Use of force and power to detain when searching

03 March 2021

Not reviewed after the date of publication

Question: 

Is the power to use force and detain for search included in the specific search powers, such as s23 MDA, s60 CJPOA, s47 FA. Clearly section 117 PACE covers the PACE powers, but not for the other Acts.

Answer:

The power to detain and search is contained within the sections mentioned, for example in section 23(2)(a) of the Misuse of Drugs Act 1971:

23(2) If a constable has reasonable grounds to suspect that any person is in possession of a controlled drug in contravention of this Act or of any regulations or orders made thereunder, the constable may -

(a) search that person, and detain him for the purpose of searching him;

Although it is clear from case law that there is a power to use reasonable force to carry out a search under Section 23 of the Misuse of Drugs Act 1971, it is not exactly clear which power should be used. Our view is that the power to use force when carrying out a search under section 23 is most likely to be provided by section 3 of the Criminal Law Act 1967. However, case law, in particular the judgment in Browne v Commissioner of Police of the Metropolis 2014, appears to suggest that dependant on the circumstances, the power to use force could be one or all of:

Section 3 of the Criminal Law Act 1967
Section 117 of PACE).
Common law.

The reason that force was deemed unlawful in this case was due to the failure of the officer to comply with section 2 of PACE and because the actual force used was found to be excessive, it was not because the use of force was not provided for.

Although the use of force is evidently provided for when carrying out a search under section 23, responsibility for the use of force rests with the officer exercising that force. An officer must be able to justify that the use of force was lawful, proportionate and necessary in the circumstances.

In our opinion the situation would be the same for searches carried out under section 60 of the Criminal Justice and Public Order Act 1994 and section 47 of the Firearms Act 1968, although we have been unable to locate any case law in relation to these specific powers. Ultimately, if challenged, it would be for the courts to decide if the use of force was lawful.

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