Answers
Thread 6
Was PC White acting legally when he restrained Dave and Inspector Green subsequently carried out a search of him?
It is very difficult to justify this behaviour. Dave’s pushing past ‘roughly’ may constitute assault, however it will not justify the use or extent of use of force. S.117 PACE provides:
‘Where any provision of this Act-
(a) confers a power on a constable; and
(b) does not provide that the power may only be exercised with the consent
of some person, other than a police officer,
The officer may use reasonable force ,if necessary, in the exercise of
the power.
The problem with trying to rely on this provision in this scenario is that it has already been established in Thread 4 above that the failure to give the requisite information renders the stop and search unlawful. So, the police cannot rely on s.117 to justify their actions as they are not lawfully exercising a power under PACE in the first place. Even if the stop and search had been lawful, it is questionable whether or not the extent of the force used could be classed as reasonable.
Note also that the original suspicion related to an item Dave was seen to put into his pocket. Paragraph 3.3 of Code of Practice A states:
‘If the suspicion relates to a particular article which is seen to be slipped into a person’s pocket, then, in the absence of other grounds for suspicion or an opportunity for the article to be moved elsewhere, the search must be confined to that pocket.’
Even if the force used had been legal, the search has been far too extensive. The power must be exercised proportionately and here it has not been so exercised.
The effect of this lack of legality is that Dave has the option of suing the police in tort for assault and unlawful detention. As soon as he is restrained, his liberty is being restricted. Article 5 European Convention on Human Rights requires that restrictions on liberty must be both lawful and proportionate. The police, who have a duty under s.6 Human Rights Act 1998 to act in accordance with the Convention, have satisfied neither condition in this scenario.