Police and policing

Lecture 6
Police powers and suspects’ rights

Dr Layla Skinn
L.Skinns@sheffield.ac.uk

1
s





 Aims

• Conceptualise the meaning of police powers

• Explore theories used to understand police powers and
citizens’ rights
• Examine empirical evidence from all four countries of
interest to the module about police powers in police
custody. In particular, we examine
• Whether the police abide by legal rules.
• Consider some of the reasons for differences between these
countries.

2
.

6.1 Police powers

3
“The core duty of the police service is to protect the public by
detecting and preventing crime … Police personnel are
individually responsible for using their powers in accordance
with the law. The use of police powers should be necessary,
proportionate and compatible with human rights and
equalities legislation

Police personnel receive training and guidance on the lawful

and effective use of their powers and authority, but ultimately
they have discretion to make decisions.” (Brown, 2020: 4).
.

 What are police powers?

• Three main categories of police powers in E+

1.To investigate crim
• Largely under PACE 1984 – arrest, detain, question, take biometric
details, enter, search and seize property, stop and search
• Also under IPA 2016 (acquire communications) and RIPA 2000 (covert
surveillance and informants
2.To prevent crime – breach of peace provisions, use of force,
policing of protest and AS
3.To ‘dispose’ of criminal cases – charging decisions, out of court
disposals (e.g. FPNs)
(Brown, 2020)
e

 What are police powers?

• Police powers are what separate the police from other

members of society
• Acapacity
‘core competence’ or key police power is their
to use force (Bittner, 1970)
• However, the police also have other means at their
disposal which would be generally prohibited to the rest
of the population
• Police actions rest on a more generalised sense of police
power
• Discretion and accountability.
6
.

6.2 Theorizing police

powers

7
 Due process vs. crime control
Due process Crime control
(The obstacle course) (The conveyor belt)
Presumption of innocence Guilt implied

Procedural safeguards to Minimal legal controls

ensure a fair trial
Equality before the law The CJ process aids the
police
Defendants’ rights Crime fighting is key

(Adapted from Newburn, 2007: 559)

8

 Due process vs. crime control

Suspects’ rights

Vs

Police power

9
.

6.3 Police powers in

police custody
What is police custody?

10
 What is Police custody?

• Where someone is taken on arrest whilst an investigation is

mounted and a decision can be taken about an appropriate
disposal
• Actions in police custody determine likely outcome of the
case
• Demands are made of suspects (fingerprints, photographs,
searches etc.) and they are deprived of their liberty
• These police powers are counter-balanced by suspect rights
(to silence, legal advice, intimation, an appropriate adult,
interpretation etc.)
• Suspects reliant on the police to help them access these
rights.
11
.

 Key rights and entitlements

• Access to legal advice

• The right to notify someone of their arrest
• The right to silence (either qualified or absolute)
• Access to medical assistance, if a suspect is unwell
• Access to a support person (e.g. appropriate adult in E+W),
if a suspect is a child or if they have a mental health condition
or a learning disability
• The right to be detained for specified periods of time (e.g. 24,
36 or 96 hours in E+W)
• BUT not all of these are available across all jurisdictions.
.

 The importance of suspects’ rights

• To some extent they counterbalance police powers

• They help to prevent miscarriages of justice, which
have arisen in all jurisdictions
• e.g. Maxwell Confait Murder Case ! RCCP 1981 !
PAC
• They help to safeguard the integrity of the criminal
justice process

13
E

6.4 The right to silence

Whether police abide by legal rules, in practice

14
 The importance of the right to
silence

• One of the most important decisions for suspects

(Blackstock et al., 2014: 322).
• They have some degree of control over it (Quirk, 2017:
51)
• Enshrined in many legal systems around the world
(Quirk, 2017: 24)
.

 The qualified right to silence: England

and Ireland

• England and Ireland - qualified right to silence !

adverse inferences permitted
• Introduced by Criminal Justice and Public Order Act
1994 in E+W and the Criminal Justice Act 1984 in
Ireland
• Approx 90% waive their right to silence
• Changes in Ireland have mirrored those in England,
except in relation to the police caution
• The qualified right to silence remains controversial.
16
.

 The absolute right to silence: US and

parts of Australia (in the past)

• American and Australian jurisdictions - absolute right to silence

! adverse inferences are not permitte
• Right is enshrined in Miranda vs. Arizona 1966 and in statutes in
Australia e.g. LEPRA in NSW
• In America, 78-96% of suspects waive Miranda rights, including
to silence (Leo, 2008), whilst in NSW in Australia, 97% of waived
their right to silence (Dixon, 2007)
• So, even when the right to silence is absolute, suspects are still
more willing than not to speak to the police. Why

17
.

Why do suspects waive their right to

silence?

• Suspects esp. vulnerable ones and esp. in E+W and

Ireland may not understand the right.
• Police may try to erode it:
• US - Deceptive, suggestive or manipulative techniques to
persuade suspects to waive their right to silence.
• Australia – the police may put pressure on suspects to waive
their right to silence (see the next slide).

18

 Example - Police pressure to talk?

A woman, who was arrested late at night for an assault on her boyfriend,
was wavering about whether to talk to the police and eventually ended up
incriminating herself after the police ignored her half-hearted attempts to
exercise her right to silence. She repeatedly stated that it was late and that
she was too tired and upset to recall things accurately, but the police still
interviewed her at 4am. Two more experienced officers who observed this
interview with me via video-link remarked that a lawyer would “go to town”
on the interview, saying that the investigating officers put her under pressure
to be interviewed. Eventually, she was given an apprehended violence order,
which is a form of injunction prohibiting certain behaviours. Without her
admission, there was no other evidence of assault, other than her boyfriend’s
injuries, his witness statement and broken items at the address where the
alleged assault occurred.
Source: Australian case study - Skinns (2019: 123
19

6.5 The right to legal

advice
Whether police abide by legal rules, in practice

20
 The importance of the right to
custodial legal advice

• Custodial legal advice provides the best opportunity for a fair

trial
• This need for custodial legal advice is particularly important
in countries (e.g. England and Ireland), where there is a
qualified right to silence
• Salduz v. Turkey 2008 illustrates the importance attached to
custodial legal advice in EU countries, such as England and
Ireland.
.

 England and Wales

• In England, under PACE 1984, access to publicly-funded

legal advice is currently universal.
• Increase in the up-take of legal advice since the
introduction of this right in PACE 1984
• Of course, not all suspects access legal advice
• The reasons for this are connected to the suspect,
police and legal advisers.

22

 Australia and Ireland

• Custodial legal advice was available to some suspects

some of the time
• The Australian jurisdiction – suspects could request it, if they
could pay for it
• Ireland – Publicly-funded advice for those earning less than
22,000 Euros per annum (at the time of the research)
• Therefore, limited access to this right, in practice
(Skinns, 2019)

23
.

 The US

• Inlimited
American jurisdictions, access to custodial legal advice is
to non-existent - only available on arraignment (=first
court hearing)
• Public defenders are not part of police detention – “There’s
no lawyers here [in the police custody]” (Skinns, 2019: 128).
• However, this may be seen as of limited concern given the
absolute right to silence
• Requesting a lawyer (assertively) is seen as tantamount to
exercising the right to silence

24
.

6.6 Police interrogation

practices
Whether police abide by legal rules, in practice

25
 The conduct of police interviews
• Tactics (e.g. persuasion, inducement, deception,
coercion) are used to persuade suspects to confess,
albeit that these may be reserved for outside the
formal interview
• Concerns about interviewing methods of the police
led to a programme of reform and use of PEACE
model (information gathering) in England and
Australia and Ireland, but not the US
• In the US, the police continue to use accusatorial
approaches, even tho they are discredited
26
.

 Example – accusatorial approaches to

interrogation in the US
Later, I was introduced to one of the other white male detectives. He
said to me, “So, what do you wanna know?” I hesitated. I said “what kind
of practices do you use when you interview suspects”, he replied “what,
when we make them confess?” I said, “well, you can tell me about that if
you like”. He then said that “sometimes we remove their clothes for
evidentiary purposes, if you know what I mean, and leave them sitting
there in their underwear. We also try to show them who’s boss
because every time they want something they have to ask me. For
example, if they want a drink of water they have to ask me or if they
want to go to the bathroom they have to ask me.”
I then asked whether they varied their practices between suspects and
how they knew which practices to use with which suspects. The detective
said to me, “well, with you, for example, I would shout at you until you
cried,” then, turning to his female colleague, he said, “with her, I would
feed her, as she’s a tough cookie and I would try to persuade her by
giving her food.
Later, I relayed this conversation to one of the young police officers in the
custody area and he said that this team of detectives were known as
“badasses.
(Skinns, 2019: 122-3)
27
”

 Recording of police interviews

• Widespread recording of police interviews in

England, Ireland and Australia, but not the US
• Objections to recording police interviews
• e.g. police regarded the practice as questioning their integrity
• Arguments in favour
• e.g. promotes truth-finding and reduces false confessions

28
:

6.7 Length of detention

Whether police abide by legal rules, in practice

29
 Length of detention without charge

• Suspects
held
crave certainty esp. about how long they will be

• England – up to 24, 36 or 96 hours

• Ireland – up to 24 hours, 3 days or 7 days
• The Australian jurisdiction in the research - 4-6 hours
investigation time and 13 possible ‘time-outs’ !
uncertainty for suspects
• In the US, the picture is more complex
• Charge to arraignment - up to 72 hour
• Detention without charge – up to 48 hour
• These ambiguities undermined this due process safeguard

30
.

6.8 Key and concluding

points

31
 Key points

• Police powers are what separate the police from citizens. At

their core is the capacity to use force
• Police powers are largely discretionary, meaning there is a
need to ensure that the police are held to account for their
actions/inaction
• Police powers and citizens’ rights can be theorised using
• Packer’s crime control and due process model

32
.

 Key points
Powers/Rights England Ireland Australia US

Right to silence Qualified Qualified Absolute Absolute

Recording of Audio Video Video-recorded in the Some audio-/video-

interviews jurisdiction in the recording, but not in
research the jurisdiction in the
research.
Interview techniques PEACE – information PEACE – information PEACE – information Accusatorial
gathering gathering gathering

Legal advice Publicly funded for all Publicly funded for Could be paid for Not available in the
those earning <22,000 privately, but limited police station, only on
euros, but limited access. arraignment.
access.
Length of detention Up to 24, 36 or 96 Up to 24 hours, 3 days Up to 4 hours Up to 48 or 72 hours,
without charge hours. or 7 days. investigation time and though staff unclear of
11 types of ‘time-outs’ this.

33
 Key points

• Important variations between the jurisdictions of interest to

the module
• Suspects’ have differing rights in police custody
• The extent to which they are put into practice varies
• Why is this so
• Misunderstandings about the length of detention without charge
suggests a more distant role for the law in police-decision-making
and greater emphasis on discretion in the US city.

34
:

 Questions

• Do the police need more or less powers than they currently

have
• What are the justifications for police powers
• What might be done to ensure that police powers are used
appropriately?

35
?