07 June 2021
Not reviewed after the date of publication
A murder occurs and the crime scene (a public place) is secured, a suspect is identified and he is arrested at his home address.
There is obviously a power to search under s.32 and s.18 but is there a power to secure the premises as a crime scene and to remove any person's present? Sometimes there is a need to secure the premises rather than search immediately whilst further facts are established.
There is no general statutory power to set up a cordon at a crime scene (with the exception of terrorism cases – see sections 33-36 of the Terrorism Act 2000. Where a scene should be retained, the powers come mostly from common law. See for example the cases of DPP v Morrison (2003) and Austin v UK (2012). The Court in DPP v Morrison also referred to PACE Code of Practice B (see now 2.3) which assumes that there are situations where the consent of the owner of premises can be assumed to set up a cordon (the case dealt with a scene on private land where a public right of way applied).
Please see D15008 on PNLD for further information in relation to the powers to retain a crime scene.
Where the crime scene is also a private premises belonging to the suspect we would advise that caution is exercised to ensure the integrity of the investigation is maintained and that any evidence seized is done lawfully so it is unlikely to be excluded at court. In the circumstances you provide, consent cannot be assumed and authority to enter and search the home address of the suspect would be required. As you state, section 18 of the Police and Criminal Evidence Act 1984 provides this power, however, it does not provide a power to remove other persons present, although you can ask them to vacate the area/premises which hopefully they will do voluntarily.
If people do not vacate the area/premises voluntarily then, where a cordon is properly set up according to common law powers, a person who fails to comply with police orders might commit the offence of wilful obstruction of a police officer, section 89(2) of the Police Act 1996.
Given the circumstances, it may be deemed necessary to obtain a warrant where it is expected that a considerable period of time will be spent processing the scene but a warrant would not provide the police with a power to remove people from private premises whilst a search is conducted. However, if the scene is to be processed under a warrant, a cordon can still be put in place and we believe that the scene could be retained by the police as long as is necessary. A crime scene should only be released when the police are satisfied that they have exhausted their investigation at that scene, and given due consideration to expert advice if appropriate. As above, depending on the exact circumstances, a person who fails to comply with the cordon may commit the offence of wilful obstruction of a police officer.
Please see the college of policing guidance on managing crime scenes which may be of interest to you.
Based on the circumstances of the offence in question the police need to act proportionately and transparently and if they do the courts are more likely to look favourably on the situation as the cases highlighted in D15008 referred to above. Ultimately the court will make the decision if the removal of persons or the integrity of the retention of the crime scene is challenged.
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