Law enforcement agency powers
Encyclopedia
A law enforcement agency
(LEA) has powers, which other government subjects do not, to enable the LEA to undertake its responsibilities. These powers are generally in one of six forms:
The types of powers and law exemptions available to a LEA vary from country
to country.
They depend on the social, legal, and technical maturity of the country, and on the resources available to LEAs generally in the country. Some countries may have no laws regarding a particular type of activity by its subjects at all, while other countries might have very stringent laws on the same type of activity. This will impact significantly on the legal structures, if any, that govern how an LEA can operate, and on how the LEA's use of powers is overviewed.
Law enforcement agency powers are part of a broad range of techniques used for law enforcement, many of which require no specific legislative support or indepenant overview.
Generally, the use of powers and law exemptions fall into two loose categories:
While a LEA's powers and law exemptions are not usually explicitly categorised in this way, they do fall into these two broad categories in this manner and can be identified by the types and level of overview applied to the use of the powers and law exemptions. The former group can have strong and multiple levels of overview, typically for every exercising of the power or law exemption, and the latter group can have no overview other than an exceptional response for some extreme malutilisation of the power or law exemption.
Due to their nature, specifically allocated powers have a greater impact on subjects, whereas law exemptions have a lesser impact on subjects. For example, the use of deadly force is normally an explicitly granted power. This is distinct from the carrying of a firearm in a public place. The latter is normally a law exemption. The discharging of a firearm
is normally subject to significant overview, whether or not person injury or property damage occurred, whereas the carrying of a firearm in compliance with the law exemption requiries no reporting or overview.
. The senior officer or the judicial officer have a responsibility to ensure that use of a power is necessary and does not unnecessarily violate the right
s of subjects.
in order to get approval, each time the power is to be exercised. Typically, in line with the separation of authority, the judicial officer is external to the LEA. Judicial overview is typically required for the more intrusive powers. The judicial approval for the use of a power is usually called a warrant, for example, a search warrant
for the instrusive search and seizure of a subject's property, or a telecommunications interception warrant to listen to and copy subjects' communications.
External overview can be done by auditors, or specifically created general overview authorities, for example ombudsmen
. The reports, or at least summaries of the reports, of these entities on the LEA's use of powers or law exemptions is typlically available to the public. For example, the Australian Federal Police
's controlled operations are subject to open civil review by its governing body, the Parliament of Australia
.
, or perceived abuse, or lack of openness and reporting on the use, of powers and law exemptions by an LEA, can give rise to lack of confidence and respect by subjects in the LEA. Where there is abuse of its powers
and law exemptions by an LEA, and no or ineffective overview of its activities, the LEA can become to be referred to as a secret police agency.
To enable LEAs to use dogs, they are typically given specific exemption from laws controlling where dogs can be taken, for example Australian Federal Police
dogs and Australian Customs Service
dogs.
. LEAs which are allowed to carry firearms when dealing with subjects, will be subject to strict protocols in the use of firearms.
In an open jurisdiction, governing bodies give their law enforcement agencies specific powers to undertake controlled operations via specific laws.
or traffic law while in the performance of his/her duties. Such incidents may include:
In a civil society or democratic society, governing bodies give their law enforcement agencies specific powers to intercept telecommunications via specific laws, for example, in Australia
with the Telecommunications (Interception and Access) Act 1979, in the United Kingdom via the Regulation of Investigatory Powers Act 2000
, and in the United States
with 18 USC §2516.
The use of TI powers by a LEA is typically subject to strong overview from outside of the LEA. For example, in Australia
an ombudsman
has strong intrusive powers to monitor and review an LEA utilising TI.
The power to search and seize property is typically granted in an instance via an instrument called a search warrant
.
officers. The use of such methods in open societies are typically explicitly authorised and is subject to overview, for example in Australia
under the Crimes Act 1914
, and in the United Kingdom
under the Regulation of Investigatory Powers Act 2000.
In open societies, controlled operations are specifically legislated for to be used by law enforcement agencies and are subject to overview, for example in Australia
.
, and in the United Kingdom
.
For example, in the United States
while kidnapping is typically initially a state jurisdictional matter, the United States
' Federal Bureau of Investigation
is allowed to take responsibility when the matter crosses state boundaries by virtue of the matter then becoming a federal matter.
is overridden.
This power when provided to an LEA in a civil society or democratic society is typically counter balanced by the subject not being able to be prosecuted as a result of them complying with the direction, but they can be prosecuted if they do not comply. They can be prosecuted if other law enforcement outcomes have the otherwise same effect. A subject can be prosecuted using information obtained from another subject under direction.
An example of this power of direction is held by the Australian Crime Commission
. The Australian Federal Police
(AFP) also has a power of direction, but this is limited to being applied to AFP appointees.
Law enforcement agency
In North American English, a law enforcement agency is a government agency responsible for the enforcement of the laws.Outside North America, such organizations are called police services. In North America, some of these services are called police while others have other names In North American...
(LEA) has powers, which other government subjects do not, to enable the LEA to undertake its responsibilities. These powers are generally in one of six forms:
- Exemptions from laws
- Intrusive powers, for search, seizure, and interception
- Legal deceptionDeceptionDeception, beguilement, deceit, bluff, mystification, bad faith, and subterfuge are acts to propagate beliefs that are not true, or not the whole truth . Deception can involve dissimulation, propaganda, and sleight of hand. It can employ distraction, camouflage or concealment...
- Use of forceUse of forceThe term use of force describes a right of an individual or authority to settle conflicts or prevent certain actions by applying measures to either: a) dissuade another party from a particular course of action, or b) physically intervene to stop them...
and constraint of liberty - Jurisdictional override
- Direction
The types of powers and law exemptions available to a LEA vary from country
Sovereign state
A sovereign state, or simply, state, is a state with a defined territory on which it exercises internal and external sovereignty, a permanent population, a government, and the capacity to enter into relations with other sovereign states. It is also normally understood to be a state which is neither...
to country.
They depend on the social, legal, and technical maturity of the country, and on the resources available to LEAs generally in the country. Some countries may have no laws regarding a particular type of activity by its subjects at all, while other countries might have very stringent laws on the same type of activity. This will impact significantly on the legal structures, if any, that govern how an LEA can operate, and on how the LEA's use of powers is overviewed.
Law enforcement agency powers are part of a broad range of techniques used for law enforcement, many of which require no specific legislative support or indepenant overview.
- See law enforcement techniques for a list of other law enforcement techniques.
Overview of use of powers
The powers and law exemptions granted to an LEA allow the LEA to act in a way which would typically be regarded as violating the rights of law complying subjects. Accordingly, to minimse the risk that these powers and law exemptions might be misused or abused, many countries have in place strong overview regimes to monitor the use and application of the LEA's powers and law exemptions. Overview regimes can involve judicial officers, be provided by internal audit services, by independent authorities, by the LEA's governing body, or some other civil mechanism.Generally, the use of powers and law exemptions fall into two loose categories:
- those that are deemed to be intrusive and might significantly impact the rightRightRights are legal, social, or ethical principles of freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people, according to some legal system, social convention, or ethical theory...
s of a subject - those that are relatively unintrusive and do not significantly impact the rights of a subject.
While a LEA's powers and law exemptions are not usually explicitly categorised in this way, they do fall into these two broad categories in this manner and can be identified by the types and level of overview applied to the use of the powers and law exemptions. The former group can have strong and multiple levels of overview, typically for every exercising of the power or law exemption, and the latter group can have no overview other than an exceptional response for some extreme malutilisation of the power or law exemption.
Due to their nature, specifically allocated powers have a greater impact on subjects, whereas law exemptions have a lesser impact on subjects. For example, the use of deadly force is normally an explicitly granted power. This is distinct from the carrying of a firearm in a public place. The latter is normally a law exemption. The discharging of a firearm
Firearm
A firearm is a weapon that launches one, or many, projectile at high velocity through confined burning of a propellant. This subsonic burning process is technically known as deflagration, as opposed to supersonic combustion known as a detonation. In older firearms, the propellant was typically...
is normally subject to significant overview, whether or not person injury or property damage occurred, whereas the carrying of a firearm in compliance with the law exemption requiries no reporting or overview.
Approval and internal overview
Typically personnel of an LEA cannot just exercise a power of their own volition. In order to exercise a power, an officer of an LEA must argue for and get approval, from either a senior officer of the LEA or a judicial officerJudicial officer
A judicial officer is a person with the responsibilities and powers to facilitate, arbitrate, preside over, and make decisions and directions in regard to the application of the law....
. The senior officer or the judicial officer have a responsibility to ensure that use of a power is necessary and does not unnecessarily violate the right
Right
Rights are legal, social, or ethical principles of freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people, according to some legal system, social convention, or ethical theory...
s of subjects.
Judicial overview
Judicial overview of LEA powers is typically in the form of the LEA having to provide grounds for the exercising of the power to a judicial officerJudicial officer
A judicial officer is a person with the responsibilities and powers to facilitate, arbitrate, preside over, and make decisions and directions in regard to the application of the law....
in order to get approval, each time the power is to be exercised. Typically, in line with the separation of authority, the judicial officer is external to the LEA. Judicial overview is typically required for the more intrusive powers. The judicial approval for the use of a power is usually called a warrant, for example, a search warrant
Search warrant
A search warrant is a court order issued by a Magistrate, judge or Supreme Court Official that authorizes law enforcement officers to conduct a search of a person or location for evidence of a crime and to confiscate evidence if it is found....
for the instrusive search and seizure of a subject's property, or a telecommunications interception warrant to listen to and copy subjects' communications.
Civil and external overview
Civil overview can be applied to internally approved use of powers and also to judicial approval of powers. Civil overview is normally after the event reporting on the frequency and effectiveness of the use the powers to open fora, accessible to the public.External overview can be done by auditors, or specifically created general overview authorities, for example ombudsmen
Ombudsman
An ombudsman is a person who acts as a trusted intermediary between an organization and some internal or external constituency while representing not only but mostly the broad scope of constituent interests...
. The reports, or at least summaries of the reports, of these entities on the LEA's use of powers or law exemptions is typlically available to the public. For example, the Australian Federal Police
Australian Federal Police
The Australian Federal Police is the federal police agency of the Commonwealth of Australia. Although the AFP was created by the amalgamation in 1979 of three Commonwealth law enforcement agencies, it traces its history from Commonwealth law enforcement agencies dating back to the federation of...
's controlled operations are subject to open civil review by its governing body, the Parliament of Australia
Parliament of Australia
The Parliament of Australia, also known as the Commonwealth Parliament or Federal Parliament, is the legislative branch of the government of Australia. It is bicameral, largely modelled in the Westminster tradition, but with some influences from the United States Congress...
.
Internal review
Internal review involves formal reviews done by the LEA itself on the use of its powers and law exemptions. Often, as part of this process, every time a certain power is used an incident report detailing the circumstances requiring the use of the power and the outcomes of the use of the power must be completed. For example a use of force report. These reports are then collated and analysed to determine if there are any patterns of misuse, overuse, or process change or LEA personnel training requirements required.Abuse of powers and law exemptions
The abuseAbuse
Abuse is the improper usage or treatment for a bad purpose, often to unfairly or improperly gain benefit. Abuse can come in many forms, such as: physical or verbal maltreatment, injury, sexual assault, violation, rape, unjust practices; wrongful practice or custom; offense; crime, or otherwise...
, or perceived abuse, or lack of openness and reporting on the use, of powers and law exemptions by an LEA, can give rise to lack of confidence and respect by subjects in the LEA. Where there is abuse of its powers
Abuse of Power
Abuse of Power is a novel written by radio talk show host Michael Savage.- Plot :Jack Hatfield is a hardened former war correspondent who rose to national prominence for his insightful, provocative commentary...
and law exemptions by an LEA, and no or ineffective overview of its activities, the LEA can become to be referred to as a secret police agency.
Exemption from laws
Exemption from laws can include:- Working animals in otherwise restricted places
- Weapons in otherwise restricted places
- Controlled operations
- Access to private and confidential information
- Disregarding traffic control devices
Working animals in otherwise restricted places
The animals most often used by LEAs are dogs and horses. Dogs are used for search and rescue, chasing and subduing suspects, searching for drugs and explosives, etc.To enable LEAs to use dogs, they are typically given specific exemption from laws controlling where dogs can be taken, for example Australian Federal Police
Australian Federal Police
The Australian Federal Police is the federal police agency of the Commonwealth of Australia. Although the AFP was created by the amalgamation in 1979 of three Commonwealth law enforcement agencies, it traces its history from Commonwealth law enforcement agencies dating back to the federation of...
dogs and Australian Customs Service
Australian Customs Service
The Australian Customs and Border Protection Service is the Australian Federal Government agency responsible for managing the security and integrity of the Australian border, facilitating the movement of legitimate international travellers and goods, and collecting border-related duties and...
dogs.
Weapons in otherwise restricted places
Many countries have laws forbidding the carrying of weapons in public places. Law enforcement agency personnel, typically police officers, are required to carry firearms in public places. In order to allow LEA personnel to carry firearms, their governing body will enact laws to enable them to do so, for example in the United StatesUnited States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
. LEAs which are allowed to carry firearms when dealing with subjects, will be subject to strict protocols in the use of firearms.
Controlled operations
Controlled operations requires both exemption from laws and deception.In an open jurisdiction, governing bodies give their law enforcement agencies specific powers to undertake controlled operations via specific laws.
Access to private and confidential information
Private and confidential information can include:- Medical records
- Banking and other financial records
- Utility records, such as water and power use
- Telecommunications records, such as subscribed details and service use details of telephone calls made, received, and where.
Disregarding traffic control devices
Law enforcement personnel may, with cause, disregard any traffic control deviceTraffic sign
Traffic signs or road signs are signs erected at the side of roads to provide information to road users. With traffic volumes increasing over the last eight decades, many countries have adopted pictorial signs or otherwise simplified and standardized their signs to facilitate international travel...
or traffic law while in the performance of his/her duties. Such incidents may include:
- Pursuit of a wanted person, suspect, or suspect-vehicle (to include high-speed pursuit or regular traffic enforcement stop).
- While in response to certain 9-1-19-1-19-1-1 is the emergency telephone number for the North American Numbering Plan .It is one of eight N11 codes.The use of this number is for emergency circumstances only, and to use it for any other purpose can be a crime.-History:In the earliest days of telephone technology, prior to the...
calls. - During an authorized escort (such as funerals or executive protection details).
Communications interception
The interception of communications is usually the interception of electronic voice or data connections, and is typically called telecommunications interception (TI). In some countries TI is called wire tapping. Other forms of communications interception can be intercepting radio transmissions and opening physical mail items.In a civil society or democratic society, governing bodies give their law enforcement agencies specific powers to intercept telecommunications via specific laws, for example, in Australia
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
with the Telecommunications (Interception and Access) Act 1979, in the United Kingdom via the Regulation of Investigatory Powers Act 2000
Regulation of Investigatory Powers Act 2000
The Regulation of Investigatory Powers Act 2000 is an Act of the Parliament of the United Kingdom, regulating the powers of public bodies to carry out surveillance and investigation, and covering the interception of communications...
, and in the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
with 18 USC §2516.
The use of TI powers by a LEA is typically subject to strong overview from outside of the LEA. For example, in Australia
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
an ombudsman
Ombudsman
An ombudsman is a person who acts as a trusted intermediary between an organization and some internal or external constituency while representing not only but mostly the broad scope of constituent interests...
has strong intrusive powers to monitor and review an LEA utilising TI.
Intrusive seizure
Intrusive seizure can include:- Property seizure by entering premises
- Taking from a subject finger prints, palm prints, sole prints, teeth impressions, lip prints, blood samples, DNA samples, etc.
- Information seizure by accessing information systems
Property seizure by entering premises
Law enforcement agencies are specifically given the authority to seize property, for the example the Federal Bureau of InvestigationFederal Bureau of Investigation
The Federal Bureau of Investigation is an agency of the United States Department of Justice that serves as both a federal criminal investigative body and an internal intelligence agency . The FBI has investigative jurisdiction over violations of more than 200 categories of federal crime...
The power to search and seize property is typically granted in an instance via an instrument called a search warrant
Search warrant
A search warrant is a court order issued by a Magistrate, judge or Supreme Court Official that authorizes law enforcement officers to conduct a search of a person or location for evidence of a crime and to confiscate evidence if it is found....
.
Legal deception
Legal deception powers can include:- Assumed identities
- Controlled operations
- Intrusive surveillance
Assumed identities
Law enforcement agency personnel when they take on assumed identities are often referred to as covert officers or undercoverUndercover
Being undercover is disguising one's own identity or using an assumed identity for the purposes of gaining the trust of an individual or organization to learn secret information or to gain the trust of targeted individuals in order to gain information or evidence...
officers. The use of such methods in open societies are typically explicitly authorised and is subject to overview, for example in Australia
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
under the Crimes Act 1914
Crimes Act 1914
The Crimes Act 1914 is a piece of Federal legislation in Australia. Pursuant to the Australian Constitution it prevails in any conflict with State laws dealing with the subject of crime....
, and in the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
under the Regulation of Investigatory Powers Act 2000.
Controlled operations
Controlled operations, an action by a law enforcement agency to allow a criminal act to occur, for example the importation of illicit substances, so that as many of the subjects involved in the act can be idenitified as possible during the process of importation. A controlled operation typically includes the substitution of all of the illicit substances, or the significant majority of them, by the law enforcement agency with similar looking but benign materials.In open societies, controlled operations are specifically legislated for to be used by law enforcement agencies and are subject to overview, for example in Australia
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
.
Intrusive surveillance
Intrusive surveillance typically means entering or interfering with the private and confidential space and property of a subject. Intrusive surveillance typically requires the law enforcement agency to be enabled for a law enforcement agency, for example in AustraliaAustralia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
, and in the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
.
Use of force
Use of force powers can include:- Non-lethal force, including either non-lethal weapons or temporary physical holds and contact to immobilize subjects
- Lethal forceDeadly forceDeadly force, as defined by the United States Armed Forces, is the force which a person uses, causing—or that a person knows, or should know, would create a substantial risk of causing—death or serious bodily harm...
- Immobilisation and restraint
Constraint of liberty
Constraint of liberty powers can include:- ArrestArrestAn arrest is the act of depriving a person of his or her liberty usually in relation to the purported investigation and prevention of crime and presenting into the criminal justice system or harm to oneself or others...
. The power to arrest is typically granted in an instance via an instrument called an arrest warrantArrest warrantAn arrest warrant is a warrant issued by and on behalf of the state, which authorizes the arrest and detention of an individual.-Canada:Arrest warrants are issued by a judge or justice of the peace under the Criminal Code of Canada....
. The power to arrest is also typically granted to a member of an LEA for whenever the member has probable causeProbable causeIn United States criminal law, probable cause is the standard by which an officer or agent of the law has the grounds to make an arrest, to conduct a personal or property search, or to obtain a warrant for arrest, etc. when criminal charges are being considered. It is also used to refer to the...
to do so. Open governmentGovernmentGovernment refers to the legislators, administrators, and arbitrators in the administrative bureaucracy who control a state at a given time, and to the system of government by which they are organized...
s publicly give their law enforcement agencies the power to arrest subjects, for example, in the United StatesUnited StatesThe United States of America is a federal constitutional republic comprising fifty states and a federal district...
, the FBI has the power of arrest under 18 USC §3052. - DetentionDetention (imprisonment)Detention is the process when a state, government or citizen lawfully holds a person by removing their freedom of liberty at that time. This can be due to criminal charges being raised against the individual as part of a prosecution or to protect a person or property...
Jurisdictional override
Sometimes, a law enforcement agency will not normally have the jurisdictional authority to be involved in enforcing compliance of, or investigating the non compliance with, a law unless that law or the non complying subject crosses over multiple jurisdictions, or the non compliance is especially severe.For example, in the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
while kidnapping is typically initially a state jurisdictional matter, the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
' Federal Bureau of Investigation
Federal Bureau of Investigation
The Federal Bureau of Investigation is an agency of the United States Department of Justice that serves as both a federal criminal investigative body and an internal intelligence agency . The FBI has investigative jurisdiction over violations of more than 200 categories of federal crime...
is allowed to take responsibility when the matter crosses state boundaries by virtue of the matter then becoming a federal matter.
Direction
The power of direction allows a LEA to direct a subject to either carry out some act or provide information with the subject having no right to refuse, even if the outcome is to incriminate the subject, that is, any explicit, implied, or de facto right to silenceRight to silence
The right to remain silent is a legal right of any person. This right is recognized, explicitly or by convention, in many of the world's legal systems....
is overridden.
This power when provided to an LEA in a civil society or democratic society is typically counter balanced by the subject not being able to be prosecuted as a result of them complying with the direction, but they can be prosecuted if they do not comply. They can be prosecuted if other law enforcement outcomes have the otherwise same effect. A subject can be prosecuted using information obtained from another subject under direction.
An example of this power of direction is held by the Australian Crime Commission
Australian Crime Commission
The Australian Crime Commission is an Australian Government national criminal intelligence and investigation agency. It was formulated under the Australian Crime Commission Act which came into effect on 1 January 2003, establishing the ACC as a national statutory authority to combat serious and...
. The Australian Federal Police
Australian Federal Police
The Australian Federal Police is the federal police agency of the Commonwealth of Australia. Although the AFP was created by the amalgamation in 1979 of three Commonwealth law enforcement agencies, it traces its history from Commonwealth law enforcement agencies dating back to the federation of...
(AFP) also has a power of direction, but this is limited to being applied to AFP appointees.
See also
- Proactive policingProactive policingProactive policing is the theory and practice of engaging criminals before they commit a crime, thereby preventing crime from taking place in the first place. Police action after receiving a complaint or call for help from the public does not constitute proactive policing...
- For a broader description of LEA powers and jurisdictional relationships, see Law enforcement agencyLaw enforcement agencyIn North American English, a law enforcement agency is a government agency responsible for the enforcement of the laws.Outside North America, such organizations are called police services. In North America, some of these services are called police while others have other names In North American...
. - Police stop, search, detention and arrest powers in the United KingdomPolice stop, search, detention and arrest powers in the United KingdomThe powers of the police differ between the three legal systems of the United Kingdom.*Powers of the police in England and Wales*Powers of the police in Scotland*Powers of the police in Northern Ireland...