Know Your Rights Workshop

‘KNOW YOUR RIGHTS’ WORKSHOP & BRIEFING

NORTHERN POLICE MONITORING PROJECT

Intro

This briefing is intended to provide guidance to both people who seek to ensure that the police behave reasonably and those who are being harassed by the police.

There are a number of keys areas to consider: stop and search, arrestable offences, police powers, police station guidance and the practicalities of bringing an action against the police.

It is essential that people are aware of what the police can and cannot do; spotting where police have behaved outside of their legal boundaries and challenging their behaviour in these cases is one way to effect a change in their attitudes.

Stop & Search

General Points

One of the key causes of friction between the police and the community they are supposed to be serving.

Police use stop powers for a variety of reasons: when they believe it will help them prevent a crime from taking place, whilst investigating a crime that has already taken place, and as an information gathering aid to learn more about the area they are policing and the people involved, and as an intimidation tactic and to exert control on communities.
Police search powers are fairly limited, so knowing the law can be a powerful way of preventing the authorities from gaining any information on you. It goes a long way to counter the intimidating methods and attitudes you may experience.
A key point to remember, is that you do not have to give any PERSONAL DETAILS when being searched or held to account.
The above is true unless S50 Anti-Social Behaviour of Police Reform Act 2002 applies. This If police reasonably believe you to be involved in anti social behaviour then your details can be demanded. This can include harassment/ alarm/ distress to the police, but police have a higher threshold than the average person. This is not a search power but a suspicion that you have caused a crime. In this situation failure to give your name is an arrestable offence in itself, although such a prosecution ‘should’ be tied to an offence under S.5 of the Public Order Act 1986.

The Power to Search

The overwhelming majority of searches are carried out under S.1 PACE (94.4%).The law states that you can only be searched if a police officer has a reasonable suspicion to suspect that you may be carrying something illegal or something that can be used to commit an offence and you are likely to do so. This forms the grounds of the search.
A reasonable suspicion must be evidence based. e.g. if an officer has been informed that a person matching your description, and in the local area, has been seen to commit an act of vandalism i.e. graffiti, then they can reasonably suspect that the person described may be you. This allows them to search you for items used to commit criminal damage, so in this example spray cans or tins of paint.
As part of a search or simply walking around you may be asked to stop and account for being somewhere, an action, or your behaviour, then you may be asked more questions than during a search. You do not need to answer these questions, and can simply answer “No Comment”. The same goes with personal details. If a police officer reasonably believes you are committing a crime then they can arrest you regardless of what you do or don’t say.
Police forces are no longer required to record details of Stop and Account, as set out above, and will individually decide whether to issue receipts.
Under section 1 of PACE (Police and Criminal Evidence Act 1984), you can be searched for the following items: articles for burglary/theft, stolen goods, offensive weapons, bladed articles, items that may be used to commit criminal damage.
There are other specific laws that allow an officer to search you including the power to search for drugs or explosives, and along with Section 1 PACE, always require reasonable suspicion.
Under section 43 of Terrorism Act 2000, if the police have reasonable grounds to suspect that you are a terrorist they can search you for evidence that you are indeed a terrorist. A terrorist is defined as someone who uses, or intends to use violence or causes serious damage to property to influence government, or intimidates the public to advance a political, religious or ideological cause. This broad definition allows the police a large amount of discretion in who they identify as a ‘terrorist’. Only around 900 of these stop and searches were carried out across the whole of London in 2010.
There are also two blanket search powers:
Section 60 of the Criminal Justice Act 1994.
This is a power put in place by an Inspector, and confirmed by a ` Superintendent, that allows a police officer to search anyone in a specific area for offensive weapons. The order lasts for 24 hours but can be extended by a Superintendent.
ii. Section 47 of the Terrorism Act 2000 (Remedial) Order 2011.
This is a power put in place by a senior officer in a specific location where s/he reasonably suspects that an act of terrorism will take place. This allows the police to search anyone or anything for the purpose of prevention of terrorism, and replaces section 44 (TA2000).
47 is rarely see put in place but s. 60 powers are often used during protests and were put in place prior to the riots across the Country last year.
60 is a massively controversial area of law as only 0.4% of searches under s. 60 result in an arrest and black people are 37 times more likely to be searched under this power than white people.
Interestingly when s.60 powers were dropped in the Staffordshire and Cleveland areas crime levels dropped and public confidence in the police increased.

Being Searched

You may want to try to record the search by using the video camera on your phone. There is no law stopping anyone filming in a public place, so if you are on the streets you can film without asking permission. This is obviously likely to annoy the officer searching you so could be counter productive, use your own judgement.

When being searched the police officer searching you must specify before the search what they are looking for, and tailor the search to suit. This is known as the object of the search.
They have the power to search you, your clothes and look through all of your belonging you have with you, although you don’t have to be actively compliant when this is taking place.
They might ask you a few questions or make small talk during the search – you do not need to answer any of their questions or give any personal details, and can simply answer “No Comment”.
If you’re in a public space, then the officer can only ask you to remove your outer clothing such as a hat and coat, ask you to empty your pockets, and give you a pat down. You can be taken into a private area where the search can be continued with the removal of more items of clothing. Shoes are not considered outer clothing so should not be removed on the street, but if an officer is intent on looking under your feet then you could just be taken inside a police van.
It is good practice to keep an eye on what is being searched to check if the police officer is being reasonable or not. So if the object of the search is for bladed articles, then you might expect an officer to start looking through your wallet for small blades, or bank cards that may have had their corners sharpened.
If during the course of a search an officer finds another item upon you that they were not originally looking for, I.e. controlled substances (drugs) they can then search you again for more of these items.
If you have chosen not to give the police any of your personal details, which you are entitled to withhold, then you may not be happy with them reading your private material. If in the course of the search they come across an item with your name on, they may choose to record this as part of a description of you. One practical thing to do is to set a password lock on your phone so the police cannot go through your calls & messages.
A police officer using section 1 of PACE to search you wouldn’t normally have any reason to look through your camera. They have no power that allows them to delete any photos The police have the right to seize a camera in certain restricted circumstances where it is necessary to secure evidence of an offence, but this is rarely used.

If The Police Find Something

If the police find a item on you that they suspect may be illegal, they can confiscate it. At this point they could choose to arrest you for the possession of this item or issue you with a fixed penalty notice.
If they take an item from you that they suspect you may use to commit criminal damage, but is not necessarily illegal, then they may seize the item, or demand your name and address in order to service you with a summons at a later date (send you a letter to attend the police station). The item remains yours and you have the right to collect it at a later date (get a receipt!).
If you refuse to give your name and address for the purpose of a fixed penalty notice or a summons, then you can be arrested under Section 25 of PACE. SO if something is found at this point you should give the police your personal details but NOT before.

After the Search

You are always entitled a receipt from a Stop and Search, but no longer from a Stop and Account. If an officer can’t provide you with one at the time of the search then they must tell you where you can collect it at a later date. They should make every attempt to provide one immediately unless there is an urgent matter to attend to. We recommend that you push for one – having too many people to search is no excuse!
If you are unhappy with the search procedure, you can later make a complaint. Keep hold of the receipt, it may be useful.

Breakdown of Search Procedure

Before any search, you must be told:
–           The officer’s name and the police station they are based at.
–           That you are entitled to a copy of the search form*.
–           Object of the proposed search (power being used and what they are searching for).
–           Grounds to suspect you, or that a blanket search power has been granted and what it is.
You can then be searched, and it is usual for one officer to search and another to take notes whilst this is going on. This may keep you distracted but always try to focus on what the searching officer is doing, as if the search is unlawful you can later put in a claim.
Police forces are only required to record 7 items of information collected during a Stop and Search; ethnicity, grounds for search, object of search, identity of police officer, date, time and place. There is no longer a statutory requirement to ask for your name and address, but we are yet to see this change affect the procedures of police on the beat.

Potential Offences

General Points

The police are most likely to use anti-social behaviour law in their work in communities with people who are not obviously committing a criminal offence.

Trespass type offences may be brought up by officers wishing to disperse groups from a certain area.

Being Moved Out Of An Area

Trespass

A civil offence, and for this reason a police officer should not threaten for arrest as there is no power to arrest. If they try it, ask them what power they are using.

Before you can be committing trespass you must be asked to leave by a representative of the owner of the building. In a retail space this is often a manager, but not a police officer.

Aggravated Trespass

A CRIMINAL offence. Section 68 of the Criminal Justice and Public Order Act 1994 describes aggravated trespass as “when a person trespasses on the land and, in relation to the lawful activities of others, intimidates them so as to deter them from engaging in that activity or obstructs or disrupts that activity in any way.

Section 69 gives a senior police officer the powers to order any person believed to be involved in aggravated trespass to leave the land; if such a person refuses to leave after being ordered to by a senior police officer or if they return to the land in question within a period of three months, this is counted as an offence.

Maximum penalty is 3 months imprisonment, or a fine of £2500, or both, although first time offenders would likely get a fine of between £200 – £300.

Obstruction of the Highway

You commit this offence if, without lawful authority or excuse, you wilfully obstruct the free passage of the highway. The ‘highway’ includes the road, the pavement, grass verges and private property used as a public thoroughfare. ‘Obstruction’ includes anything that prevents passing and re-passing along the highway. It is not necessary for the whole of the highway to be blocked for the offence to be committed.

The offence is obstructing the highway, not other highway users, so it is not necessary to prove that anyone was actually obstructed. The obstruction has to be ‘wilful’, so you will often be asked to move and if you do not then this will be used as evidence of your ‘wilful’ obstruction in court.

A refusal to move can be seen as obstruction of a police officer carrying out their lawful duty.

The maximum penalty is a fine of £1000, although first offenders are likely to receive about £200.

Obstructing the highway is a ‘public nuisance’ law, public nuisance can also include playing music loudly in the street and potentially covers a broad range of offences.

Section 14 Public Order Act 1986 ‘Public Assembly’

If the police cannot move you under breach of peace, local by-laws or obstruction of highway, then they can use s14; which is a specific power to control public assembly.

A ‘public assembly’ is two or more people gathered together in a public place in the open air. This includes highways, parks, shopping precincts, shops and offices, restaurants, pubs or any other place to which the public have access or partial access.

Conditions can be imposed immediately by a senior officer which restrict the place, the duration and the numbers, ‘as they appear necessary to prevent serious disorder, disruption of the life of the community, or intimidation’. Conditions can be imposed in advance or by the senior police officer who is at the assembly.

You must be aware of the conditions and an officer will make an announcement. If you cannot hear then the conditions cannot apply to you. It gives the police power to move you, using force if necessary.

Knowingly not complying with the conditions is an offence under the act, and can be grounds for arrest, although it is a defence to prove that the failure to comply arose from circumstances out of your control.

Behavioural Offences

Section 1 Public Order Act 1986 ‘Riot’

To be prosecuted under this offence it must be established that: 12 or more persons, present together, used or threatened unlawful violence, for a common purpose and that this could cause a person of reasonable firmness to fear for their safety.

Others can commit this offence by aiding, abetting, counselling or procuring the use of violence, e.g. encouraging, planning, directing or coordinating the activities of those involved in violent action

Charges under section 1 should only be used for the most serious cases usually linked to planned or spontaneous serious outbreaks of sustained violence.

The maximum penalty is 10 years in prison and/or an unlimited fine.

Section 2 Public Order Act ‘Violent Disorder’

To be prosecuted under this offence it must be established that: 3 or more persons, present together, used or threatened unlawful violence, for a common purpose and that this could cause a person of reasonable firmness to fear for their safety.

An example of an offence under this statute would be an outbreak of violence which carries with it the potential for significant impact on a moderate scale on non-participants

The 3 people involved do not need to co-operate with each other they just need to be present in the same area at the time the offence is committed

The maximum penalty is 5 years in prison and/or an unlimited fine.

Section 3 Public Order Act ‘Affray’

To be prosecuted under this offence it must be established that: a person, used or threatened unlawful violence and that this was sufficient to cause a person of reasonable firmness to fear for their safety. This must be conduct in excess of mere words.

The violence in question has to be such that it would cause a reasonable bystander to fear for their safety, as such an assault on a single person would unlikely to fall under this statute.

An example of this offence would be a fight between two or more people in a place where members of the general public are present (for example in the street) with a level of violence such as would put them in substantial fear for their safety (even though the fighting is not directed towards them)

The maximum penalty is 6 months in prison and/or a fine.

Section 4 Public Order Act ‘Threatening Behaviour’

This is threatening, insulting or abusive behaviour towards another person in a public or private place.

An example of this type of conduct is where threats are made to bystanders or public servants

This must be done with intent to cause that person to fear violence or to provoke them into violence.

The maximum penalty for this offence ranges from 6 months in the Magistrates Court to 2 years in the Crown Court and/or a fine.

Section 4A Public Order Act ‘Disorderly Behaviour With Harassment’

This is threatening, insulting or abusive behaviour; or disorderly behaviour with intent to cause and thereby causing harassment, alarm or distress.

This usually consists of persistent behaviour directed at a vulnerable person.

The maximum penalty for this offence ranges from 6 months in the Magistrates Court to 2 years in the Crown Court and/or a fine

Section 5 Public Order Act ‘Disorderly Conduct’

This is the charge that is most likely to be brought by police where there are incidents of anti-social behaviour and is considered one of the softer public order offences.

This is threatening, insulting or abusive behaviour; or disorderly behaviour

This behaviour must be proved to be done with intention or awareness that the behaviour may be disorderly or with intention or awareness that such behaviour may be threatening, insulting or abusive.

The behaviour must be capable of causing harassment, alarm or distress within the sight or sound of the person committing the offence.

Examples of this type of behaviour include: rowdy behaviour in a street late at night which might alarm residents or passers-by and causing a disturbance in a shopping precinct or other area to which the public have access or might otherwise gather

In some cases the charge can be brought on the evidence of a police officer; other witnesses are not required.

The police should both issue a warning that the behaviour needs to stop and consider dispersing groups, using trespass laws if necessary, before seeking to arrest people under section 5.

The police may issue you with a fixed penalty notice on the spot if they witness the behaviour, if the behaviour continues following this then they are likely to conduct an arrest.

The maximum penalty at Court is a fine and persistent offenders may be issued with an ASBO.

Breach of the Peace

This is not a criminal offence. The police can detain you to “prevent a breach of the peace” but generally they use it once a breach of the peace has occurred, as it is much easier to justify.

A breach of the peace is defined 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 being done.”

You MUST be released once the threat of the breach of peace has passed; regardless of whether you have given any personal details.

If the police deem either that you have actually committed a breach of the peace or that your release is likely to cause a further breach of the peace, then you can be held overnight and put in front of a judge to be “bound over” for a period of time and some cash, approx £100. Basically this means you agree to ‘keep the peace’ for a certain period of time and agree to pay the specified sum if you do not keep to the agreement.

This is not a conviction and will not be put on your permanent record. If you refuse the bind-over you can be jailed for contempt of court for a few weeks or until you agree to it!

After an arrest the police will ask for your details (name and address), and can use reasonable force to take your photo, but you DO NOT have to give a DNA sample or fingerprints.

The police may intimidate you and demand details but you should ask what power police are still holding you under, show that you know the law, and stay determined, you may get out of there without ending up on a database!

There are potential challenges to imprisonment for breach of the peace under the Human Rights Act and accordingly anyone detained for Breach of the Peace should contact a trusted Solicitor immediately to see if they can bring a case against the police.

Assaulting or Obstructing A Police Officer

Under the Police Act 1964 it is an offence to assault, resist or wilfully obstruct a constable in the execution of his/her duty. The threat to arrest for obstruction is widely used by the police at demonstrations and if people are seen to be interfering with an arrest.

The police have been known to falsely claim that they have been assaulted in order to justify using force against arrestees.

Wilful obstruction of a police officer means doing any act which makes it more difficult for the officer to carry out their lawful duty e.g. ignoring their instructions, stopping them doing something, deliberately misleading them, or giving a false name and/or address.

Going limp makes it more difficult for a police officer to move you, and is not obstruction.

Assaulting a police officer mat result in a 6 month prison sentence and obstructing an officer may result in a 1 month sentence.

Arrest

General Advice

If you are arrested the arresting officer should state what you are being arrested for and advise you of your right to make a comment or remain silent. If the police fail to do this it is possible that they will not be able to prosecute you.

There is NO SUCH THING as a friendly chat with the police. Everything you say can be used as evidence.

You can give a NO COMMENT interview. Cops can’t legally force you to speak though it may be held against you at Court.

DO NOT USE THE DUTY SOLICITOR. They are often not sympathetic to the particular circumstances of cases where the police have arrested someone wrongfully.

If you have a solicitor coming, refuse to be interviewed before they arrive. If they can’t be contacted the best course of action is to give a no comment interview stating that you are doing this as you had not been able to obtain legal advice.

If you have been arrested for a non-imprisonable offence, for which the police do not intend to interview you, you can either speak on the phone to a solicitor (they may charge) or ring CDS direct (on 08457 500 620)

Sign no statements without legal advice. You should only sign for any personal items that are taken away from you (and you want back). Sign under the last item (so cops can’t add anything later on).

If giving a no comment interview it may be useful to state at the beginning of the interview that you are not willing to talk to the police as you do not feel that you will get a fair hearing from them but will provide full co-operation to the Court should you be prosecuted.

You can be held for up to 24 hours in normal circumstances.

If you are confident you have committed no offence DO NOT ACCEPT A CAUTION. It is an admission of guilt and will be put on your permanent record.

Guidelines on Police Behaviour

Guidelines for police behaviour are set out in the Police and Criminal Evidence Act 1984 (‘PACE’)

You have a right to have a person informed of your arrest PLUS a call to your solicitor. We recommend you use a trusted solicitor you have confidence in or one recommended by NPMP.

You must give a name, address (can be no fixed abode) and date of birth. Police will attempt to verify, perhaps by looking you up on the police computer or sending local coppers around to the address you have given to confirm you live there. If they can’t verify they may not release you on bail.

Answer NO to all other questions about your occupation, etc.

Your fingerprints, photo, and DNA call all be taken and probably will be. This information will be retained even if you aren’t charged (this is changing in the coming months).

You have a right to see a doctor if feeling unwell.

You have a right to vegan / vegetarian food.

You have a right to a translator if you struggle to communicate in English.

You have a right to a copy of the PACE codes leaflet Ask for it; it states your rights in custody. And it is something to read whilst in your cell.

If you are under 17, a parent or guardian or appropriate adult must be present for any interview. They may find a social worker, we recommend against this. They may not agree for an appropriate adult to be someone already with a criminal record or involved in the action.

You have the right to have a solicitor present during an interview.

You have the right to a warm cell, including a blanket and cups of tea/coffee etc.

The Result

Usually one of four things happen:

You are released with no further action taken against you.
You are charged with an offence and released on bail to appear in court at a later date. There may be bail conditions imposed, such as staying away from a certain area or not attending specific events. There has been some interest in challenging the way bail conditions have been imposed in a ‘blanket’ manner when a large group of people have all been arrested together. To be released on bail, you must sign a paper agreeing to the conditions, legal advice should be requested before you sign.
You are charged and held over to be brought into court the next day (or the following Monday if it is a weekend). This is usually done if you do not agree to your bail conditions, or if the police do not believe they should release you (because you might leave the country, etc.).
You are bailed, pending further enquiries, to return to the same police station at a later date. This means the police have not decided whether to charge you or not. It often means they need more time to look over the evidence. You might, as above, be given bail conditions. You will need to sign a paper before being released.

Action Against The Police

General Points

It is easy to bring an action against the police, simply contact the IPCC (on 08453 002 002), however in order to have a case with a chance of success you will need reliable witness evidence to support your claim or to have been the victim of a serious miscarriage of justice. It is most difficult for people with previous convictions to bring a successful claim.

The general rule is that the complaint should be made at the police station where the officer who is the subject of the complaint is based. This is one reason why it is important to note the badge numbers of any police officer who harasses or arrests you.

Where it is considered that the potential claim is strong specialist legal advice, from sympathetic solicitors, should be sought immediately.

As most people are aware simply putting your claim through the IPCC is not an acceptable form of redress, in any cases relating to the misbehaviour of the police, however it is important that your claim is logged for statistical purposes and in the hope that something will come of it.

Wrongful Arrest

In order to establish a claim for wrongful arrest it must be proven that the police: suspect you to be guilty of an offence, have reasonable grounds for that suspicion and exercise their discretion to make a reasonable arrest.

Clearly this is a difficult threshold to cross and would require the police officer to have acted in a clearly inappropriate way.

Malicious Prosecution

These are tough cases to establish, you must show that the Police or Crown Prosecution Service have brought criminal proceedings against you without reasonable cause and have done so maliciously.

In order to bring a claim on these grounds it would normally be a prerequisite that the Criminal proceedings against you are over and you have not been convicted of an offence.

You also need to be able to show that the case against you has caused you some recognisable loss or damage, for instance reactive depression or lost wages following the termination of employment.

Injured by the Police

If you are injured as a result of police actions, if you wish to mount a challenge or make a complaint you will need to be medically assessed. If you have been tasered or sprayed with pepper spray go to hospital to have any injuries checked out.

It is tough to bring a case for minor injuries so unless you have suffered a serious injury you will probably not get very far unless you wish to pursue a private case against the police.

Where a police dog has been released without warning and bit someone it is likely that there will be an actionable claim against the police dog handler.

If you are injured by the police you may also bring a claim for criminal injuries compensation.

Practical Advice

Always have the number of a decent Solicitor on you; recommended in Manchester are Stephensons (duty: 07836 574607 crime: 01942 777 777) and Clifford Johnston (duty: 07974316142 crime: 061 2492 700).

Know your rights and be confident enough to assert them, if the police are made aware that you know the law they are less likely to try and a pull a fast one.
If approached by police officers try and take a note of their badge number, this will be useful in the event you wish to report their behaviour and for general monitoring purposes.
Let the Northern Police Monitoring Project know about any instances where you have felt harassed, treated badly or intimidated by the Police. We might be able to help out and you would certainly be helping us collect facts and figures that we can use in campaigns.
Distribute information, best cards and advice leaflets to your friends and family and people in your community. The more clued up people are around the less the police will feel able to act in a discriminatory manner.
If you witness the police behaving inappropriately start filming it and/or note down the details, send this information through to the Northern Police Monitoring Project. You may also try and give advice to the person on the end of the inappropriate behaviour. Remember to be careful not to obstruct the police officer(s) when doing this.

Sources

Adapted and expanded from the Green and Black Cross ‘Know Your Rights’ Training v3.1

http://greenandblackcross.org/legal/resources

http://www.activistslegalproject.org.uk/

http://www.coomber-rich.co.uk/offences_guide/public_order_offences/

http://netpol.org/resources/law-and-occupations/#3

http://www.guardian.co.uk/news/datablog/2010/jun/10/stop-and-search-terror-police-statistics

http://netpol.org/2012/08/13/end-s60-stop-and-search/

http://www.iengage.org.uk/component/content/article/1-news/1241-home-office-releases-latest-stop-a-search-figures

http://www.pannone.com/__data/assets/pdf_file/0020/25355/Actions-Agaianst-The-police.pdf

http://www.guardian.co.uk/law/2011/feb/24/stop-and-search-fall-counterterrorism-powers

http://beforeitsnews.com/alternative/2012/10/rough-guide-to-filming-police-during-a-stop-search-2476222.html