The history of policing in the United Kingdom is quite complicated. Currently, it seems like the ‘new police’ is changing the landscape of the country by putting the rights of its citizens at question. An indication of the ambivalent nature of police powers reflects a discomfort which police officers often display in using the term 'police powers'. Several police officers have bridled when asked about aspects of their 'powers'. The Queensland Police Service, in its submission to the Criminal Justice Commission's review of police powers, preferred to speak of 'policing authorities' rather than powers (Weir et al 1999). Such use of euphemisms is not uncommon in policing: they are used to present what is thought to be a more favourable aspect. In the present case, the sensitivity is misplaced: the use of the word 'powers' in the context of policing should have no pejorative implication, and 'powers' is a standard usage in legal discussion of public bodies.
The Malone case illustrates well another sometimes problematic consequence of conceptualizing police powers as exemptions from prohibitions. In legal systems such as the United Kingdom which lack constitutional measures such as a Bill of Rights, the relevant prohibitions are those specified in tort and, particularly, the criminal law: Malone's investigators did not need to consider the possibility that their actions might be unlawful by virtue of transgressing a constitutionally protected right to privacy. (Weir et al 1999) They were simply doing something which was not unlawful. By focusing on prohibitions, this legal tradition sees the non-prohibited as a legal vacuum.
The creation of a new offence simply reduces the area of the vacuum.
Limitations on this legalistic way of conceptualizing police powers and criminal law are apparent: the legal vacuum has social and political substance. When people object that a proposed extension of police powers or criminal law would infringe their 'rights', this is not a mistake, an expression of legal unsophistication. (Weir et al 1999) These kinds of rights are much less clear than those specified in constitutional documents, but they are none the less significant (not least because the latter are often products of the former). At issue here are understandings of the limits of acceptable state intervention which are historical products of social and political disputes and negotiations.
The case of stop and search is an excellent example of how excessive use of a police power can be dysfunctional or counterproductive. A major precondition of the 1981 Brixton riots was the intensive use of stop and search powers which worsened relations between police and young black people. The result was rioting and the commission of many serious offences (Weir et al 1999). Similar results have been produced by other instances of intensively using stop and search or 'field interrogation' in an aggressive patrol strategy. Studies in England suggest that the level of some crimes may be reduced, but 'the price in alienation of some sections of the public (primarily young males, especially blacks) is very high' (Weir et al 1999). The lesson to be learnt is that any potential benefits which police powers may provide can be dissipated if they are used inappropriately. This is particularly significant, given police reliance on information from the public in crime detection: this issue will be raised again in the context of police effectiveness in the next section.
While stop and search attracted most attention in debates about policing in the early 1980s, the central issue (in both in England and Wales) in the late 1990s is custodial interrogation. From a legalistic perspective, the central purpose of police powers to detain for questioning is the collection of evidence for potential use in court. A more socially realistic perspective suggests that the division between investigative and judicial functions is too neat. Criminal justice systems which depend on very high rates of guilty pleas for their effective functioning have transferred the crucial site of determination from the court to the police station. (Weir et al 1999) When cases may be effectively determined by a confession, then a power to detain and question is more, in practice if not in law, than an investigative power.