Association of Chief Police Officer of England,Wales & Northern Ireland

GUIDANCE ON POLICING CANNABIS – USE OF CANNABIS WARNINGS

Status: This Crime Business Area Guidance, which has been developed to recommend a consistent national approach to the policing of possession of Cannabis as a Class C Drug, has been agreed by ACPO Cabinet and Chief Constables’ Council. It is disclosable under the FOIA 2000, has been registered and audited in line with ACPO requirements and is subject of Copyright.

This Guidance is issued to each chief constable with the recommendation that they should adopt the doctrine and implement it as appropriate in their own force (ACPO Articles of Association. Accepted by ballot of Members in October 2006)

ImplementationDate:

Review Date:

Copyright © 2006. All rights reserved. Association of Chief Police Officers of England, Wales and Northern Ireland. Registered number: 344583: 10 Victoria Street, London.

SW1H 0NN

1 of 22

17 January 2007

January 2010 (no later than)

CONTENTS PAGE

Section Page number

1. Preface 3

2. Guidance, advice and procedures 4 - 8

3. Appendices

‘A’ ACPO Workbook 9 - 12

‘B’ Frequently Asked Questions

‘C’ Powers of Arrest since the introduction of the Serious Organised Crime and Police Act (SOCPA) 2005.

13 - 16

17 - 22

2 of 22

SECTION 1 - PREFACE

1.1 On 19 January 2006 The Home Secretary, having taken advice from The Advisory Counsel on The Misuse of Drugs (ACMD), decided to keep Cannabis as a Class C Drug.

1.2 Following extensive consultation, updated ACPO guidelines have been developed to recommend to Chief Constables a consistent national approach to the policing of possession of Cannabis as a Class C Drug.

1.3 Included with the guidelines is a comprehensive list of ‘Frequently Asked Questions’ that will be able to answer many of the questions that may be raised by practitioners and the wider community.

1.4 The purpose of these guidelines is to issue renewed advice to Police officers dealing with offences of possession of cannabis in light of the Home Secretary’s decision and the significant legislative change (Serious Organised Crime and Police Act 2005) since the guidelines were first introduced in January 2003.

1.5 The aims of these guidelines are similar to the previous guideline aims;

To give a justifiable and proportionate response, to dealing with persons found in possession of cannabis which can be seen to be ethical and non-discriminatory by the public and therefore gain trust in the Criminal Justice system from all members of the community

To enable the police service to give greater focus and resources to organisational and community policing priorities by dealing with offenders found in possession of cannabis in a manner which saves time and is less bureaucratic.

To maintain an enforcement and prosecution strategy that delivers the national message that cannabis is harmful, and remains illegal.

1.6 To help deliver these aims it is important that we continue to build upon and develop robust reporting procedures to accurately record and monitor ‘Cannabis Warnings’ data to evidence to our communities and key stakeholders that we are achieving these aims.

1.7 Much of that data is already being collected and recorded as part of Crime Recording and Stop Form procedures, and I would encourage you to ensure that these existing systems are utilised to maintain an accurate account of the use of Cannabis Warnings. The Home Office will expect that each force will be able to provide this data to enable the national picture to be regularly monitored and an ACPO led working group will be looking at the implementation, monitoring and review of the guidelines.

1.8 To help promote this key initiative we are currently developing communication templates for use by Forces if they wish.

SECTION 2 - GUIDANCE, ADVICE AND PROCEDURES

3 of 22

POLICING CANNABIS – Use of Cannabis Warning Guidelines 2.1 INTRODUCTION

2.1.1 Possession of Cannabis is illegal. Offenders can be arrested for possession of Cannabis if necessary. Cannabis is classified as a Class C Drug under The Misuse of Drugs Act 1971.

2.1.2 Dealing in any amount of Cannabis is a serious offence that can result in up to 14 years imprisonment. A Cannabis Warning should not be considered where there is evidence of dealing or possession with intent to supply the cannabis to others.

2.1.3 On 19 January 2006, The Home Secretary, having taken advice from The Advisory Counsel on The Misuse of Drugs (ACMD), decided to keep Cannabis as a Class C Drug. The purpose of these guidelines is to issue renewed guidance to officers dealing with offences of possession of cannabis in light of this decision and significant legislative change since the guidelines were first introduced in January 2003.

2.1.4 These updated guidelines have been developed, following extensive consultation, to recommend to Chief Constables a consistent national approach to the policing of possession of Cannabis as a Class C Drug.

2.2 TERMINOLOGY

2.2.1 Since the 2004 guidelines introduced the concept of ‘Street Warnings’ for cannabis possession, there has been some confusion over the terminology and relationships with other forms of warning, such as the formal warning or formal cautioning procedure or final warnings for young people. During extensive consultation it was felt that the previous terminology was ambiguous and some officers interpreted it as being a warning that could only be given on the street, whereas, in reality, it can be given anywhere. In view of this and to avoid further misunderstanding ACPO have decided to refer to the process in future as a ‘Cannabis Warning’.

2.3 CANNABIS WARNINGS

2.3.1 The term ‘Cannabis Warning’ should replace the term ‘Street Warning’. It is expected that individual police forces will review current Standard Operating Procedures in light of these amended guidelines.

2.3.2 As a general guide, when police find a person in possession of a small amount of cannabis, they should ;

investigate the circumstances surrounding the alleged possession, including any lawful excuse

eliminate any suspicion of a more serious offence, such as possession with intent to supply. (The amount of cannabis in possession of the offender is irrelevant if there is other evidence of intent to supply)

seize cannabis and secure evidence according to local procedure. There must be compliance with PACE and its Codes. If the officer is not experienced in handling cannabis or has any doubt as to the nature of the substance they should call for the assistance of an officer who has the relevant experience

4 of 22

complete contemporaneous notes of the incident, that are PACE compliant and cover the points to prove for the offence, in line with local procedures

complete local recording systems, such as stop/search forms, property seized logs and criminal intelligence reports

ensure a record is made of the crime within local crime recording procedures. Under Home Office counting rules this will be treated as a sanctioned detection, providing the correct procedures have been followed.

2.3.3 If an offender admits possession, and there is no evidence of intent to supply to others, the officer should consider whether dealing with the offender by way of a Cannabis Warning would be a proportionate and appropriate method of disposal. If the officer decides to proceed with a cannabis warning the offender should be warned that:

A record of the investigation will be made at the police station

The offence of possession will be recorded against them, for statistical purposes, as a detected crime

However, this procedure does not constitute a criminal record against them.

2.4 ARREST

2.4.1 From 1 January 2006, Section 24 of the Police and Criminal Evidence Act 1984 (PACE) as amended by section 110 of the Serious and Organised Crime and Police Act 2005 (SOCAP), provides a constable with the power of arrest for an offence. The exercise of this power requires the officer to apply the necessity criteria set out in PACE Code G and show that arrest is necessary. The application of the ‘trigger powers’ under PACE following arrest (e.g. entry and search of premises after arrest) apply only to indictable offences. Possession of Cannabis under Section 5(2) of the Misuse of Drugs Act 1971 is an indictable offence.

2.4.2 A police officer finding a person aged 18 or over in possession of a substance that they can identify as cannabis and who is satisfied that the drug is intended for that person's own use should not normally need to arrest the person.

2.4.3 Young People aged 10 to 17 years of age cannot be given a Cannabis Warning. They must be dealt with under the provisions of Section 65 of the Crime and Disorder Act 1998. It is accepted that, in some cases, a police officer may find it necessary to arrest that person in order to obtain the admission/evidence required. However, consideration should be given to less intrusive means if possible such as taking the young person home, verifying their name and address and referring the case for a disposal decision. The necessity test is explained below and the officer must justify any decision to arrest based on individual circumstances.

2.4.4 When might an arrest be necessary?(i) PACE Code of Practice G provides statutory guidance on arrest

powers. An arrest must never be used simply because it can be used.  The use of the power must be shown to be necessary. Officers exercising the power should consider whether the intended objectives can be met by other, less intrusive means, such as summons, or by using street bail following arrest rather than taking

5 of 22

the suspect to the police station. The reasons for any arrest must be recorded in accordance with PACE Code G, section 4. The following examples demonstrate cases where the necessity criteria may prompt an officer to consider arresting the suspect. The circumstances that may satisfy those criteria, however, remain a matter for the operational discretion of individual officers. Some examples are given below of what those circumstances might be.

(ii) An arrest would not be necessary if the officer simply wished to seize cannabis and has no intention to prosecute the person. In these cases stop and search powers under s23 of the Misuse of Drugs Act 1971 enable the police to stop and search a person suspected of possessing controlled drugs. The officer can stop and search the suspect without making an arrest, and seize any controlled drugs that are found during the search. PACE Code of Practice A and the Stop and Search manual provide statutory guidance on the use of stop and search powers.

(iii) An arrest may be necessary where:

The name and/or address of the suspect are not known or there are reasonable grounds for doubting whether a name given is a real name.

For example:

o The officer wishes to caution / warn / summons the suspect for the offence

o It is necessary to prevent the offender suffering physical injury or causing injury to someone else

For example:

The person is so intoxicated they are in need of protection or incapable of understanding the warning procedure

the person is a juvenile and arrest is necessary to reduce the harm or risks faced by that individual if intervention is not taken

the person is vulnerable because of their mental health and arrest is necessary to reduce the harm or risks if intervention is not taken

a person is smoking cannabis in the company or vicinity of other people and arrest is necessary to reduce the harm or risks faced by any individual if intervention is not taken

a locality has been identified through the National Intelligence Model as one where there is fear of public disorder associated with the use of cannabis which cannot be effectively dealt with by other means, such as where an open drugs (cannabis) market causes harm to communities

It is necessary to protect a child or vulnerable person from the offender.

For example:

A person is smoking cannabis in the company or vicinity of young or vulnerable people and arrest

6 of 22

is necessary to reduce the harm or risks if intervention is not taken

It is necessary to allow the prompt and effective investigation of the offence

For example:

the amount of cannabis possessed and/or the person’s behaviour provide reasonable grounds for suspecting that there is an intention to supply and where it is necessary to obtain evidence by questioning.

the person has received two cannabis warnings previously and the officer wishes to prevent any prosecution of the offence from being hindered by the disappearance of the person.

in the case of a young or vulnerable person, it is not possible to obtain the services of an appropriate adult elsewhere than at a police station for the purposes of issuing a warning under section 65 of the Crime and Disorder Act 1998.

2.4.5 These guidelines do not encourage the same offender being repeatedly warned for possession of cannabis. Where it can be verified that an offender has received two previous cannabis warnings then a further warning should not be considered. Where this is the case the officer must consider the options available for prosecuting the suspect and arrest may then be necessary to enable the prompt and effective investigation of the offence or of the persons conduct. The rationale for any arrest must be carefully recorded.

2.4.6 Police forces should ensure that local intelligence recording systems have the capability to identify those that are repeatedly warned for cannabis possession so that consideration can be given to dealing with them in a manner proportionate to their level of offending.

2.4.7 It may be necessary to arrest a young offender who is in possession of cannabis on or in the vicinity of premises which may cause a risk to other young people, such as within schools, colleges or youth clubs. However, there may be local partnership agreements in place which would take precedence over these guidelines. The ACPO Guidance for Policing Drugs in Schools ‘Joining Forces’ offers further advice on this.

3. OFFENDERS UNDER 10 YEARS

When children under the age of 10 years are found in possession of cannabis, they should immediately be considered to be ‘at risk’ and this will prompt the appropriate referrals to other agencies through the child protection team. Although each case has individual circumstances, a child under 10 found in possession of cannabis must always be considered to be at risk of ‘significant harm’.

4. MONITORING

It will be important to assess the impact of these guidelines on communities. It is, therefore, recommended that through existing databases - for example, Crime recording; Intelligence; Stop and Search - forces monitor the impact of the policing cannabis under the guidelines within their force area.

7 of 22

It would be good practice to ensure that suitable localised monitoring data is available for sharing within local CDRP’s DA(A)T’s and YOT’s.

If reliable data can be monitored by forces, it is recommended that The Home Office aggregate and monitor nationally.

ACPO 17 January 2007

8 of 22

SECTION 3 - APPENDICES

APPENDIX ‘A’

SECTION C - ACPO EQUALITY IMPACT ASSESSMENT TEMPLATE (DIVERSITY AUDIT) AS AGREED WITH THE CRE

C1. Identify all aims of the guidance/advice

C.1.1 Identify the aims and projected outcomes of the guidance/advice:To review existing guidelines and update in line with Government policy and changes in legislationC.1.2 Which individuals and organisations are likely to have an interest

in or likely to be affected by the proposal?All ForcesSuperintendents AssociationPolice FederationHome OfficeHMICWelsh AssemblyDrug Action TeamsYouth Justice BoardCPSDrug CharitiesCriminal Justice AgenciesGreater London Alcohol and Drug AllianceLondon Drugs Policy Forum ( London DATs)Government Office (London)

C2. Consider the evidence

C.2.1 What relevant quantitative data has been considered?Age No data available on national basis

Disability No data available on national basisGender No data available on national basis

Race No data available on national basisReligion / Belief No data available on national basis

Sexual Orientation No data available on national basisC.2.2 What relevant qualitative information has been considered?

Age No data available on national basisDisability No data available on national basis

Gender No data available on national basisRace No data available on national basis

Religion / Belief No data available on national basisSexual Orientation No data available on national basisC.2.3 What gaps in data/information were identified?

Age No data available on national basisDisability No data available on national basis

Gender No data available on national basisRace No data available on national basis

Religion / Belief No data available on national basisSexual Orientation No data available on national basis

9 of 22

C.2.4 What consideration has been given to commissioning research? Age Joseph Rowntree Foundation research into policing cannabis

Disability NoneGender Joseph Rowntree Foundation research into policing cannabis

Race Joseph Rowntree Foundation research into policing cannabisReligion / Belief None

Sexual Orientation None

C3. Assess likely impact

C.3.1 From the analysis of data and information has any potential for differential/adverse impact been identified?

Age NoDisability No

Gender NoRace Potential disproportional impact but data set very small

(MPS)Religion / Belief No

Sexual Orientation NoC.3.2 If yes, explain any intentional impact:

Age NoneDisability None

Gender NoneRace None

Religion / Belief NoneSexual Orientation NoneC.3.3 If yes, explain what impact was discovered which you feel is

justifiable in order to achieve the overall proposal aims. Please provide examples:

Age N/aDisability N/a

Gender N/aRace Further monitoring needed with implementation

Religion / Belief N/aSexual Orientation N/aC.3.4 Are there any other factors that might help to explain differential

/adverse impact?Age None

Disability NoneGender None

Race NoneReligion / Belief None

Sexual Orientation None

C4. Consider alternatives

C.4.1 Summarise what changes have been made to the proposal to remove or reduce the potential for differential/adverse impact:

When the guidelines were introduced in 2004, no system for monitoring the effect was introduced. This revision of guidelines will enable monitoring systems to be put into place.C.4.2 Summarise changes to the proposal to remove or reduce the

potential for differential/adverse impact that were considered but not implemented and explain why this was the case:

NoneC.4.3 If potential for differential/adverse impact remains explain why

implementation is justifiable in order to meet the wider proposal aims:

N/a

10 of 22

C5. Consult formally

C.5.1 Has the proposal been subject to consultation? If no, please state why not. If yes, state which individuals and organisations were consulted and what form the consultation took:

Age Youth Justice Board/ Home OfficeDisability Drugscope / Release

Gender MPS IAG MembersRace MPS Diversity Directorate / MPS IAG Members

Religion / Belief MPS IAG MembersSexual Orientation None specific but IAG consulted

C.5.2 What was the outcome of the consultation?Age Minor amendments incorporated

Disability No amendments suggestedGender No amendments suggested

Race No amendments suggestedReligion / Belief No amendments suggested

Sexual Orientation N/aC.5.3 Has the proposal been reviewed and/or amended in light of

the outcomes of consultation?Minor amendments made to take account of suggestions

C.5.4 Have the results of the consultation been fed back to the consultees?

Yes – Final guidelines incorporating amendments suggested circulated

C6. Decide whether to adopt the proposal

C.6.1 Provide a statement outlining the findings of the impact assessment process. If the proposal has been identified as having a possibility to adversely impact upon diverse communities, the statement should include justification for the implementation:

The policing of Cannabis since reclassification to Class C in January 2003 has been largely unmonitored nationally. A small independent study by The Jospeh Rowntree Foundation has indicated that the use of ‘Street Warnings’ may be disproportionally applied to some BME groups. However the sample size (4 BCUs/2 Forces) was small and the results cannot be assumed as being representative of the UK. Updated guidelines will allow for new legislation to be incorporated into procedure and to introduce a national monitoring system with The Home Office

C7. Make Monitoring Arrangements

C.7.1 What consideration has been given to piloting the proposal?Existing guidelines have been in place nationally since January 2004. The updated guidelines have been tested in focus groups of operational staffC.7.2 What monitoring will be implemented at a national level by the proposal owning agency and/or other national agency?The Home Office will develop a national monitoring frameworkC.7.3 Is this proposal intended to be implemented by local agencies that have a statutory duty to impact assess policies? If so, what monitoring requirements are you placing on that agency?No

C8. Publish Assessment Results

11 of 22

C.8.1 What form will the publication of the impact assessment take?

ACPO Intranet

12 of 22

Appendix ‘B’

Cannabis Guidelines FAQ’s

Is it legal to carry cannabis but not smoke it?

No. Cannabis is illegal it’s as simple as that.

Why is ACPO producing new guidelines?

It is ACPO policy to periodically review any guidelines. In the case of Cannabis the Home Secretary’s recently confirmed that it would stay a class C drug. In addition The Serious Organised Crime and Police Act 2005 (SOCAP) made changes to powers of arrest which made a review necessary.

Why have you changed the name to Cannabis Warnings?

Following extensive consultation it was generally agreed that the term ‘street warning’ was confusing. A warning can be given anywhere; on the street; in a home; in a police station or anywhere else for that matter. The term ‘Cannabis Warning’ is less ambiguous.

Do these Guidelines cover the whole of the UK?

ACPO provides guidelines for police in England, Wales and Northern Ireland. Scotland has a separate representative body.

Why do the guidelines no longer include “Aggravating Factors?”

Section 24 of PACE, as amended by SOCAP, and the PACE Code of Practice on Arrest (Code G) set out the necessity criteria for arrest. Applying the necessity criteria requires the circumstances of the offence to form part of the consideration in determining whether an arrest can be made and justified

Who can give a Cannabis Warning?

Any police officer can give a warning rather than arresting someone who is in possession of cannabis and not suspected of dealing.

What do I do if the subject is obstructive or does not admit to possession?

If the offender disputes the possession of cannabis or will not comply with the procedure then you may consider it necessary to arrest in order to ensure that the offence may be properly investigated – but you must be able to justify that decision yourself.

What is the suggested wording for a Cannabis Warning?

There is no formal wording. It is recommended that the following points are included;

A record of the investigation will be made at the police station The offence of possession will be recorded, for statistical purposes, as

detected That this procedure does not constitute a criminal record against them

Can I search premises under Section 18 of PACE following a Cannabis Warning?

13 of 22

No, in order to use the power under S18 PACE an arrest must be made for an indictable offence.

What if I make a mistake and warn when I really should have arrested or arrest when I should have warned?

Police sometimes have to make quick decisions based on what is presented to them. Providing you made your decision on an honestly held belief that you were taking action that was both proportionate and necessary in light of what you knew at the time then your action should be justified even if additional evidence later comes to light.

What can I do if the cannabis is only found when the person is being searched following arrest?

The custody officer must be informed of the circumstances. There is nothing to prevent a Cannabis Warning being given at the police station irrespective of other offences being investigated.

When does possession become possession with intent to supply?

It is up to you to have reasonable grounds to suspect possession with intent to supply. This could come from observed behaviour (dealing), responses to questioning or could be inferred where the person has a large amount of cannabis in their possession that requires further investigation or has equipment on them associated with dealing.

Hasn’t the government introduced thresholds for possession?

Section 2 of the Drugs Act 2005 provided the possibility of thresholds, above which a court must assume a drug was possessed with intent to supply unless it is proved otherwise. On 13 October, the Government announced that it was no longer introducing a threshold, so you must continue to use your judgement and experience to assess whether the amount possessed appears reasonable for personal possession only.

What if the amount of cannabis is so small it’s not worth putting in the evidence bag?

If it is large enough for you to identify it as Cannabis then action needs to be taken

What is ‘Cannabis’ for the purpose of Cannabis Warnings?

Cannabis includes any part of the plant except the stalks and seeds. So it includes Cannabis Resin, Herbal Cannabis leaves and Cannabis Oil.

Do I still have to arrest a person that is under 18?

There is no longer a recommendation that such young people must be arrested. You will have to justify that arrest is necessary, some examples of what might help you consider this are contained in the guidelines. However it is recognised that very often arrest will be necessary to obtain the admission/evidence required for the final warning scheme. If this is necessary in your case then you would be justified in making an arrest

Can I give a person that is under 18 a Cannabis Warning?

14 of 22

No. Section 65 of the Crime and Disorder Act 1998 requires that such young people are considered for a reprimand, final warning or prosecution. However, that does not mean you have to arrest at the time in order to seize the cannabis. You could decide to take the young person home to the protection of their parent or guardian. Taking this action would not prevent a later warning or reprimand being given or a prosecution being commenced, at a later date. However if that is not possible and you have no reasonable alternative then you should have no difficulty justifying that an arrest is necessary in your case.

What if a 17 year old and a 19 year old are smoking cannabis together?

You must look at the circumstances of each individual. You must decide in each individual case that the action you take is both necessary and proportionate. You may have to deal with them differently.

What should I do if called to a school where a pupil is in possession of cannabis?

Separate guidance is available for dealing with drugs in schools – Joining Forces – published June 2006. This guidance states;

“Where a young person is found in possession of a suspected illegal drug on school or college premises and police are involved, the following questions can be asked :

Is the young person still on school premises or in a place of safety? Is the name and address of the young person known? Can parents or carers be contacted if appropriate? Is there a range of responses available including information, advice and

guidance, referral options and/or school or college disciplinary procedures in place?

If the answers to all these questions are 'YES' then it may not be necessary or proportionate to arrest a young person and take them to a police station.

When considered together, current guidance and practice suggest that a police officer does not have to arrest for minor possession if the school or college can deal with the incident in an alternative way.”

Normally a local protocol exists between the police and the education authority. This protocol would take precedence over the advice contained in these guidelines.

Why do those with similar amounts of Cannabis apparently get arrested in one BCU but are given a Cannabis Warning on the street in the next?

The decision to arrest or deal with by warning is an individual one. If a BCU has a particular problem area associated with the use of cannabis then this may contribute to the need to make an arrest.

Can I put cannabis ‘down a drain’? If so how do I record it?

No, informal disposals would breach force property recording and audit policy, you must deal with any cannabis found in line with the guidelines.

How many repeat Cannabis Warnings will lead to automatic arrest?

Repeat Cannabis Warnings do not automatically mean arrest. However in writing the guidelines it was not expected that individuals will be given repeated warnings. If you are able to confirm that your suspect has had two previous warnings then to continue to warn would be inappropriate. In these circumstances you should be able to justify that an arrest is necessary for effective investigation of the offence – but you must fully explain how you made your decision in your arrest notes.

15 of 22

If asked about treatment for cannabis misuse what should I say?

In the first instance anyone can find useful information on the Government’s website www.talktofrank.com or call the FRANK Helpline free on 0800 77 66 00. In addition you could put them in touch with your local Drug Action Team or Community Drug and Alcohol Team or suggest they speak to their own doctor.

What does it mean to be an expert in identifying Cannabis?

This generally means that you should have considerable experience in handling cannabis and be able to recognise it, without any doubt, based on that experience. If you haven’t yet got that experience then you must ask someone who has to verify that it is cannabis before you can give a warning.

What do we do about Cannabis Warnings and ‘critical occupations’ such as a person who is a PSV driver?

Just because someone does a particular job, does not in itself justify an arrest. Every case should be treated on its merits but you must follow local and national procedures on sharing intelligence on persons working in high risk areas or occupations that are subject to vetting procedures.

Can I tell partners in other agencies that someone has received a Cannabis Warning?

Sharing Intelligence is key to effective partnership working. However all staff must comply with The Data Protection Act. Any sharing of intelligence must only be carried out within the confines of agreed partnership protocols and for a specific purpose.

Why are Cannabis Warnings not recorded on PNC?

A Cannabis Warning is neither a conviction nor a criminal record. At present recording of cannabis warnings is confined to local intelligence systems.

Can I arrest someone if I believe they are under the influence of Cannabis whilst driving or being in charge of a vehicle??

Driving a motor vehicle whilst impaired through drugs is an offence under The Road Traffic Act 1988. It is a serious offence and providing you have sufficient evidence of impairment, should be dealt with in the same way as those who drive whilst impaired through alcohol.

16 of 22

Appendix ‘C’

SOCPA - New Powers of Arrest

Information from Blackstone’s Police Manuals and Q&A Onlinehttp://www.blackstonespolice.com/public/socpa#Part%202SOCPA Update to the Manuals

The introduction of the Serious Organised Crime and Police Act 2005 (SOCPA) and the resultant amendments to the Codes of Practice to the Police and Criminal Evidence Act 1984 (PACE) represent a significant change to policing powers and procedures. As a consequence, Centrex, in conjunction with Oxford University Press, have prepared a syllabus update, which outlines and explains the changes resulting from the new legislation. Click here to view the update

SOCPA Update to the Q&A Online: Blackstone's Police Q&A Online has now been updated in relation to SOCPA 2005 and the revised PACE Codes of Practice 2006. Sixty new questions have been added and all relevant existing questions have been revised accordingly.

Introduction1.1   This Code of Practice deals with statutory power of police to arrest persons suspected of involvement in a criminal offence.

1.2   The right to liberty is a key principle of the Human Rights Act 1998. The exercise of the power of arrest represents an obvious and significant interference with that right.

1.3   The use of the power must be fully justified and officers exercising the power should consider if the necessary objectives can be met by other, less intrusive means.

1.4   Section 24 of the Police and Criminal Evidence Act 1984 (as substituted by section 110 of the Serious Organised Crime and Police Act 2005) provides the statutory power of arrest. If the provisions of the Act and this Code are not observed, both the arrest and the conduct of any subsequent investigation may be open to question.

1.5   This code of practice must be readily available at all police stations for consultation by police officers and police staff, detained persons and members of the public.

1.6   The notes for guidance are not provisions of this code.2   Elements of Arrest under section 24 PACE2.1   A lawful arrest requires two elements:

A person's involvement or suspected involvement or attempted involvement in the commission of a criminal offence;

AND

Reasonable grounds for believing that the person's arrest is necessary.

2.2   Arresting officers are required to inform the person arrested that they have been arrested, even if this fact is obvious, and of the relevant circumstances of the arrest in relation to both elements and to inform the custody officer of these on arrival at the police station. See Code C paragraph 3.4.

17 of 22

'Involvement in the commission of an offence'2.3   A constable may arrest without warrant in relation to any offence, except for the single exception listed in Note for Guidance 1. A constable may arrest anyone:

who is about to commit an offence or is in the act of committing an offence

whom the officer has reasonable grounds for suspecting is about to commit an offence or to be committing an offence

whom the officer has reasonable grounds to suspect of being guilty of an offence which he or she has reasonable grounds for suspecting has been committed

anyone who is guilty of an offence which has been committed or anyone whom the officer has reasonable grounds for suspecting to be guilty of that offence.

Necessity criteria2.4   The power of arrest is only exercisable if the constable has reasonable grounds for believing that it is necessary to arrest the person. The criteria for what may constitute necessity are set out in paragraph 2.9. It remains an operational decision at the discretion of the arresting officer as to:

what action he or she may take at the point of contact with the individual;

the necessity criterion or criteria (if any) which applies to the individual; and

whether to arrest, report for summons, grant street bail, issue a fixed penalty notice or take any other action that is open to the officer.

2.5   In applying the criteria, the arresting officer has to be satisfied that at least one of the reasons supporting the need for arrest is satisfied.

2.6   Extending the power of arrest to all offences provides a constable with the ability to use that power to deal with any situation. However applying the necessity criteria requires the constable to examine and justify the reason or reasons why a person needs to be taken to a police station for the custody officer to decide whether the person should be placed in police detention.

2.7   The criteria below are set out in section 24 of PACE as substituted by section 110 of the Serious Organised Crime and Police Act 2005. The criteria are exhaustive. However, the circumstances that may satisfy those criteria remain a matter for the operational discretion of individual officers. Some examples are given below of what those circumstances may be.

2.8   In considering the individual circumstances, the constable must take into account the situation of the victim, the nature of the offence, the circumstances of the offender and the needs of the investigative process.

2.9   The criteria are that the arrest is necessary:(a) to enable the name of the person in question to be ascertained (in the

case where the constable does not know, and cannot readily ascertain, the person's name, or has reasonable grounds for doubting whether a name given by the person as his name is his real name)

(b) correspondingly as regards the person's address:an address is a satisfactory address for service of summons if the person will be at it for a sufficiently long period for it to be possible to serve him or her with a summons; or, that some other person at that address

18 of 22

specified by the person will accept service of the summons on their behalf.

(c) to prevent the person in question:(i) causing physical injury to himself or any other person;

(ii) suffering physical injury;

(iii) causing loss or damage to property;

(iv) committing an offence against public decency (only applies where members of the public going about their normal business cannot reasonably be expected to avoid the person in question); or

(v) causing an unlawful obstruction of the highway;(d) to protect a child or other vulnerable person from the person in question

(e) to allow the prompt and effective investigation of the offence or of the conduct of the person in question.

This may include cases such as:

(i) Where there are grounds to believe that the person:

has made false statements;

has made statements which cannot be readily verified;

has presented false evidence;

may steal or destroy evidence;

may make contact with co-suspects or conspirators;

may intimidate or threaten or make contact with witnesses;

where it is necessary to obtain evidence by questioning; or

(ii) when considering arrest in connection with an indictable offence, there is an operational need to:

enter and search any premises occupied or controlled by a person

search the person

prevent contact with others

take fingerprints, footwear impressions, samples or photographs of the suspect

(iii) ensuring compliance with statutory drug testing requirements.(f) to prevent any prosecution for the offence from being hindered by the

disappearance of the person in question. This may arise if there are reasonable grounds for believing that:

if the person is not arrested he or she will fail to attend court

street bail after arrest would be sufficient to deter the suspect from trying to evade prosecution

3   Information to be given on Arrest

19 of 22

(a)   Cautions— when a caution must be given (taken from Code C section 10)

3.1 A person whom there are grounds to suspect of an offence (see Note 2) must be cautioned before any questions about an offence, or further questions if the answers provide the grounds for suspicion, are put to them if either the suspect's answers or silence (i.e. failure or refusal to answer or answer satisfactorily) may be given in evidence to a court in a prosecution. A person need not be cautioned if questions are for other necessary purposes e.g.:

(a) solely to establish their identity or ownership of any vehicle;(b) to obtain information in accordance with any relevant statutory

requirement;(c) in furtherance of the proper and effective conduct of a search, e.g. to

determine the need to search in the exercise of powers of stop and search or to seek co-operation while carrying out a search;

(d) to seek verification of a written record as in Code C paragraph 11.13;(e) when examining a person in accordance with the Terrorism Act 2000,

Schedule 7 and the Code of Practice for Examining Officers issued under that Act, Schedule 14, paragraph 6.

3.2   Whenever a person not under arrest is initially cautioned, or reminded they are under caution, that person must at the same time be told they are not under arrest and are free to leave if they want to.

3.3   A person who is arrested, or further arrested, must be informed at the time, or as soon as practicable thereafter, that they are under arrest and the grounds for their arrest, see Note 3.

3.4   A person who is arrested, or further arrested, must also be cautioned unless:(a) it is impracticable to do so by reason of their condition or behaviour at the

time;(b) they have already been cautioned immediately prior to arrest as in

paragraph 3.1.(b)   Terms of the caution (taken from Code C section 10)3.5   The caution, which must be given on arrest, should be in the following terms:

'You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in Court. Anything you do say may be given in evidence.'

See Note 5

3.6   Minor deviations from the words of any caution given in accordance with this Code do not constitute a breach of this Code, provided the sense of the relevant caution is preserved. See Note 6

3.7   When, despite being cautioned, a person fails to co-operate or to answer particular questions which may affect their immediate treatment, the person should be informed of any relevant consequences and that those consequences are not affected by the caution. Examples are when a person's refusal to provide:

their name and address when charged may make them liable to detention;

particulars and information in accordance with a statutory requirement, e.g. under the Road Traffic Act 1988, may amount to an offence or may make the person liable to a further arrest.

20 of 22

4   Records of Arrest(a)   General4.1   The arresting officer is required to record in his pocket book or by other methods used for recording information:

the nature and circumstances of the offence leading to the arrest

the reason or reasons why arrest was necessary.

the giving of the caution

anything said by the person at the time of arrest

4.2   Such a record should be made at the time of the arrest unless impracticable to do. If not made at that time, the record should then be completed as soon as possible thereafter.

4.3   On arrival at the police station, the custody officer shall open the custody record (see paragraph 1.1A and section 2 of Code C). The information given by the arresting officer on the circumstances and reason or reasons for arrest shall be recorded as part of the custody record. Alternatively, a copy of the record made by the officer in accordance with paragraph 4.1 above shall be attached as part of the custody record.

4.4   The custody record will serve as a record of the arrest. Copies of the custody record will be provided in accordance with paragraphs 2.4 and 2.4A of Code C and access for inspection of the original record in accordance with paragraph 2.5 of Code C.(b)   Interviews and arrests4.5   Records of interview, significant statements or silences will be treated in the same way as set out in sections 10 and 11 of Code C and in Code E (tape recording of interviews).Notes for guidance1   The offences of assisting offenders under section 4(1) and concealing offences under section 5(1) of the Criminal Law Act 1967 carry the power of arrest. However, these offences relate only to assisting or concealing offences for which (a) the sentence is fixed by law, or (b) a first time offender aged 18 or over could be sentenced to five years imprisonment.

2   There must be some reasonable, objective grounds for the suspicion, based on known facts or information which are relevant to the likelihood the offence has been committed and the person to be questioned committed it.

3   An arrested person must be given sufficient information to enable them to understand they have been deprived of their liberty and the reason they have been arrested, e.g. when a person is arrested on suspicion of committing an offence they must be informed of the suspected offence's nature, when and where it was committed. The suspect must also be informed of the reason or reasons why arrest is considered necessary. Vague or technical language should be avoided.

4   Nothing in this Code requires a caution to be given or repeated when informing a person not under arrest they may be prosecuted for an offence. However, a court will not be able to draw any inferences under the Criminal Justice and Public Order Act 1994, section 34, if the person was not cautioned.

5   If it appears a person does not understand the caution, the people giving it should explain it in their own words.

6   The powers available to an officer as the result of an arrest— for example, entry and search of premises, holding a person incommunicado, setting up road blocks— are only available in respect of indictable offences and are subject to

21 of 22

the specific requirements on authorisation as set out in the 1984 Act and relevant PACE Code of Practice.

22 of 22