Not reviewed after the date of publication - 1st August 2022

Question: 

Can pre-emptive force be used to carry out a stop and search (e.g. restraining or handcuffing and then carrying out the search) without the need to seek co-operation? Or is para 3.2 of Code A absolute?

Answer:

The power to ‘stop and search’ is provided within different legislative statutes.  An officer must be able to satisfy the requirements of the relevant legislative provision. Annex A of PACE Code A lists the statutory powers under which the power to stop and search is provided. PACE Code A governs the exercise of the power of stop and search by police officers and must be followed. Failure to adhere to the Code may potentially lead to disciplinary action. Therefore, where an officer carries out a stop and search in reliance on the statutory power of stop and search, then they must carry out this search in accordance with Code A and as you have noted, with reference to paragraph 3 of Code A (Conduct of searches). Any use of force in the exercise of this power by an officer must be justified by that officer in the circumstances before them. They must be able to provide a lawful basis for the use of force. Use of force by the police is provided under  -

  • Common Law – where a person honestly believes that they or another, are in imminent danger, then they may use such force as is reasonable and necessary to avert that danger.
  • Section 3 of the Criminal Law Act 1967 - a person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.  
  • Section 117 of PACE - where any provision of PACE - (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 College of Policing provides guidance on the use of force by police.  Please see the link below –

College of Policing Approved Professional Practice on ‘Police Use of Force’  

With regard to the exercise of the power to stop and search in relation to section 1 of PACE, section 117 of PACE provides the power to use reasonable force in the exercise of this power. In our opinion this does not mean that force may be used ‘pre-emptively’ but force is to be used when there is a lawful basis to do so and when it is necessary and proportionate in the circumstances of each case. PACE Code A must be followed.

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