2. Preliminaries to prosecution

Question 1

first and last sub-paragraphs of paragraph D1.1

Question 2

What is an interview and when is a caution required?

Answer 2

Interviews Generally D1.81

• Definition of Interview ‘Interview’ - defined by para. 11.1A.
• ‘questioning of a person regarding their involvement or suspected involvement in a criminal offence or offences which, under para. 10.1, must be carried out under caution’.
• para. 10.1, a person whom there are grounds to suspect of an offence ‘must be cautioned before any questions about an offence, or further questions if the answers provide the grounds for suspicion, are put to them if either the suspect’s answers or their silence, (i.e. failure or refusal to answer or answer satisfactorily) may be given in evidence to a court in a prosecution’.
• However, it further provides that a caution is not necessary if questions are for other purposes, such as:
  
  • solely to establish identify or ownership of a vehicle;
  • to obtain information in accordance with a statutory requirement, e.g., under the RTA 1988, s. 165 (note that the statutory drink-driving procedure is not an interview: DPP v D (a Juvenile) (1992) 94 Cr App R 185)
  • in furtherance of the proper and effective conduct of a search (although if questioning goes further, e.g., to establish whether drugs found were intended to be supplied to another, a caution will be necessary: Langiert [1991] Crim LR 777; Khan [1993] Crim LR 54; Raphaie [1996] Crim LR 812); or
  • to seek verification of a written record of comments made by the person outside an interview.

Question 3

Where an Interview May be Conducted?

Answer 3

• D1.82
• The general rules for the conduct of interviews are contained in Code C, section 11.
• Following a decision to arrest a suspect, he must normally be interviewed only at a police station or other authorised place of detention (Code C, para. 11.1).
• The reference to ‘a decision to arrest’ means that if a police officer has decided to arrest a person, he should not delay the arrest in order to question the suspect before doing so.
• The requirement that an interview be conducted at a police station is subject to exception where delay would be likely to
  
  • lead to interference with or harm to evidence connected with an offence, interference with or physical harm to other persons, or serious loss of, or damage to, property; or
  • lead to the alerting of other persons suspected of having committed an offence but not yet arrested for it; or
  • hinder the recovery of property obtained in consequence of the commission of an offence (para. 11.1).
• Interviewing in any of these circumstances must cease once the relevant risk has been averted or the necessary questions have been put to avert the risk (Code C, para. 11.1).
• Live link IV’s are possible

Question 4

What is the requirement to give a caution?

Answer 4

• D1.83
• Cautions and Special Warnings
• a caution must be administered at the commencement of an interview as defined in Code C, para. 11.1A, whether or not it is conducted at a police station.
• The suspect must also be reminded that he is under caution at the recommencement of an interview after any break, and if there is any doubt, the caution should be given again in full (para. 10.8).
• The caution must also be given on arrest (para. 10.4, and see D1.18).
• The normal caution is set out in Code C, para. 10.5, as follows: You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in Court. Anything you do say may be given in evidence.
• If it appears that the suspect does not understand the caution, the person giving it should explain it in his own words (Code C, Note for Guidance 10D).
• If a suspect is (exceptionally) interviewed after charge (see D1.93), or if he is interviewed in circumstances where he has requested a solicitor but has not been permitted to consult with one (see D1.55 et seq.), the terms of the caution are those set out in Code C, annex C, para. 2 as follows: ‘You do not have to say anything, but anything you do say may be given in evidence’.
• The reason for the different caution is that in such circumstances inferences cannot be drawn under the CJPO 1994, ss. 34, 36 or 37.
• Although Code C does not require a caution to be given if a statement is taken after charge, it should be given (Pall (1992) 156 JP 424).

Question 5

What level of suspicion is required of a caution?

Answer 5

• D1.84
• Whilst Code C, para. 10.1, requires a caution to be given to a person ‘whom there are grounds to suspect’ of an offence,
• Note for Guidance 10A explains this phrase by stating that there must be ‘some reasonable, objective grounds for the suspicion, based on known facts or information’.
• If correct, however, it means that insofar as the caution has a protective purpose, it does not apply to the questioning of a person in respect of whom there is some suspicion not amounting to a reasonable suspicion, even though what he says may subsequently be used in evidence against him.
• Whether there are sufficient grounds for a caution to be administered is an objective question, and does not simply depend on how the police officer regarded the matter (Williams [2012] EWCA Crim 264). In Ibrahim v UK [2017] Crim LR 877 the police deliberately decided not to caution the fourth applicant when, on being interviewed as a witness, he started to incriminate himself, and the UK government accepted that he should have been cautioned at this point. For examples of interpretation of the cautioning requirement by the courts, see Senior [2004] EWCA Crim 454, [2004] 3 All ER 9, in which it was held that a caution should have been given, and Perpont [2004] EWCA Crim 2562; Ridehalgh v DPP [2005] EWHC 1100 (Admin), [2005] RTR 26 (353) and Sneyd v DPP [2006] EWHC 560 (Admin), in which the decision went the other way. Failure to administer a caution in circumstances where it is required is a significant and substantial breach of Code C, although it will not necessarily result in exclusion of evidence of the interview (compare Armas-Rodriguez [2005] EWCA Crim 1981 and Devani [2007] EWCA Crim 1926, [2008] 1 Cr App R 4 (65) with Miller [2007] EWCA Crim 1891). Similarly, giving the wrong caution will not necessarily lead to exclusion (Ibrahim [2008] EWCA Crim 880, [2009] 1 WLR 578; but see Charles v DPP [2009] EWHC 3521 (Admin), [2010] RTR 34 (402)).
• Whenever a person is interviewed he, and his solicitor if represented, must be given, before the interview, sufficient information to make it possible to understand the nature of the suspected offence and why the person is suspected of committing it (Code C, para. 11.1A). In Kirk [1999] 4 All ER 698, the suspect was arrested for theft and was not told that his victim had died; believing himself to be facing a charge of theft only, he made admissions. It was held that these should have been excluded. See also Charles v DPP. The disclosure obligation in Code C, para. 11.1A, has been extended to reflect the requirements of EU Directive 2012/13/EU, Article 6 (see A9.26), but does not require the disclosure of details at a time which might prejudice the investigation. The decision on what should be disclosed rests with the investigating officer, who must make a record of what was disclosed and when it was disclosed.

Question 6

What are special warnings ?

Answer 6

• D1.85
• In addition to the caution, where a suspect is interviewed at a police station or other authorised place of detention following arrest and:
  
  • is asked to account for any object, mark or substance, or mark on such objects found on his person, in or on his clothing or footwear, otherwise in his possession, or in the place where he was arrested; or
  • to account for his presence at the place where he was arrested, a special warning must be given in the terms set out in Code C, para. 10.11.
• Inferences cannot be drawn if the warning is not given (CJPO 1994, ss. 36(4) and 37(3)).
• The requirement to give a special warning does not apply where the person who has requested a solicitor is interviewed without having been given an opportunity to consult him, since inferences from refusal or failure to account cannot be drawn as a result of the CJPO 1994, ss. 36(4A) and 37(3A) (Code C, para. 10.10).

Question 7

Information about Legal Advice Prior to the commencement or recommencement of an interview

Answer 7

• D1.86
• Information about Legal Advice Prior to the commencement or recommencement of an interview at a police station or other authorised place of detention, the interviewing officer must, unless access to a solicitor has been delayed or one of the exceptions applies, remind the suspect of his entitlement to free legal advice and that the interview can be delayed for legal advice to be obtained (Code C, para. 11.2, and see D1.55 et seq.).
• Violations of a suspect’s entitlement to legal advice may lead to the exclusion of evidence (see F2.7 and F18.34).

Question 8

Significant Statement or Silence

Answer 8

• D1.87
• Significant Statement or Silence
• At the beginning of an interview carried out at a police station or other authorised place of detention, the interviewing officer must, after cautioning the suspect, put to him any significant statement or silence which occurred in the presence and hearing of a police officer or other police staff (and which has not been put to him in the course of a previous interview) (Code C, para. 11.4).
• A significant statement is one which appears to be capable of being used in evidence, and in particular a direct admission of guilt. It does not include what a suspect is alleged to have said as part of the conduct constituting the offence (DPP v Lawrence [2007] EWHC 2154 (Admin), [2008] 1 Cr App R 10 (147)).
• A significant silence is a failure or refusal to answer a question, or answer satisfactorily when under caution which might, allowing for the restrictions on drawing inferences from silence, give rise to an adverse inference under the CJPO 1994 (para. 11.4A).

Question 9

How must an officer conduct an IV?

Answer 9

• D1.88
• Conduct of the Interview No police officer or other interviewer may try to obtain answers to questions or to elicit a statement by the use of oppression, nor shall he indicate, except in answer to a direct question, what action the police will take if the suspect answers or refuses to answer questions or make a statement. If the suspect asks the officer directly what action will be taken in any of those events, the officer may inform the suspect of his proposed action, which could be, e.g., keeping the person in detention if further action is to be taken. The proposed action must, however, be proper and warranted (Code C, para. 11.5). Thus it was improper for the police to tell a church organist accused of theft from choirboys that the police would interview all of the choirboys if he did not confess (Howden-Simpson [1991] Crim LR 49). The police should not seek a confession by offering a caution (R (U) v Metropolitan Police Commissioner [2002] EWHC 2486 (Admin), [2003] 1 WLR 897, overturned but not in this respect by R (R) v Durham Constabulary [2005] UKHL 21, [2005] 1 WLR 1184; and see Ministry of Justice guidance, Simple Cautions for Adult Offenders (see D2.24), paras. 42 and 59).
• Apart from this, the PACE 1984 and Code C provide little, if any, guidance on the proper conduct of interviews, although the case law provides some indication of what is acceptable. It has been held to be legitimate for police officers to pursue their interrogation of a suspect with a view to eliciting admissions even where the suspect denies involvement in the offence or declines to answer specific questions (Holgate-Mohammed v Duke [1984] AC 437). In Mason [1988] 3 All ER 481, it was held that a confession should be excluded where the police falsely informed the suspect that incriminating fingerprints had been found, although the fact that his solicitor was also deceived may have been an important factor. In Maclean [1993] Crim LR 687, it was noted that not every trick will result in exclusion of evidence, but in Imran and Hussain [1997] Crim LR 754, the Court of Appeal stated that there was a positive duty on the police not to actively mislead a suspect.
• The asking of hypothetical questions is permissible, although it may need to be approached with care (Stringer [2008] EWCA Crim 1222). Police questioning which is carried on after repeated denials or refusals may become oppressive (Paris (1993) 97 Cr App R 99). Hectoring and bullying throughout an interview has been held to be oppressive (Beales [1991] Crim LR 118), whereas questioning that was rude and discourteous, with raised voices and some bad language, was not (Emmerson (1991) 92 Cr App R 284). See further F2.29 and F18.34 et seq. on exclusion of evidence.

Question 10

When Interviews Should Cease?

Answer 10

• D1.89
• When Interviews Should Cease The interview of a person who has not been charged or informed that he may be prosecuted must cease when
  
  • the officer in charge of the investigation is satisfied that all the questions he considers relevant to obtaining accurate and reliable information about the offence have been put to the suspect,
  • the officer has taken account of other available evidence, and
  • he (or the custody officer in the case of a detained suspect) reasonably believes there is sufficient evidence to provide a realistic prospect of conviction (Code C, para. 11.6).
• This, of course, is subject to
  
  • the limits imposed by the PACE 1984 on the maximum periods of detention without charge (see D1.67), and
  • the provisions regarding breaks in interviews and rest periods in Code C, section 12 (for application of the provision regarding rest periods, see Beeres v CPS [2014] EWHC 283 (Admin), [2014] 2 Cr App R 8 (101)).
• The fact that the conditions in para. 11.6 are satisfied does not preclude officers in Revenue cases or acting under the confiscation provisions of the POCA 2002 from inviting a suspect to complete a formal question-and-answer record after the interview is completed. (Code C, para. 11.6 refers to the confiscation provisions of the CJA 1988 or the Drug Trafficking Act 1994, but presumably this is an error.)
• Code C, para. 11.6, gives the police a large degree of latitude in determining when interviewing should cease since it appears to permit the police to continue questioning beyond the point when they are satisfied that there is sufficient evidence to charge if, e.g., the officer believes that further questions could or should be put to the suspect. However, there is some inconsistency within Code C and thus uncertainty about the effect of para. 11.6. It provides that in the case of a detained suspect (presumably, as opposed to a volunteer) it is for the custody officer and not the investigating officer to determine whether there is sufficient evidence to charge. On the other hand, para. 16.1 states that when the officer in charge of the investigation believes that there is sufficient evidence to provide a realistic prospect of conviction, he must take the suspect to the custody officer without delay. It may be that this is intended to reflect the fact that the custody officer has formal responsibility for making the decision as to whether there is sufficient evidence to charge. However, para. 16.1 implies that when the officer in charge of the investigation is so satisfied he must take the suspect to the custody officer even though the investigating officer still may have further questions to put to the suspect. In any event, by the PACE 1984, s. 37(7), once the custody officer determines that he has before him sufficient evidence to charge the person he must proceed under that subsection, which would normally preclude further interviewing. ‘Sufficient evidence to charge’ is not defined, but the Director’s Guidance on Charging provides that the custody officer must normally apply the full code test (see D2.4).
• Where a person is detained in respect of more than one offence, Code C, para. 16.1, provides that it is permissible to delay informing the custody officer until the conditions are satisfied in respect of each of the offences. This, however, conflicts with the mandatory provisions of s. 37(7).

Question 11

Recording of Interviews

Answer 11

• Recording of Interviews
• D1.90
• Interviews of suspects, whether or not conducted at a police station, must normally be contemporaneously recorded (Code C, para. 11.7).
• any comment that might be relevant to the suspected offence made by a suspect outside the context of an interview, including unsolicited comments, must be recorded and, where practicable, the suspect must be given the opportunity to verify the record (para. 11.13).
• Failure to comply with the recording requirements has led to exclusion of evidence of what was allegedly said (see, e.g., Canale [1990] 2 All ER 187; Keenan [1990] 2 QB 54), but this is not always so (see, e.g., Waters [1989] Crim LR 62; Dures [1997] 2 Cr App R 247).
• Interviews conducted under caution (see D1.81), whether or not at a police station, must normally be recorded using an authorised recording device (Code E, para. 2.1).
• For regulations governing the use of an authorised recording device, see Code E, section 3. For the circumstances in which an interview may be conducted in writing, see Code E, para. 2.3.
• For the provisions governing the audio-recording of interviews generally, see Code E.
• Visual recording of police interviews is not mandatory in any police force area, but where such facilities are available and a police officer chooses to use them, he must have regard to Code F.

Question 12

***Special*** Categories of Persons

Answer 12

• Special Categories of Persons
• D1.91
• A child or young person or a mentally disordered or vulnerable person (see D1.63) must not be interviewed or asked to provide or sign a written statement in the absence of the appropriate adult unless the conditions for conducting an interview away from a police station under Code C, para 11.1, are satisfied (see D1.82), or the interview is authorised by an officer of the rank of superintendent or above under Code C, para. 11.18 (Code C, para. 11.15, and annex E).
• A child or young person should be interviewed at his place of education only in exceptional circumstances and then only if the principal or his nominee agrees.
• Efforts should be made to notify parents and the appropriate adult.
• In cases of necessity, and provided that the school was not the victim of the alleged offence, the principal may act as the appropriate adult (Code C, para. 11.16).
• The appropriate adult is to be reminded of his functions as adviser and observer as well as that of facilitating communication with the person being interviewed (para. 11.17).
• As to the special rules applying where a child who is to be interviewed is a ward of court, see CrimPD V, paras. 17A.1 to 17A.8 (see Supplement, PD-40); and see Re A Ward of Court [2017] EWHC 1022 (Fam), [2017] Fam 369 in which it was held that judicial consent is not required before a police interview of a ward of court.
• A person whom the custody officer has determined requires an interpreter (Code C, paras. 3.5(c)(ii) and 3.12, and see D1.50) must not be interviewed without an interpreter unless authorised by an officer of the rank of superintendent or above, being satisfied that delaying the interview will lead to the consequences in Code C, para. 11.1(a) to (c), and that the interview would not significantly harm the person’s physical or mental state (para. 11.18).
• Normally, the interpreter must be physically present, but Code C, paras. 13.1ZA and 13.12, make provision for interpretation to be provided by live link if the custody officer or interviewer are satisfied that this would not adversely affect or otherwise undermine or limit the suspect’s ability to communicate confidently and effectively.
• Where a suspect cannot read and an interview is recorded in writing, the record must be read over to the suspect who must be asked to verify it (Code C, para. 11.11).

Question 13

Intoxicated Persons

Answer 13

Intoxicated Persons

D1.92

• Code C, para. 11.18, precludes the interviewing of any person who is unable to appreciate the significance of questions and their answers, or to understand what is happening because of the effects of drink, drugs or any illness, ailment or condition, unless it is authorised by an officer of the rank of superintendent (such authorisation being subject to the same conditions as for a person who requires an interpreter).

Question 14

Reasonable Suspicion

Answer 14

Reasonable Suspicion

D1.4

• A number of police powers are premised upon the constable having reasonable grounds for suspicion.
• For example, stop and search under the PACE 1984, part I, requires a constable to have ‘reasonable grounds for suspecting that he will find stolen or prohibited articles’ etc. and some, but not all, powers of arrest under s. 24 depend on the officer having reasonable grounds for suspicion.
• This reflects the ECHR, Article 5(1)(c), which permits a person to be deprived of his liberty ‘on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so’.
• It should be contrasted with the expression ‘reasonable grounds for believing’, found in the PACE 1984, s. 24(4) (the necessity for arrest), s. 37(2) (detention without charge) and s. 38(1) (bail following charge), which implies a more stringent test.
• Reasonable suspicion relates to the existence of facts and not to the state of the law.
• An officer who reasonably but mistakenly proceeds on a particular view of the law, and thus exercises his power of arrest, does not have reasonable suspicion (Todd v DPP [1996] Crim LR 344).
• However, in the absence of a specific statutory requirement to such effect, the constable does not have to have identified the precise legal power under which he acts (R (Rutherford) v Independent Police Complaints Commission [2010] EWHC 2881 (Admin)).
• Reasonable suspicion is not defined in the PACE 1984. It is explained in relation to stop and search powers in PACE Code A, paras. 2.2 to 2.6B, and requires both a genuine suspicion on the part of the officer concerned and an objective basis for that suspicion (para. 2.2).
• In relation to arrest, Code G provides that there ‘must be some reasonable, objective grounds for the suspicion, based on known facts and information’ (para. 2.3A).
• Note for Guidance 2 states that facts and information should not be confined to those which tend to indicate guilt, but should include facts and information that tend to dispel suspicion, and Note for Guidance 2A provides examples in respect of self-defence and the use of force by school staff.
• It has been held that reasonable suspicion requires both that the constable carrying out the arrest actually suspects (a subjective test) and that a reasonable person in possession of the same facts as the constable would also suspect (an objective test). In addition the arrest must be Wednesbury reasonable (Castorina v Chief Constable of Surrey (1988) 138 NLJ 180; Parker v Chief Constable of Essex Police [2018] EWCA Civ 2788, [2019] 1 WLR 2238).
• The test for whether an officer has reasonable grounds for suspicion for the purposes of stop and search under the PACE 1984, part I, is the same in all material respects (Howarth v Metropolitan Police Commissioner [2011] EWHC 2818 (Admin)). Whether the constable had reasonable suspicion must be determined according to what he knew and perceived at the time; reasonableness is to be evaluated without reference to hindsight (Redmond-Bate v DPP (1999) 163 JP 789).
• Information required to form a reasonable suspicion is of a lower standard than that required to establish a prima facie case.
• Prima facie proof must be based on admissible evidence whereas reasonable suspicion may take into account matters which are not admissible in evidence or matters which, while admissible, could not form part of a prima facie case (Hussien v Chong Fook Kam [1970] AC 942).
• Whilst it is not necessary for the constable to have identified the specific offence of which he is suspicious (Coudrat v Commissioners of Her Majesty’s Revenue and Customs [2005] EWCA Civ 616), he must reasonably suspect the existence of facts amounting to an offence of a kind that he has in mind (Chapman v DPP (1988) 89 Cr App R 190).

Question 15

The Use of Force

Answer 15

The Use of Force

D1.7

• The PACE 1984, s. 117, provides that where any provision of the Act confers a power on a constable and does not provide that the power may be exercised only with the consent of a person other than a police officer, the officer may use reasonable force, if necessary, in the exercise of the power.
• This would include force used in connection with
  
  • a stop and search under the PACE 1984, part I,
  • entry and search of premises under s. 17,
  • arrest under s. 24,
  • detention of a person at a police station under the PACE 1984, part IV,
  • search of a person under s. 54,
  • intimate search of a detained person under s. 55,
  • fingerprinting without consent under s. 61 and the
  • taking of a non-intimate sample without consent under s. 63.
• It would not include the use of force in connection with the conduct of a visual identification procedure governed by PACE Code D, or the taking of an intimate sample under s. 62, since these require consent.
• A civilian designated under the Police Reform Act 2002, s. 38, may, in exercising powers in respect of which he has been designated, use reasonable force in the same circumstances as a constable (Police Reform Act 2002, s. 38(8), and Code C, para. 1.14).
• In addition, the CLA 1967, s. 3, empowers any person to use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of an offender or suspected offender or of persons unlawfully at large (see A3.55 et seq.).
• In determining what force is reasonable, the court may take into account all the circumstances including
  
  • the nature and degree of the force used,
  • the gravity of the offence for which arrest is to be made,
  • the harm that would flow from the use of force against the suspect, and
  • the possibility of effecting the arrest or preventing the harm by other means.
• The fact that the force used results in serious injury does not necessarily make it unreasonable (Roberts v Chief Constable of Kent [2008] EWCA Civ 1588; McDonnell v Metropolitan Police Commissioner [2015] EWCA Civ 573); and McCarthy v Chief Constable of Merseyside [2016] EWCA Civ 1257; but contrast Minio-Paluello v Metropolitan Police Commissioner [2011] EWHC 3411 (QB), in which it was held that the degree of force used was neither reasonable nor proportionate.
• The use of excessive force will not render the arrest unlawful (Simpson v Chief Constable of South Yorkshire Police (1991) The Times, 7 March 1991).

Question 16

Handcuffs

Answer 16

D1.8

Use of Handcuffs Handcuffs should be used only where they are reasonably necessary to prevent an escape or to prevent a violent breach of the peace by a prisoner (Lockley (1864) 4 F & F 155). The same rule applies to the handcuffing of prisoners in court (Cambridge Justices, ex parte Peacock (1992) 156 JP 895; Horden [2009] EWCA Crim 388, [2009] 2 Cr App R 24 (406)). It would seem that, where handcuffs are unjustifiably resorted to, their use will constitute a trespass even though the arrest itself is lawful (Taylor (1895) 59 JP 393; Bibby v Chief Constable of Essex (2000) 164 JP 297).

Question 17

, D1.14-1.18

Answer 17

Powers of Arrest

D1.14

Police powers of arrest without a warrant in relation to criminal offences are principally governed by the PACE 1984, s. 24. Most other statutory powers of arrest were repealed by the SOCPA 2005, s. 111 and sch. 7, although a number of pre-PACE statutory powers are preserved by the PACE 1984, sch. 2, and there are extensive cross-border powers of arrest under the CJPO 1994 (see D1.31 et seq.). Civilian powers of arrest are governed by the PACE 1984, s. 24A. The other remaining power of arrest without a warrant is the common-law power of arrest for breach of the peace (see D1.33). Arrest under a warrant is governed by a number of statutory provisions (see D1.35 et seq.).

Answer 18

Legal Characteristics of Arrest

D1.15

‘Arrest’ is not defined by the PACE 1984, or other legislation, and there is some inconsistency in the case law. One approach is that a person is arrested if, as a result of what is said or done, he is under compulsion and is not free to go as he pleases (Alderson v Booth [1969] 2 QB 216; Inwood (1973) 57 Cr App R 529; Spicer v Holt [1977] AC 987). Arrest is an ordinary English word, and whether or not a person has been arrested depends not on the legality of the arrest but on whether he has been deprived of his liberty to go where he pleases (Lewis v Chief Constable of the South Wales Constabulary [1991] 1 All ER 206). A second approach is that context and purpose are relevant. In Austin v Metropolitan Police Commissioner [2009] UKHL 5, [2009] 1 AC 564 the House of Lords distinguished between a deprivation of liberty and a restriction of movement. Whether a situation amounts to a deprivation of liberty as opposed to a restriction of movement is a matter of degree and intensity and is highly fact-sensitive. A whole range of factors has to be considered including the individual’s specific situation, the context in which the restriction occurs and the purpose of the confinement or restriction (see also Austin v UK (2012) 55 EHRR 14 (359) and Shields v Chief Constable of Merseyside Police [2010] EWCA Civ 1281). In Iqbal [2011] EWCA Crim 273, [2011] 1 WLR 1541 it was held that a person who was handcuffed by a police officer and told that he would be arrested later by other officers was not under arrest (although he was unlawfully detained). Under the Lewis approach these circumstances would clearly have amounted to an arrest, albeit an unlawful arrest because the appellant was not told that he was under arrest as required by the PACE 1984, s. 28(1). Taking hold of a person’s arm for the purpose of simply drawing his attention to what is being said to him, without an intention to detain or arrest, is neither an arrest nor an actionable trespass to the person unless it goes beyond what is acceptable by the ordinary standards of everyday life (Mepstead v DPP (1996) 160 JP 475); and the same is true where an officer takes a drunk person by the arm to steady him for his own safety (McMillan v CPS [2008] EWHC 1457 (Admin)). However, if an officer takes hold of a person’s arm to detain him while the officer decides whether to arrest, this does amount to a trespass (Wood v DPP [2008] EWHC 1056 (Admin); Elkington v DPP [2012] EWHC 3398 (Admin)); and detaining a person by confining them to a restricted space, without intending to arrest them, amounts to unlawful imprisonment (Walker v Metropolitan Police Commissioner [2014] EWCA Civ 897, [2015] 1 WLR 312).

Answer 19

D1.16

There is no necessary assumption that an arrest will be followed by a charge (Holgate–Mohammed v Duke [1984] AC 437). Although the power to arrest must be exercised for a proper purpose, it was affirmed in Chalkley [1998] QB 848 that the fact that an arrest is motivated by a desire to investigate another, more serious, offence does not render it invalid provided there are valid grounds for the arrest. An arrest for an offence will, however, be unlawful, even though made on the basis of reasonable suspicion, where the officer knows at the time of arrest that there is no possibility of a charge being made. Conversely, it is clear that, even though a complainant withdraws his complaint, a constable may still arrest a suspect where he hopes by so doing to obtain a confession (Plange v Chief Constable of South Humberside Police (1992) The Times, 23 March 1992). If the lawfulness of an arrest carried out by an officer at the request of another is challenged, it is for the police to prove that the officer who asked for the arrest to be made acted in good faith in making the request (Copeland v Metropolitan Police Commissioner [2014] EWCA Civ 1014, [2015] 3 All ER 391; but see D1.5). The burden of proof of lawful arrest is on the police; if an arrest is lawful, the burden of proving excessive force is on the complainant (Durrant v Chief Constable of Avon and Somerset Constabulary [2014] EWHC 2922 (QB)). Reasonable force may be used to effect an arrest (PACE 1984, s. 117; CLA 1967, s. 3; and see D1.7).

Question 20

d1.17

Answer 20

Communication of Fact of and Grounds for Arrest

D1.17

Where a person is arrested (whether or not for an offence), otherwise than by being informed that he is under arrest, the arrest is unlawful unless he is informed that he is under arrest as soon as is practicable after the arrest (PACE 1984, s. 28(1)). If the arrest is by a constable, this applies even if the fact of arrest is obvious (s. 28(2)). Further, an arrest is unlawful unless the arrested person is informed of the ground for the arrest at the time of the arrest, or as soon as is practicable after the arrest (s. 28(3)). If the arrest is by a constable, this applies even if the grounds for arrest are obvious (s. 28(4)). The person must also be informed why arrest was believed to be necessary (for the purposes of s. 24(4)), although failure to do so will not render the arrest unlawful (Code G, para. 2.2).

The test for whether the words used were sufficient is whether, having regard to all the circumstances of the case, the person arrested was told, in simple, non-technical language that he could understand, the essential legal and factual grounds for his arrest (Taylor v Chief Constable of Thames Valley Police [2004] EWCA Civ 858, [2004] 1 WLR 3155; Adler v CPS [2013] EWHC 1968 (Admin)). According to PACE Code C, Note for Guidance 10B, and Code G, Note for Guidance 3, where a person is arrested for an offence he must be informed of the nature of the suspected offence, and when and where it was allegedly committed.

Answer 21

D1.18

The information need not be given by the arresting officer but may be given by a colleague (Nicholas v Parsonage [1987] RTR 199; Dhesi v Chief Constable of West Midlands Police (2000) The Times, 9 May 2000). Where no reasons are given at the time of arrest because it is impracticable to inform the suspect, acts done at the time of arrest do not become retrospectively invalid because of a later failure to inform him (DPP v Hawkins [1988] 3 All ER 673; Lewis v Chief Constable of the South Wales Constabulary [1991] 1 All ER 206). The words used will suffice even though they are apt to describe more than one offence, provided that they aptly describe the offence for which the arrest is made (Abbassy v Metropolitan Police Commissioner [1990] 1 All ER 193; Clarke v Chief Constable of North Wales Police [2000] All ER (D) 477). It was held in Walker v Metropolitan Police Commissioner [2014] EWCA Civ 897, [2015] 1 WLR 312 that, on the facts, informing a person that he was arrested for ‘public order’ was sufficient. An arresting officer may not, however, lead a person to think that he is arresting him for one offence when in truth he wishes to arrest him for another (Christie v Leachinsky [1947] AC 573; Abbassy v Metropolitan Police Commissioner; Waters v Bigmore [1981] RTR 356).

In addition to the information required under s. 28, a person who is arrested, or who is further arrested (e.g., under the PACE 1984, s. 31), must be cautioned at the time of arrest or as soon as is practicable afterwards unless it is impracticable to do so because of his condition or behaviour at the time or he has already been cautioned immediately before arrest (e.g., where he was initially questioned regarding a suspected offence without being arrested) (Code C, para. 10.4, and Code G, para. 3.4). The terms of the caution are set out in Code C, para. 10.5 (see appendix 1). Failure to administer a caution does not render the arrest unlawful, although it may provide grounds for exclusion of evidence under the PACE 1984, s. 76 or 78 (Miller [2007] EWCA Crim 1891).

The nature and circumstances of the offence leading to the arrest, the reason(s) why the arrest was necessary, the giving of the caution, and anything said by the arrested person at the time of his arrest must be recorded by the arresting officer in his pocket book (or other method used for recording information) (Code G, para. 4.1). This record must be made at the time of the arrest unless impracticable, in which case it must be completed as soon as possible thereafter (Code G, para 4.2). If the arrested person is subsequently detained at a police station, the information given by the arresting officer as to the circumstances and reason(s) for the arrest must be recorded in, or attached to, the custody record (Code G, para. 4.3).

Question 22

, D1.20

Answer 22

Action following Arrest

D1.20

Where a person is arrested at any place other than a police station, or is taken into custody by a constable following an arrest made by a civilian, the constable is normally obliged to take him to a designated police station as soon as is practicable thereafter (PACE 1984, s. 30(1), (1A), (1B) and (2)). In exceptional circumstances the person may be taken to a non-designated station (s. 30(3) to (6)). The constable may delay taking the arrested person to a police station or releasing him on bail under s. 30A if his presence at a place other than a police station is necessary in order to carry out such investigations as it is reasonable to carry out immediately (s. 30(10) and (10A)), but the reasons must be recorded (s. 30(11)). This might include taking the suspect from one place to another to check his alibi (Dallison v Caffery [1965] 1 QB 348), search of the arrested person under s. 32(2)(a) (see D1.96), or entry and search of premises under s. 32(2)(b) or s. 18(1) and (5) (see D1.171). A constable who is satisfied that there are no grounds for keeping the arrested person under arrest or releasing him on bail under s. 30A must release him (s. 30(7) and (7A)), and the facts must be recorded (s. 30(8) and (9)).

Question 23

, the
first sub-paragraph of D1.21

Answer 23

D1.21

Notwithstanding the above, an arrested person may, instead of being taken to a police station, be released either without bail or on bail, to attend at a police station on a future date (s. 30A(1) to (3)). The release may only be on bail if the officer is satisfied that this is necessary and proportionate in all the circumstances, and it is authorised by an officer of the rank of inspector or above (PACE 1984, s. 30A(1A), inserted by the PCA 2017, s. 52(4)). If the person is released on bail, conditions may be imposed for the purpose of securing surrender, preventing further offences, preventing interference with witnesses or obstruction of the administration of justice, or for the person’s own protection (s. 30A(3B)). An application to vary conditions may be made to the police and, thereafter, to a magistrates’ court (ss. 30CA and 30CB).

Question 24

, D1.22

Answer 24

Arrest without Warrant

D1.22

Police powers of arrest without warrant are largely governed by the PACE 1984, s. 24 (but see D1.30 et seq.), and civilian powers of arrest by s. 24A. Under s. 24 a police officer may arrest for any offence, but civilian powers of arrest are confined to indictable offences (see D1.69). In both cases the power is subject to a test of necessity. Section 24 is supplemented by PACE Code of Practice G (see D1.1). Other powers of arrest without warrant, cross-border powers of arrest, and arrest for breach of the peace, are also dealt with in this section.

Powers of arrest are generally discretionary; if the conditions are satisfied the officer (or civilian) may arrest, but is not required to. However, where a person has been arrested for an offence and is at a police station in consequence of that arrest, and it appears to the police that, if released, he would be liable to arrest for some other offence, the person must be arrested for that other offence (PACE 1984, s. 31).

Question 25

-1.23

Answer 25

Police Powers of Arrest

D1.23

Police and Criminal Evidence Act 1984, s. 24

(1) A constable may arrest without a warrant—
(a) anyone who is about to commit an offence;
(b) anyone who is in the act of committing an offence;
(c) anyone whom he has reasonable grounds for suspecting to be about to commit an offence;
(d) anyone whom he has reasonable grounds for suspecting to be committing an offence.
(2) If a constable has reasonable grounds for suspecting that an offence has been committed, he may arrest without a warrant anyone whom he has reasonable grounds to suspect of being guilty of it.
(3) If an offence has been committed, a constable may arrest without a warrant—
(a) anyone who is guilty of the offence;
(b) anyone whom he has reasonable grounds for suspecting to be guilty of it.
(4) But the power of summary arrest conferred by subsection (1), (2) or (3) is exercisable only if the constable has reasonable grounds for believing that for any of the reasons mentioned in subsection (5) it is necessary to arrest the person in question.
(5) The reasons are—
(a) to enable the name of the person in question to be ascertained (in the case where the constable does not know, and cannot readily ascertain, the person’s name, or has reasonable grounds for doubting whether a name given by the person as his name is his real name);
(b) correspondingly as regards the person’s address;
(c) to prevent the person in question—
(i) causing physical injury to himself or any other person;
(ii) suffering physical injury;
(iii) causing loss of or damage to property;
(iv) committing an offence against public decency (subject to subsection (6)); or
(v) causing an unlawful obstruction of the highway;
(d) to protect a child or other vulnerable person from the person in question;
(e) to allow the prompt and effective investigation of the offence or of the conduct of the person in question;
(f) to prevent any prosecution for the offence from being hindered by the disappearance of the person in question.
(6) Subsection (5)(c)(iv) applies only where members of the public going about their normal business cannot reasonably be expected to avoid the person in question.

Question 26

, D1.33

Answer 26

Arrest for Breach of the Peace

D1.33

Any person, whether constable or civilian, has a common-law power of arrest where (a) a breach of the peace is committed in his presence, (b) the person effecting the arrest reasonably believes that such a breach will be committed in the immediate future by the person arrested, or (c) a breach of the peace has been committed or the person effecting the arrest reasonably believes that a breach of the peace has occurred and that a further breach is threatened. In order to comply with the ECHR, Article 5(1)(c), an arrest must be for the purpose of bringing the person before a competent legal authority, but an arrest is lawful notwithstanding that the person is released before he could practically be brought before a court (R (Hicks) v Metropolitan Police Commissioner [2017] UKSC 9, [2017] AC 256, which was approved on appeal to the ECtHR in Eiseman-Renyard v UK (2019) Appln 57884/17, 5 March 2019). A breach of the peace occurs whenever harm is actually done or is likely to be done to a person or, in his presence, to his property, or where a person is in fear of being harmed through an assault, affray, riot, unlawful assembly or other disturbance (Howell [1982] QB 416). For guidance on immediacy in relation to conduct in a domestic setting, see Wragg v DPP [2005] EWHC 1389 (Admin) and Demetriou v DPP [2012] EWHC 2443 (Admin).

Reasonable belief is an objective requirement in the sense that the court must determine whether the belief was reasonable having regard to the circumstances as perceived by the person carrying out the arrest at the time (Redmond-Bate v DPP (1999) 163 JP 789). Where a reasonable apprehension of an imminent breach of the peace exists, the preventive action taken must be reasonable, necessary and proportionate. For action short of arrest, see R (Laporte) v Chief Constable of Gloucestershire [2006] UKHL 55, [2007] 2 AC 105; Austin v Metropolitan Police Commissioner [2009] UKHL 5, [2009] 1 AC 564, and R (McClure and Moos) v Metropolitan Police Commissioner [2012] EWCA Civ 12. The power to arrest for an apprehended breach of the peace caused by apparently lawful conduct is exceptional (Foulkes v Chief Constable of Merseyside Police [1998] 3 All ER 705; Bibby v Chief Constable of Essex Police (2000) 164 JP 297). For powers of entry to deal with a breach of the peace, see D1.174.

Question 27

, D1.35

Answer 27

Warrants Issued by Magistrates’ Courts

D1.35

The most important of the statutes which authorise arrest under warrant for a criminal offence is the MCA 1980. Section 1 empowers a justice to issue a warrant on the basis of a written information substantiated on oath that a person has, or is suspected of having, committed an offence. Such a warrant may or may not be endorsed for bail. If endorsed for bail, the warrant will (if relevant) specify the amounts in which any sureties are to be bound. If bail is to be granted with sureties, the police must release the offender if the sureties approved by the officer enter into recognizances in accordance with the endorsement. The person bailed is then obliged to appear before a magistrates’ court at the time and place named in the recognizance (s. 117). The power of a magistrates’ court to issue a warrant for the arrest of any person who has attained the age of 18 years is limited by s. 1(4). The offence concerned must be indictable, or punishable with imprisonment, or the person’s address must be not sufficiently established for a summons to be served on him. A warrant to arrest any person for non-appearance before a magistrates’ court must not be issued unless the offence to which the warrant relates is also punishable with imprisonment or where the court, having convicted the defendant, proposes to impose a disqualification upon him. In the case of private prosecutions for certain offences, listed in s. 1(4D), a warrant must not be issued without consent of the DPP (s. 1(4A)). Power is given under the MCA 1980, s. 13, to issue a warrant for the arrest of a person who has failed to appear to answer a summons. Power to issue a warrant for arrest in respect of a person who has been granted bail and who fails to surrender to custody or who, having surrendered to custody, then absents himself before the court is ready to deal with the case, is governed by the BA 1976, s. 7.

Question 28

-1.36

Answer 28

Warrants Issued by the Crown Court

D1.36

Section 80(2) of the Senior Courts Act 1981 provides that, where an indictment has been signed but the person charged has not been sent for trial, the Crown Court may issue a summons requiring that person to appear before it or may issue a warrant for his arrest. A similar power applies where a person charged with or convicted of an offence has entered into a recognizance to appear at the Crown Court and fails to do so. A warrant for arrest may be endorsed for bail, in which case the officer in charge of the police station to which the accused is taken has the same powers and duties as in the parallel case where the warrant is issued by magistrates (s. 81).

Question 29

, D1.40

Answer 29

Applicability of PACE and Codes of Practice

D1.40

General The detention and treatments of suspects is regulated by the PACE 1984, parts IV and V, and PACE Code C. The PACE 1984 distinguishes between persons in police detention and others who may be held in custody at a police station. A person is in police detention if he has been taken to a police station after being arrested for an offence or under the TA 2000, s. 41, or has been arrested at a police station after attending voluntarily or accompanying a constable to it, and he is detained there or detained elsewhere in the charge of a constable (PACE 1984, s. 118(2)). Similarly, a person is in police detention if he is in the custody of a designated civilian detention, investigating or escort officer by virtue of the Police Reform Act 2002, sch. 4, paras. 22, 34(1) or 35(3) (PACE 1984, s. 118(2A)). A person who is at court after being charged is not in police detention (s. 118(2)); neither is a person who attends a police station to answer to live link bail in accordance with a direction under the CDA 1998, s. 57C (PACE 1984, s. 46ZA(2)), unless an exception in s. 46ZA(3) applies (see D2.46).

Many of the police powers in the PACE 1984 relate only to persons in police detention. However, certain rights such as the right of intimation (under s. 56) and the right to legal advice (under s. 58), apply to persons arrested and held in custody at a police station or other premises, and apply irrespective of whether the person was arrested for an offence.

Question 30

, D1.44

Answer 30

The Custody Officer

D1.44

Where a person has been arrested, he must normally be taken to a police station (subject to the power to release him under the PACE 1984, ss. 30(7) and 30A (s. 30(1): see D1.20 et seq.). He may be taken to any police station, unless it is anticipated that it will be necessary to detain him for more than six hours, in which case he should be taken to a police station designated under s. 35 (s. 30(3) to (6)). One or more custody officers must be appointed for each designated police station (s. 36(1)). A custody officer must be of at least the rank of sergeant (s. 36(3)). If a custody officer is not readily available, or if a person is taken to a non-designated police station, another officer may perform the role although that officer must normally not be involved in the investigation of an offence for which the person is in detention (s. 36(4) to (7)).

A person who has been arrested for an offence can only be kept in police detention in accordance with the PACE 1984, part IV (s. 34(1)). Such a person may be detained at a police station only on the authority of the custody officer (s. 37(1)), and may not be released except on his authority (s. 34(2) and (3)). Generally, it is the responsibility of the custody officer to ensure that a person in police detention is treated in accordance with the PACE 1984 and the Codes of Practice, although responsibility is temporarily transferred to any officer to whom custody of the person is transferred in accordance with the Codes of Practice (s. 39(1) to (3)).

Question 31

-1.45

Answer 31

Custody Records

D1.45

A custody record must be opened as soon as is practicable in respect of each person who is brought to a police station under arrest, or who is arrested at a police station after having attended voluntarily, or who attends a police station in accordance with bail granted under the PACE 1984, s. 30A (Code C, para. 2.1: see D1.20). In the past, custody officers have not opened a custody record if, on an arrested person being produced before them, they have determined that there is sufficient evidence to charge. It is doubtful whether this practice is compliant with Code C and, especially since many charge decisions are made by Crown Prosecutors and this often entails some delay, this practice should be reviewed (see further D2.7). A custody record does not have to be opened in respect of a volunteer who is not arrested. The custody officer is responsible for recording in the custody record all matters that are required by the PACE 1984 or the Codes of Practice to be recorded (s. 39(1)(b) and Code C, para. 2.3). If the detained person is transferred to another police station, the custody record or a copy of it must accompany him, and must show the time of and reason for the transfer (Code C, para. 2.3). It is not clear whether a new custody record should be opened where a person is further detained on surrendering to custody following a release on police bail or whether the original custody record should be continued. However, time in police detention before the release on bail will normally count for the purpose of calculating the maximum periods of detention (see D1.67).

Question 32

, D1.52

Answer 32

Notification of Arrest

D1.52

The Right to Notification A person who has been arrested (whether or not for an offence) and who is being held in custody at a police station or other premises has a right, at his request, to have one friend, or relative or other person who is known to him or who is likely to take an interest in his welfare, told of his arrest and the place where he is being detained. This is to be done as soon as is practicable (PACE 1984, s. 56(1)). The custody officer must inform the suspect of this right (Code C, para. 3.1(i)), and ask him whether he wishes to exercise it (para. 3.5(a)(iii)).

The person chosen by the detainee is to be informed of the detainee’s whereabouts at public expense and, if the detainee requests, on each occasion that he is taken to another police station (s. 56(8) and Code C, para. 5.3). If that person cannot be contacted, the detainee may choose up to two alternatives. If they too cannot be contacted, the custody officer or the person in charge of the investigation has discretion to allow further attempts until the information has been conveyed (para. 5.1). If the detainee does not know of anyone to contact for advice, the custody officer should bear in mind local voluntary bodies who may be able to help (Code C, Note for Guidance 5C).

Question 33

, D1.55

Answer 33

Right of Access to Solicitor

D1.55

The Right to Consult a Solicitor A person who is arrested (whether or not for an offence) and held in custody at a police station or other premises has a right, at his request, to consult a solicitor privately at any time (PACE 1984, s. 58; Code C, para. 6.1). ‘Held in custody’ has been given a more restricted meaning than simply ‘in custody’, and describes the situation where a custody officer has made a decision that the person should be detained (Kerawalla [1991] Crim LR 451). However, in Ambrose v Harris [2011] UKSC 43, [2011] 1 WLR 2435 the Supreme Court held that the ECHR, Article 6(1) and (3)(c), require that a person who suffers a significant curtailment of his freedom of action is entitled to legal assistance. Thus the right to legal assistance may apply prior to the decision to detain a person at a police station, and even before he has been formally arrested. The right applies to all persons held in custody including those who are children or young persons, or mentally disordered or vulnerable. An appropriate adult has an independent right to legal advice even if the child or young person or vulnerable adult does not want one, although a child or young person cannot be forced to see a solicitor if he does not wish to do so (Code C, paras. 3.19 and 6.5A). While the statutory right does not apply in respect of a prisoner on remand in custody at a magistrates’ court, there is a common-law right to consult a solicitor as soon as is reasonably practicable and police cannot refuse access to a prisoner in custody simply because the request falls outside customary hours (Chief Constable of South Wales, ex parte Merrick [1994] 2 All ER 560).

Question 34

and
D1.63-1.68

Answer 34

Children and Young People and Mentally Disordered or Vulnerable Persons

D1.63

For the initial action to be taken in respect of children and mentally disordered persons, and those with other forms of vulnerability, see D1.50.

In the case of young people, anyone who appears to be under the age of 18 years is a ‘juvenile’ for the purposes of part IV of the PACE 1984 (PACE 1984, s. 37(15), and see Code C, para. 1.5). The PCA 2017, s. 73, substituted the age of 18 years for 17 years for a number of other purposes under the PACE 1984: conditions attached to bail following arrest, for the person’s own welfare or in his own interests (s. 30A(3B)(d)) (see D1.21); testing for the presence of class A drugs (s. 63B(5A) and (10)) (see D1.122); and for the purposes of the meaning of ‘appropriate consent’ (s. 65(1)) (see D1.105 (fingerprints), D1.107 (footwear impressions), D1.110 (intimate samples), and D1.112 (non-intimate samples)). The Children Act 2004, s. 11, requires the police to take into account the need to safeguard and promote the welfare of children in discharging their functions, but does not impose additional obligations (R (C) v Metropolitan Police Commissioner [2011] EWHC 2317 (Admin), [2012] 1 All ER 953; and see D2.52).

With regard to mental disorder or vulnerability, if an officer has any reason to suspect that a person of any age may be vulnerable, in the absence of clear evidence to dispel that suspicion, the person must be treated as such for the purposes of the Codes of Practice (Code C, para. 1.4). Code C, para. 1.4, sets out the actions that a custody officer (in the case of a detained person) or an officer investigating the case (in the case of a person who has not been arrested or detained) must take to establish whether such a reason may exist. It has been held that suspicion may be dispelled following examination by a forensic medical officer (Beattie [2018] NICA 1)). The meaning of the term ‘vulnerable’ is set out in Code C, para. 1.13(d), and Note for Guidance 1G.

It is imperative that a mentally disordered or otherwise mentally vulnerable person detained under the Mental Health Act 1983, s. 136, be assessed as soon as possible (Code C, para. 3.16). The Mental Health Act 1983, ss. 135 and 136, provide that: (a) before deciding to remove a person to, or to keep a person at, a place of safety, a constable must, if practicable, consult a registered medical practitioner, registered nurse, approved mental health practitioner, or a person of a description specified in regulations made by the Secretary of State; (b) a child cannot be detained in a police cell as a place of safety; and (c) the maximum period that a person can be detained at a police station is reduced from 72 hours to 24 hours, which may be extended by 12 hours where authorised by the responsible medical practitioner. The detention of adults at a police station as a place of safety is further regulated by the Mental Health Act 1983 (Places of Safety) Regulations 2017 (SI 2017 No. 1036) (issued under the Mental Health Act 1983, s. 136A(2)). These regulations provide that a police station may only be used as a place of safety in respect of an adult where the relevant decision-maker is satisfied that: (a) the behaviour of the person poses an imminent risk of serious injury or death to himself or another; (b) because of that risk, no place of safety other than a police station can reasonably be expected to detain the person; and (c) the requirement in reg. 4(1)(b) (so far as reasonably practicable, a health care professional is present and available to the detained person throughout the period that he is detained at the police station) will be met. Detention in such circumstances must be authorised by an officer of the rank of inspector or above (reg. 2). See also Department of Health/Home Office Guidance for the implementation of changes to police powers and places of safety provisions in the Mental Health Act 1983 (October 2017, available at tinyurl.com/ya42fd25).

Answer 35

Appropriate Adult ‘Appropriate adult’, in the case of a young suspect, is defined as a parent or guardian or, if the child or young person is in the care of a local authority or voluntary organisation, a person representing that authority or organisation, a social worker of a local authority, or (failing these) some other responsible person who is not a police officer, employed by the police, under the direction or control of a chief police officer, or a person who provides services under contractual arrangements (but without being employed by the chief police officer) to assist that force in relation to the discharge of its chief officer’s functions (Code C, para. 1.7(a)). See also the PACE 1984, s. 63B(10) (testing for the presence of class A drugs), the CDA 1998, s. 66ZA(7) (youth cautions), and the CJA 2003, s. 161(8) (pre-sentence drug testing), all of which were amended by the PCA 2017, s. 79. An estranged parent whom an arrested child or young person does not wish to attend and to whom the child or young person specifically objects should not act as an appropriate adult (Code C, Note for Guidance 1B; DPP v Blake [1989] 1 WLR 432). Similarly, an illiterate parent with a low IQ who cannot appreciate the gravity of the situation in which his child is placed should not act as an appropriate adult (Morse [1991] Crim LR 195). Where the child or young person is in care, the relevant social worker or his representative should be prepared to attend as soon as practicable (DPP v Blake).

‘Appropriate adult’ in the case of a person who is mentally disordered or vulnerable is defined as a relative, guardian or other person responsible for care or custody of the person, someone who has experience of dealing with such persons (but who is not a police officer or police employee) or, failing these, some other responsible adult aged 18 years or older who is not a police officer or police employee (Code C, para. 1.7(b)). Code C, Note for Guidance 1D, states that it may be more satisfactory for the appropriate adult to be someone who is experienced or trained in the care of mentally disordered or vulnerable people, although the suspect’s wishes should be respected where practicable.

Answer 36

D1.65

A solicitor attending a police station on a suspect’s behalf should not act as an appropriate adult (Code C, Note for Guidance 1F; Lewis [1996] Crim LR 260). A person should not be the appropriate adult if he (a) is suspected of involvement in the suspected offence, (b) is the victim or a witness, (c) is involved in the investigation, or (d) has received admissions from the suspect before acting as the appropriate adult (Code C, Note for Guidance 1B). A social worker or a member of a youth offending team should also refrain from acting as an appropriate adult if the suspect has made admissions to him (Code C, Note for Guidance 1C).

Answer 37

D1.66

Role of the Appropriate Adult The role of the appropriate adult is to safeguard the rights, entitlements and welfare of children and vulnerable persons. Among other things, appropriate adults are expected to (a) support, advise and assist detainees when they are given or asked to provide information or participate in any procedure; (b) observe whether the police are acting properly and fairly, and to inform an officer of the rank of inspector or above if they consider that they are not; (c) assist detainees to communicate with the police while respecting their right to say nothing unless they want to; and (d) help them to understand their rights and ensure that those rights are protected and respected (Code C, para. 1.7A). Code C, para. 11.17, describes a similar role for appropriate adults during police interviews. If the appropriate adult or the detainee asks for legal advice, the provisions of Code C, section 6, apply (para. 3.19, and see D1.55). The presence of an appropriate adult during a consultation between a suspect and his lawyer which would otherwise attract legal advice privilege does not destroy that privilege (A Local Authority v B [2008] EWHC 1017 (Fam)).

Generally, a child or young person or mentally disordered or vulnerable person must not be interviewed by the police or asked to provide a written statement in the absence of an appropriate adult, unless delay would be likely to lead to interference with or harm to evidence connected with an offence, interference with or physical harm to other people or serious loss of or damage to property, to alerting other suspects not yet arrested, or to hindering the recovery of property obtained in consequence of commission of the offence. If an interview at a police station is necessary for one or more of these reasons, it must be authorised by an officer of the rank of superintendent or above (Code C, paras 11.1, 11.15 and 11.18 to 11.20). Further, the appropriate adult has specific roles in respect of legal advice (para. 6.5A) and intimate and strip searches (Code C, annex A, paras 5 and 11(c)). In the case of identification and other evidential procedures that require ‘appropriate consent’, the PACE 1984, s. 65(1), provides that, in the case of a person who has attained the age of 14 years but is under 18 years, consent is required from the young person and his parent or guardian, but that, in the case of a person under 14 years, only the consent of the parent or guardian is required. Note that if the appropriate adult is not a parent or guardian, he cannot give consent.

Answer 38

Detention Time-limits

D1.67

The normal maximum period of detention without charge is 24 hours from the relevant time (PACE 1984, s. 41(1)). For the meaning of ‘relevant time’ see D1.68. Subject to the powers to extend detention without charge, if at the expiry of that time the person has not been charged, he must be released, either on bail or without bail (s. 41(7)). The period of detention without charge may be extended in respect of a person under arrest for an indictable offence; for up to a total of 36 hours from the relevant time by an officer of the rank of superintendent or above (see D1.69); and for up to a total of 96 hours from the relevant time by a magistrates’ court (see D1.72). Where a detention time-limit has expired and the person is released without charge, he may not be rearrested without warrant for the offence for which he was previously arrested (subject to the power to arrest for failure to answer to police bail under s. 46A) unless, since his release, new evidence has come to light or an examination or analysis of existing evidence has been made which could not reasonably have been made before (ss. 41(9), 42(11) and 43(19), as amended by the PCA 2017, s. 65).

For the purpose of calculating maximum periods of detention, time normally runs continuously from the relevant time. However, where a detainee is removed to hospital for medical treatment, time spent at the hospital or travelling to or from hospital does not count, except for any time spent questioning the person for the purpose of obtaining evidence in respect of an offence (s. 41(6)). Note that a person in police detention at a hospital must not be questioned without the agreement of a responsible doctor (Code C, para. 14.2). If a person is questioned in these circumstances, he is entitled to consult a solicitor (see D1.55).

Answer 39

D1.68

The Relevant Time Normally, the relevant time is the time an arrested person arrives at the first police station that he is taken to, or 24 hours after arrest, whichever is the earlier (PACE 1984, s. 41(2)(a)). However, this basic definition is modified in the circumstances set out in s. 41(2)(b) to (6). Where a person released on police bail under the PACE 1984, part IV, is detained when he attends at the police station to surrender to custody, or is arrested under s. 46A for failure to surrender to custody, the relevant time is that which applies to the original detention; however, any time during which the person was on bail is not included (PACE 1984, s. 47(6)).

If a person is arrested other than under s. 46A, e.g., because there is new evidence justifying a further arrest (see D1.67), the relevant time will be that relating to the subsequent arrest (s. 47(7)).

Note that the relevant time is not necessarily the same time as that for determining the timing of reviews of detention, which may be some time later (see D1.76).

Question 40

D3.44

Answer 40

The Director of Public Prosecutions

D3.44

Insofar as the State plays a direct role in the prosecution system, it does so through the DPP and the law officers of the Crown (the A-G and Solicitor-General).

The office of DPP is governed by the Prosecution of Offences Act 1985. The DPP is a barrister or solicitor of at least ten years’ standing, appointed by the A-G (Prosecution of Offences Act 1985, s. 2). The functions of the DPP are discharged under the superintendence of the A-G (s. 3(1)). The DPP’s duties are listed in s. 3(2) and include (amongst other duties) the following:

(a) To take over the conduct of all criminal proceedings instituted by or on behalf of a police force, other than ‘specified proceedings’, namely those listed in the schedule to the Prosecution of Offences Act 1985 (Specified Proceedings) Order 1999 (SI 1999 No. 904), as amended. The list of specified offences includes various road traffic offences, offences under the POA 1986, s. 5, criminal damage where the value involved does not exceed £5,000 and theft where the offence constitutes low-value shoplifting (see D6.27). An offence ceases to be a specified offence if a summons or requisition has been issued in respect of it, unless (if the offence is a summary one) the accused is also served with the paperwork necessary to enable him to plead guilty by post under the MCA 1980, s. 12, or (if the offence is triable either way) the accused is served with the statement of facts, or prosecution witness statements, which will be placed before the court if he pleads guilty. Moreover, proceedings for an offence cease to be specified once a magistrates’ court has begun to hear evidence in those proceedings. Proceedings which would otherwise be ‘specified’ for the purposes of s. 3 are not so specified if they were instituted by way of charge under the PACE 1984, s. 37(7)(d), if the accused was aged under 16 when proceedings were started, or if at any time a magistrates’ court indicates that it is considering imposing a custodial sentence for the offence in question. The Prosecution of Offences Act 1985 (Specified Proceedings) (Amendment) Order 2018 (SI 2018 No. 198) clarifies that the DPP is not under a duty to take over conduct of criminal proceedings dealt with in accordance with the Single Justice Procedure established by the MCA 1980, s. 16A.
(b) To institute and conduct criminal proceedings in any case where it appears to him appropriate to do so either on account of the importance or difficulty of the case or for any other reason.
(c) To take over the conduct of all binding-over proceedings instituted on behalf of a police force.
(d) To take over the conduct of any criminal proceedings instituted by the NCA.
(e) To have the conduct of extradition proceedings (see D31).
(f) To advise police forces, to the extent he considers appropriate, on all matters relating to criminal offences.
(g) To appear for the prosecution when directed by the court to do so on:
(i) appeals from the High Court to the Supreme Court in criminal cases;
(ii) appeals from the Crown Court to the Court of Appeal (Criminal Division) and from thence to the Supreme Court; and
(iii) appeals to the Crown Court against the exercise by a magistrates’ court of its powers under s. 12 of the Contempt of Court Act 1981 to deal with offences of contempt of the court.
(h) To have the conduct of applications for orders under the ABCPA 2014 (criminal behaviour orders), and to apply for discharge or variation of such orders.
(i) To discharge the duties conferred under the POCA 2002, parts 5 and 8 (civil recovery of the proceeds of unlawful conduct, civil recovery investigations and disclosure orders in relation to confiscation investigations).
(j) To discharge such other functions as may from time to time be assigned to him by the A-G.

Question 41

, D3.46

Answer 41

The Crown Prosecution Service

D3.46

Section 3(2)(a) of the Prosecution of Offences Act 1985 requires the DPP to ‘take over the conduct of all criminal proceedings … instituted on behalf of a police force’. To enable him to perform this task, the Act also provided for the creation of the CPS, of which the DPP is the head (s. 1(1)(a)).

The CPS is not instructed by the police — acting on behalf of the DPP it takes over prosecutions begun by the police, and therefore exercises an independent judgment in deciding any legal questions which arise.

Question 42

, D3.49

Answer 42

D3.49

In Liverpool Crown Court, ex parte Bray [1987] Crim LR 51, it was confirmed that the DPP’s powers may be exercised by Crown Prosecutors acting within the general authority delegated to them and without express instructions from the DPP. Thus, the DPP’s powers to take over the conduct of privately commenced prosecutions and to serve a notice discontinuing a prosecution are, in practice, exercised by Crown Prosecutors rather than the DPP personally. The risk of individual Crown Prosecutors coming to widely divergent decisions in similar factual situations is reduced to some extent by s. 10 of the Prosecution of Offences Act 1985, which requires the DPP to issue a Code for Crown Prosecutors giving guidance on the general principles to be applied by them in: (a) determining whether proceedings for an offence should be instituted or (if already instituted) continued; (b) determining what charge(s) should be preferred; and (c) considering what representations should be made to a magistrates’ court about mode of trial (see D2.10 and, for the full text of the Code, see appendix 3).

Question 43

and D3.50

Answer 43

D3.50

The Prosecution of Offences Act 1985 also empowers the DPP to appoint persons who are not members of the Service to institute or take over the conduct of such criminal proceedings as the DPP may assign to them (s. 5(1)). The appointed person must have a general qualification (within the meaning of the Courts and Legal Services Act 1990, s. 71). A person appointed under s. 5(1) has, in conducting the proceedings assigned to him, all the powers of a Crown Prosecutor, but has to exercise those powers subject to any instructions given to him by a Crown Prosecutor (s. 5(2)). Section 5 places no fetter on the circumstances in which the DPP may exercise the power to assign cases to non-CPS personnel. In practice, the volume of CPS work in the magistrates’ courts is such that some has to be delegated to agents under s. 5. An agent is, however, expected to obtain authority from a CPS lawyer before taking steps in relation to a case such as offering no evidence on a charge or accepting a bind-over (contrast the independence that prosecuting counsel in the Crown Court enjoys: see D16.4).

Section 7A of the Prosecution of Offences Act 1985 gives the DPP power to appoint staff who are not legally qualified. These staff are now known as ‘associate prosecutors’, and may represent the CPS on bail applications and on other pre-trial applications, such as requests for adjournments.

They may conduct trials but only where the offence in question is a non-imprisonable summary offence. Section 7A of the 1985 Act also empowers associate prosecutors to represent the CPS in proceedings relating to ‘preventative civil orders’ (including criminal behaviour orders).

Question 44

D5.2

Answer 44

Introduction

D5.2

The first appearance of an accused before a magistrates’ court may be secured in a number of different ways:

(a) The accused may be arrested and, after the police have sought advice from the CPS, charged by the police (the details of the offence(s) will appear on a charge sheet).
(b) The accused may be arrested and then granted police bail while the CPS decide whether there is sufficient evidence to justify a charge; the CPS may then start a prosecution by using the ‘written charge and requisition’ procedure established by the CJA 2003, s. 29 (where available).
(c) The accused may be arrested and then be granted police bail, subject to a requirement of returning to the police station on a specified date; during the intervening period the CPS decide whether there is sufficient evidence to justify a charge and, if so, when the accused returns to the police station, the police will charge the accused with the offence(s) specified by the CPS.
(d) The accused may be served with a written charge and requisition (under the CJA 2003, s. 29) without first having been arrested.
(e) An application may be made to a magistrates’ court for the issue of a summons (or an arrest warrant) requiring the accused to attend before it (this process is sometimes referred to as ‘laying an information’). A prosecutor who is not a ‘relevant prosecutor’ for these purposes (see D5.4) cannot use the written charge and requisition process but must instead apply for the issue of a summons by the magistrates’ court.

Much of the relevant legislation (such as the MCA 1980) refers to trial of an ‘information’ by a magistrates’ court. For these purposes, an ‘information’ is the application to the magistrates’ court for a summons requiring the accused to attend the court to answer the allegation of having committed an offence. Moreover, the CJA 2003, s. 30(5), provides that references to an ‘information’ are to be construed as including a ‘written charge’, and references to a ‘summons’ are to be construed as including a ‘requisition’.

Question 45

, D5.4,

Answer 45

Written Charge and Requisition Procedure

D5.4

The CJA 2003, s. 29, applies only to prosecutions brought by a ‘relevant prosecutor’. By virtue of s. 29(5), s. 29 applies to prosecutions brought by the following (or by someone authorised to institute criminal proceedings on their behalf):

(a) a police force;
(b) the Director of the SFO;
(c) the DPP (and therefore the CPS);
(d) the Director General of the NCA;
(e) the A-G (not yet in force);
(f) a person specified by the Secretary of State in an order under the CJA 2003, s. 29(5)(h).

Those so designated as ‘relevant prosecutors’ include the Secretary of State for Work and Pensions, the Secretary of State for Health in England and Wales, the Secretary of State for Business, Energy and Industrial Strategy, the Driver and Vehicle Standards Agency, Transport for London, the Environment Agency, specified local authorities (including county and district councils, and London borough councils), the Natural Resources Body for Wales, railway operators (for the purpose of prosecuting a railway offence), certain tramway operators and the TV licensing authority.

Under s. 29(1), a prosecutor to whom these provisions apply may institute criminal proceedings against a person by issuing a ‘written charge’, which charges the person with an offence. Under s. 29(2), where the prosecutor issues a written charge, a ‘requisition’ must be issued at the same time; this requires the accused to appear before a magistrates’ court to answer the written charge. The written charge and requisition must be served on the accused and a copy of both must be served on the court named in the requisition (s. 29(3)).

This method of commencing criminal proceedings is available only where the prosecutor is a ‘relevant prosecutor’ (i.e. a prosecuting body specified under the legislation).

D5.5

Where a ‘relevant prosecutor’ issues a written charge, the relevant magistrates’ court must be notified immediately. However, notification of the requirement to attend court is communicated to the accused by the prosecutor through service of the ‘requisition’ which accompanies the written charge (not by the magistrates’ court, as is the case where a summons is issued).

Section 30(4) makes it clear that the written charge and requisition procedure does not affect the ability of a ‘relevant prosecutor’ to apply for the issue of an arrest warrant under the MCA 1980, s. 1 (see D5.8).

As the magistrates’ court is not involved in the issuing of the written charge and requisition, there will be no possibility of the magistrates preventing a prosecution from being brought in this way. However, it is submitted that the decision to issue a written charge and requisition could be amenable to judicial review, and an application for the case to be dismissed as an abuse of process would also be available in appropriate cases.

In Brown v DPP [2019] EWHC 798 (Admin), [2019] 2 Cr App R 6 (48), the Divisional Court rejected the submission that the issuing of a written charge arises only when the written charge is posted to the accused. Irwin LJ (at [19]) noted that the ‘issuing’ of the written charge and its service are discrete steps. The Court also rejected the submission that the information contained in the written charge must be in the public domain, in the sense of being placed before a court or being served, before issue can be held to be complete. It follows that the written charge can be regarded as issued ‘when the document comprising the written charge is completed, with all relevant details and in the form needed for service’ (at [20]). Provided this is, in the case of a summary offence (to which the six-month time-limit in the MCA 1980, s. 127, applies), done within six months of the offence in question, the written charge will have been issued in time. His lordship went on to observe (at [22]) that, if there is ‘an inordinate or unwarranted or unjustified but significant delay before such a written charge is served’, that may amount to abuse of process. It would therefore ‘be wise for prosecutors, as a matter of practice, to ensure in every case that both the issue and service … are completed before six months from the relevant offences, so as to put paid to any suggestion of such unwarranted delay’.

In DPP v McFarlane [2019] EWHC 1895 (Admin), the Divisional Court held that the s. 29 procedure is available where the prosecution sought to add one or more new charges to existing proceedings for which the attendance of the accused has already been secured. This includes a requirement to issue a requisition, even if it serves no practical purposes (per Males LJ, at [18]). However, failure to issue a requisition and/or failure to serve the documents is a procedural defect that does not render the institution of proceedings a nullity (at [24]). To the extent that such failure causes prejudice to an accused, ‘the court’s jurisdiction to stay proceedings as an abuse of process provides a sufficient remedy’. In the present case, where the accused was already before the Court, there was no question of any prejudice at all.

Question 46

D5.7 (first two sub-paragraphs),

Answer 46

Applying for the Issue of a Summons

D5.7

The Application (‘Information’) The written charge and requisition procedure is not available in the case of private prosecutions (i.e. prosecutions where the prosecutor is not a ‘relevant prosecutor’, as defined by the CJA 2003, s. 29(5)); these must be commenced by making an application to the magistrates’ court for the issue of a summons. Historically, this has been known as ‘laying information’, though this phrase does not appear in CrimPR part 7. The CJA 2003, s. 30(4)(b), provides that nothing in s. 29 affects the power of a person who is not a relevant prosecutor to serve an information for the purpose of obtaining the issue of a summons, or a warrant, under the MCA 1980, s. 1.

Under CrimPR 7.2(1) a prosecutor who wants the court to issue a summons must either serve a written application on the court, or present an application orally to the court (but with a written record of the allegation(s) made by the prosecutor). By virtue of CrimPR 7.2(3), the application must set out the allegation(s) made by the applicant and, if there is a time limit for prosecution of the offence(s), demonstrate that the application is made in time.

Question 47

D5.10

Answer 47

The Summons

D5.10

The MCA 1980, s. 1(1), provides that:

(1) On an information being laid before a justice of the peace that a person has, or is suspected of having, committed an offence, the justice may issue—
(a) a summons directed to that person requiring him to appear before a magistrates’ court to answer the information, or
(b) a warrant to arrest that person and bring him before a magistrates’ court.

A justices’ clerk (or an assistant clerk who has been specifically authorised by the justices’ clerk for that purpose) may issue a summons but not a warrant (Justices’ Clerks Rules 2005 (SI 2005 No. 545), sch. 1, paras. 1 and 2).

Question 48

, D5.14

Answer 48

Content of the Written Charge or Application for a Summons

D5.14

CrimPR 7.3(1) (see Supplement, R-69) provides that an application for a summons (or for an arrest warrant) or a written charge must contain:

(a) a statement of the offence which describes the offence ‘in ordinary language’ and (if the offence is created by statute) identifies the legislation that creates it; and
(b) sufficient particulars of the conduct constituting the commission of the offence to make clear what the prosecutor alleges against the defendant.

Where a number of incidents, taken together, amount to a course of conduct (having regard to the time, place or purpose of commission), those incidents may be included in the allegation (r. 7.3(2)). Moreover, a single document may contain more than one charge (r. 7.2(9)).

Under r. 7.4(3) (see Supplement, R-70), a requisition or summons must contain a notice setting out when and where the accused must attend the court, and must specify each offence in respect of which it has been issued. Additionally, a summons must identify the issuing court, and a requisition must identify the person under whose authority it is issued.

Beyond the general statement in r. 7.3 that the offence that is alleged should be described in ordinary language and give sufficient particulars of the conduct alleged, there is little guidance on how it should be drafted. However, reference to a particular statutory provision may cure an apparent defect by making plain what might otherwise be ambiguous (Karpinski v City of Westminster [1993] Crim LR 606, followed in DPP v Short [2001] EWHC Admin 885).

Question 49

, D21.17

Answer 49

General Rule

D21.17

A magistrates’ court may not try an accused for a summary offence unless the application for a summons was served on the magistrates’ court within six months of the time when the offence was allegedly committed (MCA 1980, s. 127(1); see D21.20). Section 127(2)(a) makes it clear that s. 127(1) does not apply to indictable offences (which term includes either-way offences).

Section 127 refers to the laying of an information (i.e. applying for a summons) but does not make it clear when time starts to run in the case of proceedings brought by the written charge and requisition procedure established by the CJA 2003, s. 29 (see D5.4). In Brown v DPP [2019] EWHC 798 (Admin), the Divisional Court held that, where a prosecution is initiated by the written charge and requisition process, the written charge must be issued within the six months permitted by s. 127. For these purposes, ‘the written charge can be regarded as issued only when the document comprising the written charge is completed, with all relevant details and in the form needed for service. Provided that is done within six months of the relevant offence, the written charge will have been issued in time’ (per Irwin LJ, at [20]). Irwin LJ added that if, following issue within the permitted time-limit, ‘there is an inordinate or unwarranted or unjustified but significant delay before such a written charge is served, that should not and cannot go without remedy. The remedy is abuse of process’ (see D21.21 et seq.). His lordship suggested that, as a matter of practice, both issue and service should be completed before six months from the relevant offence, ‘so as to put paid to any suggestion of such unwarranted delay’ (at [22]).

In Atkinson v DPP [2004] EWHC 1457 (Admin), [2005] 1 WLR 96, it was held that, where there is uncertainty as to whether proceedings were started in time, the question should be determined according to the criminal standard of proof and the magistrates should decline to hear the matter unless satisfied so that they are sure that the proceedings were commenced within the statutory time-limit.

Question 50

D21.18

Answer 50

D21.18

As regards either-way offences, there is no time-limit within which proceedings must be started, unless it is one of the exceptional offences for which there is statutory limitation on the time for taking proceedings on indictment, in which case that limitation applies equally to summary proceedings (s. 127(2) and (4)).

Even where a statute creates an either-way offence and then appears to impose a time-limit in respect of summary proceedings (but not proceedings on indictment), the limitation is overridden by the MCA 1980, s. 127(2). In Kemp v Liebherr (Great Britain) Ltd [1987] 1 All ER 885, a prosecution under the Health and Safety at Work etc. Act 1974 was commenced more than six months after evidence justifying a prosecution had become available to the prosecutor. By s. 34(3) of the Act, summary proceedings for contravening the Act apparently had to be commenced within six months of obtaining the evidence. The Divisional Court held that the proceedings were nonetheless within time since, on a true construction of the Act, the offence charged was triable either way and, therefore, s. 34(3) was effectively negated by the MCA 1980, s. 127(2). Similarly in Thames Metropolitan Stipendiary Magistrate, ex parte Horgan [1998] QB 719, a provision in the Companies Act 1985 which prescribed a different time-limit to that laid down in s. 127 in respect of ‘offences triable by a magistrates’ court’ was held to refer only to summary offences, and so did not apply to an either-way offence that was to be tried summarily.