ABSTRACT

Chapters 12 and 13 were concerned with the question of the balance to be struck between the exercise of powers by the police in conducting an investigation on the one hand and safeguards for the suspect against abuse or misuse of power on the other. As we have seen, the statutory rules, including in particular those under the Police and Criminal Evidence Act 1984 (PACE), the Criminal Justice and Public Order Act 1994 (CJPOA), the Criminal Justice and Police Act 2001 (CJP) and the Terrorism Act 2000 as amended (TA) contain, on the one hand, provisions intended to secure suspects’ rights, such as s 58 of PACE, while on the other they create or extend a statutory basis for the exercise of police powers, which frequently enhances those powers.1 Thus, the rules can be viewed as reflecting the two different models of crime control and due process, and since the approach and aims of those models is to an extent conflicting, the statutes in question and their application in practice reflect the resulting inevitable tension. Those rules have as a background the ordinary criminal and civil law in relation to the use of force by any person, including the police. The police are able to act in ways that, if not cloaked in statutory authority, would amount to crimes and torts. In particular, they can use ‘reasonable force’2 in carrying out policing duties. But if excessive and disproportionate force is used, causing injury or even death, a means of redress should be available. But again due process concerns appear in this instance to clash with the crime control one that the police should not be over-hampered by concerns as to prosecutions, civil actions or disciplinary proceedings when they need to take decisions as to the degree of force needed in the heat of the moment. The balance struck by those means of redress between the two principles is considered below, and it is argued that over-concern to avoid interference in police freedom of action in conducting policing has allowed abuses of power to go unaddressed by the various systems, including prosecutions, that could be deployed to curb them.