Oxford University Press - Online Resource Centres

Broadbent: Public Law Directions

Chapter 8

1. Which human rights, protected by the European Convention on Human Rights, are relevant in this area?

A number are relevant, but Art 5, the right to liberty, is clearly engaged here. As with most of the rights under the Convention, it is capable of being limited on a number of grounds and clearly has been in English law as the police are able to interfere with individual liberty in a number of situations. It is worth remembering that the convention rights apply to both the law and the ways in which it is used by the police.

2. What limitations on those rights are permissible?

Under Art 5, limitations may be imposed on the right to liberty on the following grounds, of which the most relevant are:

“(b) the lawful arrest or detention of a person for noncompliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
. . . .
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;”

This clearly leaves considerable scope to Parliament, the courts and the police to interfere with individual liberty, though whether statutes such as the Police and Criminal Evidence Act do so excessively is a matter for debate.

3. What powers do the police have to interfere with individual freedom?

You might consider the range of powers available to the police, drawing a distinction between those involving an arrest and those where action short of arrest has been taken such as powers of stop and search. This distinction is important in relation to the consequences that follow: arrest triggers a range of other powers in PACE that may be exercised such as powers of search of both the individual and of premises. Note the requirements that have to be followed in order that the powers are exercised lawfully and note also the effect of the Codes of Practice on the exercise of police powers.

4. Has an appropriate balance been achieved between giving the police enough power to do their job and giving individuals sufficient safeguards to uphold their human rights and prevent abuses of power?

The answer will depend on your perspective.  There was and continues to be much talk of the law holding the balance between the powers of the police and the rights of suspects. Whether the law has been successful in achieving this will be affected by your view of where a proper balance lies.