Update | PACE: stop and search, on-the-spot fines, 'changes to police powers of containment and challenging cautions

In July, the Home Secretary Theresa May announced a six-week consultation on police powers of stop and search. She highlighted geographical discrepancies in the percentage of searches leading to arrest, and indicated concern that, in some areas of the country, this ratio is "far too low for comfort".

This consultation, which has now been extended to 24 September, follows a critical report by Her Majesty's Inspectorate of Constabulary (HMIC) which found that over a quarter of the stop and search records examined did not contain sufficient grounds to justify the search.

The government has indicated that it will publish a response to both the HMIC report and the public consultation by the end of the year.

While the consultation has been positively received by civil liberties groups, it is suspected that it is the reduction in police numbers and the need to drive down "red tape" that is in reality driving this review. Nevertheless, if the result is a more focused approach to what has become an increasingly misused tool, it is to be welcomed.

On-the-spot fines

On 16 August, the Fixed Penalty Offences Order 2013 came into force. The order adds careless or inconsiderate driving to the list of fixed penalty offences for the purposes of Part 3 of the Road Traffic Offenders Act 1988. This means that the police now have the power to issue an on-the-spot fine of £100 and three penalty points for careless or inconsiderate driving. Previously, the only option available to the police was to issue a summons requiring the driver to attend court.

As with any other type of penalty notice, drivers will have the option of appealing against such a notice in court and it will be interesting to see how many of these new notices are subject to challenge. The type of conduct envisaged by the government - tailgating, poor lane discipline - are fairly subjective in nature and some drivers, particularly those with a number of points already on their licences, may well consider it worth '¨their while.

Execution of search warrants

R (on the application of Pearce) v Metropolitan '¨Police Commissioner [2013] EWCA Civ 866 concerned the legality of the execution of search warrants in circumstances when this execution '¨had been brought forward for independent operational reasons.

In the wake of public disorder involving anarchist groups in the spring of 2011, the police had obtained search warrants authorising them '¨to enter a number of squats in order to search for stolen goods. The execution of the warrants was brought forward to the day before the Royal Wedding so the suspects could be detained in police custody during the '¨ceremony to prevent them causing any '¨disruption to the occasion.

The Divisional Court had found that the warrants had been executed lawfully and, in this case, the Court of Appeal agreed. The court found that a distinction could be drawn between the purpose of executing a search warrant and the operational decision as to the timing of this execution. The decision to bring the searches forward so that the suspects could be detained in order to prevent possible disorder did not prevent the dominant purpose of the search being the one authorised by the warrant.

While not a surprising decision, it is a concerning one as it evokes the possibility of a mass execution of search warrants in respect of unrelated matters immediately before demonstrations or large-scale public events are due to take place, in order to prevent the attendance of those the police deem to be trouble-makers.

Limitations on police powers

Police powers of containment (or 'kettling') have again been under the scrutiny of the High Court. The case of Mengesha v Metropolitan Police Commissioner [2013] EWHC 1695 (Admin) concerned the practice of requiring demonstrators to provide personal details and to submit to filming before being released from containment.

The case concerned a public sector trade union march in central London, which the claimant attended as a legal observer. The police, having observed criminal acts take place, authorised containment and approximately 100 people, including the claimant, were contained for between one and two hours. The decision was then made that those being released from the containment would be filmed and asked for their details, on the basis that this would assist in any post-incident investigation to identify those responsible for the criminal acts.

The claimant was funnelled into a separate area, where she was surrounded by police officers and filmed. She was asked to provide her name, address and date of birth. Her claim was that she was required to identify herself in this manner in order to be permitted to leave.

It was not disputed by the police that it would have been unlawful to require an individual to give personal details and to submit to such filming as a condition for release from containment. However, it was their argument that the claimant had voluntarily submitted to filming and the provision of her personal details and as such it was lawful.

The court was not impressed with this argument. They found the evidence that the process was not voluntary to be "overwhelming". In a strongly-worded judgment by Lord Justice Moses, he rejected the police argument that the process of obtaining details in this manner was "part and parcel of the containment". He examined the practice of containment and the limited statutory powers of the police to require the provision of personal details and take photographs of individuals, before concluding that: "It is clear'¦ that containment is not permissible for some purpose other than to prevent a breach of the peace which is taking place or is reasonably thought to be imminent. In particular, it is not permitted as a means of ensuring the identification of those contained has been obtained by questioning and by filming."

Accordingly, and pursuant to Article 8 of the European Convention of Human Rights (ECHR), '¨the film footage and personal details of the claimant could not be retained by the police and had to be destroyed.

Challenging cautions

The case of R (on the application of Stratton) v Chief Constable of Thames Valley Police [2013] EWHC 1561 (Admin) concerned the challenge, in 2010, of a caution which had been administered in 2008.

The claimant had been issued with a caution for common assault. In accepting the caution, she signed a form to confirm that she understood that if, in future, she should appear before a court and be found guilty of another offence, details of the caution could be given to the court.

The court found that the form did not set out the full implications of accepting the caution. It implied that that was the only consequence, and there was nothing in evidence to suggest that the full consequences had been otherwise spelled out to her. Accordingly, she had not given her informed consent to the caution and it had to be quashed.

Best practice, now followed by most police forces, is to take the offender through the list of implications set out in the 2013 Ministry of Justice guidance entitled "Simple Cautions for Adult Offenders" and to ensure that he or she signs a form to the effect that this is understood and accepted. Following such a process almost certainly renders the caution beyond any subsequent challenge on the basis of lack of informed consent.

Those who do not have a basis to challenge the issue of historic cautions will be interested to note that new rules came into effect on 29 May 2013 which mean that old and minor cautions will no longer appear on criminal record certificates.

The Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013 amends the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 so that the Rehabilitation of Offenders Act 1974 now applies in respect of a "protected caution" or a "protected conviction".

A protected caution is one which was given other than in relation to a listed offence (these include serious offences of a sexual or violent nature and a range of other offences including those involving vulnerable persons) and which was given at least six years ago, or two years ago if the offender was under 18 years of age at the time. SJ