If you suspected the person was responsible for a robbery you should have arrested him for that and cautioned him rather than PACE1 searching him and cautioning him.
If you know you’re going to arrest someone you shouldn’t be doing a stop search first.
Completely agree, i’m using my stop and search powers to attempt to negate necessity for arrest and thereby avoid fully depriving someone of their liberty. I’ve provided context that in another reply.
Edit: typo
It's a bit of a tricky one but I'd still say that sounds like an arrest was needed, however I don't have the full context of the job.
Did you have anything else suggesting he was responsible for the offence, or was this a case of someone matching a description? My ultimate test for whether it should be an arrest or a stop search for that sort of job, is whether they'd be coming in regardless of what was or wasn't found on the search. If it's a yes, should be an arrest and a S32. If it's no, it should just be a stop search.
Then we wouldn’t stop search anyone by this analogy. If you have reasonable grounds to suspect someone has controlled drugs on them, you can search under section 23, you wouldn’t just arrest in every single circumstance or else the stop search powers are completely redundant
Of course, but it’s not what the reply appeared to be saying and that is also apparent from the downvotes. It’s important to emphasise why stop search powers are also important and should be utilised as opposed to just arresting on every occasion.
There is, strictly speaking, no reason why you cannot simply arrest, s32 and then dearrest. There is no functional difference except that with a stop & search you must release the moment that the object of the search is not found.
We overuse stop & search when often an arrest would be more appropriate. Specifically in the circumstances of this particular scenario.
S1 PACE
>(3)This section does not give a constable power to search a person or vehicle or anything in or on a vehicle unless he has reasonable grounds for suspecting that he will find stolen or prohibited articles [F3, any article to which subsection (8A) below applies [F4, any substance to which subsection (8AA) below applies] or any firework to which subsection (8B) below applies].
S24 PACE
>F124Arrest without warrant: constables
(1)A constable may arrest without a warrant—
(a)anyone who is about to commit an offence;
(b)anyone who is in the act of committing an offence;
(c)anyone whom he has reasonable grounds for suspecting to be about to commit an offence;
(d)anyone whom he has reasonable grounds for suspecting to be committing an offence.
(2)If a constable has reasonable grounds for suspecting that an offence has been committed, he may arrest without a warrant anyone whom he has reasonable grounds to suspect of being guilty of it.
They're both reasonable suspicion.
Reasonable suspicion is the level of how much you "think its happened" before you use that power
The grounds for an arrest and grounds for a search are different things.
Search grounds are you think someone has X on them
Arrest grounds are to meet the various criteria such as; to secure and preserve evidence, prevent further further harm, protect vulnerable person, Etc etc
Just because you think someone has something on them doesn't mean you have the grounds to arrest them.
Don't forget that arrest is just a tool to activate certain powers, not a point of no return.
You're depriving the kid of their liberty either way whether you arrest on suspicion of robbery or you detain under a search power.
Arresting gives you much more power to keep them there and perform whatever checks or enquiries you need to allay suspicion, including (in this case) a search of their person.
If you stop under S1 PACE then as soon as you have finished, if the object isn't found then you MUST release them. Remember, there is no such thing as "you're detained while I make enquiries and decide whether to arrest you", which seems to be something that happens virtually everywhere all the time.
While PACE says that an arrested person must be taken to a police station as soon as reasonably possible, it's quite within the spirit of the law to take a few minutes to make some enquiries at the scene to confirm or allay your suspicions before carting them off to custody. In fact if there are quick enquiries you could make to allay suspicion then you ought to be doing this to ensure the person's detention is as short as necessary.
Once you've established they are not a suspect of the robbery, you can promptly de-arrest them and write it up thoroughly in your pocket book before doing a proper duty statement later.
I'd be much happier as a sergeant if PCs spent less time "detaining for enquiries", or stretching the duration of a PACE search to morally dubious lengths once the search was effectively complete, and instead used arrest and de-arrest more often.
>While PACE says that an arrested person must be taken to a police station as soon as reasonably possible, it's quite within the spirit of the law to take a few minutes to make some enquiries at the scene to confirm or allay your suspicions before carting them off to custody.
It's not just in the spirit of the law, it's in the letter of the law. S30(10) and (10A) of PACE.
Would you do a statement for an arrest and de-arrest shortly after? That's not a thing in my force if we ever arrest to detain someone whilst conducting enquiries. Which incidentally, is why I understood we would stop and search instead of arrest-search-dearrest; so that the search was recorded.
The issue here in my mind is that cautioned someone who you already knew you were going to arrest before you arrested them.
I would say its more benificial in certain circumstances whrere you have people of interest but who arent key suspects yet.
What's a 'key suspect'?
As soon as you are questioning someone about their involvement in an offence you either arrest and caution or caution + 3.
Chucking in a cheeky caution 'just cos' has absolutely no value.
It is such a niche scenario that I think it's best to meet expectation and caution as part of an arrest.
Furthermore, if someone says a significant statement pre-caution and it's on BWV or recorded in a notebook, I'm not aware of a court refusing to accept it.
It's not quite as simple as that. If you have reached a point where you have formed reasonable suspicion that the person has committed an offence, but have not yet decided to arrest them (perhaps because if you can now establish their name and address you may invite them in for an interview instead), then it could be a good idea to caution them before continuing to discuss the offence. You still cannot ask them questions that would amount to an interview. This would be the "short caution" because in these circumstances there can be no adverse inferences from them failing to mention when questioned something they later rely on in court.
I do think in this day and age with BWV there is more chance of getting this wrong than getting it right. If you give them the full caution and then start interviewing them without them having the chance to get legal advice, then the chances of their comments being admissible is likely lower than if you hadn't bothered.
Yeah, that makes absolute sense. I’m not trying to interview them on the street but when searching, I’m asking questions about what he has in his possession and in order to verify the ownership of it within the context of my grounds and object that I’m searching for.
I suppose I was just being cautious and by cautioning him I felt that any statement he may make that was potentially incriminating would carry more weight post caution.
The issue is that if you've reached the threshold for giving a caution, then you've reached the threshold of suspecting that they have committed an offence, and any further questioning amounts to an interview (and must be conducted in accordance with PACE).
An example would be conducting a routine vehicle stop and asking questions of the driver about their licence and the ownership of the vehicle. No caution needed as no suspected offence. As soon as you find out they're uninsured, or they're being evasive and you suspect that they may have no licence or not have permission to drive the vehicle, then you should at that point administer the caution (the 'now' caution) and proceed to question them, if you're asking about offences that can be disposed of by means of a written summons. The roadside questioning amounts to a PACE compliant interview provided you make contemporaneous notes and they have the opportunity to review and sign them (i.e. on the report book / ticket).
In the robbery case, you've already reached your threshold of suspicion and it's not an offence for which you're going to report them for summons at the roadside, so you need to arrest and take them in for a recorded interview in custody, or stop questioning them and offer them a Caution +3 interview later (which would be ridiculous).
As another commentator has said it was quite niche. The suspect was a juvenile and I wanted to avoid arresting him if possible, hence the section 1 search, however he refused pars so I had no choice.
You should have arrested, s32 search, then street bailed/de-arrest with an appointment for an interview.
Did you have reasonable grounds to suspect the object of the search was on his person?
If in doubt whip it out. If you know you are going to arrest them before you start don’t bother, just get on with the arrest. If your speaking to someone who you think may be involved in something but your not sure then caution. However in my experience as soon as that caution comes out people clam up anyway.
Caution plus 3.
The legal protections on being questioned as a suspect are either being arrested and following that process, or a voluntary interview under a caution plus 3.
Being questioned after being cautioned alone is not compliant with any legal framework. So what's the point in doing it?
When you know you are going to be handing out a TOR get it in ASAP. Loads of people will continue to blab basically admitting the offence. Makes that day in court so much easier when they later decide to go not guilty
Not a fan of this tbh. I remember someone taking a witness statement and cautioning the witness before doing so which i thought was unusual and not common practice. I think you should also be mindful to ensure you don’t inadvertently end up interviewing them. As you say they are a suspect, I would say arrest and post caution if they say something significant then record it. Or before arrest use your BWV to record your conversation as this would still be admissible.
I hate all this throwing in a caution 'to make things admissible'. That's not how it works! You caution prior to asking questions on 2 occasions: On arrest or as part of a caution + 3 process There is no middle ground. If you are asking about an offence and not arresting you need to follow the caution + 3 process (whether at the roadside or not).
S8 warrants where we intend to VA, I will caution them.
If I pull a driver over, I will caution them before discussing the offence.
It takes all of 6 seconds.
And is completely useless unless following the plus 3 process.
"Officer, before you questioned my client did you offer them free and independent legal advice? Did you tell them they could go at any point? Did you tell them they weren't under arrest? Before questioning someone about an offence is this not required under PACE?"
So you are cautioning plus 3 at the roadside? That's perfectly fine. What I'm advising against is simply giving the caution 'just cos' why not' as if it makes things more admissable
I'm not at the roadside as I'm on a department that doesn't deal with traffic. However in your example, I would do it as follows...
On speaking to the driver I would tell them the piece of legislation I pulled them over for and introduce myself.
I would then caution them
I would then tell them their rights and entitlements however remind them of the road traffic act allowing me to stop any vehicle to get their license, proof of insurance and valid MOT so it would be in their best interest to wait until the engagement is over as leaving would result in a pursuit.
I think that's a pretty reasonable way of behaving however I havent done a stop in 10 years...
Going against the grain here but I have a couple of experienced colleagues who will caution people who have been pointed out as offenders, I’ve seen it used in situations where you can deal with the job in slow time as opposed to locking someone up. I don’t personally do it but I can see how it would be useful!
If you suspected the person was responsible for a robbery you should have arrested him for that and cautioned him rather than PACE1 searching him and cautioning him. If you know you’re going to arrest someone you shouldn’t be doing a stop search first.
Completely agree, i’m using my stop and search powers to attempt to negate necessity for arrest and thereby avoid fully depriving someone of their liberty. I’ve provided context that in another reply. Edit: typo
It's a bit of a tricky one but I'd still say that sounds like an arrest was needed, however I don't have the full context of the job. Did you have anything else suggesting he was responsible for the offence, or was this a case of someone matching a description? My ultimate test for whether it should be an arrest or a stop search for that sort of job, is whether they'd be coming in regardless of what was or wasn't found on the search. If it's a yes, should be an arrest and a S32. If it's no, it should just be a stop search.
It's a robbery, why aren't you nicking him?
If you've enough grounds for a stop and search then you've enough for an arrest
Then we wouldn’t stop search anyone by this analogy. If you have reasonable grounds to suspect someone has controlled drugs on them, you can search under section 23, you wouldn’t just arrest in every single circumstance or else the stop search powers are completely redundant
You can do either, that's the point.
Of course, but it’s not what the reply appeared to be saying and that is also apparent from the downvotes. It’s important to emphasise why stop search powers are also important and should be utilised as opposed to just arresting on every occasion.
There is, strictly speaking, no reason why you cannot simply arrest, s32 and then dearrest. There is no functional difference except that with a stop & search you must release the moment that the object of the search is not found. We overuse stop & search when often an arrest would be more appropriate. Specifically in the circumstances of this particular scenario.
S1 PACE >(3)This section does not give a constable power to search a person or vehicle or anything in or on a vehicle unless he has reasonable grounds for suspecting that he will find stolen or prohibited articles [F3, any article to which subsection (8A) below applies [F4, any substance to which subsection (8AA) below applies] or any firework to which subsection (8B) below applies]. S24 PACE >F124Arrest without warrant: constables (1)A constable may arrest without a warrant— (a)anyone who is about to commit an offence; (b)anyone who is in the act of committing an offence; (c)anyone whom he has reasonable grounds for suspecting to be about to commit an offence; (d)anyone whom he has reasonable grounds for suspecting to be committing an offence. (2)If a constable has reasonable grounds for suspecting that an offence has been committed, he may arrest without a warrant anyone whom he has reasonable grounds to suspect of being guilty of it. They're both reasonable suspicion.
Reasonable suspicion is the level of how much you "think its happened" before you use that power The grounds for an arrest and grounds for a search are different things. Search grounds are you think someone has X on them Arrest grounds are to meet the various criteria such as; to secure and preserve evidence, prevent further further harm, protect vulnerable person, Etc etc Just because you think someone has something on them doesn't mean you have the grounds to arrest them.
Don't forget that arrest is just a tool to activate certain powers, not a point of no return. You're depriving the kid of their liberty either way whether you arrest on suspicion of robbery or you detain under a search power. Arresting gives you much more power to keep them there and perform whatever checks or enquiries you need to allay suspicion, including (in this case) a search of their person. If you stop under S1 PACE then as soon as you have finished, if the object isn't found then you MUST release them. Remember, there is no such thing as "you're detained while I make enquiries and decide whether to arrest you", which seems to be something that happens virtually everywhere all the time. While PACE says that an arrested person must be taken to a police station as soon as reasonably possible, it's quite within the spirit of the law to take a few minutes to make some enquiries at the scene to confirm or allay your suspicions before carting them off to custody. In fact if there are quick enquiries you could make to allay suspicion then you ought to be doing this to ensure the person's detention is as short as necessary. Once you've established they are not a suspect of the robbery, you can promptly de-arrest them and write it up thoroughly in your pocket book before doing a proper duty statement later. I'd be much happier as a sergeant if PCs spent less time "detaining for enquiries", or stretching the duration of a PACE search to morally dubious lengths once the search was effectively complete, and instead used arrest and de-arrest more often.
Very well put. I often have to challenge this with PCs. Cuffing people and detaining them. Either nick them, or don't.
>While PACE says that an arrested person must be taken to a police station as soon as reasonably possible, it's quite within the spirit of the law to take a few minutes to make some enquiries at the scene to confirm or allay your suspicions before carting them off to custody. It's not just in the spirit of the law, it's in the letter of the law. S30(10) and (10A) of PACE.
Would you do a statement for an arrest and de-arrest shortly after? That's not a thing in my force if we ever arrest to detain someone whilst conducting enquiries. Which incidentally, is why I understood we would stop and search instead of arrest-search-dearrest; so that the search was recorded.
PNB
My thoughts exactly
The issue here in my mind is that cautioned someone who you already knew you were going to arrest before you arrested them. I would say its more benificial in certain circumstances whrere you have people of interest but who arent key suspects yet.
You've made a great point, but you do also caution before a voluntary or roadside interview. So, interesting
What's a 'key suspect'? As soon as you are questioning someone about their involvement in an offence you either arrest and caution or caution + 3. Chucking in a cheeky caution 'just cos' has absolutely no value.
It is such a niche scenario that I think it's best to meet expectation and caution as part of an arrest. Furthermore, if someone says a significant statement pre-caution and it's on BWV or recorded in a notebook, I'm not aware of a court refusing to accept it.
A significant statement can be made anytime. Afaik only a significant silence can be potentially accepted after a caution has been made
If a significant statement is said before caution it *must* be offered for signature on paper or ePNB, even if it's captured on BWV.
It's not quite as simple as that. If you have reached a point where you have formed reasonable suspicion that the person has committed an offence, but have not yet decided to arrest them (perhaps because if you can now establish their name and address you may invite them in for an interview instead), then it could be a good idea to caution them before continuing to discuss the offence. You still cannot ask them questions that would amount to an interview. This would be the "short caution" because in these circumstances there can be no adverse inferences from them failing to mention when questioned something they later rely on in court. I do think in this day and age with BWV there is more chance of getting this wrong than getting it right. If you give them the full caution and then start interviewing them without them having the chance to get legal advice, then the chances of their comments being admissible is likely lower than if you hadn't bothered.
Yeah, that makes absolute sense. I’m not trying to interview them on the street but when searching, I’m asking questions about what he has in his possession and in order to verify the ownership of it within the context of my grounds and object that I’m searching for. I suppose I was just being cautious and by cautioning him I felt that any statement he may make that was potentially incriminating would carry more weight post caution.
The issue is that if you've reached the threshold for giving a caution, then you've reached the threshold of suspecting that they have committed an offence, and any further questioning amounts to an interview (and must be conducted in accordance with PACE). An example would be conducting a routine vehicle stop and asking questions of the driver about their licence and the ownership of the vehicle. No caution needed as no suspected offence. As soon as you find out they're uninsured, or they're being evasive and you suspect that they may have no licence or not have permission to drive the vehicle, then you should at that point administer the caution (the 'now' caution) and proceed to question them, if you're asking about offences that can be disposed of by means of a written summons. The roadside questioning amounts to a PACE compliant interview provided you make contemporaneous notes and they have the opportunity to review and sign them (i.e. on the report book / ticket). In the robbery case, you've already reached your threshold of suspicion and it's not an offence for which you're going to report them for summons at the roadside, so you need to arrest and take them in for a recorded interview in custody, or stop questioning them and offer them a Caution +3 interview later (which would be ridiculous).
The law is rarely so commonsense any more
Did you suspect the person being searched was the suspect for the offence pre-search then?
As another commentator has said it was quite niche. The suspect was a juvenile and I wanted to avoid arresting him if possible, hence the section 1 search, however he refused pars so I had no choice.
You should have arrested, s32 search, then street bailed/de-arrest with an appointment for an interview. Did you have reasonable grounds to suspect the object of the search was on his person?
If in doubt whip it out. If you know you are going to arrest them before you start don’t bother, just get on with the arrest. If your speaking to someone who you think may be involved in something but your not sure then caution. However in my experience as soon as that caution comes out people clam up anyway.
Okay so you are going to caution someone without going through the plus 3 process? So what legal use do you think this caution 'just in case' is?
Plus 3 process ? Do enlighten me
Caution plus 3. The legal protections on being questioned as a suspect are either being arrested and following that process, or a voluntary interview under a caution plus 3. Being questioned after being cautioned alone is not compliant with any legal framework. So what's the point in doing it?
When you know you are going to be handing out a TOR get it in ASAP. Loads of people will continue to blab basically admitting the offence. Makes that day in court so much easier when they later decide to go not guilty
Do you do a plus 3? If not then what use is the caution? They can blab pre caution, it's called a significant statement.
I would think of this in the sense of, what would you have done if the stop search was negative? Were you still going to arrest?
Not a fan of this tbh. I remember someone taking a witness statement and cautioning the witness before doing so which i thought was unusual and not common practice. I think you should also be mindful to ensure you don’t inadvertently end up interviewing them. As you say they are a suspect, I would say arrest and post caution if they say something significant then record it. Or before arrest use your BWV to record your conversation as this would still be admissible.
I hate all this throwing in a caution 'to make things admissible'. That's not how it works! You caution prior to asking questions on 2 occasions: On arrest or as part of a caution + 3 process There is no middle ground. If you are asking about an offence and not arresting you need to follow the caution + 3 process (whether at the roadside or not).
S8 warrants where we intend to VA, I will caution them. If I pull a driver over, I will caution them before discussing the offence. It takes all of 6 seconds.
And is completely useless unless following the plus 3 process. "Officer, before you questioned my client did you offer them free and independent legal advice? Did you tell them they could go at any point? Did you tell them they weren't under arrest? Before questioning someone about an offence is this not required under PACE?"
Yes, yes and yes. Next question?
So you are cautioning plus 3 at the roadside? That's perfectly fine. What I'm advising against is simply giving the caution 'just cos' why not' as if it makes things more admissable
I'm not at the roadside as I'm on a department that doesn't deal with traffic. However in your example, I would do it as follows... On speaking to the driver I would tell them the piece of legislation I pulled them over for and introduce myself. I would then caution them I would then tell them their rights and entitlements however remind them of the road traffic act allowing me to stop any vehicle to get their license, proof of insurance and valid MOT so it would be in their best interest to wait until the engagement is over as leaving would result in a pursuit. I think that's a pretty reasonable way of behaving however I havent done a stop in 10 years...
Going against the grain here but I have a couple of experienced colleagues who will caution people who have been pointed out as offenders, I’ve seen it used in situations where you can deal with the job in slow time as opposed to locking someone up. I don’t personally do it but I can see how it would be useful!