15 March 2021
Not reviewed after the date of publication
If a constable received reports of cannabis being smoked at an address on a regular basis and they walk past the address on patrol and smell cannabis coming from the address clearly being smoked.
Would powers under section 17 be appropriate here i.e. to enter to arrest? Or you would need to see a person committing this offence.
If an officer can see that cannabis is clearly being smoked in a property and as such the officer has reasonable grounds to suspect that the person has committed an indictable offence, and the necessity test can be satisfied, we are of the opinion that entry could be gained using section 17(1)(b) of PACE, to arrest the person for an indictable offence; this would include for either way offences such as simple possession or possession with intent to supply.
This would be a fact specific decision for the officer to make at the time, they must have reasonable grounds for believing the person they are seeking is on the premises and they must be able to justify their actions should they be challenged. Once arrested, there will be a power to search the premises under sections 18 and 32 of PACE.
However, it should also be noted that, in the circumstances you provide, where the police have received intelligence regarding regular drugs use at a premises over a period time and in fact have witnessed it for themselves and failed to take any action previously in the form of obtaining a warrant, then the use of section 17 may be criticised.
In our opinion, the preferred option would be to obtain a warrant under section 23(3) of the Misuse of Drugs Act 1971. Please be aware that the terms of a warrant under section 23 of the Misuse of Drugs Act 1971 would need to specify if there was going to be a requirement to search the premises or any people in the premises; this must be specifically included in the details of the warrant (Chief Constable of Thames Valley Police v Hepburn ).
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