A Safeguarding Hub – 16-minute read
There is always a reason why an adult will go missing. Many are vulnerable and at risk, whilst others just need to ‘drop out’ for a while, in circumstances that pose no danger to themselves or others. Approximately 90,000 adults are reported missing to the police each year, but exactly what powers do police have when a missing adult does not want to be found and return to their family or friends? The simple truth is that legal powers relating to missing adults are extremely limited.
It is generally accepted that police officers can stop and talk to people in the street or in any public place in the course of exercising their duties, and that members of the public should assist the police where at all possible. Police might speak to the public for a variety of reasons including: to warn people of a certain crime type in the area, to establish community concerns, identify whether a person witnessed a crime or to speak to them because they may be acting suspiciously. Most people do not object to being stopped by a police officer and being asked a few questions. However, in the majority of cases, there is absolutely no obligation on a person to speak to the police or provide any personal details about themselves. This means a person can remain completely silent or simply walk away. This applies to an adult who has been reported missing to the police, even where they have been circulated as missing on the Police National Computer (PNC).
There are some exceptions to this general principle. Where a person is suspected of committing an offence, withholding personal details will prevent them being summonsed for an offence and could therefore make them liable to arrest. There is also legislation that covers withholding information in certain types of situations e.g. where a person harbours an offender by withholding or presenting misleading information, or where a person is involved in anti-social behaviour; or where a person is stopped driving a motor vehicle.
Police powers to ‘Stop and Search’ are mainly controlled by the Police and Criminal Evidence Act (PACE) 1984 and the accompanying Codes of Practice. A police officer must have reasonable grounds to suspect that a person has in their possession a stolen article, an offensive weapon, a prohibited article, a prohibited firework or a bladed or sharply pointed instrument. The power to search for drugs comes from the Misuse of Drugs Act 1971 which provides a police officer with a power to stop and search a person if the officer has reasonable grounds to suspect that person of possessing a controlled drug. Police officers have to follow certain rules when conducting the search, including informing the person they are being detained for the purpose of a search, the object they are searching for and the grounds for suspicion.
There are also powers to search under the Terrorism Act 2000 and the Criminal Justice and Public Order Act 1994. An officer may use reasonable force to carry out a search, but only where it becomes necessary to do so.
So, what about a missing person? Well a missing person has the same rights as anyone else and unless any of the above criteria apply, then police cannot simply search a person because they believe a person has been reported missing. If a police officer believes a person is missing and wants to confirm their identity, then asking them to turf out their pockets, or searching that person for forms of identification would be unlawful.
In the majority of cases police have no legal authority to return a missing adult home or to the
place that they were reported missing from. A missing adult can simply refuse to cooperate with the police and continue on their way. If police were to detain or restrain a missing adult from leaving, then this would be a use of force and would need to be legally justified (see below). In most cases where police have located a missing adult who does not want to return home or have their families informed of their whereabouts, the police will record the missing persons wishes and then inform the family that the person has been spoken. Generally, they will not disclose the location and circumstances of the contact with the family, respecting the missing persons wishes. This can be hugely frustrating for relatives and friends of the missing person. The charity Missing People provide a three-way call service whereby one of their specially trained helpline staff will connect a missing person to the person they want to speak to, but they will also stay on the phone to help the missing person if required.
Police use of force – Police use of force is governed by three pieces of legislation:
- Common law - if a person has an honest-held belief that they or another is in imminent danger, then they may use such force that is reasonable and necessary to avert that danger.
- Section 3 Criminal Law Act 1967 – a person may use such force that is reasonable in the circumstances in the prevention of crime or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.
- Section 117 Police and Criminal Evidence Act 1984 (PACE) – confers a power on a constable that they may use reasonable force, if necessary, in the exercise of any power under the Police and Criminal Evidence Act. PACE covers many of the main police actions: arrest, stop and search, powers of entry and search, police custody.
Police officers must demonstrate that the use of force was lawful, proportionate and necessary in the circumstances.
Where a missing adult appears to be suffering a mental health crisis, police may have the option to detain the person under the Mental Health Act 1983. Police also have at their disposal the option of applying the Mental Capacity Act. The use of these powers will be very rare.
Section 136 Mental Health Act 1983 (as amended by the Policing and Crime Act 2017) - This states that where a person appears to a constable to be suffering from mental disorder and to be in immediate need of care or control, the constable may, if he thinks it necessary to do so in the interests of that person or for the protection of other persons—
- remove the person to a place of safety within the meaning of section 135, or
- if the person is already at a place of safety within the meaning of that section, keep the person at that place or remove the person to another place of safety.
This power is not available to be used in any house, flat or room where that person, or any other person, is living; or any yard, garden, garage or outhouse that is used in connection with the house, flat or room, other than one that is also used in connection with one or more other houses, flats or rooms.
Mental Capacity Act 2005 - Under the act a person (aged 16 or older) lacks capacity in relation to a matter if, at the material time, they are unable to make a decision for themselves in relation to the matter because of an impairment or disturbance in the functioning of the mind or brain. It does not matter whether the impairment or disturbance is permanent or temporary.
Establishing whether a person lacks capacity is decided on the balance of probabilities. However, any decision should not be taken lightly, and decision makers should ask themselves whether they can bring a situation to a successful conclusion in a way that is less restrictive of the person’s rights and freedom of action.
Examples of impairment or disturbance in the functioning of the mind or brain may be:
- attempting and threatening suicide
- where a person has suffered injuries that affects capacity e.g. serious assault, road traffic collision etc.
- where a person is unconscious
- where a person has suffered injury or illness and is subsequently refusing medical treatment
- where a person has severe learning disabilities
- where a person has advanced dementia
- where a person is heavily under the symptoms of drugs or alcohol
Where a police officer makes a decision that a person does not have the capacity to make decisions for themselves and it appears that the person’s life may be at risk or they may suffer harm if action is not taken, then they may detain, restrain, remove and convey a person to hospital (this includes actions taken in private premises). All reasonable steps should be taken to ensure that any actions taken are necessary, proportionate and legal.
Police may use force when exercising their powers under the Mental Health Act 1983 and the Mental Capacity Act 2005.
In most cases the police will attend and search the missing person’s home address and the last place they were seen. Other places that will be required to be searched are a person’s vehicle or their place of work. Searching a person’s home or other premises connected to them, is to ensure that the person is not hiding or has come to harm within the confines of the building/grounds. It also allows police to search for clues as to the whereabouts of the person.
However, there is no legal power to enter and search a missing persons home address (or vehicle) unless certain criteria apply. A search of a person’s home will be conducted with consent of either the occupier or someone entitled to grant access. In the case of a hostel or hotel, this would mean a member of staff with responsibility for the management of the building at the time. Written consent should be obtained by the officer who will record the name of the person granting access and request a signature. Where consent is refused the police will record the refusal and the reason for it. In circumstances where a missing adult lives alone and is reported missing by a key worker, social worker or other professional, then the police cannot routinely force entry to the person’s address to search (see below). Even where a relative or friend reports the person missing, consent to enter a missing person’s home can only be given, if that relative/friend is entitled to grant access.
This principle also applies to other private premises that the missing person may be at e.g. where they are staying or visiting.
When consent is not required – Section 17 of the Police and Criminal Evidence Act 1984 provides police with power to enter and search premises for certain specified reasons. There are a number of various reasons police can enter private premises without a warrant or consent. The main reasons relevant to a missing person are where a police officer has information, which gives him/her reasonable grounds to believe that someone inside is at serious risk of harm. In this case they may enter to save life or limb (or prevent serious damage to property).
When investigating a missing person case, the police often take items that may assist in locating the person safely. These could include items such as:
- photographs of the person, but also friends and associates
- credit cards
- mobile phones
- laptops and tablets
- diaries/address books
- suicide notes
- passports and travel documents
Police often take items for DNA testing. Usually this means items such as a toothbrush or hair brush. In the majority of cases these items never see the inside of a laboratory. Generally, they are only sent for DNA analysis where the enquiry becomes protracted or where there is a likelihood that the person will be found deceased.
Police have no general legal power to seize items in missing person enquiries. Any seizure is done with the consent of the person entitled to grant access to the police. The police are required to record any items that they take during a search of any premises. Where police are lawfully on the premises (this includes with consent) they can seize property if they suspect the item has been obtained in consequence of the commission of an offence or is evidence of an offence. An example of this would be where a constable is searching a missing persons home with consent and comes across illegal drugs. Then the officer can seize the drugs as evidence of an offence even without the consent of the occupier. The officer should always record in writing what they have seized.
When a person is located or returns of their own accord, the police have a responsibility to carry out a ‘Prevention Interview’. The purpose of this interview is to:
- ensure that the returning person is safe and well.
- check for any indications that the person has suffered harm.
- give them an opportunity to disclose whether they have been a victim of crime, whilst missing.
- identify any ongoing risk or factors which may contribute to the person going missing again, this includes identifying where and with whom they have been.
- identify details that may help trace the person in the event of a future missing episode.
A returning missing person does not have to engage in any part of this process. They can refuse to see and speak to police.
Finally, whilst this article may present a fairly negative approach to missing adults, that is not our intention. We simply wanted to highlight some of the limitations that police have when investigating missing adults, and also the rights to privacy that the missing person has. Generally, the police will work around these limitations to achieve a safe outcome for the missing person. We do not wish anyone reading this to be deterred from reporting someone missing if they have disappeared and there are concerns around their safety. If this is the case then they should be reported to police. With that in mind we wanted to finish with a common myth with regards to missing adults. This is that when reporting an adult missing, the informant should wait 24 hours before doing so, just in case they come back. This is not the case and if there are concerns for the safety and welfare of the person, then they should be reported missing immediately.
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