May 31, 2023

Police Powers & The Common Law

Police Powers & The Common Law


When considering police powers, particularly concerning search and seizure of property, we think first of powers derived from statute, which leads us to the Police and Criminal Evidence Act 1984.


On occasion, however, statute does not provide police with effective powers, and the question arises as to whether their actions will be lawful if they act outside of a statutory framework.


The answer to this was provided as long ago as 1969 when the Court of Appeal (Civil Division) commented:


'We have to consider, on the one hand, the freedom of the individual. His privacy and his possessions are not to be invaded except for the most compelling reasons. On the other hand, we have to consider the interest of society at large in finding out wrongdoers and repressing crime. Honest citizens should help the police and not hinder them in their efforts to track down criminals.'


To act under common law powers, the court held that the following must be satisfied:


First. The police officers must have reasonable grounds for believing that a serious offence has been committed—so serious that it is of the first importance that the offenders should be caught and brought to justice.


Secondly. The police officers must have reasonable grounds for believing that the article in question is either the fruit of the crime (as in the case of stolen goods) or is the instrument by which the crime was committed (as in the case of the axe used by the murderer) or is material evidence to prove the commission of the crime (as in the case of the car used by a bank raider or the saucer used by a train robber).


Thirdly. The police officers must have reasonable grounds to believe that the person in possession of it has himself committed the crime, or is implicated in it, or is accessory to it, or at any rate his refusal must be quite unreasonable.


Fourthly. The police must not keep the article, nor prevent its removal, for any longer than is reasonably necessary to complete their investigations or preserve it for evidence. If a copy will suffice, it should be made and the original returned. As soon as the case is over, or it is decided not to go on with it, the article should be returned.


Finally. The lawfulness of the conduct of the police must be judged at the time, and not by what happens afterwards.


When police purport to act under common law powers, we will carefully apply the facts to these principles in order to protect your interests.




How can we help?


We ensure we keep up to date with any changes in legislation and case law so that we are always best placed to advise you properly. If you would like to discuss any aspect of your case, please contact the team on 0208 808 0774 or email on 



Image credit: © West Midlands Police, Crown Copyright


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