21.12.2024
SA2 Preliminaries to Prosecution
Powers of Investigation
Police Powers in the Investigation of Crime
Police powers of investigation, including arrest, detention, interrogation, entry and search
of premises, personal search and the taking of samples and various procedures for ID
are largely governed by PACE 1984 and the associated codes of practice.
9 Codes – labelled A to I.
Code A does not apply to stop and search powers under the Terrorism Act (TA) 2000,
which are governed by separate codes of practice given effect by the TA 2000 Order
2012 (SI 2012 No. 1794).
However, it does apply to powers to search persons without them being arrested
under the Terrorism Prevention and Investigations Measures Act 2011 and the
National Security Act 2023, s.57 and sch.11, para.3.
Code B includes powers to enter and search premises for the purposes of serving,
monitoring and enforcing both TPIM and STPIM notices.
A failure by a police officer or other person required to have regard to provisions of the
codes does not, of itself, render that officer liable to criminal or civil proceedings.
The codes are admissible to the extent that they are relevant in criminal or civil
proceedings (PACE 1984, s.67(11)).
Interrogation
Introduction
Governed by PACE 1984 and common law; key rules in Code C.
Recording Rules: Code E (audio) and Code F (video).
Code C, s.12: Physical conditions and detainee treatment during interviews.
Interviews Generally
Definition: Questioning about involvement in an offence, requiring caution (Code C,
para.11.1A).
No caution required for: ID checks, statutory info requests, searches, or verifying
records.
Applies pre-arrest but post-arrest interviews must occur at a police station unless delay
risks evidence, safety, or property recovery (Code C, para.11.1).
Live link interviews permitted under PACE, s.39.
Cautions and Special Warnings
Cautions: Required at interview start, recommencement, or when in doubt.
Minor deviations allowed if meaning is preserved (Code C, para.10.5).
Must explain caution if suspect does not understand.
Special Warning: Required for unexplained objects/marks or presence at arrest location
(Code C, para.10.11).
Not required if solicitor access was denied.
Legal Advice
Suspect reminded of entitlement to free legal advice before interviews or
recommencement.
Violations may exclude evidence.
Significant Statement or Silence
Significant Statement: Direct admission or notable comment.
Significant Silence: Failure/refusal to answer under caution may lead to adverse
inference (CJPO 1994).
Interview Conduct
1
Max Lewis
, 21.12.2024
No oppression or misleading tactics allowed.
Rude or raised voices not oppressive.
Hypotheticals allowed but must be careful.
Interviewing continues until sufficient evidence is believed to exist (Code C, para.11.6).
Further questioning post-charge usually prohibited (PACE, s.37(7)).
Recording of Interviews
Must be contemporaneously recorded (Code C, para.11.7).
Includes relevant comments made outside the interview.
Audio recording (Code E, para.2.1); video recording optional (Code F).
Special Categories of Persons
Children/vulnerable persons:
Must have an appropriate adult present unless urgent exceptions apply (Code C,
para.11.1).
Adults reminded of advisory/observational role.
Interpreter: Required for non-English speakers unless superintendent authorizes
otherwise.
Preferably in person, but live link allowed.
Intoxicated Persons
Cannot be interviewed if unable to understand due to intoxication, illness, or other
conditions unless authorized by a superintendent (Code C, para.11.18).
Reasonable Suspicion
Numerous police powers are premised on the constable having grounds for reasonable
suspicion.
Relates the existence of facts and not to the state of the law.
An officer who reasonably but mistakenly proceeds on a particular view of the law, and
thus exercises their power of arrest, does not have reasonable suspicion.
No definition – but is explained in relation to stop and search as requiring both genuine
suspicion on the part of the officer concerned and an objective basis for that suspicion.
Code G provides that there must be ‘some reasonable, objective grounds for the
suspicion, based on known facts and information’.
Essentially a two limb, subjective, followed by objective test.
Arrest must be Wednesbury reasonable.
What the constable thought is based on what they knew and perceived at the time –
evaluated without reference to hindsight.
Reasonable suspicion may take into account matters which may not be admissible.
Use of Force
PACE 1984, s.117 – officer may use reasonable force, if necessary, in the exercise of the
power.
Includes force in connection with stop and search, entry and search of premises, arrest,
detention, search of a person, intimate search of a detained person, fingerprinting
without consent, taking of a non-intimate sample.
A civilian in the same circumstances may use reasonable force as a constable.
Any person may use such force as it reasonable in circumstances in the prevention of
crime, or in effecting or assisting in the lawful arrest of an offender or suspected offender
or of persons unlawfully at large.
Reasonable force – necessary and proportionate.
In determining this, the court may take into account the nature and degree of force in
all of the circumstances as well as many other factors.
Resulting serious injury does not itself make it unreasonable.
Use of excessive force does not render the arrest unlawful.
2
Max Lewis
SA2 Preliminaries to Prosecution
Powers of Investigation
Police Powers in the Investigation of Crime
Police powers of investigation, including arrest, detention, interrogation, entry and search
of premises, personal search and the taking of samples and various procedures for ID
are largely governed by PACE 1984 and the associated codes of practice.
9 Codes – labelled A to I.
Code A does not apply to stop and search powers under the Terrorism Act (TA) 2000,
which are governed by separate codes of practice given effect by the TA 2000 Order
2012 (SI 2012 No. 1794).
However, it does apply to powers to search persons without them being arrested
under the Terrorism Prevention and Investigations Measures Act 2011 and the
National Security Act 2023, s.57 and sch.11, para.3.
Code B includes powers to enter and search premises for the purposes of serving,
monitoring and enforcing both TPIM and STPIM notices.
A failure by a police officer or other person required to have regard to provisions of the
codes does not, of itself, render that officer liable to criminal or civil proceedings.
The codes are admissible to the extent that they are relevant in criminal or civil
proceedings (PACE 1984, s.67(11)).
Interrogation
Introduction
Governed by PACE 1984 and common law; key rules in Code C.
Recording Rules: Code E (audio) and Code F (video).
Code C, s.12: Physical conditions and detainee treatment during interviews.
Interviews Generally
Definition: Questioning about involvement in an offence, requiring caution (Code C,
para.11.1A).
No caution required for: ID checks, statutory info requests, searches, or verifying
records.
Applies pre-arrest but post-arrest interviews must occur at a police station unless delay
risks evidence, safety, or property recovery (Code C, para.11.1).
Live link interviews permitted under PACE, s.39.
Cautions and Special Warnings
Cautions: Required at interview start, recommencement, or when in doubt.
Minor deviations allowed if meaning is preserved (Code C, para.10.5).
Must explain caution if suspect does not understand.
Special Warning: Required for unexplained objects/marks or presence at arrest location
(Code C, para.10.11).
Not required if solicitor access was denied.
Legal Advice
Suspect reminded of entitlement to free legal advice before interviews or
recommencement.
Violations may exclude evidence.
Significant Statement or Silence
Significant Statement: Direct admission or notable comment.
Significant Silence: Failure/refusal to answer under caution may lead to adverse
inference (CJPO 1994).
Interview Conduct
1
Max Lewis
, 21.12.2024
No oppression or misleading tactics allowed.
Rude or raised voices not oppressive.
Hypotheticals allowed but must be careful.
Interviewing continues until sufficient evidence is believed to exist (Code C, para.11.6).
Further questioning post-charge usually prohibited (PACE, s.37(7)).
Recording of Interviews
Must be contemporaneously recorded (Code C, para.11.7).
Includes relevant comments made outside the interview.
Audio recording (Code E, para.2.1); video recording optional (Code F).
Special Categories of Persons
Children/vulnerable persons:
Must have an appropriate adult present unless urgent exceptions apply (Code C,
para.11.1).
Adults reminded of advisory/observational role.
Interpreter: Required for non-English speakers unless superintendent authorizes
otherwise.
Preferably in person, but live link allowed.
Intoxicated Persons
Cannot be interviewed if unable to understand due to intoxication, illness, or other
conditions unless authorized by a superintendent (Code C, para.11.18).
Reasonable Suspicion
Numerous police powers are premised on the constable having grounds for reasonable
suspicion.
Relates the existence of facts and not to the state of the law.
An officer who reasonably but mistakenly proceeds on a particular view of the law, and
thus exercises their power of arrest, does not have reasonable suspicion.
No definition – but is explained in relation to stop and search as requiring both genuine
suspicion on the part of the officer concerned and an objective basis for that suspicion.
Code G provides that there must be ‘some reasonable, objective grounds for the
suspicion, based on known facts and information’.
Essentially a two limb, subjective, followed by objective test.
Arrest must be Wednesbury reasonable.
What the constable thought is based on what they knew and perceived at the time –
evaluated without reference to hindsight.
Reasonable suspicion may take into account matters which may not be admissible.
Use of Force
PACE 1984, s.117 – officer may use reasonable force, if necessary, in the exercise of the
power.
Includes force in connection with stop and search, entry and search of premises, arrest,
detention, search of a person, intimate search of a detained person, fingerprinting
without consent, taking of a non-intimate sample.
A civilian in the same circumstances may use reasonable force as a constable.
Any person may use such force as it reasonable in circumstances in the prevention of
crime, or in effecting or assisting in the lawful arrest of an offender or suspected offender
or of persons unlawfully at large.
Reasonable force – necessary and proportionate.
In determining this, the court may take into account the nature and degree of force in
all of the circumstances as well as many other factors.
Resulting serious injury does not itself make it unreasonable.
Use of excessive force does not render the arrest unlawful.
2
Max Lewis
