. In 1966, in order to supplement the general provisions of the Universal Declaration, the United Nations adopted two further International Covenants, one on civil and political rights, the other on economic, social and cultural rights. The gap in the European framework was filled by the adoption of the European Social Charter in 1961, another document prepared by the Council of Europe. It was issued in a revised form in 1996. The member states of the European Union have also agreed their own Social Charter, as part of the Maastricht Treaty of 1992. In 1997 the Labour government of the UK said it would abide by this Charter. The Treaty of Amsterdam, also in 1997, strengthened the EU's commitment to human rights even further.
In national legal systems there has been a comparable growth in human rights law. The majority of countries now have a written constitution with a Bill of Rights contained in it. The best known system is probably that of the United States of America, where the influence of the first 10 amendments to the Constitution - which were adopted in 1791 and are collectively known as the Bill of Rights - has been profound. In more recent years many other former colonies of the British Empire have marked their independence by adopting a constitution which includes guarantees for human rights. Even existing colonies, such as Gibraltar, are governed by legal provisions guaranteeing human rights.
The 1937 Constitution of the Irish Free State (now the Republic of Ireland) places Articles 40-44 under the general title of "Fundamental Rights" and includes such matters as the right to be held equal before the law, the right to one's life, person, good name and property, the right to liberty, freedom of expression, freedom of assembly and association, the right to education for children and the right to freedom from religious discrimination. The 1950 Constitution of India lays down similar legally enforceable fundamental rights. In Canada, a Bill of Rights was enacted in 1960 and this was supplanted in 1982 by a more far-reaching Charter of Rights and Freedoms. Australia - a federal state with a written constitution - does not yet have a Bill of Rights, but New Zealand - a unitary state with no written constitution - does. New Zealand's Bill of Rights, like that which operates in Hong Kong even after the handover to China, is based almost word for word on the United Nations' International Covenant on Civil and Political Rights. The most advanced Bill of Rights in the world is now probably the one contained in the Constitution of South Africa 1996.
Nor is the tendency towards protection of human rights apparent
only in countries which have an historical connection with English
law. In France the famous Declaration of the Rights of Man and
of the Citizen France, (1789) was specifically incorporated into
current law by the preamble to the 1958 Constitution of the Fifth
Republic. In Germany, the 1949 Basic Law devotes the first 19
of its 146 Articles to basic rights. Moreover in both these countries
the constitutional courts, or their equivalents, have gone to
considerable lengths to develop the substance of these rights.
The enforcement of human rights
It is all very well to have laws on human rights, but if those laws are imperfectly enforced they may as well not exist. International agreements on human rights are especially difficult to enforce because there is, as yet, no supreme body to which governments of states can be made answerable; nor, usually, are there any sanctions which can be effectively imposed. The United Nations has tried to get round this problem by asking states to accede to what is called the Optional Protocol to the 1966 International Covenant on Civil and Political Rights. This allows citizens, in effect, to sue their own governments before the United Nations' Human Rights Committee. Likewise, the European Convention on Human Rights can be enforced by individuals in the European Commission of Human Rights and then, provided the application is referred to it, in the European Court of Human Rights (both bodies sit in Strasbourg and are to be merged into one Court of Human Rights in about a year's time). However, none of these international judgments is backed by a system of effective penalties if the state concerned chooses not to comply. Enforcement ultimately depends on political pressure, which can often take years to exert. While nearly every country in Europe has agreed to be bound by the European Convention, by the end of 1996 only 89 countries worldwide had agreed to be bound by the United Nations' Optional Protocol (including Ireland, but not the United Kingdom).
At the national level, countries differ greatly in the ways in which they permit citizens to claim their rights and liberties. In the USA, any person can challenge the constitutionality of any law in any court. If the Supreme Court confirms that a law made by Congress (the US Parliament) is invalid, then that law can be ignored by everyone in the land. In France, MPs can challenge the constitutionality of a Parliamentary statute before it is officially published but no challenge can be mounted after publication. In Ireland, both prior and subsequent court challenges are permitted.
In the United Kingdom, Parliament's Acts can be challenged in court only if they run counter to a clear principle of EU law. There can be "judicial review" of lesser forms of legislation (i.e. Rules and Regulations), and of administrative, tribunal and some court decisions, but even then the only fundamental rights which can be relied upon by the applicant are the so-called principles of natural justice (i.e. "no-one should be a judge in his or her own cause" and "everyone has the right to a fair hearing"). There are at present no written constitutional guarantees in the United Kingdom, no Bill of Rights, no effective way of enforcing the government's obligations under international law in national courts. In Northern Ireland this lack of protection for human rights is particularly noticeable.
In October 1997, however, the UK's government published a Human
Rights Bill, which if enacted by Parliament will make the European
Convention on Human Rights part and parcel of UK law. Judges will
not be able to invalidate an Act of Parliament which violates
the Convention's standards, but they will be able to issue a "declaration
of incompatibility" which will, in practice, force the government
to introduce appropriate amending legislation.
The role of non-governmental organisations
In practice, the educational and campaigning activities of non-governmental organisations may be more effective in improving the law on human rights than court actions. A large number of non-governmental organisations now exist, the best known probably being Amnesty International, which has its headquarters in London, national sections throughout the world and a regional office in Belfast. Within the United Kingdom the two most prominent organisations are possibly Justice (which is the British branch of the International Commission of Jurists) and Liberty (formerly known as the National Council for Civil Liberties).
In Northern Ireland much valuable work in this area was carried out in the 1960s and early 1970s by the Northern Ireland Civil Rights Association. In subsequent years a number of other organisations have been formed to work on a range of specific civil liberties issues. In 1973 the government itself set up the Standing Advisory Commission on Human Rights, to advise it on whether the law in Northern Ireland operates in a discriminatory fashion. In 1976 the Equal Opportunities Commission and Fair Employment Agency were created by Parliament in order to assist alleged victims of discrimination based on sex or marriage (in the case of the EOC), and on religion or political belief (in the case of the FEA). All of these bodies (including the Fair Employment Commission, which replaced the Agency in 1989) have performed valuable work in their own fields. In 1997 they have been joined by the Commission for Racial Equality for Northern Ireland.
In 1981 the Committee on the Administration of Justice (CAJ) was
formed as an independent voluntary organisation to carry out more
general monitoring of the legal system in Northern Ireland. It
has acquired a reputation for accuracy and thoroughness and the
present book is a further demonstration of its wish to provide
information about Northern Ireland's legal system to as wide an
audience as possible.
The CAJ has long been convinced that a Bill of Rights could play an important part in the prevention of injustice in Northern Ireland. The group believes that, unless the rights of all individuals in Northern Ireland are guaranteed equal protection, there is little prospect of a lasting solution being found to the area's problems. A Bill of Rights, in short, is a prerequisite to permanent peace and justice. At the time this book is going to press political talks about the constitutional future of Northern Ireland are taking place in Belfast: we hope that protection of human rights will he a matter about which all the participants can agree early in the process.
The Labour government's plan to satisfy the growing demand for a Bill of Rights by incorporating the European Convention on Human Rights into British law would certainly be a good first step towards improving the protection of civil liberties in Northern Ireland, but it has to be remembered that, although that Convention is the most successful of all the international human rights documents, it is still far from perfect. It proved of no avail, for instance, to the victims of Bloody Sunday in 1972 (McDaid and Others v UK, 1996), or to the mother of a boy who, while not himself directly involved in rioting, was killed by a plastic bullet in Belfast in 1976 (Stewart v UK, 1984), or to the father of a young man who was killed by the security forces when he was joyriding in 1985 (Kelly v UK, 1993). Likewise, the Convention did not assist the workers at Government Communications Headquarters in Cheltenham after the government banned certain trade unions there in 1984. Perhaps most importantly, the European Convention does not grant much, if any, protection to the rights of physically or mentally disabled people, to those lacking an education, to the unemployed, to the homeless or to the poor.
The CAJ therefore believes that a more comprehensive Bill of Rights
is required for Northern Ireland, one that readily meets the expectations
of ordinary people. As each of the chapters in this book will
show, the law in Northern Ireland rarely confers positive rights
on people but instead controls people's behaviour by placing all
sorts of constraints on them: whatever is not affected by these
constraints is deemed to be a liberty. The approach of the European
Convention is not very different. The constraints which at present
exist are so far-reaching, and the rights conferred on government
agencies so all-embracing, that the resulting liberty is at times
very narrow in scope. A Bill of Rights could not only increase
people's confidence in the administration of justice but also
improve the content of the law and make people more physically
and psychologically secure. The CAJ has published its own draft
Bill of Rights, and a discussion paper on how it could be implemented,
and it hopes these will serve as useful models for further debate.
The chapters in this book offer advice and information on a wide variety of common legal problems encountered by people living in Northern Ireland. Although they are ascribed to particular authors, they have been edited and cross-referenced so as to make the book more than a disparate collection of essays. Needless to say, several of the chapters have had to take account of the "emergency" laws, but much is also said about the "ordinary" laws. The book tries to be reasonably comprehensive but inevitably there are some omissions. The third edition differs from the second in having additional chapters on children's rights and on racial discrimination. All of the other chapters have been carefully revised and updated. But still we have not been able to say as much as we would have liked about particular topics and we have excluded altogether material on the rights of consumers, hospital patients and people with environmental concerns. Greater enlightenment on all rights issues can in some instances be obtained from the publications listed in the section on Further Reading beginning on page 429.
The book begins with a description of court and tribunal structures in Northern Ireland and with an explanation of the European dimension, public law remedies and legal aid. It then moves on to describe police and army powers, where the distinction between emergency and ordinary laws is most apparent. Those powers are very extensive, especially in view of the Emergency Provisions Act 1996, so if they are abused the consequences for individuals can be dire. The next two chapters look more closely at the police's power to question suspects and at the system for handling complaints against the police: the law on the former was significantly altered by the Police and Criminal Evidence (NI) Order 1989, while the law on police complaints was subjected to a radical independent review by Dr Maurice Hayes in 1997.
In Chapter 7 the position of prisoners is examined, an area which has given rise to a large amount of litigation in Northern Ireland. The impact of the European Convention on Human Rights has often been felt in prisons, but not always to the advantage of prisoners. What amounts to a further variety of imprisonment is described in the chapter on immigration and freedom of movement, where the law relating to exclusion orders issued under the Prevention of Terrorism Act (hopefully a thing of the past) is fully explained. This leads in the next three chapters to an exposition of people's rights to expression and information, whether through demonstrations, meetings, organisations or direct speech. Some account has been taken of the Protection from Harassment (NI) Order 1997, and of the Public Processions etc. (NI) Bill, which was published just before this edition went to press.
The following three chapters which focus on discrimination, covering religious and political belief, gender, and race, illustrate the degree of sophistication which the law must attain if it is to begin to rectify human rights abuses. Northern Ireland is the only part of the United Kingdom or Ireland where discrimination based on religious or political belief is unlawful and the Fair Employment (NI) Act 1989 has considerably bolstered the original 1976 Act, even though a large-scale review of those Acts in 1997 has identified areas where improvements could still be made. Chapter 15 describes the (not so extensive) rights of disabled persons in Northern Ireland (giving full attention to the Disability Discrimination Act 1995), while Chapter 16 outlines the law affecting family and sexual life, with particular emphasis on the rights of women. Again, it should be noted that there is not yet any law which prohibits discrimination based on a person's sexual orientation, although the government did change the criminal law on male homosexuality following a decision of the European Court of Human Rights in 1981 (Dudgeon v UK). Ageism is still not unlawful.
The final chapters are devoted entirely to the category known as social and economic rights, which many would argue are even more significant than civil and political rights. The law relating to education has been affected by a number of pieces of legislation, while the more general law relating to children's rights was considerably recast by the Children (NI) Order 1995. The rights of employees were consolidated by the Employment Rights (NI) Order 1996. The rights to proper housing and to a decent level of social security are not yet fully recognised in our law, despite the terrible conditions in which thousands of people live.
Each chapter aims primarily to explain the current law and is restrained in offering a critique. At times contributors have inevitably found it difficult to conceal their objections to some of the relevant legal provisions and the CAJ endorses the points they make in this regard. As far as possible contributors have sought to ensure that their chapters accurately state the law as of 1 November 1997. If there are mistakes, please let us know.
Powers of the Police
This chapter sets out the powers of the Royal Ulster Constabulary which people in Northern Ireland are most likely to encounter in everyday life. Readers should note that the powers of soldiers in the army (see Chapter 4) are often different. The specific topic of police questioning is dealt with in Chapter 5.
Much of the law on police powers was altered by the Police and
Criminal Evidence (NI) Order 1989 - the PACE Order - which came
into force in January 1990. This Order is similar in many respects
to the Police and Criminal Evidence Act 1984, which governs the
position in England and Wales. Books on that Act are therefore
relevant to the law in Northern Ireland as well. The position
regarding police powers in relation to "terrorist" offences
in Northern Ireland is governed by the Prevention of Terrorism
(Temporary Provisions) Act 1989 (the PTA) and by the Northern
Ireland (Emergency Provisions) Act 1996 (the EPA). Only the first
of these applies in other parts of the United Kingdom as well
as in Northern Ireland. Throughout this chapter the police's powers
are first described as they exist under the ordinary law and then
as they exist under the emergency laws.
The power to stop and question under the ordinary law
Contrary to popular belief, the general rule is that the police do not have a general power to stop and question people. This is true not only of pedestrians but also of people in cars or any other form of transport. The police can, of course, attempt to stop and question people, and many of us may well comply with the police's request and will readily answer questions, but there is no legal obligation to stop when asked to do so or to answer questions put by a police officer. The PACE Order confers powers on the police to stop people for the purpose of searching them (these are dealt with below), but it does not remove a person's right not to be stopped for questioning.
To stop a person lawfully the police have to carry out an arrest. During the period of detention after an arrest the police can ask questions but the person arrested is still under no legal duty to reply. In fact, when questioned at any time it is very often sensible to remain silent until a solicitor is present. As England's Lord Chief Justice Parker put it in Rice v Connolly (1966): "the whole basis of the common law is the right of the individual to refuse to answer questions put to him (sic) by a person in authority". However, as explained more fully in Chapter 5, one of the consequences of the Criminal Evidence (NI) Order 1988 is that the silence of a detained person may later constitute corroborative evidence that that person is guilty of an offence. The law on this point in England and Wales is now the same as in Northern Ireland, as a result of the enactment of sections 34-38 of the Criminal Justice and Public Order Act 1994.
After the police have collected information from persons whom they have stopped and questioned, they can immediately destroy it or store it, indefinitely if they wish and on computer if necessary. The' Data Protection Act 1984 prevents citizens from gaining access to data which is "required for the purpose of safeguarding national security" or "held for the prevention or detection of crime". The latter phrase would cover most of the information held by the police. The 1984 Act also does not apply to non-computerised records: a card-index system, for instance, is immune from the access provisions (see Chapter 11).
There are a number of important exceptions to the general rule
that the police cannot arbitrarily stop people. These mainly concern
road traffic and "terrorist" incidents. The law on the
former is identical to that in England and Wales: it permits a
police officer to control traffic and, provided the officer is
in uniform, to require drivers to stop their vehicles (art. 180
of the Road Traffic (NI) Order 1981).
The power to stop and question under the emergency laws
The chief exception to the general rule in the context of "terrorist" incidents is section 25 of the Northern Ireland (Emergency Provisions) Act 1996. According to this, any constable may stop and question any person for as long as is necessary in order to put questions about his or her identity and movements or what he or she knows concerning any recent explosion or any other recent incident endangering life or concerning any person killed or injured in any such explosion or incident. If a person fails to stop when required to do so under section 25, or fails to answer to the best of his or her ability any question addressed under this section, he or she may be fined in a magistrates' court up to £2,000.
There is some doubt over the exact scope of section 25. No-one knows for sure, for instance, whether in law the "identity" of a person includes his or her date of birth and address; the answer may depend on whether or not the person has a common name. The section also gives no indication as to how much detail a person must provide about his or her movements, although the duty to answer to the best of one's ability probably means that one must be as detailed as the police wish. The locality a person is coming from and going to must he disclosed, but it would be unreasonable to have to give the names of the people just visited or about to be visited. Nor is the meaning of "recent" in section 25 clear. But the questions asked do not have to be related to acts of "terrorism", so "any other incident endangering life" could refer to a fire or a car accident. There is no obligation to answer questions relating to one's occupation, family or friends.
The power in section 25 can be used to stop pedestrians but is most frequently used at vehicle check points (VCPs). There is no legal obligation to show a driving licence at a VCP, but it is an easy way of proving your identity. As yet there has been no authoritative ruling as to what exactly constitutes "stopping" within section 25. Knocking on a person's door and putting questions to the person who opens it may not qualify, but temporarily preventing someone from moving from his or her position in a queue or at a counter would probably be enough. Being approached while standing at a street corner would certainly constitute being "stopped" in this context.
The power to arrest under the ordinary law
The Police and Criminal Evidence (NI) Order 1989 contains provisions governing "arrestable" offences, a category which includes offences carrying a sentence (for those over 21) of five years or more, as well as some less serious offences for which Acts of Parliament provide a separate arrest power. The full list is in article 26 and Schedule 2 of the Order. It includes the following:
The PACE Order also provides that the police can arrest without a warrant any person who is reasonably suspected of attempting or conspiring to commit any of the listed offences, or of inciting, aiding, abetting, counselling or procuring their commission. Article 27, moreover, makes it clear that the police may arrest someone for a non-arrestable offence if the service of a summons (requiring later attendance at court) is not practicable or appropriate. Service will not be practicable or appropriate if a person's name or address cannot be readily ascertained or is doubtful, if a child or other vulnerable person needs to be protected, or if the person to be arrested would otherwise suffer or cause injury or damage to property, commit an offence against public decency or cause an unlawful obstruction on a road. Altogether the RUC arrested 26,062 people under the PACE legislation in 1996.
There also exists a judge-made power to arrest someone for a breach of the peace. To be more exact, according to the leading case on the point (R v Howell, 1981), there is a power of arrest (1) where a breach of the peace is committed in the presence of the arresting officer, (2) where the arresting officer reasonably believes that such breach will be committed in the immediate future by the person arrested, or (3) where a breach of the peace has been committed and it is reasonably believed that a renewal is threatened. The courts have even said on occasions that the police can arrest people who are not themselves threatening to commit a breach of the peace but whose conduct is likely to provoke others to do so. A breach of the peace was defined in R v Howell as "an act done or threatened to be done which either actually harms a person, or in his presence his property, or is likely to cause such harm, or which puts someone in fear of such harm being done". A person arrested for breach of the peace may be "bound over" by a magistrate. This means that he or she will not be further punished provided he or she commits no further breach of the peace, or some other crime, within a stipulated period.
The 1989 Order maintains the rule that the police may arrest any person so long as a warrant for that purpose has been issued to the police by a Justice of the Peace. The JP must be satisfied that the police reasonably suspect the person of a crime and that his or her voluntary co-operation is unlikely. Once a person has been dealt with by a court for the offence alleged in a warrant, the warrant ceases to be valid and cannot be used to justify a later arrest (Toye v Chief Constable of the RUC, 1991).
In all situations a police officer is entitled to use reasonable force when carrying out an arrest. The 1989 Order says that in exercising any power under the Order, the police "may use reasonable force, if necessary" (art.88). However, the use of unreasonable force, or of reasonable force in circumstances where it is not necessary, will not make the arrest unlawful. It will only make possible a claim for compensation, under the civil law, for assault. Using force to effect what is in any event an unlawful arrest may lead to the police having to pay so-called exemplary damages to the victim, as in Carroll v Chief Constable of the RUC (1988).
An arresting officer must also indicate that the arrest is taking place and give a reason for it (unless the reason is very obvious). This was made clear in Christie v Leachinsky (1947) and confirmed by article 30 of the PACE Order. If it later turns out that the reason for the arrest was not a good one, the person arrested can claim compensation for "false imprisonment" and "malicious prosecution". But if the police show that they had "reasonable and probable cause" for acting as they did, perhaps because the person arrested had confessed to the alleged crime, no compensation will be awarded (Cooke v Chief Constable of the RUC, 1989).
It remains the case that an ordinary citizen has the power to
make what is popularly known as "a citizen's arrest",
though the extent of this power is not as great as in the case
of the police. It does not permit a citizen to arrest someone
who is about to commit an arrestable offence, and it does
not allow an arrest for an arrestable offence which the citizen
reasonably believes has been committed but which in fact has
not been (R v Self, 1992). Given the difficulty of
knowing which offences are arrestable and which are not, it is
unwise for ordinary people to try to take the law into their own
hands in this way.
The power to arrest under the emergency laws
Ever since the creation of Northern Ireland in 1920 there have been special powers conferred on the police. After the Northern Ireland Parliament was abolished in 1972, the Northern Ireland (Emergency Provisions) Act 1973 was passed (the EPA). In 1974 this Act was supplemented by the Prevention of Terrorism (Temporary Provisions) Act (the PTA), which was enacted for the whole of the United Kingdom but designed to deal only with violence connected with the political affairs of Northern Ireland. The EPA in force today is that enacted in 1996; the current PTA was enacted in 1989 and it now applies to "international terrorism" as well. The present government has said that it wishes to replace the PTA with permanent anti-terrorist legislation.
The main arrest powers conferred on the police are in section 18 of the EPA 1996 and section 14 of the PTA 1989. Section 18 permits a police officer to "arrest without warrant any person whom he or she has reasonable grounds to suspect is committing, has committed or is about to commit a scheduled offence or an offence under this Act which is not a scheduled offence". When the list of scheduled offences and other offences created by the EPA is compared with the list of offences for which a person can be arrested without warrant under the PACE (NI) Order 1989 (see above), there is almost a complete overlap. There is therefore a good case for allowing section 18 to lapse. The annual statistics on the EPA show that in any event it has not been used since 1990 because the arrest power in the PTA is much more wide-ranging.
The arrest power in section 14(1) of the PTA 1989 is so important that the exact wording deserves to be set out in full:
Subject to subsection (2) below, a constable may arrest without warrant a person whom he has reasonable grounds for suspecting to be (a) a parson guilty of an offence under section 2, 8, 9, 10 or 11 above; (b) a person who is or has been concerned in the commission, preparation or instigation of acts of terrorism to which this section applies; or (c) a person subject to an exclusion order.The section applies to all acts of terrorism except those connected solely with a part of the United Kingdom other than Northern Ireland. This means that people such as animal rights protesters in England, or arsonists of English holiday homes in Wales, cannot qualify as terrorists however terrible their behaviour. The offences referred to in section 14(1)(a) are membership of or support for a banned organisation, failing to comply with an exclusion order (see Chapter 8), contributing to acts of terrorism or to the resources of banned organisations, and assisting in the control of terrorist funds. But it is section 14(i)(b) which is by far the most all-embracino provision, for it allows arrests for unspecified crimes provided only that the police reasonably suspect involvement in acts of terrorism. "Terrorism" itself, therefore, is not an offence, but suspected terrorists can be arrested. The government claims that this power is necessary because it helps to prevent terrorism; the arrest powers in the PACE Order, including the one which authorises arrest of any person reasonably suspected of being about to commit an arrestable offence, are deemed inadequate. It is clear, moreover, that, just as in the case of the PACE Order's powers, a police officer can be said to have "reasonable suspicion" for the purposes of section 14 if he or she is acting on information supplied and instructions issued by a superior police officer (see O'Hara v Chief Constable of the RUC, 1997).
If the police arrest a person under the emergency laws, they still have to indicate why the arrest is occurring and under what power. If subsequent questioning - or the lack of it - shows that there were no real grounds for reasonably suspecting a connection with terrorism, an action in the civil courts for compensation for false imprisonment may succeed. It is a fact that, during the last 10 years, three-quarters of the persons arrested in Northern Ireland under section 14 of the PTA have later been released without being charged. This might suggest that the arrest powers are being used not just for the legitimate purpose of rounding up genuine suspects but for the illegitimate purpose of harassing people or fishing for snippets of incriminating evidence about other people. Alternatively, it might mean that people who are arrested supply no evidence which the police can rely upon to found a charge.
The use of arrest powers just for the gathering of information is possibly a contravention of Article 5(1)(c) of the European Convention on Human Rights, which says that arrest or detention must be for the purpose of bringing the person "before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his (sic) committing an offence". In Brogan v UK (1988), however, the European Court of Human Rights held that the PTA's definition of "terrorism" ("The use of violence for political ends, including any use of violence for the purpose of putting the public or any section of the public in fear") was well in keeping with the Convention's notion of an "offence".
What is clear is that, if the police arrest someone under paragraphs (a) or (c) of section 14(1), the precise grounds for the arrest must be notified at the time. This is a rule laid down by judges and it has not been expressly abolished by the PTA. Unfortunately, there is nothing to stop the police from arresting someone under paragraph (b) even though they may have enough suspicion of more particular offences to make an arrest under one of the other two paragraphs. But if a person disputes the lawfulness of an arrest under paragraph (b) the police must still supply details ("in general terms") of the matters which constituted reasonable grounds for the arresting constable's suspicion that the person was involved in terrorism (Clinton v Chief Constable of the RUC, 1991).
In the first six months of 1997, 319 people were arrested under
the PTA in Northern Ireland; 89 of these were charged with a criminal
offence, but 230 (72%) were released without charge.
The power to stop and search people under the ordinary law
The police do not possess a general power to stop and search anyone at will. A person may, of course, consent to being stopped and searched, but if consent is withdrawn the search must cease immediately. The consent may also be limited, for instance, to a search of a person's pockets or handbag. In this case any more extensive search will be an assault, for which compensation can be sought.
The police do possess limited stop and search powers conferred by legislation, in particular the Police and Criminal Evidence (NI) Order 1989. For a useful list of other relevant legislation see Annex A to the Code of Practice on this topic, referred to at page 50 below. As a rule, because it can be difficult to know whether the police are acting within their powers when conducting a search, it is better if the person being searched, rather than resisting the search and risking a prosecution for obstructing the police in the execution of their duty or for assault, submits to the search while informing the police that he or she is not consenting voluntarily. The police should be asked to name the exact power under which they are acting so that its terms can be checked later. If the police act in a high-handed fashion, or in breach of the powers conferred upon them, the person searched should lodge a complaint (see Chapter 6) or think about bringing a civil action (see Chapter 2).
A person can also be lawfully searched once he or she has been arrested. Any weapon or evidence of a crime discovered can be seized. The person's home can be searched too, or the place where the arrest has occurred, provided that there is some connection between that place and the suspected offence. If the police uncover evidence relating to a crime during the course of an unlawful search, that evidence is still admissible in a court of law but a civil action against the police for compensation can be begun.
The PACE (NI) Order 1989 empowers police officers to stop, detain and search any person if they have reasonable grounds for suspecting that they will find stolen or prohibited articles. An article is prohibited if it is an offensive weapon or something intended for use in a burglary or theft. Any such item may be seized and need not be returned. The power can be exercised only in a public place. People who are in a garden or yard connected with a dwelling cannot be searched unless the police have reasonable grounds for believing that those people do not reside in the dwelling and are not there with permission.
Before a search is begun, the constable must prove that he or she is indeed a police officer (by displaying a card or giving his or her police number and station). The constable must also indicate the purpose of the proposed search, the reasons for making it and the fact that a written record will be made available to the person if requested within the next year. During the search a person cannot be required to remove any item of clothing in public, except an outer coat, jacket, headgear and gloves. Strip-searching is permitted at police stations in exceptional circumstances (see page 47). A person cannot be detained for longer than is reasonably required for the search to be carried out.
The duty to make a written record and the prohibition on requiring
clothes to be removed do not apply to searches following an arrest,
although an arrested person can be searched only if the custody
officer considers it necessary to permit a record of the person's
possessions to be taken. The search must be conducted by an officer
of the same sex as the person searched and special conditions
apply to "intimate" searches (see below). In any event,
after a person has been arrested and taken to a police station,
the station's custody officer must record everything which the
person is carrying. Any of these things may be retained by the
custody officer provided reasons are given, though clothes and
personal effects may be seized only if the officer believes that
the arrested person may use them to inflict injury, damage property,
interfere with evidence, assist an escape, or if there are reasonable
grounds for believing that the items may be evidence relating
to an offence.
An intimate search is defined as "a search which consists of the physical examination of a person's body orifices". It requires the written authorisation of a police officer of at least the rank of superintendent, who must first have reasonable grounds for believing that an arrested person may have concealed on his or her body a "Class A" drug or anything which could be used to cause injury while in custody. "Class A" drugs include heroin but not amphetamines or cannabis and they can be searched for only by a registered doctor or nurse and not at a police station. Other intimate searches should also be conducted by a doctor or nurse unless a police officer of at least the rank of superintendent considers that this is not practicable, in which case they must be carried out by a constable of the same sex as the person searched; they can be conducted at police stations.
A written record must be kept by the custody officer of the parts
of the body that have been searched, and why. Anything found during
an intimate search may be retained only in the circumstances outlined
above in relation to clothes and personal effects. In 1996 the
RUC conducted just two intimate searches under these powers.
The power to stop and search people under the emergency laws
By virtue of section 20(6) of the EPA 1996 any police officer may stop any person in any public place and search him or her for explosives, firearms, ammunition or wireless transmitters. This power can also be exercised elsewhere than in a public place if the police officer has reasonable grounds to suspect the presence of these items. If a person fails to stop when required to do so he or she may be fined up to £2.000. A search cannot take place under this power for other items (see Carlisle v Chief Constable of the RUC, 1989). Explosives inspectors also have the power to stop a person in a public place and search for explosive substances (s. 22(2) of the EPA 1996). If any of the items mentioned are found during a search, they may be seized.
Section 15(3) of the PTA allows a constable to stop and search
anyone whom he or she has the power to arrest under section 14
of that Act. The search must be for evidence justifying an arrest,
but there must still be independent grounds for the arrest besides
whatever is found during the course of a search. People who have
already been arrested under section 14 of the PTA may also be
searched (s.15(4)). In both instances the search must be carried
out by a person of the same sex. Strip-searching, other than in
a public place, is nowhere specifically prohibited by the law.
The power to stop and search vehicles under the ordinary law
Curiously, the exact legal position regarding the stopping of vehicles (a term which for present purposes includes vessels and aircraft) is unclear, even though the relevant powers are largely conferred by legislation - see article 180 of the Road Traffic (NI) Order 1981. In an English court case in 1982 (Steel v Goacher) it was held that the police had a power under the common law (i.e. not based on any statute) to stop traffic in order to prevent criminal activity. Failing to stop a car when requested to do so by the police is therefore a more risk-laden thing to do than failing to stop walking when approached by the police, although it is uncertain what offence is being committed if one disobeys a police command to stop (other perhaps than obstructing the police in the execution of their duties).
The ordinary law already set out above in relation to searches of persons also applies to searches of vehicles. Thus, a car can be stopped, detained and searched if the police have reasonable grounds for suspecting that they will find stolen or prohibited articles. If a vehicle is parked on land connected to a dwelling, it may not be searched unless the police have reasonable grounds for believing that it is there without the permission of a person who resides there. The rules about the police having to identify themselves before making the search also apply, but no police officer can stop a vehicle unless he or she is in uniform. Persons inside a vehicle can be searched only if the conditions mentioned at pages 34-36 are satisfied. Altogether 1,135 persons and vehicles were searched by the RUC under the PACE (NI) Order in 1996; 149 people were arrested as a result of these searches.
Whenever the police search an unattended vehicle they have to leave a notice stating that it has been searched, the date of the search and the identity of the searching officer. The notice also has to indicate that a written record of the search can be requested within a year and that an application can be made for compensation for any damage caused. This duty does not apply to searches of vehicles at an airport, railway, dock or harbour, to searches of air cargo, or to searches conducted under the emergency laws.
The PACE (NI) Order 1989 contains a second power relating to vehicle
checks (art.6), but it deals with searches for wanted people rather
than for stolen goods or weapons. It authorises a police officer
to stop and check vehicles to see if they are carrying people
who are unlawfully at large or who are intending to commit, have
committed, or are witnesses to an offence (except a road traffic
offence). The vehicles to be searched can be chosen in accordance
with any criterion, e.g. the colour or age of the car, or the
appearance of its occupants. The authorisation for a road check
of this nature must come from a senior police officer and can
last for no longer than seven days at a time. In 1995 the power
was used on just four occasions.
The power to stop and search vehicles under the emergency laws
Because the space inside a vehicle constitutes a "place", the emergency laws conferring powers to enter and search premises or other 11 places" (see page 39) mean that the police have extensive powers to enter and search cars, buses, vans and lorries. Bags or boxes carried by bicycles and motorbikes can also be searched. Persons in or on a vehicle can be searched only if the conditions mentioned at pages 34-35 are satisfied.
By virtue of section 17 of the EPA 1996, a police constable may enter and search any vehicle if he or she has reasonable grounds for suspecting that it contains a person who could be arrested under the PTA because he or she is reasonably suspected of involvement in terrorism. A similar power is conferred by section 18(2), and section 18(3) allows the police to seize anything which they have reasonable grounds to suspect is being, has been or is intended to be used in the commission of an offence created by the EPA or listed in Schedule 1 of the Act. To enable the police to look for people who may have been kidnapped, and whose lives are in danger, section 23 permits the police to enter any place and search for the missing persons.
The main vehicle search power under the emergency laws, however, is section 20 of the EPA 1996, which allows the police to enter and search any vehicle to look for explosives, firearms, ammunition or wireless transmitters. Caravans may be searched only if an officer not below the rank of inspector authorises it. As always, items found may be seized.
A police officer may interfere with the use of a highway, any
right of way or the use of a waterway. Anyone who meddles with
materials used in the exercise of this power is guilty of an offence
carrying a maximum penalty of six months' imprisonment and a fine
up to£2,000 (s. 26(4) of the EPA 1996).
The power to enter and search premises under the ordinary law
The police have no general power to enter and search private premises in order to investigate criminal acts. Only in relation to some road traffic offences may they do so. Otherwise they may enter and search only if they have the permission of the occupier, if a breach of the peace is involved or if the requirements of the PACE Order are satisfied.
The relevant provisions of the PACE (NI) Order 1989 are articles
10-25. They deal only with searches of "premises", but
this term is defined so as to include any place. It therefore
covers outdoor as well as indoor premises, movable and stationary
premises, occupied and unoccupied premises, and public and private
places. The power to search carries with it the power to enter
in order to conduct the search.
Entry with a warrant
The police will normally have to obtain a search warrant from a Justice of the Peace in order to enter and search premises and a JP can grant a warrant only if he or she is satisfied that a serious arrestable offence has been committed and that there is material on the premises which is likely to be relevant to its investigation. The JP must also be satisfied that it is not practicable for the police to obtain permission to enter the place, or that a search may be frustrated unless a police officer is allowed to enter immediately.
Applications for warrants must specify the reasons for the proposed search, the premises to be searched and the articles to be looked for. The warrants themselves must be just as specific. They can authorise entry on one occasion only, which must occur within a month of the issue of the warrant and be at a reasonable hour unless this would frustrate the search.
If the police wish to search for personal medical records, documents dealing with counselling or with assistance given by a voluntary organisation, journalistic material or confidential business information, they must obtain either a production order or a warrant, not from a JP but from a county court judge. Before issuing an order or a warrant the judge must normally be satisfied that access to the material is in the public interest. Otherwise similar preconditions apply to the issue of a warrant as in the case of applications to a JP. The only material which is totally exempt from search is that which is subject to legal privilege; in the main these are communications between solicitors and their clients (art. 12).
Entry without a warrant
Under articles 19 and 20 of the PACE (NI) Order, the only situations where a police officer is able to enter and search premises without a warrant are the following:
The power to seize objects
The police can seize and retain anything they are looking for during a lawful search. In addition, by virtue of article 21 of the PACE Order, an officer who is lawfully on any premises may seize anything found there (even if it is not being looked for) provided he or she has reasonable grounds for believing that it has been obtained as a result of an offence, or that it is evidence in relation to any offence, and that seizure is necessary in order to prevent it being concealed, lost, damaged, altered or destroyed. Even information accessible through a computer can be seized under this power.
Whenever anything has been seized, a written record must be provided, if requested, to a person who was the occupier of the premises or who had custody or control of the thing immediately prior to the seizure. Access to items seized, even if only in order to photograph or copy them, must be permitted by the officer in charge of the investigation unless he or she has reasonable grounds for believing that this would prejudice criminal proceedings. Otherwise items seized may be retained by the police for as long as is necessary. Under section I of the Police (Property) Act 1897 a person can apply to a magistrates' court for an order for the return of property or for a statement from the police as to why they think retention is still justified.
Anything seized during an unlawful search may nevertheless be
used in court as evidence of an offence. Judges have a discretion
to exclude the evidence because of the adverse effect on the fairness
of the proceedings (art. 76 of the PACE Order), but the person
searched can seek compensation for infringement of his or her
rights only by taking action in the civil courts (see Chapter
2). He or she can also lodge a complaint against the police (see
The power to enter and search premises under the emergency laws
Under the EPA 1996, searches of any place can be made by the police as follows:
If the place to be searched is a dwelling-house then, as far as the section 20 and 23 powers are concerned, authority to conduct the search must be granted by a police officer not below the rank of inspector, and, in the case of section 20 searches, only if the police have reasonable grounds for suspecting the presence of what is being sought. In the three years 1994-96 there were 3,791 recorded searches by the RUC but there are no published figures on the quantities of weapons, ammunition or transmitters revealed by searches of homes. It has been held by the European Court of Human Rights that searches under the section 20 power are not a breach of the European Convention on Human Rights (Murray (Margaret) v UK, 1993).
Under section 20(4) and (5) of the EPA 1996, the police may require any person who is in the place being searched to remain in a part of it for up to four hours, though a police officer of the rank of superintendent or above may extend that period by a further four hours if he or she reasonably believes that it is necessary to do so. The police can use reasonable force to ensure that the requirement is complied with and anyone wilfully failing to comply runs the risk of two years' imprisonment and an unlimited fine. The police can arrest anyone reasonably suspected of committing this offence, which is triable without a jury; it seems, however, that no-one has ever been charged under this provision or its predecessor in the EPA 1991. A challenge to the legality of detention during a house search was unsuccessful before the European Commission of Human Rights (O'Neill and Kelly v UK, 1992).
Although section 20 of the EPA 1996 authorises the police to search only for explosives, firearms, ammunition and transmitters, if they find other incriminating items during the course of any search the person in possession of these items can be arrested and charged. Under section 32 of the EPA it is an offence to have in one's possession any article:
in circumstances giving rise to a reasonable suspicion that the item is in lone'sl possession for a purpose connected with the commission, preparation or instigation of acts of terrorism connected with the affairs of Northern Ireland.The items most likely to be involved in this offence are everyday things which can be used in the making of a bomb, e.g. rubber gloves, adhesive tape, bell-pushes, coffee-grinders and kitchen scales. It should also be noted that under section 33 of the EPA it is an offence to have in one's possession, unless one has a lawful excuse, any information which is likely to be useful to terrorists in planning any act of violence. The maximum penalty for the offences in sections 32 and 33 is 10 years' imprisonment.
When the police are searching premises they can be assisted by specially appointed civilians such as forensic scientists and police photographers. Unless it is not practicable to do so, a written record has to be made of the search specifying the name or description of the apparent occupier of the place searched and of the place itself, the date and time of the search, any damage caused and items seized during the search and the service number of the searching officer. The apparent occupier must be supplied at once or as soon as is practicable with a copy of any such record (s.21 of the EPA 1996).
If, in the exercise of their powers under the EPA 1996, the police
take or damage any property (e.g. during a house search),
the Secretary of State must pay compensation provided a claim
is submitted no later than four (or exceptionally 12) months after
the incident (s.55 of the EPA 1996). Special rules have been issued
governing the procedures to be followed when making a claim (see
the Emergency Provisions (Compensation) (NI) Rules 1988), and
the right to compensation under section 63 replaces any other
legal right to claim compensation (see Deehan v Chief Constable
of the RUC, 1990).
The power to detain under the ordinary law
The PACE (NI) Order 1989 made radical changes to the law on detention. By article 32 an arrested person has to be taken to a designated police station if it may be necessary to keep him or her in detention for longer than six hours. In Northern Ireland the 22 designated stations are in Antrim, Armagh, Ballymena, Banbridge, Belfast (Antrim Road, Grosvenor Road, Musgrave Street, Strandtown), Coleraine, Cookstown, Derry (Strand Road and Waterside), Downpatrick, Dungannon, Enniskillen, Larne, Limavady, Lisburn, Lurgan, Newtownards, Omagh and Strabane. Any other station may be used if detention is to be for less than six hours, or if otherwise there might be an injury caused to any person. Article 32(13), however, makes it plain that the duty to take an arrested person to a police station as soon as practicable after the arrest does not apply if the presence of the person is necessary elsewhere in order to carry out immediate and reasonable investigations.
Having been arrested and taken to a police station, a person can be arrested there for a further offence (art.33) but, if a person voluntarily attends a police station - to help the police with their inquiries - he or she must be allowed to leave whenever wanting to - unless first placed under arrest (art.31). An arrested person can be detained for questioning or released on bail. If the arrest took place under a warrant, the warrant itself may have been endorsed with a note authorising bail. Otherwise the police officer in charge of the station concerned may release the person on bail if satisfied that this would not lead to an injustice.
The maximum period of ordinary detention without charge is 24 hours (art.42(1)). Detention beyond 24 hours is possible only for "serious arrestable offences", a category defined in article 87. It comprises:
In the case of these offences, a police officer of at least the rank of superintendent and who is responsible for the police station concerned may authorise detention for a further 12 hours, provided there are reasonable grounds for believing that this detention is necessary to secure evidence and that the investigation is being conducted diligently and expeditiously (art. 43(1)). In relation to serious arrestable offences the police are therefore able to detain a person without charcre for up to 36 hours. In 1996 only two persons were kept in police detention in Northern Ireland for more than 24 hours under this power and then released without being charged. The average detention period for all persons arrested was about seven hours.
Detention beyond 36 hours is allowed only if authorised by a magistrates' court. In 1996 there were just five applications for extensions of detention, all of which were granted; of the detainees involved only one was later released without charge. The court can initially require further detention for up to 36 hours. A second court order can be applied for, but the total period of detention since the time of the arrest must not exceed 96 hours (arts. 44 and 45). Before the 1989 Order came into force the maximum detention period was 48 hours.
Throughout the period of detention the position of the arrested
person must be reviewed. The first review must be carried out
six hours after the detention begins and later reviews must be
conducted at least once every nine hours. The review officer must
be a police officer of at least the rank of inspector who has
not been directly involved in the investigation up to that point.
As soon as the grounds for detention cease to exist, the arrested
person must be released or charged. Once charged, he or she must
be released on police bail or brought before a magistrates' court
on that day or on the following day. Until his or her release
the arrested person is the responsibility of the station's "custody
officer", who must have at least the rank of sergeant. It
is this officer who must authorise the initial detention and any
The power to detain under the emergency laws
The PACE (NI) Order did not alter the law concerning detentions under section 14 of the PTA 1989. This section allows detention without charge for up to 48 hours, but the period can be extended for up to five days by order of the Secretary of State.
Detentions under the PTA have to be supervised in accordance with Schedule 3, which requires a review officer to review the detention as soon as practicable after it has begun and thereafter at intervals of not more than 12 hours. The detention cannot continue unless authorised and unless the person detained or his or her solicitor has been given the opportunity to make representations about the detention. But two vital factors make this review process a very different thing from that which is required by Article 5(1)(c) of the European Convention on Human Rights. In the first place, it is conducted by a police officer; although this must be an officer who has not been directly involved in the matter to date, he or she would not constitute a "competent legal authority" for the purposes of Article 5(1)(c). Secondly, no review needs to be conducted if an application has been made to the Secretary of State for an extension to the 48 hour period (although in practice such reviews do occur). Schedule 3 is therefore not a satisfactory response to the decision of the European Court of Human Rights in Brogan v UK (1988), where unreviewed detentions for longer than four days and six hours were held to contravene the European Convention. It is still necessary for the government to rely on the notice of derogation which it issued under Article 15 of the Convention and which excuses the United Kingdom's continuing breach of the Convention. The validity of this derogation notice was upheld by the European Court of Human Rights in Brannigan and McBride v UK (1993).
Detention for a period longer than that permitted by the law will
leave the police open to be sued in a civil action for false imprisonment
(see Chapter 2). In one case, where a woman was detained from
9.30pm to 10.05pm simply so that she could then be medically examined
(having already been at the police station all day), compensation
of 300 was awarded (Petticrew v Chief Constable of the
RUC, 1988). In Moore v Chief Constable of the RUC (1989),
where Mr Moore was arrested early one morning and held for most
of the rest of the day while being interviewed several times,
the judge held that it was reasonable for the police to hold him
from 6.30am to 8.00pm in order to dispel or confirm the arresting
officer's reasonable suspicion that he was guilty of the attempted
hijacking of a vehicle, but there were one or two hours' detention
which the police had failed to justify and damages of £1
50 were awarded. The Court of Appeal has said that the sum to
be awarded for unlawful detention should be £600 per hour
for up to the first 12 hours; thereafter a lesser hourly sum should
be awarded if it appears that the distress caused has lessened
(Oscar v Chief Constable of the RUC, 1992).
The power to take photographs and Fingerprints
As a person has no right to his or her own image, the police can photograph people as much as they want. This does not breach the European Convention on Human Rights (Murray (Margaret) v UK, 1993). Article 61 of the PACE (NI) Order 1989 provides that fingerprints (and palm prints) may be taken without a person's consent if a police officer of at least the rank of superintendent authorises them to be taken or if the person has been charged with, or is to be reported for, an offence. In both of these situations the person must already have been detained at a police station. There is no power to fingerprint someone who has not been arrested and if an arrested person has not yet been charged or told that he or she is to be reported there must be reasonable grounds for suspecting that the person is involved in an offence and that the fingerprints will tend to confirm or disprove this involvement. In the absence of consent, the police may use reasonable force to take fingerprints, but a written record must be kept of the reason for taking the prints.
If, after fingerprints have been taken, the person is no longer suspected of having committed an offence, the prints taken, and any copies, must be destroyed as soon as practicable, in the presence of the person involved if so requested. The person can even apply for a certificate to show that access to computer data relating to the fingerprints has been made impossible.
Under the PTA - in Great Britain as well as in Northern Ireland - a police or prison officer, or immigration officer, "may take all such steps as may be reasonably necessary for photographing, measuring or otherwise identifying" a person arrested under the PTA (s.15(9)). However section 48 of the EPA 1996 confirms that in Northern Ireland fingerprints can be taken without consent only if a police officer of the rank of superintendent or above is satisfied that this is necessary to help determine whether the suspect is involved in terrorism or is subject to an exclusion order (see Chapter 8). But any prints taken in these cases do not have to be destroyed later.
A person has no right to know what photographs and other information
the police possess. In Re Gillen (1990) the applicant was
told that his photograph had gone missing from a police station.
He sought c further details about the loss but the court held
that he had to be satisfied with the police's offer of advice
on personal safety.
The power to take samples
Under the ordinary common law the police have no power to take samples from a person's body. To do so without the person's consent would he an assault. An important statutory exception is the Road Traffic (NI) Order 1981, under which it is an offence to refuse to supply a sample of breath, blood or urine in cases of alleged driving while under the influence of alcohol or drugs. The PACE (NI) Order creates further important exceptions in articles 62 and 63. The Order distinguishes between intimate samples, which can be taken only with the person's consent, and non-intimate samples, which can be forcibly taken.
"Intimate samples" are samples of blood, semen or any other tissue fluid, urine or pubic hair, or a swab taken from any of a person's body orifices except his or her mouth. "Non-intimate samples" are hair other than pubic hair, material taken from a nail or from under a nail, saliva, a mouth swab or any other body swab, a footprint or any other impression of a part of a person's body other than the hand. Peculiarly, mouth swabs are classified as non-intimate samples in Northern Ireland, but as intimate samples in England and Wales.
All samples require the written authorisation of a police officer
of at least the rank of superintendent, who must have reasonable
grounds for suspecting the involvement of the person in a serious
arrestable offence and for believing that the sample will tend
to confirm or disprove this involvement. A written record must
be kept of the sampling. Intimate samples must be consented to
in writing and (except for urine samples) be taken by a doctor.
If a person refuses to consent to the taking of an intimate sample,
then in any proceedings against that person the magistrate, judge
or jury may "draw such inferences as appear proper"
The power to use force
Whenever they are carrying out their "ordinary" function of preserving the peace, the RUC are not entitled to use force. They must act with restraint, resisting pressure rather than applying 'it. Even when controlling crowds or patrolling a procession or parade they must not apply force in an active manner. If they do so, they can be sued for assault.
However, if the police are preventing crime or effecting a lawful arrest, they can use "such force as is reasonable in the circumstances" (s.3(1) of Criminal Law Act (NI) 1967). The burden of proving that the force used was reasonable lies on the police. For example, in Wasson v Chief Constable of the RUC (1987), since the RUC could not prove that their version of how Mr Wasson came to be injured by a plastic bullet was more likely to be true than Mr Wasson's version, they were held liable to pay compensation. But it seems that, even in the absence of any proof that the police knew that the person they fired at was committing an offence (such as driving a stolen car), a judge may still regard the use of real bullets as reasonable force whenever someone drives through a vehicle checkpoint. In Magill v Ministry of Defence (1988) it was held that a soldier's act in firing at a 15-year-old driver was reasonable use of force in the prevention of crime. A police officer would probably enjoy a similar immunity in such circumstances, though much would depend on the particular features of each case.
In relation to police powers expressly conferred by the PACE (NI)
Order 1989, article 88 says that the police "may use reasonable
force, if necessary, in the exercise of the power". The term
"reasonable" suggests that the force used must be in
proportion to the gain the police hope to achieve through exercising
the power. The term "necessary" implies that other means
of exercising the power must be attempted first. This would seem
to impose a stricter test than that contained in the 1967 Act,
but as yet no court has ruled on how the two provisions inter-relate.
The power to interfere with property
Section 26(2) of the EPA 1996 is the provision which legalises the actions taken by the security forces whenever private property rights are interfered with in order to counter unlawful paramilitary activities. It permits any police officer, if authorised by the Secretary of State, to take possession of any property, to place any structure in a state of defence, to detain, destroy, or move any property, and to do any other act interfering with any public right or with any private rights of property. It is therefore perfectly lawful for the police to take over, say, a house for the purpose of keeping an eye on a nearby building. Land, too, can be requisitioned so that look-out posts or fences can be constructed.
Furthermore, under section 26(3) of the EPA 1996, any police officer may wholly or partly close a highway if he or she considers this immediately necessary for the preservation of the peace or the maintenance of order. To permit more permanent measures to be taken, section 27 empowers the Secretary of State to order the closure of any highway.
Interference with any of this work is a crime, punishable by up
to sixmonths in prison and a fine of up to £2,000.
Codes of Practice
Article 65 of the PACE (NI) Order 1989 obliges the Secretary of State to issue codes of practice to cover (a) searches of persons or vehicles without first making an arrest, (b) the detention, treatment, questioning and identification of persons, (c) searches of premises and (d) the seizure of property found on persons or premises. The codes which have been issued in Northern Ireland are almost identical to those in England and Wales. They first came into effect in January 1990. but a new edition has been operative since 29 July 1996. Under article 60 a code must also be issued on the tape-recording of interviews at police stations. This came into effect for the first time on 29 July 1996. The codes are not themselves pieces of legislation - and are not therefore to be found in official collections of legislation - but they can be purchased in booklet form from the Stationery Office and they must be made available in all police stations for consultation by members of the public. Their status is comparable to that of the Highway Code (see Road Traffic (NI) Order 1995, art.51(6)).
For the most part the codes simply repeat in clearer language the provisions of the main legislation, but occasionally they are fuller. For instance, the code on searches of premises says that:
Searches must be conducted with due consideration for the property and privacy of the occupier of the premises searched, and with no more disturbance than necessary (para. 5.9).Likewise, the code on the treatment of detainees provides that:
A strip search may take place only if the custody officer considers it necessary to remove any article which a person would not be allowed to keep, and the officer reasonably considers that the person might have concealed such an article (para. 10).There are also special provisions dealing with the treatment in custody of vulnerable and mentally disordered people (see Annexes D and F to the code on treatment), In the case of certain countries (including France, Germany, Italy, Spain and the USA) the police must give notice to the foreign consulate that one of their nationals has been arrested and detained.
A breach of the codes will not automatically render the police liable to criminal or civil proceedings (art.66). The only available penalty will be disciplinary proceedings. A court, however, can "take account" of a code's provisions when hearing any criminal or civil case, so it might refuse to admit a piece of evidence if it considers that it was obtained in breach of a code.
A very important difference between the codes in England and those in Northern Ireland is that the former (apart from the code on tape-recording) apply also to persons and incidents being dealt with under the PTA 1989. In Northern Ireland such persons and incidents are excluded from the scope of the codes (see art.66(12) of the Order). Instead they are governed by a code issued under section 52 of the EPA 1996. This code covers only the detention, treatment, questioning and identification of persons detained under the PTA and it contains fewer safeguards for detainees than the equivalent PACE code. PTA detainees do not have the right, for instance, to know the identity of their interrogators, nor can they obtain a copy of their custody record. As yet the Secretary of State has not issued codes dealing with the exercise of other police powers conferred by the EPA, despite being given the right to do so under section 52.
A draft code governing the use of video-cameras in the holding
centres (where persons arrested under the EPA are interrogated)
was issued early in 1997, but it has not yet been published in
its final form.
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