Police Powers Act

[Paul Birch]

I hereby make available for the purposes of fair criticism and discussion but not for general distribution this Draft of a proposed Police Powers Act for an Ultraminimal Monarchy, notionally the UK, as devised by myself, Paul Birch. All rights reserved.

Articles 12, 13, 16 & 17 modified on 7th Oct 2002
Articles 20, 21 & 22 added on 1st Jan 2004 (old Article 20 becomes Article 23)
Article 10 modified on 9th Dec 2004

Article 1.   Definition of a police officer

A police officer shall be a person authorised to execute court orders and search, seizure and arrest warrants on behalf of the crown, and to be identified as a police officer through the wearing of a uniform, the carrying of a badge or warrant card, or otherwise.

Article 2.   Duties of a police officer

The duties of a police officer shall include the execution of warrants and court orders, the investigation of crimes, the maintenance of public order, the control of crowds and traffic, and the response to requests for assistance from members of the public.

Article 3.   Becoming a police officer

Any person being a British subject of full legal competence shall upon depositing with a court of the realm a declaration submitting to the provisions of this Act ("signing the Police Powers Act") be entitled to receive from that court authorisation as a police officer, a unique identifying number and a warrant card. A person shall cease to be a police officer upon surrender of his warrant card to the court and the deposit of a deed of resignation.

Article 4.   Police forces and partnerships

A police force shall be a self-financing trust, with its own uniforms and insignia, managed and governed by police officers for the furtherance of police duties or the training of police officers. A police partnership shall similarly be an association of police officers for the furtherance of their duties, but shall lack uniforms and insignia.

Article 5.   Creating a police force or partnership

A police force may be formed by any group of no fewer than twelve police officers of no fewer than twelve years experience as police officers who shall comprise its board of trustees. Police officers may also form police partnerships of no more than twelve police officers.

Article 6.   Joining a police force or partnership

Police officers may be invited to join a police force at the discretion of its trustees, or a partnership by agreement with the other partners. Service with a police force or partnership may be remunerated, and membership of a police force or partnership, especially a police college or academy, may be subject to membership or tuition fees. Police officers may belong to more than one police force or partnership simultaneously, subject to their respective conditions of membership or employment.

Article 7.   Financing of police operations

A police force or police officer or partnership of police officers shall upon bringing a case to court claim costs. Such costs shall be honestly stated and reasonable in relation to the severity of the case and shall include a fair allowance for overheads not otherwise financed. The court shall order payment only if the police case is successful.

The court shall calculate or cause to be calculated the average claim of that force or officer or partnership of officers as a proportion of the average claim of all competing forces and officers, subdivided as appropriate into classes of cases, and shall multiply the current claim by the reciprocal of that ratio.

The court shall further calculate or cause to be calculated the average success rate of all cases brought by competing forces and officers, subdivided as appropriate into classes of cases, and shall multiply the current claim by the reciprocal of that ratio.

A police force, police partnership or police officer may also offer services at market rates. Such services may include but are not limited to special patrols, advice on security, control of traffic for private or public occasions, and cooperation with other police forces or officers domestic or foreign.

Article 8.   Police uniforms and insignia

Every police force shall be required to specify a police uniform, readily identifiable as such, upon which shall be worn a badge with the officer's police number clearly visible upon it. A police uniform shall not conceal the identity of its wearer in any way, nor shall uniformed police officers wear masks, opaque helmets, mirror sunglasses or other means of disguise.

Police partnerships shall not be empowered to authorise the wearing of uniforms or insignia. Nevertheless, individual members of a police partnership may wear any uniforms or insignia they are personally entitled to wear as members of a given police force, subject to the rules of that force; in particular it is likely that they will be entitled to wear the uniforms of police colleges from which they have graduated.

Article 9.   No police immunity

No police officer shall be immune from prosecution for any breach of the law whether performed in the execution of his duties or otherwise.

Article 10.   Prohibition on police use of weapons

No police officer or person purporting to be or carrying out the role of a police officer shall employ any weapon lethal or non-lethal in any offensive, defensive or threatening capacity. Any such employment shall render unlawful any arrest, interrogation, search, seizure or forcible access, with or without a warrant. Any person may resist such unlawful acts by any means necessary up to and including the use of lethal force, and if any conviction is obtained in consequence of any such unlawful acts the corresponding liability shall fall upon the ultra vires police officer not upon the convicted offender.

The discharging of firearms for forensic purposes shall be permissible. Police officers should be aware that courts may deem offensive martial arts techniques as weapons, when employed by persons trained in their use.

Article 11.   Assisting the public

Upon notification by a member of the public or a court of law of an alleged crime or breach of the peace, or upon his own suspicions, a police officer shall personally investigate or otherwise cause an investigation to be instituted. If the investigating officers are able to identify the perpetrator or perpetrators with confidence and to obtain evidence they consider sufficient for a conviction they shall, upon the signing of a formal complaint, bring or cause to be brought appropriate charges before a court of the realm, which shall issue a summons or summonses against the accused. The investigating or prosecuting officers shall also require the court to subpoena witnesses and material evidence. The court may in turn require the police to serve those summonses and subpoenas.

Article 12.   Powers of arrest

Any police officer or magistrate may issue a warrant for the arrest of any person within the jurisdiction of the United Kingdom. An arrest warrant shall adequately identify the person to be arrested and shall specify the charge or charges upon which the warrant is to be executed and the reason why a summons would not suffice. An arrest warrant shall be signed by the officer or magistrate in triplicate, one copy to be deposited with the court prior to the execution of the warrant, one copy to be retained by the police and one copy to be delivered to the subject of the warrant.

No warrant shall be executed but in the presence of a uniformed police officer. All police officers taking part in the execution of the warrant shall countersign their names and numbers on the warrant in the presence of the subject of the warrant.

No police officer may arrest any person without a lawful warrant unless such action is necessary to halt or prevent a breach of the peace or the escape of a criminal.

Police officers shall not employ their powers of arrest if a summons would have sufficed.

Article 13.    Responsibility for arrest

An arrest whether lawful or unlawful is a formal violation of the rights of the arrested person, and the arresting officer shall be liable to make full restitution to the person arrested if the arrest is deemed to have been improperly executed, and the issuer of a warrant shall be liable to make full restitution to the person arrested if that person is subsequently acquitted or the arrest deemed to have been unnecessary.

Article 14.   Obligation to caution and charge

A person once arrested must be cautioned and charged by the arresting officer. No charge brought by the police, whether resulting from an arrest or not, can be dropped, even by agreement with the accused, although, with the agreement of the complainant, the police may when the case comes to trial choose not to offer evidence and to ask for an acquittal.

An arresting officer shall caution the subject of an arrest warrant as follows:
"[Insert name here] I have a warrant for your arrest on a charge of [insert charge here] and must warn you that anything you say may be taken down and used in evidence against you."

An arresting officer shall caution a person arrested without a warrant as follows:
"I arrest you [insert name here if known] on a charge of [insert charge here] and must warn you that anything you say may be taken down and used in evidence against you."

Article 15.   Resistance to arrest

No person shall resist a lawfully executed warrant or lawful arrest. Nevertheless any person may resist an unlawfully executed warrant or unlawful arrest by any means necessary up to and including the use of deadly force.

Article 16.   Powers of search and seizure

Any police officer or magistrate may issue a warrant for the search of any place or person or the seizure of any items of property within the jurisdiction of the United Kingdom. A search warrant shall adequately identify the place or person to be searched and the items to be sought or seized and shall specify the charge or charges upon which the warrant is based and the reason why a summons would not suffice. A search warrant shall be signed by the officer or magistrate in as many copies as necessary, one copy to be deposited with the court prior to the execution of the warrant, one copy to be retained by the police and one copy to be delivered to each of the persons or premises to be searched and the stewards or owners of the items of property to be seized.

No warrant shall be executed but in the presence of a uniformed police officer. All police officers taking part in the execution of the warrant shall countersign their names and numbers on the warrant while in the place searched or in the presence of the subject of the warrant.

A search warrant shall normally designate a single person or premises only. However a warrant may additionally authorise the search of any persons present at the premises searched at the time of the search provided that each person searched must be charged. A search warrant shall normally require the uniformed executing officer first to present the warrant to a lawful occupier at the ordinary public entrance to the premises and in a courteous manner. However, a warrant may specify that if the executing officer is unable to gain access by this procedure he may force entry. Persons unlawfully resisting a search may be arrested.

No police officer may search any place or person or seize any property without a lawful warrant unless such action is necessary to halt or prevent a breach of the peace or the escape of a criminal.

Police officers shall not employ their powers of search and seizure if a summons would have sufficed.

Article 17.    Responsibility for search and seizure

Search and seizure whether lawful or unlawful is a formal violation of the rights of any person or persons searched and of the owner or owners of any place searched and of the owner or owners of any items of property seized, and the executing officer shall be liable to make full restitution to those persons if the search or seizure is deemed to have been improperly executed, and the issuer of a warrant shall be liable to make full restitution to those persons if they are subsequently acquitted of any charges or the search or seizure is deemed to have been unnecessary.

Article 18.   Obligation to charge

Charges shall be brought against the owners or tenants of every place searched and against the owners or stewards of every item seized and against every person searched, including those present at the premises of the search but not individually identified in a search warrant. No such charge can be dropped, even by agreement with the accused, although, with the agreement of the complainant, the police may when the case comes to trial choose not to offer evidence and to ask for an acquittal.

An executing officer shall inform each of the subjects of a search warrant or of the subjects of a search made without a warrant of the charges to be laid against them.

Article 19.   Resistance to search and seizure

No person shall resist a lawfully executed search warrant or lawful search and seizure. Nevertheless any person may resist an unlawfully executed warrant or unlawful search and seizure by any means necessary up to and including the use of deadly force.

Article 20.   Powers of access

Any police officer or magistrate may issue a warrant for access to any premises within the jurisdiction of the United Kingdom. An access warrant shall adequately identify the premises to which and through which access is warranted, and shall specify the charge or charges upon which the warrant is to be executed and the reason why a summons would not suffice. An access warrant shall be signed by the officer or magistrate in as many copies as necessary, one copy to be deposited with the court prior to the execution of the warrant, one copy to be retained by the police and one copy to be delivered to each of the properties through which access is obtained.

No warrant shall be executed but in the presence of a uniformed police officer. All police officers taking part in the execution of the warrant shall countersign their names and numbers on the warrant in the presence of the subject of the warrant.

A valid search or arrest warrant shall be deemed to constitute an access warrant through other properties, such as a communal hallway or private road, by the ordinary route to the ordinary public entrance of the designated premises. However, for access through other properties other than by this route, or where no such entrance exists, a separate access warrant shall be required. An access warrant may also be issued for purposes of surveillance.

Persons unlawfully resisting access may be arrested.

No police officer may trespass upon any property without a lawful warrant unless such action is necessary to halt or prevent a breach of the peace or the escape of a criminal.

Police officers shall not employ their powers of access if a summons would have sufficed.

Article 21.   Responsibility for access

Forcible access whether lawful or unlawful is a formal violation of the rights of the owners or tenants of any place trespassed upon, and the trespassing officer shall be liable to make full restitution to those persons if no access warrant exists or the access warrant is deemed to have been improperly executed, and the issuer of a warrant shall in all other cases be liable to make full restitution to those persons.

Article 22.   Resistance to access

No person shall resist a lawfully executed access warrant or lawful access. Nevertheless any person may resist an unlawfully executed warrant or unlawful access by any means necessary up to and including the use of deadly force.

Article 23.   Court orders

Police officers shall execute other court orders and orders of the crown according to law.

[Charles M.]

The duties of a police officer shall include the execution of warrants and court orders, the investigation of crimes, the maintenance of public order, the control of crowds and traffic, and the response to requests for assistance from members of the public.

This goes beyond what I would think necessary.  Based on your method of funding, what incentive is there for police to control crowds or respond to requests for assistance?  Wouldn't they only really want to perform activities that are likely to lead to a conviction?  Or are you simply assuming fee based service in some of these cases?

Article 7.   Financing of police operations

A police force or police officer or partnership of police officers shall upon bringing a case to court claim costs. Such costs shall be honestly stated and reasonable in relation to the severity of the case and shall include a fair allowance for overheads not otherwise financed. The court shall order payment only if the police case is successful.

Is it implied that the guilty party pays the fee?

The court shall calculate or cause to be calculated the average claim of that force or officer or partnership of officers as a proportion of the average claim of all competing forces and officers, subdivided as appropriate into classes of cases, and shall multiply the current claim by the reciprocal of that ratio.

Let me see:  so if my police force fees are the same as the average, the multiplier is 1.  If my average fee is double the average of everyone else, then the court simply says that it will only pay half of what I ask?  You are attempting to avoid a problem where the police charge excessively high fees?

The court shall further calculate or cause to be calculated the average success rate of all cases brought by competing forces and officers, subdivided as appropriate into classes of cases, and shall multiply the current claim by the reciprocal of that ratio.

Why multiply my police force's charge by a success ratio that doesn't even include any stats from my force?  So what if everyone else has poor success?  What are you trying to achieve here?

A police force, police partnership or police officer may also offer services at market rates. Such services may include but are not limited to special patrols, advice on security, control of traffic for private or public occasions, and cooperation with other police forces or officers domestic or foreign.

Instead of having all this, why not simply have all the police activities privatized, and the court can use whatever means it finds most efficient to contract out services?  Crime investigations and the things listed above could be performed with no state involvement.  A police force would need state court approval to arrest someone or search their home without permission.  This would make the state court/police system totally reactive, only doing any activity when there is a citizen bringing charges.  Would that be bad?

Article 10.   Prohibition on police use of weapons

No police officer or person purporting to be or carrying out the role of a police officer shall employ any weapon lethal or non-lethal in any offensive, defensive or threatening capacity upon pain of a mandatory penalty of death.

The discharging of firearms for forensic purposes shall be permissible. Police officers should be aware that courts may deem offensive martial arts techniques as weapons, when employed by persons trained in their use.

So how do the police arrest armed criminals?

Article 11.   Assisting the public

Upon notification by a member of the public or a court of law of an alleged crime or breach of the peace, or upon his own suspicions, a police officer shall personally investigate or otherwise cause an investigation to be instituted. If the investigating officers are able to identify the perpetrator or perpetrators with confidence and to obtain evidence they consider sufficient for a conviction they shall, upon the signing of a formal complaint, bring or cause to be brought appropriate charges before a court of the realm, which shall issue a summons or summonses against the accused. The investigating or prosecuting officers shall also require the court to subpoena witnesses and material evidence. The court may in turn require the police to serve those summonses and subpoenas.

Again, aren't the police only motivated if they think they have a good chance for conviction?  Just because a citizen asks for an investigation, why do they have to do it?

Article 13.    Responsibility of arresting officer

An arrest whether lawful or unlawful is a formal violation of the rights of the arrested person for which the arresting officer is responsible, and the arresting officer shall be liable to make full restitution to the person arrested if that person is subsequently acquitted or the arrest deemed to have been unnecessary or improperly executed.

This is harsh.  Maybe it's good, I dunno.  Should the court share liability, since they ordered the arrest?

Article 18.   Obligation to charge

Charges shall be brought against the owners or tenants of every place searched and against the owners or stewards of every item seized and against every person searched, including those present at the premises of the search but not individually identified in a search warrant. No such charge can be dropped, even by agreement with the accused, although, with the agreement of the complainant, the police may when the case comes to trial choose not to offer evidence and to ask for an acquittal.

What is the point of this?  If the police screw up, why can't they pay restitution for their mistake and move on?

Charles

[Paul Birch]

The duties of a police officer shall include the execution of warrants and court orders, the investigation of crimes, the maintenance of public order, the control of crowds and traffic, and the response to requests for assistance from members of the public.

This goes beyond what I would think necessary.  Based on your method of funding, what incentive is there for police to control crowds or respond to requests for assistance?  Wouldn't they only really want to perform activities that are likely to lead to a conviction?  Or are you simply assuming fee based service in some of these cases?

The word duties may not be ideally chosen. I mean that these are the sorts of activities that police officers would generally be expected to perform. Some of them, like crowd control, would normally be performed for a fee (as they already are today), but there are reasons (such as their ability to deal with pickpockets and petty crime, and the respect in which they are generally held) why organisers often prefer hire policemen rather than purely private guards or ushers.

Assisting members of the public is an important way of getting cases and generating goodwill. No one's going to press charges through a police force that won't help them; they'll go through competing forces, partnerships or officers who will.

Moreover, many if not most policemen will be acting largely out of a sense of duty or desire to be of public service, as volunteers (about 15% of the police in the UK are currently unpaid volunteers).  

Article 7.   Financing of police operations
...

Is it implied that the guilty party pays the fee?

Yes. (The mechanism is part of court not police procedures, which is why it's not mentioned here).

The court shall calculate or cause to be calculated the average claim of that force or officer or partnership of officers as a proportion of the average claim of all competing forces and officers, subdivided as appropriate into classes of cases, and shall multiply the current claim by the reciprocal of that ratio.

Let me see:  so if my police force fees are the same as the average, the multiplier is 1.  If my average fee is double the average of everyone else, then the court simply says that it will only pay half of what I ask?  You are attempting to avoid a problem where the police charge excessively high fees?

That's right. In effect the court pays what in other businesses would be the market rate; police forces thus have an incentive to be efficient.

The court shall further calculate or cause to be calculated the average success rate of all cases brought by competing forces and officers, subdivided as appropriate into classes of cases, and shall multiply the current claim by the reciprocal of that ratio.

Why multiply my police force's charge by a success ratio that doesn't even include any stats from my force?  So what if everyone else has poor success?  What are you trying to achieve here?

This needs to be read very carefully. The claim is multiplied by the reciprocal of the average success rate. That means that it is increased thereby. If that police force has a success rate equal to the average (and equal average claims), it will receive an amount on average equal to its claims (since it puts in a claim with every case, but gets paid only when it succeeds). If it has a lower success rate than the average, it gets paid on average that much less, so there is an incentive not to waste the court's time with weak cases.

A police force, police partnership or police officer may also offer services at market rates. Such services may include but are not limited to special patrols, advice on security, control of traffic for private or public occasions, and cooperation with other police forces or officers domestic or foreign.

Instead of having all this, why not simply have all the police activities privatized, and the court can use whatever means it finds most efficient to contract out services?  Crime investigations and the things listed above could be performed with no state involvement.  A police force would need state court approval to arrest someone or search their home without permission.  This would make the state court/police system totally reactive, only doing any activity when there is a citizen bringing charges.  Would that be bad?

I think you're getting yourself muddled. In this system the police are competing private bodies and persons, and the courts are contracting out to them. Since they are state courts, imposing their costs upon coerced offenders, they cannot simply be allowed to spend whatever they want or whatever private agencies ask for; their procedure for obtaining these services, and the contractual obligations they will place upon their sub-contractors, has to be specified by law; this is that specification.

Article 10.   Prohibition on police use of weapons

No police officer or person purporting to be or carrying out the role of a police officer shall employ any weapon lethal or non-lethal in any offensive, defensive or threatening capacity upon pain of a mandatory penalty of death.

The discharging of firearms for forensic purposes shall be permissible. Police officers should be aware that courts may deem offensive martial arts techniques as weapons, when employed by persons trained in their use.

So how do the police arrest armed criminals?

They just do. Unarmed police are safer (that is, they themselves are less likely to be shot) and more effective than armed police (who get themselves involved in unnecesssary shoot-outs), because policemen are protected primarily by the majesty of the law, not by force of arms.

In a society in which crime is effectually punished by the courts, criminals will seldom employ extreme violence to resist arrest. It's just not worth it. About the only time they are likely to do so is if they are violent gangsters with little left to lose, already wanted for multiple murders with little chance of escaping conviction. But then the police, if they have an ounce of sense, will realise this, and approach the arrest with great care. Even gangsters have to sleep...

In extreme cases, where the police cannot contain the violence, we can resort to the citizens' militias, which are armed. And of course, ordinary armed citizens retain the right to act in defence of themselves and others who request it.

I think it's important to block off any route whereby the police might come to oppress the citizenry; if that means making life a little more difficult for them, or asking them to make special sacrifices in exchange for their powers of search and arrest, etc., then that's just part of the price of freedom.

I should add that the vast majority of policemen in the UK are strongly opposed to the issuing of firearms, or even stuff like tasers and vicious new kinds of baton.

Article 11.   Assisting the public
...

Again, aren't the police only motivated if they think they have a good chance for conviction?  Just because a citizen asks for an investigation, why do they have to do it?

In the first place, no, they are also motivated by the desire to serve. In the second place, if they didn't want to accept that responsibility they needn't have become police officers. In the third place, how do you think they'd ever get to bring any cases to court, and get paid, if they didn't respond to citizen's requests or refused to assist them?

Article 13.    Responsibility of arresting officer

An arrest whether lawful or unlawful is a formal violation of the rights of the arrested person for which the arresting officer is responsible, and the arresting officer shall be liable to make full restitution to the person arrested if that person is subsequently acquitted or the arrest deemed to have been unnecessary or improperly executed.

This is harsh.  Maybe it's good, I dunno.  Should the court share liability, since they ordered the arrest?

If the police officer made out the warrant, he is wholly liable, not the court. However, if the court did so (under Article 12, 1st sentence) then you are correct in saying that the court should be held accountable. I shall have to rephrase Article 13 to correct this.

Understand that when acting as a member of a police force or partnership, in accordance with its procedures, it is likely that he would be indemnified by them, and would not personally have to pay. Moreover, these liabilities are part of the normal operational overheads which will be part of the costs claimed in court under Article 7 paragraph 1. However, an arrest-happy force would soon find itself having to pay for its excesses (because the court would cut back its cost claims under Article 7 paragraphs 2 & 3).

Article 18.   Obligation to charge

Charges shall be brought against the owners or tenants of every place searched and against the owners or stewards of every item seized and against every person searched, including those present at the premises of the search but not individually identified in a search warrant. No such charge can be dropped, even by agreement with the accused, although, with the agreement of the complainant, the police may when the case comes to trial choose not to offer evidence and to ask for an acquittal.

What is the point of this?  If the police screw up, why can't they pay restitution for their mistake and move on?

The point is to stop deliberate police harrassment and blackmail on the one hand, and bribery and corruption on the other. If all such cases have to go before a court and clear a jury, there are strong incentives to be both careful and honest. However, for honest mistakes, this safeguarding procedure will not increase costs greatly; paying restitution for their mistake and moving on is essentially what the police would then be doing, with the court deciding the appropriate amount of restitution for the admitted tort.

[Paul Birch]

Original:

Article 12.   Powers of arrest

An officer of the court under the direction of a magistrate or any police officer may make out a warrant for the arrest of any person within the jurisdiction of the United Kingdom. An arrest warrant shall adequately identify the person to be arrested and shall specify the charge or charges upon which the warrant is to be executed and the reason why a summons would not suffice. An arrest warrant shall be signed by the officer in triplicate, one copy to be deposited with the court prior to the execution of the warrant, one copy to be retained by the police and one copy to be delivered to the subject of the warrant ...

Replaced by:

Article 12.   Powers of arrest

Any police officer or magistrate may issue a warrant for the arrest of any person within the jurisdiction of the United Kingdom. An arrest warrant shall adequately identify the person to be arrested and shall specify the charge or charges upon which the warrant is to be executed and the reason why a summons would not suffice. An arrest warrant shall be signed by the officer or magistrate in triplicate, one copy to be deposited with the court prior to the execution of the warrant, one copy to be retained by the police and one copy to be delivered to the subject of the warrant ...

Original:

Article 13.    Responsibility of arresting officer

An arrest whether lawful or unlawful is a formal violation of the rights of the arrested person for which the arresting officer is responsible, and the arresting officer shall be liable to make full restitution to the person arrested if that person is subsequently acquitted or the arrest deemed to have been unnecessary or improperly executed.

Replaced by:

Article 13.    Responsibility for arrest

An arrest whether lawful or unlawful is a formal violation of the rights of the arrested person, and the arresting officer shall be liable to make full restitution to the person arrested if the arrest is deemed to have been improperly executed, and the issuer of a warrant shall be liable to make full restitution to the person arrested if that person is subsequently acquitted or the arrest deemed to have been unnecessary.

Original:

Article 16.   Powers of search and seizure

An officer of the court under the direction of a magistrate or any police officer may make out a warrant for the search of any place or person or the seizure of any items of property within the jurisdiction of the United Kingdom. A search warrant shall adequately identify the place or person to be searched and the items to be sought or seized and shall specify the charge or charges upon which the warrant is based and the reason why a summons would not suffice. A search warrant shall be signed by the officer in as many copies as necessary, one copy to be deposited with the court prior to the execution of the warrant, one copy to be retained by the police and one copy to be delivered to each of the persons or premises to be searched and the stewards or owners of the items of property to be seized ...

Replaced by:

Article 16.   Powers of search and seizure

Any police officer or magistrate may issue a warrant for the search of any place or person or the seizure of any items of property within the jurisdiction of the United Kingdom. A search warrant shall adequately identify the place or person to be searched and the items to be sought or seized and shall specify the charge or charges upon which the warrant is based and the reason why a summons would not suffice. A search warrant shall be signed by the officer or magistrate in as many copies as necessary, one copy to be deposited with the court prior to the execution of the warrant, one copy to be retained by the police and one copy to be delivered to each of the persons or premises to be searched and the stewards or owners of the items of property to be seized.

Original:

Article 17.    Responsibility of executing officer

Search and seizure whether lawful or unlawful is a formal violation of the rights of any person or persons searched and of the owner or owners of any place searched and of the owner or owners of any items of property seized, for which violation the executing officer is responsible, and the executing officer shall be liable to make full restitution to those persons if they are subsequently acquitted of any charges or the search or seizure is deemed to have been unnecessary or improperly executed.

Replaced by:

Article 17.    Responsibility for search and seizure

Search and seizure whether lawful or unlawful is a formal violation of the rights of any person or persons searched and of the owner or owners of any place searched and of the owner or owners of any items of property seized, and the executing officer shall be liable to make full restitution to those persons if the search or seizure is deemed to have been improperly executed, and the issuer of a warrant shall be liable to make full restitution to those persons if they are subsequently acquitted of any charges or the search or seizure is deemed to have been unnecessary.

[Charles M.]

I think you're getting yourself muddled. In this system the police are competing private bodies and persons, and the courts are contracting out to them. Since they are state courts, imposing their costs upon coerced offenders, they cannot simply be allowed to spend whatever they want or whatever private agencies ask for; their procedure for obtaining these services, and the contractual obligations they will place upon their sub-contractors, has to be specified by law; this is that specification.

If that is the case, I wonder why you bother to specify police behavior on matters unrelated to arrests, warrants, searches and other matters requiring state input?  Shouldn't you only specify the legal means of carrying out court orders and the means of financing them?

For example:  Article 2:

"The duties of a police officer shall include the execution of warrants and court orders, the investigation of crimes, the maintenance of public order, the control of crowds and traffic, and the response to requests for assistance from members of the public."

Does the state care whether police forces investigate crimes or maintain public order?  They don't have to, do they?  Perhaps one force specializes only in executing arrest warrants?

And article 3:

"Any person being a British subject of full legal competence shall upon depositing with a court of the realm a declaration submitting to the provisions of this Act ("signing the Police Powers Act") be entitled to receive from that court authorisation as a police officer, a unique identifying number and a warrant card. A person shall cease to be a police officer upon surrender of his warrant card to the court and the deposit of a deed of resignation."

Surely people could investigate crimes or perform other duties without going through this?  I assume this only applies to those security forces interested in executing search warrants and other such, state sanctioned activities.

Articles 5 and 6 are setting the bounds regarding the types of "companies" that the state would be willing to hire to execute warrants, etc.?

Articles 8 and 10 regarding uniforms and weapons use: this applies while performing state sanctioned duties?  Or are you proposing that any police force that ever wants to be hired by the state must always abide by these rules?  Could the same police force provide armed protection for private clients while occasionally performing arrests (unarmed)?

If I'm understanding correctly, maybe it would be more clear to write this up by specifying (1) the specific functions of police forces that the state would hire out, (2) the legal requirements on how those functions are performed, (3) the method the state will use to pay for police services, and (4) the requirements a police force must comply with in order to be eligible for hiring by the state.

Just a thought.  I may be slow, but I didn't "get it" right away (and I still may not).

Charles

[Charles M.]

Original:

Article 12.   Powers of arrest

An officer of the court under the direction of a magistrate or any police officer may make out a warrant for the arrest of any person within the jurisdiction of the United Kingdom. An arrest warrant shall adequately identify the person to be arrested and shall specify the charge or charges upon which the warrant is to be executed and the reason why a summons would not suffice. An arrest warrant shall be signed by the officer in triplicate, one copy to be deposited with the court prior to the execution of the warrant, one copy to be retained by the police and one copy to be delivered to the subject of the warrant ...

Replaced by:

Article 12.   Powers of arrest

Any police officer or magistrate may issue a warrant for the arrest of any person within the jurisdiction of the United Kingdom. An arrest warrant shall adequately identify the person to be arrested and shall specify the charge or charges upon which the warrant is to be executed and the reason why a summons would not suffice. An arrest warrant shall be signed by the officer or magistrate in triplicate, one copy to be deposited with the court prior to the execution of the warrant, one copy to be retained by the police and one copy to be delivered to the subject of the warrant ...

I didn't catch this the first time.  An officer can issue a warrant with no state input?  Why are you going this route?  Or are you basically reducing all arrests to what we now call "citizen's arrest", and simply adding a little more procedure?  

The same question goes for search and seizure.  My first inclination would be to require a court order for these activities.  On the other hand, you are placing the responsibility on the police officer.  Are you actually giving any additional power to the police over what any citizen would have?

Charles

[Paul Birch]

I didn't catch this the first time.  An officer can issue a warrant with no state input?  Why are you going this route?  Or are you basically reducing all arrests to what we now call "citizen's arrest", and simply adding a little more procedure?  

The same question goes for search and seizure.  My first inclination would be to require a court order for these activities.  On the other hand, you are placing the responsibility on the police officer.  Are you actually giving any additional power to the police over what any citizen would have?

Under present procedures, warrants are theoretically issued by a court, but in practice they can do little more than rubber stamp police requests; no hearing takes place and no one can challenge the issuance (except after the fact). I propose to junk this pretence of control, allowing the police the freedom to issue warrants on their own authority, though with the obligation to place them on record with the court in advance. The main safeguards come with the obligation to bring the case to court after the warrant is executed.

"Citizens' arrests" don't include the warrant-style arrest, only felons caught red-handed (and even there they are liable for any violation of the alleged felon's rights). If an ordinary citizen attempts to seize another person or his property or break into his house to make a search, that person is the victim of an assault, robbery or burglary and has the right to defend himself, if necessary with lethal force. The issuance and proper execution of a valid warrant lays notice on the subject of the warrant that this is a legally sanctioned arrest or search that he may not lawfully resist.

The power to issue and execute a warrant is thus an additional power beyond those of the ordinary citizen, which is why I wish to restrict it to those citizens who accept the corresponding obligations and restrictions placed upon police officers (in particular, the obligation to carry no weapons - we could not honorably require persons in fear of their life not to resist armed attackers, whether they carried warrants or not).

Note that, if anyone is not currently a police officer, but wishes to issue or execute a warrant nonetheless, he is at liberty to sign the Police Powers Act, under Article 3,  issue and execute the warrant, follow through the court case, then, if he wishes, resign. A bit convoluted, but legitimate, though he might find the court a bit suspicious of his motives and wanting to scrutinise his warrant pretty closely.
Edited to add: To execute a warrant he will have to be a uniformed police officer (which means either joining a force or possibly reactivating a commission from a police college) or will have to be accompanied by one; either way, he will need some cooperation from other police officers.

[Paul Birch]

Sorry, didn't notice this post before.

If that is the case, I wonder why you bother to specify police behavior on matters unrelated to arrests, warrants, searches and other matters requiring state input?  Shouldn't you only specify the legal means of carrying out court orders and the means of financing them?

Except that I don't consider them unrelated.

For example:  Article 2:

"The duties of a police officer shall include ..."

Does the state care whether police forces investigate crimes or maintain public order?  They don't have to, do they?  Perhaps one force specializes only in executing arrest warrants?

I've already said that the word duties may not be best chosen (I'm open to suggestions). I have no objection to police officers, forces and partnerships specialising. Nothing in the text requires specific police officers to do particular tasks themselves; they may for example pass on an investigation to others: "Upon notification by a member of the public or a court of law of an alleged crime or breach of the peace, or upon his own suspicions, a police officer shall personally investigate or otherwise cause an investigation to be instituted."

And article 3:...

Surely people could investigate crimes or perform other duties without going through this?  I assume this only applies to those security forces interested in executing search warrants and other such, state sanctioned activities.

Certainly. Nothing stops you from investigating crimes or directing traffic at a private gathering, etc., subject to obedience to the law. But anyone who wants the additional powers of the police must accept the responsibilities that go with that role; it's a quid pro quo.

Articles 5 and 6 are setting the bounds regarding the types of "companies" that the state would be willing to hire to execute warrants, etc.?

Setting the bounds on the types of organisation or person the law will permit to execute warrants. In general it is the policeman who initiates the warrant not the state.

Articles 8 and 10 regarding uniforms and weapons use: this applies while performing state sanctioned duties?  Or are you proposing that any police force that ever wants to be hired by the state must always abide by these rules?  Could the same police force provide armed protection for private clients while occasionally performing arrests (unarmed)?

You keep talking about "being hired by the state". This is not what is happening. In the main they are acting on their own lawful initiative. Sometimes a court will order an arrest or the like (for example, when a fine is left unpaid and summonses ignored). Any person who wishes to be a police officer must abide by the conditions of the Act all the time he is a police officer. Consequently, no police force could ever provide armed protection. And no company offering armed guards could execute a warrant (though they might have a few friendly policemen on retainer). At least one officer must wear his uniform during the execution of a warrant; at other times it is up to them whether to do so or not.

If I'm understanding correctly, maybe it would be more clear to write this up by specifying (1) the specific functions of police forces that the state would hire out, (2) the legal requirements on how those functions are performed, (3) the method the state will use to pay for police services, and (4) the requirements a police force must comply with in order to be eligible for hiring by the state.

The state can hire any police or other function it wishes, according to law, the same as anyone else (including private courts).

[Charles M.]

I've already said that the word duties may not be best chosen (I'm open to suggestions). I have no objection to police officers, forces and partnerships specialising. Nothing in the text requires specific police officers to do particular tasks themselves; they may for example pass on an investigation to others: "Upon notification by a member of the public or a court of law of an alleged crime or breach of the peace, or upon his own suspicions, a police officer shall personally investigate or otherwise cause an investigation to be instituted."

Why do you insist on this?  Why would it be bad to have a service that specializes in arrests and is not responsive to any public requests for help?

Certainly. Nothing stops you from investigating crimes or directing traffic at a private gathering, etc., subject to obedience to the law. But anyone who wants the additional powers of the police must accept the responsibilities that go with that role; it's a quid pro quo.

Can you explain why this constraint is necessary?  Why not have the state only constrain the behavior of police forces when they are specifically performing state sactioned activities?  I feel like you have some larger vision that I'm not catching on to.

I think you are creating a system in which police forces must all fit a specific mould.  They are essentially public except that you allow competition.  I'm thinking of private police forces that are hired to perform certain, specific functions by the state courts (arrests and searches).  The state would only have a say in how they perform state sanctioned activities.

For example, the Acme security guy could finish a private guarding job where he was out of uniform and carrying an automatic weapon, then change into a uniform, put his gun away, and perform an arrest according to set procedure.  Why would this be bad?

Edit:  I see my version may be inconsistent with the police generating their own warrants.  This wouldn't be a problem though, if private investigators simply got the court to provide a warrant (like today) and then executed it according to state procedure.

Don't get irritated, I know you've probably spent much longer thinking about this than me.  

Charles

[Paul Birch]

Why do you insist on this?  Why would it be bad to have a service that specializes in arrests and is not responsive to any public requests for help?

I insist upon it firstly because civil society needs police that are responsive to the public. Secondly, because people ought to pay for extra powers with extra responsibilities. Thirdly, because the sort of people who will not accept the responsibility of helping the public are not the sort of people I want calling themselves police, still less waltzing around executing warrants.

I have no doubt that more than enough officers would willingly accept these responsibilities (as they already do). Remember, nothing in this prevents police organisations from specialising (police partnerships would probably specialise, and one could expect some specialisation of police forces along the lines of the British Rail Transport Police). The responsibility amounts to little more than a policeman's obligation to behave courteously to members of the public and to ensure that any problems encountered are promptly passed on to someone in a position to respond actively - or to be willing to act as necessary in emergencies.

I am surprised that you make a big deal out of this. Is it because you're crude colonial, living far from the pale of civilisation?  What sort of barbarians do you envisage these police as being?

Can you explain why this constraint is necessary?  Why not have the state only constrain the behavior of police forces when they are specifically performing state sactioned activities?  I feel like you have some larger vision that I'm not catching on to.

It is not the state "sanctioning" specific acts. The state should seldom have anything to do with it. The police are not to be a department of the state, not even a pseudo-private sub-contracted one. If the police are operating on anyone's behalf, they are normally operating on behalf of members of the public - not the state. It is the law, not the state, that specifies what kinds of act are lawful; the state, the government and the courts are as much bound by that law as anyone else.

I think you are creating a system in which police forces must all fit a specific mould.  They are essentially public except that you allow competition.  I'm thinking of private police forces that are hired to perform certain, specific functions by the state courts (arrests and searches).  The state would only have a say in how they perform state sanctioned activities.

You're at it again with this "state-sanctioned activities" stuff. And you're standing the words public and private on their heads. My police are private individuals under the rule of law. Yours would be public or state employees enforcing the will of the state.

For example, the Acme security guy could finish a private guarding job where he was out of uniform and carrying an automatic weapon, then change into a uniform, put his gun away, and perform an arrest according to set procedure.  Why would this be bad?

It would be bad because I suspect that it would be all but impossible to prevent thugs from using their status as police officers to bully people when out of uniform, and their being armed off duty to bully people when in uniform. It is vital that the power of execution of police warrants should be strictly separated from the threat of armed might. I see no way of doing this without requiring police officers to eschew weapons at all times.

Bear in mind that what is needed is not simply an arrangement that will work, but one that conclusively blocks off all routes to the malignant growth of criminal and state power (insofar as is possible).

Incidentally, armed guards would seldom be necessary in a just or orderly civil society under the rule of law. We've never much needed them in the UK (except when that rule of law has been in abeyance). We still don't - not even for bank deliveries by armoured car. Americans, I find, have an excessively violent view of law-enforcement and protection, more so even than most Continentals, perhaps because their politicised legal system has never been able to get to grips with gangsterism.

Edit:  I see my version may be inconsistent with the police generating their own warrants.  This wouldn't be a problem though, if private investigators simply got the court to provide a warrant (like today) and then executed it according to state procedure.

It would be a problem because it would be either unjust or a fudge. There is no way most warrants can genuinely be issued by a court, because there can be no hearing, no presentation of evidence on both sides that the magistrate can judge according to law.

It would also be unjust because it would breach the definition of an ultra-minimal state. Either courts other than the state court could issue warrants (in which case people are being wrongfully forced to submit to private courts to which they do not subscribe) or private courts cannot issue warrants (in which case independents are being wrongfully forced to subscribe to the state court in order to issue lawful warrants, even against other independents). It is true that under my scheme a copy of the warrant has to be deposited with the state court, and that a formal hearing is afterwards necessary, but these are (or can be) mere formalities (if the police, plaintiff and defendant all wish the case to proceed in a private court they could so inform the state court at the formal hearing).

[Charles M.]

Paul, maybe this is what our debate is boiling down to:

Article 11.   Assisting the public

Upon notification by a member of the public or a court of law of an alleged crime or breach of the peace, or upon his own suspicions, a police officer shall personally investigate or otherwise cause an investigation to be instituted. If the investigating officers are able to identify the perpetrator or perpetrators with confidence and to obtain evidence they consider sufficient for a conviction they shall, upon the signing of a formal complaint, bring or cause to be brought appropriate charges before a court of the realm, which shall issue a summons or summonses against the accused. The investigating or prosecuting officers shall also require the court to subpoena witnesses and material evidence. The court may in turn require the police to serve those summonses and subpoenas.

I don't see that you specifically require any sort of goodwill activities by the police, (except maybe this).  So competitive police forces would only perform that activity if it actually did result in more convictions.

This says that any time a member of the public alleges a crime to any police force, the police are obligated to follow up, at risk of losing their police force status.  Why is this necessary?  If the complaint was credible, it would be in their interest to follow-up.

Is there anyplace else that I missed where you specify "tangential" activities required to be performed by the police?  Article 2 is more of a general statement, as we discussed, right?  It is not intended to imply that all police forces have to perform all those duties.

Charles

[Paul Birch]

I don't see that you specifically require any sort of goodwill activities by the police, (except maybe this).  So competitive police forces would only perform that activity if it actually did result in more convictions.

Policemen would also do them if they felt it to be their civic or neighbourly duty, which they often would; this would only be a problem if they engaged in such activities significantly to the detriment of their other duties, which is unlikely.

This says that any time a member of the public alleges a crime to any police force, the police are obligated to follow up, at risk of losing their police force status.  Why is this necessary?

Because otherwise a force could be bribed not to investigate, or could prevent business going to competitors by listening to a complaint but doing nothing about it ("Yes, Mrs Jones, we'll look into it"). True, police forces that behaved like that might eventually get a bad enough reputation so that the public would start to boycott them, but that's not a very satisfactory or reliable outcome; it's better to make their responsibilities clear from the outset, so that any breaches are more obvious and directly actionable.

Remember, the police officer doesn't have to investigate personally, only to ensure that an investigation is carried out. It only becomes a personal duty if no one else is willing to take it on. Remember too that making false complaints to the police, or wasting police time, will be offences for which, like any other victims, the police can prosecute and recover damages.

Is there anyplace else that I missed where you specify "tangential" activities required to be performed by the police?  Article 2 is more of a general statement, as we discussed, right?  It is not intended to imply that all police forces have to perform all those duties.

No, you're correct; and where they are performed, they will usually be separately remunerated (crowd and traffic control being obvious examples).

[Charles M.]

I guess you have addressed all of my objections.  I think it sounds pretty reasonable.  The only possible holes I still see in the system is the matter of expenses such as the courthouse and clerical workers not associated with any judge, and the pesky matter of what lies at the top tier of the judicial structure.

Have you given much thought to how a just system would deal with murder?  As you mentioned before, there is nobody to pay in this case.  Dependants can be paid, but this would not be full compensation to the victim himself.  There's also the matter of eventually getting to the point with certain criminals where they have to be locked up because they continuously pose a threat to those around them.   Is there any escaping total subjectivity when we get into this realm?

Charles

[Paul Birch]

I guess you have addressed all of my objections.  I think it sounds pretty reasonable.  The only possible holes I still see in the system ...

I'm answering on the Libertarian law thread, since this has gone back off the topic of the police.

[Paul Birch]

I'm adding the following articles, re access warrants, since sometimes the police may need access to or through premises owned by persons unconnected with any offences.


Article 20.   Powers of access

Any police officer or magistrate may issue a warrant for access to any premises within the jurisdiction of the United Kingdom. An access warrant shall adequately identify the premises to which and through which access is warranted, and shall specify the charge or charges upon which the warrant is to be executed and the reason why a summons would not suffice. An access warrant shall be signed by the officer or magistrate in as many copies as necessary, one copy to be deposited with the court prior to the execution of the warrant, one copy to be retained by the police and one copy to be delivered to each of the properties through which access is obtained.

No warrant shall be executed but in the presence of a uniformed police officer. All police officers taking part in the execution of the warrant shall countersign their names and numbers on the warrant in the presence of the subject of the warrant.

A valid search or arrest warrant shall be deemed to constitute an access warrant through other properties, such as a communal hallway or private road, by the ordinary route to the ordinary public entrance of the designated premises. However, for access through other properties other than by this route, or where no such entrance exists, a separate access warrant shall be required. An access warrant may also be issued for purposes of surveillance.

Persons unlawfully resisting access may be arrested.

No police officer may trespass upon any property without a lawful warrant unless such action is necessary to halt or prevent a breach of the peace or the escape of a criminal.

Police officers shall not employ their powers of access if a summons would have sufficed.

Article 21.   Responsibility for access

Forcible access whether lawful or unlawful is a formal violation of the rights of the owners or tenants of any place trespassed upon, and the trespassing officer shall be liable to make full restitution to those persons if no access warrant exists or the access warrant is deemed to have been improperly executed, and the issuer of a warrant shall in all other cases be liable to make full restitution to those persons.

Article 22.   Resistance to access

No person shall resist a lawfully executed access warrant or lawful access. Nevertheless any person may resist an unlawfully executed warrant or unlawful access by any means necessary up to and including the use of deadly force.

[Paul Birch]

Article 10.   Prohibition on police use of weapons

No police officer or person purporting to be or carrying out the role of a police officer shall employ any weapon lethal or non-lethal in any offensive, defensive or threatening capacity upon pain of a mandatory penalty of death.

The discharging of firearms for forensic purposes shall be permissible. Police officers should be aware that courts may deem offensive martial arts techniques as weapons, when employed by persons trained in their use.

I'm not entirely happy with this article, because it specifies a rather extreme non-proportionate penalty. This could lead to our having to execute a policeman for picking up a broom to defend himself against a dog, for instance. Not exactly what I had in mind. On the other hand, it has proved difficult to formulate a satisfactory alternative.

However, perhaps something along the following lines would work:

"No police officer or person purporting to be or carrying out the role of a police officer shall employ any weapon lethal or non-lethal in any offensive, defensive or threatening capacity. Any such employment shall render unlawful any arrest, interrogation, search, seizure or forcible access, with or without a warrant. Any person may resist such unlawful acts by any means necessary up to and including the use of lethal force, and if any conviction is obtained in consequence of any such unlawful acts the corresponding liability shall fall upon the ultra vires police officer not upon the convicted offender."

Note that bringing an armed goon along while serving a warrant would count as employing a weapon. So would threatening to arm oneself before looking someone up "off duty" (policemen are never really off duty since they may at any time be called upon to stop a felony). A policeman swaggering about armed "off duty" - and thereby indirectly threatening those against whom he may subsequently wish to execute a warrant - would thereby also place himself at risk of being lawfully resisted.

It would be permissible for a policeman to engage in target shooting or hunting off duty, so long as he put away or abandoned his weapon the moment he reverted to police activities. In general, it would be better for him to find less ambiguous hobbies.

Comments?

[Charles M.]

I need to come back up to speed on this thread, I haven't thought about it in a while.  Suppose a heavily armed gang of criminals is holed up in a house someplace.  Why would you find it objectionable for the police to be armed when they carry out the arrest?

Is the line blurry anyway between a single officer with a gun and twenty burly officers with only their bare hands?  I could see a distinction in that a gun almost always will do serious injury, whereas 20 burly guys could theoretically restrain someone without injuring him.  You have included "non-lethal" weapons though, so it's hard for me to see a real distinction.  Why hire 19 goons to hold someone down when you can buy a net gun (I made that term up) or shoot the guy with a tranquilizer?

[Paul Birch]

I need to come back up to speed on this thread, I haven't thought about it in a while.  Suppose a heavily armed gang of criminals is holed up in a house someplace.  Why would you find it objectionable for the police to be armed when they carry out the arrest?

For one thing, they're not "criminals", only alleged criminals being asked to submit to a violation of their rights and, if the police are armed, being placed in fear of their lives or provoked into taking part in an unnecessary shootout (in which innocent people are likely to be hurt or killed). Yet there's no real hurry: with patience and courtesy they can be almost always be persuaded to surrender themselves peaceably instead; unarmed police are far more effective in ending such situations without loss of life than armed police.

Is the line blurry anyway between a single officer with a gun and twenty burly officers with only their bare hands?  I could see a distinction in that a gun almost always will do serious injury, whereas 20 burly guys could theoretically restrain someone without injuring him.

Not just "theoretically" - the difference is of enormous practical significance. It is also much harder to get away with corrupt or oppressive tactics this way. However, it should very seldom be necessary to employ even this much force. Except for the occasional rugby tackle of an escaping felon caught in the act, or subduing drunks or separating people in a fight, arrests and other police activities need not be violent; if they are, it is strong evidence that the police are going about it the wrong way.  

You have included "non-lethal" weapons though, so it's hard for me to see a real distinction.

First, because so-called non-lethal weapons are in practice dangerous, and not infrequently kill or cause serious injury. Labelling them "non-lethal" reduces the psychological threshold for use, and induces users to discount the residual risks. Even a "net gun" could trip people up and make them break their necks. And a tranquiliser dose sufficient to incapacitate most subjects will be a lethal overdose for a minority, or may induce fits or hearts attacks.

However, even if one could invent a truly non-lethal weapon, there would still be the objection that the victim would have no way of knowing that it was. Is the phaser set on stun or kill? Are those darts chloral hydrate crystals or cyanide? Since he must be entitled to resist an assault with lethal weapons, we cannot reasonably prohibit him from defending himself against an attack whose potential lethality he cannot judge.

Finally, since the police are legally empowered to act in ways that by their nature violate peoples' formal rights, I do not want to make things too easy for them. They ought always to have less fire-power than ordinary members of the public they are supposed to be serving. Otherwise they will be apt to arrogance and corruption. Their primary tool should not be brute force but the moral authority of the law.