Police powers in England and Wales: the courts and the changes of pace

• Author: A.R. Carnegie
• Position: Professor of Law, University of the West Indies, Cave Hill Campus, Barbados
• Pages: 182-203

POLICE POWERS IN ENGLAND AND WALES: THE

COURTS AND THE CHANGES OF PACE

A.R. CARNEGIE*

INTRODUCTION

Any consideration of the area of police powers in England at this

point in time has to give pride of place to the Police and Criminal

Evidence Act 1984:1 the years since that Act has come into force have

been the era of PACE. That has not by any means been the only

legislation of significance in the past decade, and no inconsiderable

part of the impact of PACE has lain in its interrelationship with other

legislation:2 but given the constraints of scale applicable to this

discussion, it seems appropriate to confine its attention to the issues

whose topicality derives from the enactment of PACE.

There has, needless to say, been no shortage of literature on PACE'S

scope and significance, so that it is hardly necessary to offer here any

general introduction to or exposition of its provisions3 - in any event,

that task by itself would also be rigidly circumscribed by availability

of time and paper space, the more so as such an exposition, to serve

its purpose, would call for attention not only to the provisions of the

Act itself but also to their extensive elaboration in the Home

Secretary's Codes of Practice made under the authority of the Act.

The treatment here will, accordingly, pay attention to the

development of the impact of the legislation by the case-law, which has

provided insights not always clearly derivable from the text of the

Professor of Law, University of the West Indies, Cave Hill Campus,

Barbados. The assistance of Delford Morgan, Esq., LL.B., in searching for

and checking references is acknowledged with thanks. This paper,

completed in

1991,

was presented

to

the

Ninth Commonwealth

Magistrates'

and Judges' Association Triennial Conference, Sydney, Australia, 15th

September, 1991 - 20th September, 1991, and appears in the Report of the

Conference Proceedings.

1 Hereinafter PACE (see

R.

v.

Governor

of Pentonville Prison, ex

p.

Osman

[1990] 1 All E.R. 701 at 7257).

2 E.g. the Drug Trafficking Act 1986 and the Criminal Justice Act 1988.

3 See, e.g., Leigh, Police Powers in England and Wales, 2nd edn., London:

Butterworths, 1985; Mirfield, "The Future of the Law of Confessions"

[1984] Crim. L.R. 63.

legislation

itself. So the

question

to be

addressed

is not so

much

the

effect

of

PACE,

as

that

of the use

which

the

courts have made

of

PACE. Attention will first

be

paid

to

general issues

- the

extent

to

which

the

courts have seen

the Act as

recasting

the law and the

extent

to which

the

courts have seen

it as

requiring creative interpretation

to

clarify

its

meaning.

A

brief survey will then follow illustrating some

points which have arisen under

the

particular headings

of

powers

of

arrest, powers

of

search,

and

confessions

and

admissions.

THE GENERAL ISSUES

PACE has given rise

to

some classical problems

of

codification

and

statutory interpretation. The Act has some

of

the

appearance

of

a

code,

but what

use is a

code

if

one

has to

keep going back

to the

previous

law? That question

may

well

in

some aspects

be

asked

of the Act,

since

the

courts have shown repeatedly

the

inclination

to

resolve issues

arising from

the Act by

reference back

to the

common law. This does

not mean that

the Act

does

not

change

the law: in

some areas,

it is

acknowledged

to do so, and to

have presented

a

clean slate.

In

others,

however, there has been considerable controversy

as to

whether

or not

the Act does advance on the common law,

and the

view that

it

does

not

has prevailed with sufficient frequency

to

invite

at

least mild inquiry

as

to the

cost-effectiveness

of

the expenditure

of

the drafting labour.

When

the

question

is not

whether there

is a

change

in the law, but,

simply, what does

the

statute prescribe,

and the

courts face

the

issue

of construing

the

provisions

of the Act itself, the

difficulty

of the

draftsman

in

making provision

to

cover

all

eventualities

has

been

evident.

The

courts have

had

quite frequent resort

to

that imaginative

fiction, the intention

of

Parliament, adhering, needless

to say,

firmly

to

the

established common

law

principle that this enquiry

is to be

undertaken without access

to the

evidence that might make possible

a

rational answer

to the

question.

Going

behind the

Act to the

common

law:

a

new

exclusionary

rule?

One area

in

which

the

question

of the

difference between

the law

post-PACE

and the

common

law has

engaged considerable academic

and judicial attention relates

to the

provisions

of

section 78

of

the

Act.

One of the striking differences between the orthodoxy of English

law

and that relating

to the

Bill

of

Rights provisions

of

the United States

Constitution

lay

before PACE

in the

protection

of the

constitutional

rights of accused persons

in the

United States

by an

"exclusionary