Policing by Law and Policing by
If you ask people for consent, they seem to think that they have
the right to say no.1
As suggested in Chapter 2, the adoption of techniques of legal regulation has become increasingly common in attempts to change and control policing in a number of jurisdictions (including Australia, Canada, the United States, New Zealand, Scotland, England and Wales). The general aim is the extension (or formalization), clarification, and specification of police powers and of suspects' rights. My concern here is with a major issue which the strategy of legal regulation has not yet adequately faced--the problem of consent. Police officers may be able to achieve their objectives (e.g., to interrogate or to search) not by using a legal power, but by securing the 'consent' of the suspect or other subject of their attention. If 'consent' is obtained, prima facie the legal relationship between the actors is not that between a state official and a private citizen, but rather that between two private citizens. This practice has long been used by police officers, not just to supplement what are regarded as inadequate or unclear powers, but as a way of doing police work more generally.
As legal regulation comes to delimit police powers, 'consent' becomes increasingly significant. Some of the consequences of 'consensual' encounters are that statutory requirements for the exercise of powers do not apply (so that, for example, a suspect can be searched without reasonable grounds for suspicion), record-making is unnecessary (rendering supervision more difficult), and the rights of the____________________