ABSTRACT
The legality of the police conduct in this instance will be considered first; any possible forms of redress open to Toby will then be examined.
The first contact between the police officers and Toby appears to be of a voluntary nature: the officers are entitled to ask questions; equally, Toby can refuse to answer them (Rice v Connolly (1966)). When Toby is asked to turn out his pockets, this appears to be a request which he could refuse. It may therefore be characterised as part of a voluntary search. Although it is not clear that Toby gave consent to the search, Andy and Beryl were under a duty only to explain that he could withhold consent and to seek his consent (Code A, Note 1D(b) of PACE) and, on that basis, as Toby accedes to the request made, could be said to have fulfilled the requirements of Code A in respect of consensual searches. However, he is mentally disordered and so belongs to one of the vulnerable groups who may not be subject to a voluntary search at all under Code A, Note 1E. As the police know him, they may be aware of this fact. Even if they are not aware that he has a specific mental disorder, they may recognise him as a person incapable of giving an informed consent to the search; if so, the Note 1E provisions will still apply.
