Criminal Litigation - Detention at Station (1) Flashcards
What is an overview of the detention at station procedure?
Detention at Station: Suspects are taken to the police station following arrest to be detained and interviewed.
(1) Procedural Rules: Police must follow procedural rules - otherwise evidence obtained may be inadmissible.
Code C: Detention, treatment and questioning procedure (PACE 1984 Code C).
Code D: Identification procedure (PACE 1984 Code D).
Code E: Audibly recorded interview procedure (PACE 1984 Code E).
(2) Procedure: Police follow strict procedures when authorising detention, interviewing, and identifying suspects.
(3) Rights of Detainee: Detainees have a number of rights, including to legal advice, information, and silence.
When must a suspect be put before the custody officer?
Custody Officer: Suspects are brought before a custody officer at a local police station as soon as practicable following arrest (s30 PACE). They must be dealt with expeditiously and released as soon as detention is no longer necessary (C 1.1).
What is the role of custody officer?
Role of Custody Officer: Custody officers are officers not directly involved in the offence ranking at least Sergeant.
(1) Responsibilities: Custody officers authorise detention and monitor welfare.
(2) Inform Rights: They must inform suspects of their ongoing rights at first instance.
(3) Search Suspect: Custody officers can authorise a search of suspects to any extent necessary (C 4.1).
Seizing Items: Items can be seized. Clothing and personal effects can only be seized on a reasonable belief that they may be evidence or may be used to cause harm, damage, or assist escape (C 4.2).
Record of Items: A record is made of all items found (s54).
What is the custody record and detention log?
Custody Record and Detention Log: Custody officers must open a custody record and detention log for the suspect.
(1) Custody Record: An electronic record of details regarding: a) suspect; b) offence: c) reason for arrest; d) time of arrest and arrival; e) confirmation of rights; f) items found: g) medical details; and h) fitness to interview.
(2) Detention Log: A record of all significant events occurring during detention (annexed to Custody Record).
What evidence is required to charge and detain?
Charge and Detention: Custody officers must determine whether there is sufficient evidence to charge or detain (s37).
(1) Charge: To immediately charge, there must be strong evidence against the suspect. This is based on existing evidence, as the custody officer cannot put questions to the suspect directly (C 3.4). It is rare to charge immediately.
(2) Detention: There is usually insufficient evidence to charge immediately, meaning the suspect will be released on bail or detained before charge pending further questioning (s37). The latter is more typical.
Why is a suspect detained before charge?
Detention: Generally, a suspect is detained before charge in order to secure evidence (s37).
(1) Evidence: This includes physical and forensic evidence from a person or premises, and also evidence obtained through questioning under caution.
(2) Grounds to Detain: As soon as grounds to detain diminish, the custody officer must release the suspect (s39).
What are the conditions of detention?
Conditions of Detention: Detention must be adequate, meaning:
(1) Clean Cell: Cells are adequately heated, clean, ventilated and lit (C 8.2). (2) Clean Bedding: Bedding is clean and sanitary, and of a reasonable standard (C 8.3). (3) Regular Meals: Two light meals and one main meal every 24 hours. Drinks on reasonable request (C 8.6). (4) Daily Exercise: Brief outdoor exercise offered daily if practicable (C 8.7). (5) Officer Visitation: Officers must visit suspects hourly (C 9.3). (6) Medical Arrangements: Appropriate medical arrangements made as soon as practicable (C 9.5). (7) Rest: 8 hours of uninterrupted rest every 24 hours, preferably at night (C 12.2).
What rights does a detainee have in detention?
Right to Know Rights
Right to Know Rights: Detainees have the right to be informed of their ongoing rights during detention prior to charge.
Right to Inform Person of Arrest
Right to Inform Person of Arrest: Detainees have a right to inform one person of their arrest and detention as soon as practicable (s56).
(1) Delay of Right: Officers ranking inspector may delay this right for up to 36 hours on proper grounds. Delay can be given orally, but must be confirmed in writing as soon as practicable (ss52;56 PACE).
(2) Relevant Offences: Right can only be delayed for indictable-only and either-way offences.
(3) Grounds for Delay: Inspector must believe one of the following grounds will ‘very probably happen’ (R v Samuel):
Right to Independent Legal Advice
Right to Independent Legal Advice: Detainees have a right to free and independent legal advice as soon as practicable (s58).
(1) Private Advice: This includes the right to consult private solicitors.
(2) Public Advice: This includes the right to consult public solicitors. The Defence Solicitor Call Centre determines the appropriate level of advice, either:
Telephone Advice: Advice provided by telephone through ‘Criminal Defence Direct’.
In Person Advice: Solicitors in person - common for complex cases, vulnerable clients, ID procedures, and allegations of misconduct.
(3) Delay of Right: Officers ranking superintendent may delay this right on the same grounds and length as above.
(4) Dissuading Advice: Officers cannot intentionally dissuade suspects from seeking advice (C 6.4).
Rights (Volunteers)
Rights of Volunteers: Suspects attending the station voluntarily (not under arrest) also benefit from certain rights.
(1) Right to Leave: The right to refuse attendance or leave at will, unless/until formally arrested (s29).
(2) Right to Company: The right for a friend or solicitor to be present at interview (C 3.21).
Other Rights
Other Rights: Other rights for all suspects include:
(1) Inspect Codes of Practice: The right to inspect the PACE Codes of Practice.
(2) Silence: The right to silence (subject to adverse inferences).
(3) Reasons for Arrest: The right to know the reasons for their arrest.
(4) Inspect Documents: The right to inspect documents relating to arrest and detention.
(5) Detention Times: The right to information on length and limitations of detention.
What is the detention clock?
Detention Clock: The maximum period of detention runs from time of arrival at station (if arrested outside station), or time of arrest (if arrested at station) (s41).
(1) General Rule: Suspects cannot be detained for more than 24 hours without charge, unless properly extended.
(2) Police Extension: Officers ranking superintendent can extend detention to 36 hours on proper grounds (s42).
Type of Offence: Indictable-only or either-way offence.
Grounds: Must be: a) necessary to secure/preserve evidence; and b) diligent and expeditious investigation.
(3) Magistrates’ Extension 1: The Magistrates’ Court can extend detention up to 72 hours on the same grounds as above (s43). They cannot order an extension of more than 36 hours at a time.
(4) Magistrates’ Extension 2: In exceptional circumstances, the Magistrates’ Court can order a second extension to a final maximum of 96 hours (s44).
What is the review clock?
Review Clock: Detention must be periodically reviewed to ensure that the grounds to detain continue to apply (s40). This should be reflected on the detention log.
(1) Review: Officers ranking inspector and not directly involved in the case must conduct the reviews. Failure/delay renders detention unlawful, amounting to the Tort of False Imprisonment (Roberts v Chief Constable of Cheshire).
(2) First Review: First review must occur no later than 6 hours after detention is authorised.
(3) Further Review: Further reviews must occur no later than 9 hours after a previous review, until detention ends.
During detention how do the investigating officers investigate the suspect?
Investigation: Investigating officers will investigate the suspect during detention, through processes such as:
(1) Interview: An audibly recorded interview of the suspect (see interview).
(2) Identification: An identification procedure with a witness or complainant (see ID procedure).
(3) Physical/Forensics: Item procurement, DNA sampling, and fingerprint scanning.
What is the role of the solicitor during detention?
Role of Solicitor: If legal advice is sought, a solicitor may attend the station. They have a number of roles and duties.
Evidence Gathering
Evidence Gathering: On arrival, the solicitor should obtain information on the offence.
(1) Custody Record and Detention Log: Solicitors are entitled to inspect the custody record and detention log. A copy must be provided after detention ends, but is often given from the outset (C 2.4A).
Information: Information sought includes: a) offence details; b) time and reason for arrest; c) comments taken; d) items seized; e) fitness, medical, intoxication; f) interviews and procedures conducted etc.
(2) Investigating Officer: The investigating officer must provide sufficient information through which to understand the nature of the offence and the suspect’s alleged involvement (C 11.1A).
Evidence: Evidence does not need to be disclosed (but often will be).
Statements and Silences: Significant statements and silences of the client should be sought here.
Police Objectives: The objectives of the police should be sought, such as intention to charge/bail etc.
Informing Client
Informing Client: Solicitors should inform the client, by:
(1) Informing Rights: Informing the client of their rights (and any duties the solicitor is under).
(2) Detailing Offence: Detail the alleged offence, and advise the client on the law required to convict.
(3) Instructions: Obtain and record the client’s version of events and clear instructions (R v Anderson).
(4) Advise on Interview: Advise the client on their interview (see interview).
What duties does a solicitor have during detention?
Duties of Solicitor: Solicitors are under a number of duties when acting for suspects under detention.
Admissions of Guilt
Admissions of Guilt: A client may admit guilt to the solicitor but refuse to admit guilt to the police.
(1) Dissuade Client: The client should be dissuaded from lying. Cooperation and early guilty pleas can result in a reduced sentence.
(2) Decline to Act: Unless the client agreed to give a ‘no comment’ interview, the solicitor should decline to act, as they cannot mislead the court (CoCS 1.4;6.3). They must inform the client as to why, and advise them on the availability of advice elsewhere. They should inform the police that they withdraw for ‘professional reasons’.
Conflicts of Interest
Conflicts of Interest: Conflicts of interests may arise if a solicitor is asked to represent co-suspects.
(1) Determining Conflict: The solicitor must determine the conflict - it is not relevant what the custody officer says.
(2) Decline to Act: The solicitor should decline to act if a conflict exists - it would be inappropriate to act only for one, as any duty of confidentiality would be difficult to adhere to. They must inform the client as to why, and advise them on the availability of advice elsewhere. They must inform the police they withdraw for ‘professional reasons’.
Duty of Disclosure
Duty of Disclosure: Solicitors may be asked to disclose information between parties.
(1) Client to Client: Solicitors should only pass information between client co-suspects if they have already forwarded consistent instructions, consent in writing, and it is in their best interests to do so.
(2) Client to Other: Solicitors should never pass information from client to non-client unless it is in their exceptionally best interests to do so, and they have consented in writing.
(3) Solicitor to Client: Solicitors should pass all material information to clients, unless: a) prohibited by national security; b) necessary to prevent crime; c) client gives informed written consent; d) disclosure would lead to serious physical or mental injury of the client or another person; or e) information is privileged and received by accident.
What does the police have to decide when the suspet is no longer detained?
Post-Detention: Once the suspect is no longer detained, the police must decide on appropriate next steps.
(1) Release Without Charge: If evidence is insufficient, or proves innocence, the suspect should be released without charge. The case is closed and no further action is taken (subject to new evidence arising).
(2) Release Pending Investigation: The suspect may be released whilst the police work on evidence (non-bail).
(3) Release on Bail: The suspect may be released on bail pending further investigation. This may be subject to conditions (complainants should be involved in determining bail conditions).
