Critical Analysis of Police Powers on Search, Arrest and Detention

Police Powers: A Critical Analysis of Police Powers on Search, Arrest and Detention

Aims and Objectives

This proposed dissertation has a number of key aims it intends to meet. These can be expressed as follows: 1. To provide an overall perspective of the role of policing in the community; 2. To demonstrate the historical development of the nature of policing, due to changes in social circumstances; 3. To address any key differences between public and ‘private' forms of policing (e.g. security, private investigation etc); 4. To assess the current powers of police in relation to search, arrest and detention, and highlight the differences with historical times; and 5. To assess the governance of police, with particular reference to internal resolution and discipline procedures.

Feasibility

This proposal requires no data collection or fieldwork, and is virtually entirely theory based. By minimising the extraneous fieldwork requirements, it allows this dissertation to focus mainly on the underlying theory and social policy behind policing, allowing for an adequate analysis of the benefits and consequences of increased police powers in the modern context. There may be some critique of internal police processes, such as dispute and conflict resolution and discipline, which may require some liaison with police officials; however it does not require the same depth and preparation as a large-scale data collection, saving time and resources.

Rationale

The role of policing is ever changing and expanding. Throughout history, the concept of policing has had to adapt to respond to a number of challenges that have faced society. >From the industrial revolution, through to both world wars and now the apparent growing threat of terrorism, policing has changed and grown to equip itself to deal with a number of new circumstances. Perhaps most notably since the attacks of September 11 on New York City, the threat of terrorism has never appeared so real. As a consequence, many national governments, including the United States, United Kingdom and Australia (among others) have amended the powers of police in an attempt to deal with terrorism and terrorist groups. The primary purpose of this proposed dissertation is to consider the general idea of policing (as highlighted throughout historical development), and also determine whether these increases in the powers of police represent a proportionate and measured response to the threat of terrorism and 21st century society, or whether it is simply an overreaction by lawmakers and police groups.

Research Points

1. The nature and function of policing The primary purpose of this chapter is to provide a broad overview of the general theories behind policing, such as the prevention of crime and enhancement of public safety. The main points of interest in this area will be the role of police in the State and legal system, as well as the pluralisation of the police forces. Another area for explanation by this chapter will be the relationship between the police and other aspects of policing, such as forensic investigation and the court system, for example. By illustrating this, the audience will be ‘read into' the idea behind policing, rather than simply limiting policing to the simple concept of arresting those who break the law, and thus deterrence will also be a point worthy of highlighting. 2. The historical development of policing This chapter will be largely theory based, presenting a number of views and opinions on the development of policing over time. Of particular interest here will be the differences in opinion between historical theory and that present in modern times. This will prepare the audience for the debate that this dissertation intends on contributing to: the idea of over-extending police powers, creating a disproportionate response to modern day issues. The idea of this chapter is to highlight key events in history that have seen the development of police, and measure the police response to these events. This will allow for a comparison with modern day ideas and objectives. 3. Police work, and the impact of police organisations There are a number of key issues that this chapter will seek to address, however it is primarily concerned with identifying the real perception of police work, rather than relying on any possibly fabricated reports from tabloids and other media. Particularly, this chapter will attempt to identify the possible existence of elements of discrimination arising from the reliance upon police discretion in carrying out police work. This is an issue that has received notorious media coverage, highlighted especially by the Rodney King incident and consequent Los Angeles riots in the United States in 1992, as a result of the officers' acquittal in a state court. Another area of interest will be the measurement of effectiveness (i.e. how does one measure when policing is effective?). 4. The characteristics and dynamics of police organisations As with any workplace, there are certain policies and procedures in place to ensure that the environment is both manageable and productive. The main rationale of this chapter will be to highlight these policies that are in place in many of the popular police forces, and also to assess whether they sufficiently address issues such as discipline and reporting lines, for example. The most important aspects of this chapter will be the management structures in place to run the force, as well as any issues relating to personnel (eg. Recruitment, training etc). Additionally, the informal nature of management will also be important; to determine if convention and custom play any significant role in the way police work is carried out. This chapter may require first-hand research from police bureaus, which will most probably be conducted by way of interview with a senior official or similar. 5. Specialist areas of policing This chapter will highlight other areas of policing, such as criminal investigation processes, and the control of public order in particular circumstances (eg. Riots, major events etc). This will give an indication of the more specialised roles that police play in modern society, and the need for more focused policy rather than broad ideals. 6. The relationship between State and ‘private' policing The intention of this chapter is to raise the question of private security and other measures that do not rely on public policy. The main question is where does state responsibility end and private responsibility begin? 7. The legal powers of the police This is perhaps one of the most important chapters of the dissertation. It will focus primarily on the sources of law for police powers, particularly in the United Kingdom jurisdiction. Primarily, this source is from legislation, and is found in relevant sections of the Police and Criminal Evidence Act 1984; however certain aspects are also covered at common law. Furthermore, other legislation should also be assessed, such as the Mental Health Act 1983, Road Traffic Act 1988, Misuse of Drugs Act 1971, Aviation Security Act 1982, Criminal Law Acts 1966 and 1967, Terrorism Act 2000, Public Order Act 1936 and 1986, Firearms Act 1968, Police Acts 1996 and 1997, Criminal Justice and Public Order Act 1994, Customs and Excise Management Act 1979; as well as cases such as Moss v McLachlan (1980), Donnelly v Jackman (1970) and Thomas v Sawkins (1935). As one can see, this chapter is quite detailed and requires much consideration of a wealth of sources of police power, and thus there is ample opportunity for a review to be conducted on police power in more specialised areas of policing, such as terrorism, traffic and drugs, to name a few. 8. Police accountability and control This chapter will primarily focus on the governance of the police force, with a particular emphasis on the impact that the legislature and judiciary can have on the regulation of police power, and thus protection of the public. Also, the complaints process available for use by the public will also be discussed, and thus the effectiveness of this system as a means of conflict resolution will be assessed. 9. The role of the police organisation in the formation of law and criminal justice policy It is also important to understand the broad role that a police organisation has in contributing to its own regulation and governance. In this chapter, the amount of input that the police have in this area will be discussed and thus a conclusion will be drawn as to whether the police are an entity that can effectively self-govern, or one that requires the constant oversight and minding of the Parliament and court system in order to determine its boundaries and aims. 10. The rights of the police In the final chapter, the debate will be contributed to by the question: do police have any rights in relation to stop, search and arrest? Or is it merely the rights of the public that are governed by legislation? Also, how are police represented in misconduct and disciplinary hearings? The rights to safety and representation of the members of the police force will be discussed by this chapter, and contrasted with the statutory and common law rights of the public that form the source of police law.

Methodology

As this proposal has already mentioned, this dissertation is significantly theory based, meaning that the methodology for the research is simply statute, case law, as well as other authors' works on various issues relevant to the topic. There will be some aspects which may require first-hand liaison with members of the police force and their senior officials, particularly those relating to the mechanics of police work which cannot be discussed by simply reading other works. This should be primarily collected by interviews with certain members, and possible government officials, and suitable ethics clearance will be obtained from the relevant committee at a time when the participants in these interviews become clear.

References

· Anon., ‘Divisional Court – Police Power to Remove Masks from Demonstrators' (2002) 66 Journal of Criminal Law 197 · Bell, J., Police and Policing Law (2006), Aldershot, UK: Ashgate · Brayne, H., ‘Detention under the Police and Criminal Evidence Act 1984' (1987) 84(1) Law Society Gazette 28 · Clayton, R., and Tomlinson, H., ‘Safeguards and Sanctions under the Police and Criminal Evidence Act 1984' (1988) 138(6350) New Law Journal 216 · Davenport, A., ‘Court of Appeal – Stop and Search: Lawfulness of Extended Powers' (2005) 69 Journal of Criminal Law 16 · Edwards, C., Changing Policing Theories for 21st Century Societies (2005, 2nd ed), Sydney: The Federation Press · Ferguson, P.W., ‘The Limits of the Police Power of Search' (1992) 37(3) The Journal of the Law Society of Scotland 113 · Harrison, R., ‘Police Right to Stop and Search for Weapons' (2000) 64 Journal of Criminal Law 156 · Holdaway, S., The Racialisation of British Policing (1996), Hampshire, UK: Macmillan Press · Jason-Lloyd, L., An Introduction to Policing and Police Powers (2005), London: Routledge-Cavendish · Leishman, F., and Mason, P., Policing and the Media: Facts, Fictions and Factions (2003), Devon, UK: Willan Publishing · Lidstone, K.W., and Palmer, C., Bevan and Lidstone's The Investigation of a Crime – a Guide to Police Powers (1996, 2nd ed), London: Butterworths · Miller, S., and Blackler, J., Ethical Issues in Policing (2005), Aldershot, UK: Ashgate · Mimmack, A., ‘Police Station Practice' (2006) 10(1) Magistrate's Court Practice 6 · Morgan, R., and Newburn, T., ‘Radically Rethinking Policing' (1994) 144(6659) New Law Journal 1092 · Nicholls, S., ‘Police Station Practice' (2006) 10(6) Magistrate's Court Practice 6 · Poyser, S., ‘The Role of Police Discretion in Britain and an Analysis of Proposals for Reform' (2004) 77 Police Journal 5 · Reiner, R., ‘Responsibilities and Reforms' (1993) 143(6611) New Law Journal 1096 · Reiner, R., The Politics of the Police (2000, 3rd ed), London: Oxford University Press · Roberts, A., ‘European Court of Human Rights: Search Warrant: Compatibility with Articles 8 and 13 of the European Convention on Human Rights' (2006) 70 Journal of Criminal Law 479 · Spencer, J.R., ‘Extending the Police State' (2005) 155(7170) New Law Journal 477 · Starmer, K., Criminal Justice, Police Powers and Human Rights (2001), London: Blackstone · Stone, R., The Law of Entry, Search and Seizure (2005, 4th ed), London: Oxford University Press · Zander QC, M., ‘The Police Reform Act 2002 – Pt 1' (2002) 152(7047) New Law Journal 1355

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• Date Of Order: 01/11/07

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• Likely Course: Law

• Level Of Study: University Level

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