Police Officers failing to give their name and Station before search.
Mustapha Osman v Southwark Crown Court
Judgment of the Court CO/2318/98; (1999) The Times, 1 July, Queen's Bench
The facts found by the Crown Court.
1) The Police had experienced continuous trouble throughout the previous week from groups of youths carrying weapons into a park.
2) Proper authorisation had duly been given to stop and search members of the public on entering the Park under Section 60(4)(5) of the Criminal Justice and Public Order Act 1994.
3) Officers were openly stopping and searching all members of the public on entering the park.
4) Osman, together with other youths, was about to enter the park.
5) Osman was stopped by Police Constables Connors and Maxwell at the entrance.
6) Police Constable Connors addressed Osman and said, 'Are you going to the fair as I am entitled to search you for weapons?'
7) Osman, upon hearing this request, remained standing in front of them without responding.
8) The Police Officers, given what was clearly happening to everyone else entering the park, made the not unreasonable assumption that Osman meant to comply with the search.
9) Immediately following this Police Constable Maxwell took hold of Osman's left arm in order to commence the search, saying, You are going to be searched'.
10) Osman immediately folded his arms tightly across this chest and said, You cannot fucking search me here, take me to a fucking police station'.
11) As a result of this reaction the Police Officers had reason to fear Osman might indeed be carrying a weapon and that they themselves or others might be in danger unless they searched him then and there.
12) Police Constables Maxwell and Connors, therefore, shortly after assisted by other officers, proceeded to free Osman's arms and attempted to force him to comply with the proposed search.
13) During the subsequent search the officers were assaulted.
14) Police Constables Connors and Maxwell had failed to bring to Osman's attention their names and the station to which they were attached, but that Police Constable Connors would have given these details later.
The Crown Court's Conclusions.
1) Osman's conduct had led the Police Officers to draw a reasonable conclusion that he had consented. They were thus entitled to commence a search and to continue it when he became unwilling to co-operate.
2) Although there had been a breach of section 2(3)(a) of the Police and Criminal Evidence Act 1984 and the Codes, in that the officers had failed to bring to Osman's attention their names and station, given the officers were clearly local officers policing a local event in broad daylight as expeditiously as possible and because numbers could readily be obtained from the officers' lapels, the breach was not so serious as to render the search unlawful on that account."
The following two questions were proposed.
"1. Did Osman's conduct in standing in front of PC Maxwell and Connors entitle the police to assume Osman had consented to the search. If that conduct did not amount to consent, were the officers entitled to hold Osman's arm and effect a search or was that unlawful and a battery?
2. Did the failure of the officers to supply details of their names and station, notwithstanding their availability from the officers lapels render the search unlawful as a result of their breaching section 2(3)(a) of the Police and Criminal Evidence Act 1984?"
Judgment of Lord Justice Sedley.
The second question needed to be addressed first. Indeed, it may well be that, by addressing the issues in the wrong order, the Crown Court contributed to the error of law which, vitiated their conclusions.
Section 60 of the Criminal Justice and Public Order Act 1994 provides, in its material sub-sections:
"(1) Where a police officer of or above the rank of superintendent reasonably believes that -
(a)incidents involving serious violence may take place in any locality in his' area, and
(b)it is expedient to do so to prevent their occurrence
he may give an authorisation that the powers to stop and search persons and vehicles conferred by this section shall be exercisable at any place within that locality for a period not exceeding twenty-four hours." That power had been, on the Crown Court's findings, exercised in the present case. The section then provides:
"(4) This section confers on any constable in uniform power -
(a)to stop any pedestrian and search him or anything carried by him for offensive weapons or dangerous instruments;
(b)to stop any vehicle in order to search the vehicle, and its driver and any passenger for offensive weapons or dangerous instruments.
(5) A constable may, in the exercise of those powers . . . stop any person or vehicle and make any search he thinks fit whether or not he has any grounds for suspecting that the person or vehicle is carrying weapons or articles of that kind."
The powers of search so conferred are governed by the pre-existing requirements of the Police and Criminal Evidence Act 1984. Section 2 makes the following relevant provision:
"(2) if a constable contemplates a search, other than a search of an unattended vehicle, in the exercise -
(a)of the power conferred by section 1 above [that is a power of stopping and searching if there are reasonable grounds for a material suspicion]; or
(b)of any other power...
(i)to search a person without first arresting him; or
(ii)to search a vehicle without making an arrest
it shall be his duty, subject to subsection (4) below, to take reasonable steps before he commences the search to bring to the attention of the appropriate person -
(i)if the constable is not in uniform, documentary evidence that he is a constable; and
(ii)whether he is in uniform or not, the matters specified in subsection (3) below;
and the constable shall not commence the search until he has performed that duty.
(3)The matters referred to in subsection (2)(ii) above are -
(a)the constable's name and the name of the police station to which he is attached;
(b)the object of the proposed search;
(c)the constable's grounds for proposing to make it
It is undisputed - indeed indisputable - that this regime applies to the powers of search under section 60 of the 1994 Act. It is plain from the mandatory words "the constable shall not commence the search until he has performed that duty" that any search initiated without prior compliance with the duties of disclosure and information set out in section 2 of PACE is an unlawful search. if so, no officer who is assaulted in conducting it is assaulted in the execution of his duty, even though it may well be that excessive resistance nevertheless constitutes an assault in law. That, however, was not the charge laid against Osman. Indeed, it was only the manifest seriousness of the additional element of assaulting the police officers in the execution of their duty that led to his loss of liberty for 21 days. if there were any doubt about the importance of the provision, it can be readily stilled by the reflection that any search of a person, even upon reasonable suspicion, is on the face of it a trespass requiring proper justification in law. A search conducted under statutory powers which does not even require reasonable suspicion in relation to the individual is doubly appropriate for that qualification.
What happened in this case, on the Crown Court's findings of fact, was, as the Crown Court accepts, a breach of sub-sections 2(2) and (3) of the Police and Criminal Evidence Act 1984. From this, without more, it followed that the search which was initiated by the officers was not a lawful search and that, even though they may have been assaulted, they were not assaulted in the execution of their duty.
The Crown Court, had mistakenly approached the issue as if it were a section 78 issue in a jury trial. They have considered whether the breach, evident though it was, was venial in the light of the factors that they mention. But Counsel for the CPS, with realism and candour, has accepted that this will not do. His best effort is to focus upon the word "reasonable" qualifying the noun "steps" in section 2(2) of PACE. He has submitted that, given that a daylight search of a fairground crowd by uniformed officers was plain for all to see, it was reasonable for the officers to do as they did. The submission, however, overlooks the fact that what the officers are required by law to do is to take "reasonable steps" before beginning the search to bring the prescribed data to the attention of the members of the public whom they are proposing to search. On the evidence set out in the Crown Court's findings, no step whatever was taken in this direction. It is impossible, therefore, to begin to attach the epithet "reasonable" to what was done.
Having heard Counsel for the CPS's submission, that while there is an element of formality and, perhaps, of excessive use of time in having to recite the constable's name and station to every person searched, it is nevertheless Parliament's view that such formality is of great importance in relation to civil liberties. There would be nothing, I would have thought, to prevent uniformed officers, who are sent out to make searches of this kind from carrying in their pocket slips of paper giving their name and station, so that the person searched not only is told what these are but can carry the information away with him or her, and the officer is saved the
trouble of going through an oral rigmarole. That, however, is beside the present point. This search was unlawful for the reasons given.
This being so, Osman's conduct in presenting himself as if he were consenting to the search - assuming that that was a legitimate finding - was nothing to the point. That he may have consented to being searched would not make the search that was being inaugurated and attempted by the officers a lawful one. What is more, I have the gravest doubts about whether the officers were entitled to infer from the conduct described that there was consent to the search, much less to infer from Osman's resistance to being searched anywhere but at a police station that he might well be carrying a weapon. Nothing in the Crown Court's conclusions or in Counsel for the CPS's submissions is predicated upon any suggestion that some independent ground for search, based on reasonable suspicion, had arisen in the course of the confrontation - rightly so. in my judgment, because the questions posed to do not touch on the point.
It follows that I would answer the second question in the affirmative; that is to say, I would hold that the failure of the officers to supply details of their names and station rendered the search unlawful. The availability of information on the officer's lapels is in law neither here nor there; and in any case nothing that we know of suggests that these officers, uniquely, were carrying details of their names and station on their lapels. In the ordinary way, one would expect their numbers but no more to be visible there, and there is no different finding in this case.
This being so, I would, if necessary, answer the first pair of questions in the negative. I do not think that Osman's conduct amounted to consent; nor, if it did amount to consent, would it have entitled the officers, without more, to commit what technically, on any view, would have been an assault on Osman. The question, however, for the reasons I have given, is not a necessary question. The case is concluded in Osman's favour by the answer to the second of the questions posed.
Accordingly, I would allow this appeal and quash both convictions.
MR JUSTICE COLLINS: I have been troubled by the findings of the Crown Court in this case. Section 2 of the Police and Criminal Evidence Act 1984 has imposed a duty upon a constable, whether he is in uniform or not, to take reasonable steps before he commences the search to bring to the attention of the appropriate person the matters specified in sub-section (3) of section 2: that is to say, his name and the name of the police station to which he is attached; the object of the proposed search; his grounds for proposing to make it; and an indication that he is going to make a record, of which the individual can in due course, if necessary, obtain a copy.
This is, no doubt, because Parliament has recognised that a search of a person is a serious interference with his liberty, and all proper safeguards must be followed. The facts found show that there was no reason why the officers could not have given the necessary information. It is not for the court to disapply the duties set out in the Act, but only to decide whether, in a given set of circumstances, the officers have taken all reasonable steps to do what Parliament has required them to do. I emphasise that we are not concerned with the admissibility of evidence found as a result of a search, but whether the search itself was lawful, so that the officers were acting in the execution of their duty when carrying it out.
The first question asked by the Crown Court concerns consent. Consent is not relevant. if the officer fails to comply with section 2, there can be no proper consent. The ordinary law-abiding citizen no doubt usually accepts the constable's word that he has the powers he asserts and, if he has nothing to hide, will accept that he can be searched. But that apparent consent cannot mean that the officer is acting in the execution of his duty in carrying out the search. In any event, I cannot see how the Crown Court could reasonably have found that the officers could have
assumed consent. The respondent's reaction, when the officer took hold of him in order to search him, made it as clear as it could be that he was not consenting. He said, "You cannot fucking search me here, take me to a fucking police station."
In those circumstances, in agreement with my Lord, I would answer the first question, that Osman's conduct did not entitle the police to assume that there had been consent to the search and, in any event, even if they had properly assumed consent, they were not entitled to hold him in order to carry out the search. That is because the answer to the second question is quite clearly that the search was unlawful. In those circumstances I too would allow this appeal and quash the convictions.
There is a lesson to be learnt here, officers conducting searches of persons under these or similar conditions should:-
1 Wear badges clearly displaying their name and station.
2 Carry slips of paper with the same information to be handed out immediately prior to a search.