Public law– Stop and Search and Arrest
I would advise Norbert that there are several factors that need to be considered before concluding if his search was legal. Firstly the question arises that did the policemen have the right to stop and search Norbert. It can be argued that the police did have the right to stop Norbert under PACE (s 1(3)) as they were suspicious that Norbert was involved in the theft that had taken place in the next street and Norbert was a well known burglar (Bentley v Brudzinski ), however it can also be argued that Norbert was coincidently there to meet his posh new girlfriend and “reasonable suspicion can never be supported on the fact that the person is known to have a previous conviction, this cannot be used alone as the reason for searching” Norbert. R v Bristol.
When Norbert is approached by the police and asked questions, he has the legal right to remain silent and not to answer any questions unless he is arrested as confirmed by the judgment made in the case of Rice v Connolly. He is within his rights at common law to remain silent however Norbert cooperates with the police and answers their questions.
Norbert denies any knowledge about the theft and refuses a request to turn out his pockets, another question arises here because if Norbert was not guilty then he would not have hesitated to empty out his pockets, and this has lead to the police becoming more suspicious that Norbert was involved in the theft. However Norbert can argue that he did not believe that the two men he was approached by were policemen as they did not introduce themselves, and therefore refused to turn out his pockets Kenlin v Gardiner (1967). Because of the limited information that we have been given I am assuming that the policemen were not wearing uniform, the case study also does not mention whether a warrant card was shown or not and therefore I am assuming that it wasn’t. Legally if a police man is not wearing uniform then a warrant card must be shown under the Police Return Act 2002 SCH 4 para 15.
“Under section 2 of PACE 1984, a police officer who proposes to carry out a stop and search must state his name and police station and the purpose of the search” in this case PC Mallard and PC Drake have not introduced themselves and have not told Norbert about the purpose of the search, and legally they were supposed to. (DPP v Avery). However it can be argued that because Norbert is well known to the 2 police officers, the police officers did not consider re introducing themselves, although legally they should have.
The second factor that Norbert needs to consider on the legality of the search is that a street search “must be limited to outer clothing, the searched person cannot be required to remove any article of clothing other than a jacket, outer clothes or gloves” in this case PC Drake removes Norbert’s hat, coat and shoes as well as searching his sports bag in a bus shelter. The police legally had the right to remove Norbert’s coat and hat however they did not legally have the right to remove his shoes in the bus stop and also to search his bag under PACE section 2 (3) (c). And therefore this search was unlawful R v Fennelly). A bus shelter is a public place and therefore it should not have been used to search Norbert, the officers should have also tried to reduce the embarrassment that Norbert had experienced, they could have easily been able to do this by searching Norbert in a police van or at the police station rather than conducting the search in the bus shelter. This also affected other individuals as those who wanted to wait for the bus couldn’t, as PC Mallard motioned them away.
During the stop and search PC Drake finds a screwdriver and a pair of wire cutters in Norbert’s pockets. The items found are not offensive weapons but can be intended to use as such, it is an offence to possess such items without good reason. It can be argued that Norbert was carrying...
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