1.6 Detention Flashcards
What two things must police demonstrate to detain without charge?
- Legal authority to detain
- Lawful use of the power
Use the PACE mnemonic:
P: Identify the power (legal authority)
A: What is the legal authority granting the power? (legal authority)
C: What criteria need to be met and are they met on the facts? (legal authority)
E: How should the power be exercised and has it been exercised correctly on the facts? (lawful use)
After a lawful arrest has been made, what must the police do?
Section 30(1A) PACE
The person must be taken by a constable to a police station as soon as practicable after the arrest.
[Ss.30(10) and (10A) - The exception is where the arrested person’s presence at a place other than a police station is necessary to carry out such investigations as it is reasonable to carry out immediately. This can include:
- being searched;
- being taken to premises being searched; or
- being taken to a place to check their alibi.]
What are the custody officer’s duties before charge?
Section 37 PACE
(1)
[the custody officer shall determine whether there is sufficient evidence to charge the arrested person and may detain him to give time to decide.]
(2)
[If the evidence is not present, the arrested person shall be released subject to (3)]
(3)
[detention to secure or preserve evidence.]
(4)
[the custody officer must make a written record of the grounds for detention.]
(5)
[the written record must be made in the presence of the arrested person and they must be given the reason.]
Other duties include the welfare of the arrested person, arranging interpreters, etc.: COP C 2, 3 and 4
What must the custody record include?
COP C 2.3
- time and reason for transfer;
- time a person is released from detention
COP C 3.4
(a) any comments made by the arrested person (but do not invite comment)
(b) why the arrest was necessary
COP G 4.3
- the circumstances of the arrest
- the reason for the arrest
How often must reviews of detention be carried out?
Section 40(3) PACE
Subject to subsection (4) below—
(a)
the first review shall be not later than six hours after the detention was first authorised;
(b)
the second review shall be not later than nine hours after the first;
(c)
subsequent reviews shall be at intervals of not more than nine hours.
Who carries out reviews of detention?
Section 40(2) PACE
(a)
in the case of a person who has been arrested and charged, by the custody officer; and
(b)
in the case of a person who has been arrested but not charged, by an officer of at least the rank of inspector who has not been directly involved in the investigation.
What is the normal time limit on detention without charge?
Section 41 PACE
(1)
24 hours from the relevant time, which is:
(2)(a)
(i)
the time at which that person arrives at the relevant police station; or
(ii)
the time 24 hours after the time of that person’s arrest, whichever is the earlier;
What are the conditions for police extending detention without charge from 24 hours to 36 hours?
Section 42(1) PACE
Detention can be extended by a further 12 hours (24+12=36) by a superintendent who has reasonable grounds for believing that—
(a)
detention without charge is necessary to secure or preserve evidence relating to an offence for which he is under arrest or to obtain such evidence by questioning him;
(b)
he is arrested for an indictable offence; and
(c)
the investigation is being conducted diligently and expeditiously,
What steps must be taken by police before extending detention without charge from 24 hours to 36 hours?
Section 42 PACE
(4)
Authorisation to extend must be given before the expiry of the initial 24 hours but after the second review has occurred
(5)
the grounds for the extension must be explained to the suspect and noted in the custody record
(6)
the suspect and/or the suspect’s solicitor should be allowed an opportunity to make representations.
What if the police want to detain someone for longer than 36 hours?
Sections 43 and 44 PACE.
Police must provide a sworn information to a Magistrates Court to obtain authorisation. First for a further 36 hours, then a further 24 hours. Total = 96 hours.
Sections 43 and 44 require that:
- the magistrates’ court is satisfied that there are reasonable grounds for believing further detention is necessary to secure or preserve evidence or obtain evidence by questioning;
- the offence must be an indictable offence; and
- the investigation is being conducted diligently and expeditiously.
What is the status of the Codes of Practice on police powers in criminal courts?
The Codes are admissible in evidence in criminal or civil proceedings.
What must the custody officer tell the arrested person when they authorise detention?
COP C 3.1 and 3.5
The officer must inform the detained person of
- his right to legal advice
- his right to have someone informed of his arrest
- and ask the person whether he wishes to exercise those rights
- his right to consult the Codes of Practice
- his right to interpretation and translation (if applicable)
- his right to be informed about the offence
What is the test for the police to release a person on ‘street bail’, i.e., not at a police station?
Section 30A(1A) PACE
(a)
the constable is satisfied that releasing the person on bail is necessary and proportionate in all the circumstances (having regard, in particular, to any conditions of bail which would be imposed), and
(b)
a police officer of the rank of inspector or above authorises the release on bail (having considered any representations made by the person)
When must the custody officer release an arrested person without charge?
Section 34 PACE
(2)
Subject to subsection (3) below, if at any time a custody officer—
(a)
becomes aware, in relation to any person in police detention, that the grounds for the detention of that person have ceased to apply; and
(b)
is not aware of any other grounds on which the continued detention of that person could be justified under the provision of this part of this Act, it shall be the duty of the custody officer, subject to subsection (4) below, to order his immediate release from custody.
(4)
A person who appears to the custody officer to have been unlawfully at large when he was arrested is not to be released under subsection (2) above.
Where are the custody officer’s duties before charge set out?
Section 37 PACE
