The issue of searching people after they are detained is always sensitive, for it represent an intrusion into someone’s privacy. It is explicitly recognised in legal challenges to searching that the act constitutes an engagement of Article 8 of the European Convention on Human Rights. The sensitivities involved and some of the legal considerations are well highlighted and explained in a Court of Appeal judgment from earlier this year, so I’d encourage you to read about the case PD v Chief Constable of Merseyside (2015). This post comes after a number of queries on email and social media and I so want to cover this stuff in a bit of detail –
I am going to cover two issues –
- Searching premises in order to locate people
- Searching people in order to find items that could be used to cause harm.
POWERS TO SEARCH PREMISES
Police Powers to enter premises come mainly from two sources: the Police and Criminal Evidence Act 1984 and from individual statutes which permit Magistrates to issue warrants after applications by the police or by others. Police warrants could, for example, include searches for stolen property under the Theft Act 1968; searches for controlled drugs under the Misuse of Drugs Act 1971; or searches for prohibited firearms and other weapons under the Firearms Act 1968. The are others, like the Mental Health Act 1983 which allow for Magistrates to issue two kinds of warrant under section 135 of that Act.
- Section 17 of PACE – this covers situations in which an officer may force entry to a premises without a warrant. It includes entering to arrest someone for an indictable (a more serious) offence; to arrest someone who has escaped from prison or who is unlawfully at large (but only if the officer is in immediate pursuit of that person); and in order to save life or limb. There are certain other justifications in s17 PACE about arrests for specific non-indictable offences which are not relevant to my point so I will let you read the section for yourself if you want to know more.
- Section 135(1) MHA – this allows officers to enter and search premises to find someone thought to be suffering from a mental disorder who is neglected, ill-treated or ‘kept otherwise than under proper control’ – which we can agree is dreadful language! – or who is living alone and unable to care for themselves. The warrant also allows officers to remove that person to a place of safety for assessment, if the person does not consent to being assessed at home. It can only be issued to an AMHP and when executed by the police, the officer must be accompanied by a DR and an AMHP.
- Section 135(2) MHA – this warrant allows officers to entry a premises where they believe someone to be who is liable to be detained under the Mental Health Act, including patients who are absent without leave having absconded, failed to return from authorised leave or from a recalled Community Treatment Order. This warrant would also be required to force entry to premises in connection with a warrant of recall for a conditionally discharged forensic patient, under s42 MHA. Police can execute this warrant alone, if needed.
POWERS TO SEARCH PEOPLE
This section is the one that motivates the post – searching individuals. Police powers to search still arise in the main, from the Police and Criminal Evidence Act 1984. This is because, in law, detention under most parts of the MHA that involve the police are ‘arrests’ by virtue of section 26 and schedule 2 of PACE. Therefore, statutory powers under section 32 to search after arrest and to searches under section 54 and section 55 at police stations, can apply to individuals once they are detained by the police and if they are taken to a police station afterwards.
- Section 32 of PACE – this section allows a police officer to search a person upon arrest any person if the believe that person to be a danger to themselves or others; and to search for any item that may be evidence of an offence or any item that may be used to cause harm or escape from detention.
- Section 54 of PACE – this section relates to individuals who are detained at police stations, on whatever legal basis. It obliges the custody officer to establish what possessions a person has and authorises them to remove from them anything which could be used to cause harm, damage property, interfere with evidence or escape. Evidence of any offences is seized, other items are returned upon release. If necessary and if authorised by the custody sergeant, this can include what the PACE Codes of Practice regards as a ‘strip-search’.
- Section 55 of PACE – this section relates to the sensitive subject of an intimate search, which involves medical staff examining body cavities for weapons or class A drugs if there are grounds to think the person intended to supply them to others. It must be authorised by a police inspector and where it releates to a search for drugs, be conducted by a doctor or nurse at hospital and force cannot be used. Where it releates to a search for a weapon, it can be done at a police station but must still be done by a doctor or nurse and force can be used.
BELIEF AND SUSPICION
Police officers exercising powers usually cannot use them with having grounds to do so. Legal grounds are often defined in terms of an officer having the requisite suspicion or belief and these two words are important because of the thresholds they set for use of powers. When I’ve dealt with people who are questioning the use of powers I’ve often explained it like this: if an officer’s certainty that someone is carrying something they should have is rated on a scale from 1 to 10 where 1 is ‘we’ve got almost no idea whether they’re carrying something’ and where 10 is ‘we’re absolutely certain they’re carrying something’, then suspicion is 2/3 out of 10; and belief is 7/8 out of 10.
- The power of entry to premises under s17 PACE requires the officer to have reasonable grounds to believe that they will find the person on the premises.
- The power of search after arrest under s32 PACE requires the officer to have reasonable grounds to believe that the person is a danger to themselves or others; or that they will find the item or items that they believe to be evidence or would be used for causing harm.
This is a higher threshold than that required to justify the arrest of someone after allegation (s24 PACE) or to ‘stop and search’ them, each of which requires reasonable grounds to suspect. Of course, where officers are executing warrants under the MHA (or under any other provision), the threshold for justifying the action was explained to a Magistrate who has authorised the action and the officers are not required to further justify anything in executing the warrant.
THE NOTABLE EXCEPTION
The one exception to all of the points, that relate to searching individuals is the situation of section 135 of the Mental Health Act. I referred you, above, to of section 26 and schedule 2 of PACE – these provisions taken together ensure that various police powers under the MHA are able to be regarded as ‘arrests’, in law. It is worth emphasising, that an ‘arrest’ does not always mean ‘arrest for an offence’ – the legal system allows for arrests in various situations, not always involving allegations of wrong-doing. I once arrested a victim of a crime who had failed to show up in court to give evidence and the court decided to exercise its right to bring the person before them. They had already tried summonsing the victim, but issued an arrest warrant because they failed to respond to the summons. Guidance to police forces is to avoid using the language of ‘arrests’ when exercising powers under the MHA, but it is important that officers understand in their mind that this is exactly what they are – because of subsequent links to powers of search.
Schedule 2 lists the following MHA powers, retaining them as preserved powers of arrest –
- Section 18 – power to redetain a patient who is absent without leave.
- Section 35(10) – power to take to Court, a patient who absconded after being remanded for psychiatric reports.
- Section 36(8) – power to take to Court, a patient who absconded after being remanded for treatment.
- Section 38(7) – power to retake an interim hospital order patient who has absconded back to court.
- Section 136(1) – police power to detain in a public place
- Section 138 – power to retake absconders
You’ll note that section 135 is not listed – therefore detention under the terms of those warrants is NOT an arrest, for the purposes of PACE. For that reason, s32 PACE cannot apply to anyone who is detained because s32(1) makes it clear that it relates to an ‘arrested person’. When the new Code of Practice to the Mental Health Act came into effect in April 2015, paragraph 16.68 made it explicit that where a person was detained at a Place of Safety under section 136 of the Act, they may be searched. The new Code makes no mention of equivalent provision for those detained under s135. I received an email some months ago from Professor Richard JONES (of Mental Health Act Manual and Mental Capacity Act fame) making the same query and he couldn’t identify a legal basis for searching someone, either!
The only way to lawfully achieve it, without relying upon fudged arguments about Common Law, would be to remove a person to a police station in the first instance and it would therefore allow the custody officer to exercise powers under s54 of PACE and once the search is complete, transfer that person to an NHS Place of Safety. Not ideal, but I keep coming back to the fact that having tried many times over years and asked lots of people in case I’m missing something here!
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