Detention and Treatment of Persons by Police Officers Flashcards

Question

Pile v Chief Constable of Merseyside Police [2020]

Answer 1

A not uncommon situation is where a detained person, possibly drunk, vomits on their clothes. Ms Pile brought a case against the force to establish the liberty of inebriated English subjects to be allowed to lie, undisturbed, overnight in their own vomit-soaked clothing. At the time, she was at a police station in Liverpool, having been arrested for the offence of being drunk and disorderly. She had vomited over her own clothing and did not know where she was due to her intoxication. Four female police officers removed her outer clothing and provided her with a clean, dry outfit to wear. The court determined that in this situation the removal of Ms Pile’s clothes had nothing to do with a search under s. 54 nor did this breach a detainee’s rights under Article 8 of the European Convention on Human Rights. The Court of Appeal found it to be entirely justified that four members of staff were sent in to remove Ms Pile’s clothing, due to her earlier aggressive behaviour when brought into custody. The court stated that if fewer than four attended the cell, there may well have been a greater risk that one of them would be injured because the claimant could not otherwise be adequately restrained.

Answer 2

While the custody officer has a duty to ascertain what property a person has with him/her (often by means of searching the person), there is also a need to consider the rights of the detained person. The custody officer may authorise a constable to search a detained person, or may search the detained person him/herself in order to ascertain what property the detained person has with him/her (s. 54(6)). It should be noted that the custody officer must first authorise any search and the extent of the search; officers should not search a person until this authority has been given. Therefore the custody officer may only authorise a search to the extent that he/she considers necessary to comply with this duty. The extent of the search is determined by the custody officer on the basis of what he/she honestly believes is necessary in order to comply with the above duties. Both the decision to search the detained person and the extent of the search must be decided on the facts of the case in question. It may be important to consider cultural issues that might affect the detained person; for instance, would it be necessary and justifiable to search a Sikh’s turban? Force standing orders are not an automatic right to search all detained persons (Brazil v Chief Constable of Surrey [1983] 1 WLR 1155). A custody officer can authorise a strip search but an intimate search can only be authorised by an officer of the rank of inspector or above.

Answer 3

* searches that do not involve the removal of more than the detained person’s outer clothing (this includes shoes and socks); * strip searches; intimate searches.

Answer 4

In effect, this is any search that does not become a strip search or an intimate search. This type of search applies to almost every person coming before the custody officer. Typically this will involve emptying out all items that are in the person’s pockets, removing jewellery and the searching of other areas that can be conducted without the need to remove more than outer garments, such as coats and possibly items such as jumpers. This type of authorisation would also lend itself to a ‘pat down’ of the detained person. If there is any doubt as to whether the search goes beyond one that falls into this category, it is suggested that it should be treated as a strip search. Where metal detectors are used in custody suites, an indication from the device may give the grounds for authorising a strip search. Not all detained persons need to be searched; s. 54(1) and para. 4.1 require a detainee to be searched when it is clear the custody officer will have continuing duties in relation to that detainee or when that detainee’s behaviour or offence makes an inventory appropriate. They do not require every detainee to be searched, e.g. if it is clear that a person will only be detained for a short period and is not to be placed in a cell, the custody officer may decide not to search him/her. In such a case the custody record will be endorsed ‘not searched’, para. 4.4 will not apply, and the detainee will be invited to sign the entry. If the detainee refuses, the custody officer will be obliged to ascertain what property he/she has in accordance with para. 4.1.

Answer 5

A search which consists of the physical examination of a person’s body orifices other than the mouth.

Answer 6

Section 55A of the 1984 Act allows detained persons to have an X-ray taken of them or an ultrasound scan to be carried out on them (or both).

Answer 7

* Reasonable force may be used (s. 117 of the 1984 Act). * The custody officer should specify the level of the search to be conducted and this must be recorded in the person’s record. * Reference to Code A, para. 3.1 may be useful when considering how to conduct the search: ‘Every reasonable effort must be made to minimise the embarrassment that a person being searched may experience.’ * Annex L should be referred to for guidance when establishing the gender of persons for the purpose of searching.

Answer 8

Once a person has been searched and the custody officer has ascertained what property the detained person has with him/her, a decision must be made as to what property will be returned to the detained person and what property will be retained by the police. It is suggested that the custody officer may authorise the seizure of an article of clothing under s. 54(4)(b) of the 1984 Act, where he/she has reasonable grounds for believing that such clothing may be evidence relating to an offence. For instance, if the detained person is wearing a pair of trainers of the same type as those which are reasonably believed to have made impressions at the scene of a recent burglary and the detained person has a burglary record then, unless the custody officer knows of other facts clearly putting the suspect at some other place at the time of the offence, he/she is plainly justified in having those shoes forensically examined. However, it is submitted that this does not authorise the custody officer to seize footwear on the off-chance that some officer or some other police force may have obtained impressions at a burglary site which might match the trainers of the detained person. Where property by virtue of its nature, quantity or size in the detainee’s possession at the time of arrest has not been brought to the police station the custody officer is not required to record this on the custody record. Only items of clothing worn by the detained person which have been withheld need to be recorded on the custody record. Unless the property has been seized and retained as evidence under s. 22 of the 1984 Act, it must be returned to the detained person on his/her release. If property has been seized from a third party in the course of the investigation the property can only be retained for so long as is necessary in accordance with s. 22(1) of the 1984 Act; even if it might be needed for another matter it should be returned to the third party unless there was an additional power to seize the item (Settelen v Metropolitan Police Commissioner [2004] EWHC 2171 (Ch)). If property is rightfully seized but retained unnecessarily this would be unlawful and could lead to a claim for damages (Martin v Chief Constable of Nottinghamshire [2003] EWCA Civ 398). The seizure of a person’s property is also protected by the European Convention on Human Rights, First Protocol, Article 1.

Answer 9

A person may request an interpreter to interpret a telephone call or translate a letter. In addition to Code C, this right can be denied or delayed where a person is detained under s. 41 of or sch. 7 to the Terrorism Act 2000 by an officer of the rank of inspector or above (Code H, s. 5). The grounds are the same as those regulating the holding of people incommunicado. Should there be any delay in complying with a request by a detained person to have someone informed of his/her detention or to communicate with someone, the detained person should be informed of this and told the reason for it and a record kept (s. 56(6) of the 1984 Act). Subject to having sufficient personnel to supervise a visit and any possible hindrance to the investigation, the custody officer also has a discretion to allow visits to the detained person at the police station. It is suggested that with the Codes of Practice outlining the limited rights for the detained person to make telephone calls and the right to restrict these calls, if the person has a mobile telephone it can be seized for the period of his/her detention. There is no case law on this point and any force policy should be followed. If the detainee does not know anyone to contact for advice or support or cannot contact a friend or relative, the custody officer should bear in mind any local voluntary bodies or other organisations which might be able to help. Paragraph 6.1 applies if legal advice is required. The additional conditions mentioned in para. 5.7B are contained in Prison Service Instruction 26/2012 (Production of Prisoners at the Request of Warranted Law Enforcement Agencies), which provides detailed guidance and instructions for police officers and Governors and Directors of Prisons regarding applications for prisoners to be transferred to police custody and their safe custody and treatment while in police custody.

Answer 10

A poster or posters of the right to legal advice containing translations into Welsh, the main minority ethnic languages and the principal European languages should be displayed wherever they are likely to be helpful and it is practicable to do so. Section 58 of the Police and Criminal Evidence Act 1984 provides an almost inalienable right for a person arrested and held in custody at a police station or other premises to consult privately with a solicitor free of charge at any time if he/she requests it. A detainee has a right to free legal advice and to be represented by a solicitor. Note for Guidance 6B explains the arrangements which enable detainees to obtain legal advice. An outline of these arrangements is also included in the Notice of Rights and Entitlements given to detainees in accordance with para. 3.2. The arrangements also apply, with appropriate modifications, to persons attending a police station or other location (see para. 3.22) voluntarily who are cautioned prior to being interviewed. See para. 3.21. When a detainee asks for free legal advice, the Defence Solicitor Call Centre (DSCC) must be informed of the request. When free advice is not limited to telephone advice, detainees can ask for free advice from a solicitor they know or if they do not know a solicitor or the solicitor they know cannot be contacted, from the duty solicitor. To arrange free legal advice, the police should telephone the DSCC. The call centre will decide whether legal advice should be limited to telephone advice from CDS Direct, or whether a solicitor known to the detainee or the duty solicitor should speak to the detainee. Apart from carrying out duties necessary to implement these arrangements, an officer must not advise the suspect about any particular firm of solicitors. No police officer or police staff shall indicate to any suspect, except to answer a direct question, that the period for which he/she is liable to be detained, or if not detained, the time taken to complete the interview, might be reduced: if the suspect does not ask for legal advice or does not want a solicitor present when he/she is interviewed; or if he/she has asked for legal advice or (as the case may be) asked for a solicitor to be present when he/she is interviewed but changes his/her mind and agrees to be interviewed without waiting for a solicitor. A detainee has a right to free legal advice and to be represented by a solicitor. A detainee is not obliged to give reasons for declining legal advice and should not be pressed to do so. The solicitor’s only role in the police station is to protect and advance the legal rights of his/her client. On occasions, this may require the solicitor to give advice which has the effect of the client avoiding giving evidence which strengthens a prosecution case. The solicitor may intervene in order to seek clarification, challenge an improper question to the client or the manner in which it is put, advise the client not to reply to particular questions or if he/she wishes to give the client further legal advice. An officer who takes the decision to exclude a solicitor must be in a position to satisfy the court that the decision was properly made. In order to do this he/she may need to witness what is happening. Paragraph 6.9 only applies if the solicitor’s approach or conduct prevents or unreasonably obstructs proper questions being put to the suspect or the suspect’s response being recorded. Examples of unacceptable conduct include answering questions on a suspect’s behalf or providing written replies for the suspect to quote. If an officer of at least inspector rank considers that a particular solicitor or firm of solicitors is persistently sending probationary representatives who are unsuited to provide legal advice, he/she should inform an officer of at least superintendent rank, who may wish to take the matter up with the Solicitors Regulation Authority. Whenever a detainee exercises his/her right to legal advice by consulting or communicating with a solicitor, he/she must be allowed to do so in private. This right to consult or communicate in private is fundamental. If the requirement for privacy is compromised because what is said or written by the detainee or solicitor for the purpose of giving and receiving legal advice is overheard, listened to or read by others without the informed consent of the detainee, the right will effectively have been denied. When a detainee chooses to speak to a solicitor on the telephone, he/she should be allowed to do so in private unless this is impractical because of the design and layout of the custody area or the location of telephones. However, the normal expectation should be that facilities will be available, unless they are being used, at all police stations to enable detainees to speak in private to a solicitor either face to face or over the telephone. This right to have a private consultation also applies to juveniles who, should they wish to have a private consultation without the appropriate adult being present, must be permitted to do so. This point was considered in R (On the Application of M (A Child)) v Commissioner of the Police of the Metropolis [2001] EWHC 533 (Admin), where the court said that ideally there ought be a consultation room at every police station and facilities for private telephone calls to be made for legal consultations. However, there was no breach of Article 6(3) of the European Convention on Human Rights where it could not be shown that a detainee had been denied adequate facilities for the preparation of his defence. Once a person has indicated a wish to have a solicitor, and has not yet been advised by a solicitor, he/she can only be interviewed in limited circumstances as set out in Code C, para. 6.6. In considering whether a detainee can be interviewed or continue to be interviewed under para. 6.6 without having received legal advice which he/she has requested, the officer making this decision should, if practicable, ask the solicitor for an estimate of how long it will take to come to the station and relate this to the time that detention is permitted, the time of day (i.e. whether the rest period under para. 12.2 is imminent) and the requirements of other investigations. Subject to the constraints of Annex B, a solicitor may advise more than one client in an investigation if he/she wishes. Any question of a conflict of interest is for the solicitor under his/her professional code of conduct. If, however, waiting for a solicitor to give advice to one client may lead to unreasonable delay to the interview with another, the provisions of para. 6.6(b) may apply. Where the solicitor is on the way or is to set off immediately, it will not normally be appropriate to begin an interview before he/she arrives. If it appears necessary to begin an interview before the solicitor’s arrival, he/she should be given an indication of how long the police would be able to wait before starting the interview so that there is an opportunity to make arrangements for someone else to provide legal advice. Code C, Annex B provides an exception to this right to legal advice. The same exception also applies where the person is held under prevention of terrorism legislation (Terrorism Act 2000, s. 41 or sch. 8) and the conditions in Code H, Annex B apply. In addition, a uniformed officer of at least the rank of inspector not connected with the case may be present if authorised by an Assistant Chief Constable or Commander (Terrorism Act 2000, sch. 8, para. 9 and Code H, paras 6.4, 6.5). The delay can only be for a maximum of 36 hours (48 hours from the time of arrest in terrorism cases) or until the time the person will first appear at court, whichever is the sooner (see below). The 36-hour period is calculated from the ‘relevant time’. Another exception is in relation to the drink-drive procedure for s. 7 of the Road Traffic Act 1988. In DPP v Noe [2000] RTR 351 a request to see a solicitor or alternatively to consult a law book to verify the legality of the police request for a specimen of breath was not a reasonable excuse under s. 7. This is confirmed by Campbell v DPP [2002] EWHC 1314 (Admin), in which it was held that it was entirely proportionate to allow a police officer to require a member of the community to provide a specimen, albeit that legal advice had not been obtained. Where Code C, para. 6.6 is used it will have to be justified at court if the interview is to be admissible. This power might prove useful in circumstances where there are ‘delaying tactics’ by legal representatives, particularly where they are aware that the detained person’s relevant time is due to expire within a short period. When detainees who wanted legal advice change their mind, an officer of inspector rank or above must authorise the continuation of the interview. It is permissible for such authorisation to be given over the telephone, if the authorising officer is able to satisfy him/herself about the reason for the detainee’s change of mind and is satisfied that it is proper to continue the interview in those circumstances. In terrorism cases a direction may be given by an officer of at least the rank of Commander or Assistant Chief Constable which may provide that a detained person who wishes to exercise the right to consult a solicitor may do so only in the sight and hearing of a qualified officer, this person being a uniformed officer of at least the rank of inspector not connected with the investigation from the authorising officer’s force (Code H, para. 6.5).

Answer 11

… no matter how strongly and however justifiably the police may feel that their investigation and detection of crime is being hindered by the presence of a solicitor … they are nevertheless confined to the narrow limits imposed by section 58.

Answer 12

* detained for a non-imprisonable offence; * arrested on a bench warrant for failing to appear and being held for production at court (except where the solicitor has clear documentary evidence available that would result in the client being released from custody); * arrested for drink driving (driving/in charge with excess alcohol, failing to provide a specimen, driving/in charge whilst unfit through drink); or * detained in relation to breach of police or court bail conditions unless one or more exceptions apply, in which case the DSCC should arrange for advice to be given by a solicitor at the police station, for example: * the police want to interview the detainee or carry out an eye-witness identification procedure; * the detainee needs an appropriate adult; * the detainee is unable to communicate over the telephone; * the detainee alleges serious misconduct by the police; * the investigation includes another offence not included in the list; the solicitor to be assigned is already at the police station.

Answer 13

* the DSCC will contact a solicitor of their choice on their behalf; * they may, when free advice is only available by telephone from CDS Direct, still speak to a solicitor of their choice on the telephone for advice, but the solicitor would not be paid by legal aid and may ask the person to pay for the advice; * they should be given an opportunity to consult a specific solicitor or another solicitor from that solicitor’s firm. If this solicitor is not available, they may choose up to two alternatives. If these alternatives are not available, the custody officer has discretion to allow further attempts until a solicitor has been contacted and agreed to provide advice; * they are entitled to a private consultation with their chosen solicitor on the telephone or the solicitor may decide to come to the police station; * If their chosen solicitor cannot be contacted, the DSCC may still be called to arrange free legal advice.

Answer 14

The provision of bedding, medical and dietary matters are of particular importance in the case of a person likely to be detained for an extended period. In deciding whether to allow meals to be supplied by family or friends, the custody officer is entitled to take account of the risk of items being concealed in any food or package and the officer’s duties and responsibilities under food handling legislation. Meals should, so far as practicable, be offered at recognised meal times, or at other times that take account of when the detainee last had a meal. In cells subject to CCTV monitoring, privacy in the toilet area should be ensured by any appropriate means and detainees should be made aware of this when they are placed in the cell. If a detainee or appropriate adult on their behalf, expresses doubts about the effectiveness of the means used, reasonable steps should be taken to allay those doubts, for example, by explaining or demonstrating the means used. It is suggested that the custody officer should undertake a further risk assessment which should be recorded in the custody record before more than one person is placed in a cell. Any steps taken to minimise the risk should also be included in the custody record. (Paragraph 2.3 requires the time of release to be recorded; this is relevant in calculating any period of detention which may still be remaining if the person has been bailed, and periods in police detention also count towards the period a person serves in custody.) Section 117 of the 1984 Act provides that where any provision of the Act confers a power on a constable and does not provide that the power may only be exercised with the consent of some person, other than a police officer, the officer may use reasonable force, if necessary, in the exercise of the power. This is not a blanket power to use force. In R v Jones (1999) The Times, 21 April, the court said that s. 117 should not be interpreted as giving a right to police to exercise force whenever the consent of a suspect was not required.

Answer 15

A ‘health care professional’ means a clinically qualified person working within the scope of practice as determined by his/her relevant professional body. Whether a health care professional is ‘appropriate’ depends on the circumstances of the duties he/she carries out at the time. Paragraph 9.3 also applies to a person in police custody by order of a magistrates’ court under the Criminal Justice Act 1988, s. 152 (as amended by the Drugs Act 2005, s. 8) to facilitate the recovery of evidence after being charged with drug possession or drug trafficking and suspected of having swallowed drugs. In the case of the health care needs of a person who has swallowed drugs, the custody officer, subject to any clinical directions, should consider the necessity for rousing every half hour. This does not negate the need for regular visiting of the suspect in the cell. Whenever possible, juveniles (which includes 17-year-olds) and vulnerable detainees should be visited more frequently. The purpose of recording a person’s responses when attempting to rouse them using the procedure in Annex H is to enable any change in the individual’s consciousness level to be noted and clinical treatment arranged if appropriate. Paragraph 9.5 does not apply to minor ailments or injuries which do not need attention. However, all such ailments or injuries must be recorded in the custody record and any doubt must be resolved in favour of calling the appropriate health care professional. The custody officer should always seek to clarify directions that the detainee requires constant observation or supervision and should ask the appropriate health care professional to explain precisely what action needs to be taken to implement such directions. A detainee who appears drunk or behaves abnormally may be suffering from illness, the effects of drugs or may have sustained injury, particularly a head injury which is not apparent. A detainee needing or dependent on certain drugs, including alcohol, may experience harmful effects within a short time of being deprived of his/her supply. In these circumstances, when there is any doubt, police should always act urgently to call an appropriate health care professional or an ambulance, see Annex H for observation list for a detained person. Watling v The Chief Constable of Suffolk Constabulary & Anor [2019] EWHC 2342 (QB) highlights the responsibility to care for a detainee and the link to Article 3 of the Human Rights Act 1998. The claimant was driving his car when he suddenly felt dizzy. He was stopped by police and the officer formed the suspicion that the claimant was driving under the influence of drugs and arrested him. He was taken into custody and 3 hours later he was seen by a forensic medical examiner who concluded that he had suffered a stroke and he was taken to hospital. Due to the stroke, the claimant was left with ‘Rankin scale 3’ moderate disability. The claimant brought a claim, amongst other things, for damages for breach of Article 3 of the European Convention on Human Rights (ECHR). To engage Article 3 (torture or inhuman or degrading treatment or punishment), all behaviour alleged to constitute the inhuman or degrading treatment must attain a minimum level of severity and go beyond that which is considered reasonably coincidental to the fact of detention. The test as to whether the threshold of severity has been reached is objective and to be determined after consideration of all circumstances, including the gravity of the consequences or potential consequences of the alleged ill-treatment on a person with the attributes of the victim. In the present case, those attributes included: the fact that the claimant was a detainee and therefore vulnerable, as well as the particularly grave potential damage that could be caused to him as a stroke victim in the event that he did not receive appropriate treatment in a reasonable time frame. In this case, the claim failed; however, the court did make the observation that there will be cases where the difference in approach is capable of producing a different result to that arrived at under Article 3. Any information that is available about the detained person should be considered in deciding whether to request a medical examination. In R v HM Coroner for Coventry, ex parte Chief Constable of Staffordshire Police (2000) 164 JP 665 the detained person had been drunk on arrest and was detained to be interviewed. The detained person made no complaint of his condition but his sister called the police to advise them that he would get the shakes. It was clear at interview and the following morning that he did have the shakes but no complaint was made and no doctor was called. A verdict of accidental death aggravated by neglect was an option in the case as the deceased had died while in police custody. The court considered the facts, such as the deceased’s withdrawal and the warning as to his condition, from which a properly directed jury could have concluded that had certain steps been taken it was at least possible that the deceased would not have died. In this case, a verdict of accidental death aggravated by neglect was left open to the jury, even though a doctor at the inquest gave evidence that he doubted whether calling a doctor would have made any difference to the eventual outcome. In addition, such a failure to act could lead to disciplinary action. Except as allowed for under the Mental Health Act 1983 (Places of Safety) Regulations 2017, a police station must not be used as a place of safety for persons detained under s. 135 or 136 of that Act. Chapter 16 of the Mental Health Act 1983 Code of Practice (as revised), provides more detailed guidance about arranging assessments under the Mental Health Act and transferring detainees from police stations to other places of safety. Matters concerning personal needs to which para. 9.3A applies include any requirement for menstrual products, incontinence products and colostomy appliances, where these needs have not previously been identified (see para. 3.5(c)). It also enables adult women to speak in private to a female officer about their requirements for menstrual products if they decline to respond to the more direct enquiry envisaged under para. 9.3B. This contact should be facilitated at any time, where possible.

Answer 16

It is important to respect a person’s right to privacy, and information about his/her health must be kept confidential and only disclosed with his/her consent or in accordance with clinical advice when it is necessary to protect the detainee’s health or that of others who come into contact with him/her. A solicitor or appropriate adult must be permitted to consult a detainee’s custody record as soon as practicable after his/her arrival at the station and at any other time while the person is detained (Code C, para. 2.4). Therefore details required to be included in the custody record concerning the detainee’s injuries and ailments will be accessible to both the solicitor and appropriate adult. However, paras 9.15 and 9.16 do not require any information about the cause of any injury, ailment or condition to be recorded on the custody record if it appears capable of providing evidence of an offence. As the Codes (paras 9.15 to 9.17) specify matters which must be included within the custody record, it is suggested that all other matters recorded by the appropriate health care professional do not form part of the custody record and therefore do not need to be made available to the solicitor or appropriate adult under Code C, para. 2.4, i.e. the notes made by the health care professional.

Answer 17

Section 51 of the Police Reform Act 2002 introduced independent custody visitors on a statutory basis. The arrangements may confer on independent custody visitors such powers as the police authority considers necessary to enable them to carry out their functions under the arrangements and may, in particular, confer on them powers to: * require access to be given to each police station; * examine records relating to the detention of persons; * meet detainees for the purposes of a discussion about their treatment and conditions while detained; and * inspect the facilities including, in particular, cell accommodation, washing and toilet facilities and the facilities for the provision of food. A Code of Practice on Independent Custody Visiting has been published outlining the role of the independent visitor (this can be found at ).

Answer 18

Where the detained person is unable to speak effectively in English, an interpreter must be called to safeguard the rights of the person and to allow him/her to communicate. A procedure for determining whether a person needs an interpreter might involve a telephone interpreter service or using cue cards or similar visual aids which enable detainees to indicate their ability to speak and understand English and their preferred language. This could be confirmed through an interpreter who could also assess the extent to which the person can speak and understand English. There should also be a procedure for determining whether suspects who require an interpreter require assistance in accordance with para. 3.20 to help them check and if applicable sign any documentation. Chief officers have discretion when determining the individuals or organisations they use to provide interpretation and translation services for their forces provided that these services are compatible with the requirements of the Directive. The importance of the role of the interpreter in proceedings can be seen in Bielecki v DPP [2011] EWHC 2245 (Admin). This was a drink-drive case where the defendant, who was Polish, had been required to provide breath specimens for analysis under the Road Traffic Act; this had been communicated through a Polish-speaking interpreter, who was present to translate at the police station. The defendant failed to provide the breath specimens and his defence was that he did not understand the requirement. The court held that it was a legitimate inference for the magistrates to draw that the words had been translated accurately. There was no evidence that the interpreter suggested to the officers that the defendant had not understood what was being said. A court could draw the inference, if the evidence supported it, that someone being asked to do something in a police station by a police officer with the assistance of an accredited interpreter of the relevant language had been asked the correct question and understood it and also the consequences of not responding to it (Bielecki v DPP [2011] EWHC 2245 (Admin)). The Codes provide consistency with paras 3.5(c)(ii) and 3.12 where the need for an interpreter is determined according to a person’s ability to speak and understand English. The EU Directive requires interpreters to be independent. It is important to note that police officers acting as interpreters is not allowed as this causes a conflict with the requirement for interpreters to be independent. The revised Codes enable the use of live-link electronic communication systems to provide interpretation services for suspects while not requiring the interpreter to be physically present at the police station. The revisions incorporate detailed conditions and safeguards to ensure that live-link interpretation does not adversely impact on the suspect. Where live-link interpretation has been authorised some changes need to be made to s. 13 of Code C. For the third sentence of para. 13.3, substitute: ‘A clear legible copy of the complete record shall be sent without delay via the live-link to the interviewer. The interviewer, after confirming with the suspect that the copy is legible and complete, shall allow the suspect to read the record, or have the record read to them by the interpreter and to sign the copy as correct or indicate the respects in which they consider it inaccurate. The interviewer is responsible for ensuring that that the signed copy and the original record made by the interpreter are retained with the case papers for use in evidence if required and must advise the interpreter of their obligation to keep the original record securely for that purpose.’ See Code C, Annex N. For para. 13.4(b), substitute: ‘A clear legible copy of the complete statement shall be sent without delay via the live-link to the interviewer. The interviewer, after confirming with the suspect that the copy is legible and complete, shall invite the suspect to sign it. The interviewer is responsible for ensuring that the signed copy and the original record made by the interpreter are retained with the case papers for use in evidence if required and must advise the interpreter of their obligation to keep the original record securely for that purpose.’ See Code C, Annex N. Finally for para. 13.7 after the first sentence, insert: ‘A clear legible copy of the certified record must be sent without delay via the live-link to the interviewer. The interviewer is responsible for ensuring that the original certified record and the copy are retained with the case papers for use as evidence if required and must advise the interpreter of their obligation to keep the original record securely for that purpose.’

Answer 19

The interpreter is there for the benefit of the detained person and should not be considered to be part of the prosecution team. Demonstrates the importance of the interpreter’s independence in proceedings. In Bozkurt, the police arranged for an interpreter to attend the custody suite and interpret for the drink-drive procedure at the police station. The police then arranged for the interpreter to attend court. The interpreter translated for the defendant while he took advice from the duty solicitor at court. The interpreter failed to inform the solicitor that he had translated for the drink-drive procedure at the police station. The court held that an interpreter was under an equal duty to that of the solicitor to keep confidential what he might hear during a conference. In these circumstances, it would have been preferable for a different interpreter to be used, or at least for the interpreter to have obtained the permission of the solicitor to interpret for the conference.

Answer 20

If questioning takes place at a hospital under para. 14.2, or on the way to or from a hospital, the period of questioning concerned counts towards the total period of detention permitted.

Answer 21

There are limits on how long a person can be detained. The Police and Criminal Evidence Act 1984 and the Codes of Practice talk of the ‘relevant time’. This is the time from which the limits of detention are calculated. Note that under s. 41(5) the relevant time may vary, depending on whether the detainee is interviewed in relation to the offence while still in the first police area. For those detained under the Terrorism Act 2000 the detention clock starts from the time the person is arrested, not the time he/she arrives at the police station. The Criminal Justice Act 2003 inserted s. 41(2)(ca) into the Police and Criminal Evidence Act 1984. This allows for a person who has been arrested to be released before being taken to a police station. When the person attends the police station to which he/she has been bailed the relevant time starts when he/she arrives at the police station. Some situations occur where a person is arrested at one police station and has been circulated as wanted by another police station in the same force area. In these cases, where the person is not wanted on warrant, the detention clock for the second offence starts at the same time as for the original offence for which he/she was arrested. Consideration will need to be given as to how to protect the detention period for the second offence while officers are dealing with the first matter. Options that might be considered would include bailing the person for one of the offences or conducting both investigations at the same station. Here there may be a risk of ‘confusing’ the suspect, which may allow him/her to retract or qualify any confession he/she might make.

Answer 22

The court considered the policy of not executing a court warrant until after other matters for which the person had been detained were completed. The court held that, once a warrant was executed, there was a requirement to follow the directions of the warrant. The police, however, had a discretion as to when to execute the warrant. This may be relevant where a person has been arrested for one offence and it is discovered that he/she is also wanted for another offence or where there are warrants in existence for that person at more than one court. In such cases, if the warrant is executed immediately, the direction on the warrant tells officers to take the person before the next available court, an action which could interfere with the investigation. If Henderson is followed there is no requirement to execute the warrant straight away and the other matters can be dealt with before the requirement to produce the person at court under the warrant applies.

Answer 23

Once detention has been authorised this does not mean that a person can be detained indefinitely. Section 34 of the Police and Criminal Evidence Act 1984 requires the custody officer to release a person if he/she becomes aware that the grounds for detention no longer apply and that no other grounds exist for the continuing detention (unless the person appears to have been unlawfully at large when he/she was arrested). Failure to comply with this could also lead to a breach of Article 5 of the European Convention on Human Rights. If there are additional grounds, these should be recorded in the custody record and the person informed of these additional grounds in the same way as when a person is first detained. For example, this could be for new offences or it could be that it becomes necessary to preserve evidence by questioning the detained person. It is only the custody officer who can authorise the release of a detained person (s. 34(3)). In addition to the requirement to release a person should the grounds for detention no longer exist, there are also maximum time limits for which a person can be detained without charge. Once this limit has been reached any prosecution will need to proceed by summons or by warrant.

Answer 24

While a person is in police detention there is a requirement that his/her continuing detention is reviewed. There are minimum time requirements for when these reviews must be conducted, with the timing of the first review being calculated from the time detention is authorised. This time can be considered as the ‘review time’. The question of whether a person should be kept in custody is a continuous one and the review process is intended as an added protection to the detained person. The maximum period that a person can be detained without charge is 96 hours (with the exception of suspected acts of terrorism, in which case it is 14 days). The necessity for the continued detention of the person must be reviewed throughout this time. The period of detention is calculated from the ‘relevant time’ which can be calculated from Table A below (do not confuse the relevant time with the time from which reviews are due). The relevant time ‘clock’ will always start before, or at the same time as, the review ‘clock’. This is because the review clock does not start until detention has been authorised, which clearly cannot happen until the person is brought before the custody officer which, as can be seen from the table below, is at the very latest the time the prisoner walks into the custody suite (with the exception of where the person has been under arrest for 24 hours but has not yet been taken to a police station). This relevant time period (that is, the maximum period a person can be detained for) relates to the actual time spent in custody and not a 24-hour period in time. This means that every time the person is bailed the clock stops and usually continues from the time that the person returns to custody for the offence(s) for which he/she was bailed. Any time during which a person is on bail does not count when calculating how long a detained person has been in police detention (amendments to the 1984 Act made by the Police (Detention and Bail) Act 2011). This legislation applies retrospectively and therefore the changes to ss. 34 and 47 brought about by this Act are deemed always to have had effect. In cases where this subsection applies, the relevant time starts again and a fresh clock starts. This will apply where the person has been re-arrested for the same offence because of some new evidence (except at such time as when he/she is returning on bail at the appointed time) under ss. 30C(4), 41(9) or 47(2). The issue will be whether new evidence has come to light since the grant of bail and it will be a question of fact as to what the new evidence is. It is suggested that this must be evidence which was not available at the time the person was last in detention or which would not have been available even if all reasonable inquiries had been conducted. It will always be important to check how much time is left on the person’s ‘relevant time’ and when his/her next review is due. For the purposes of Code C, paras 3.4(b) and 15.0, investigating officers are responsible for bringing to the attention of the officer who is responsible for authorising the suspect’s continued detention (before or after charge), any documents and materials in their possession or control which appear to undermine the need to keep the suspect in custody. In accordance with part IV of PACE, this officer will be either the custody officer, the officer reviewing the need for detention before or after charge (PACE, s. 40), or the officer considering the need to extend detention without charge from 24 to 36 hours (PACE, s. 42). The authorising officer is then responsible for determining, which, if any, of those documents and materials are capable of undermining the need to detain the suspect and must therefore be made available to the suspect or their solicitor. It is not the case that documents need to be copied and provided to the suspect or their solicitor; the way in which documents and materials are ‘made available’ is a matter for the investigating officer to determine on a case-by-case basis and having regard to the nature and volume of the documents and materials involved. For example, they may be made available by supplying a copy or allowing supervised access to view. However, for view-only access, it will be necessary to demonstrate that sufficient time is allowed for the suspect and solicitor to view and consider the documents and materials in question.

Answer 25

(2) Where a person who was released on bail under this Part subject to a duty to attend at a police station is re-arrested, the provisions of this Part of this Act shall apply to him/her as they apply to a person arrested for the first time but this subsection does not apply to a person who is arrested under section 46A above or has attended a police station in accordance with the grant of bail (and who accordingly is deemed by section 34(7) above to have been arrested for an offence).

Answer 26

(9) A person released under subsection (7) [i.e. where his/her relevant time period had expired] above shall not be re-arrested without a warrant for the offence for which he was previously arrested unless new evidence justifying a further arrest has come to light since his release; but this subsection does not prevent an arrest under section 46A below.

Answer 27

(4) Nothing in the Bail Act 1976 shall prevent the re-arrest without warrant of a person released on bail subject to a duty to attend at a police station if new evidence justifying a further arrest has come to light since his release.

Answer 28

(5) Nothing in section 30A or 30B or in this section prevents the re-arrest without warrant of a person released on bail under section 30A (Release of a person arrested by a constable elsewhere than a police station) if new evidence justifying a further arrest has come to light since his release.

Answer 29

After the custody officer has authorised detention but before a person has been charged there are three distinct stages of detention. These are distinguished by the level at which authorisation for continuing detention is required.

Answer 30

* the basic period of detention, which is the period of detention up to 24 hours, as first authorised by the custody officer; * those authorised by an officer of the rank of superintendent or above (s. 42) up to 36 hours (indictable offences only); those authorised by a magistrates’ court (ss. 43 and 44) up to a maximum of 96 hours.

Answer 31

The majority of people detained by the police are detained for less than six hours; most other cases are dealt with within 24 hours. If a person’s continued detention is not authorised beyond 24 hours and the person is not charged with an offence, he/she must be released (with or without bail) and cannot be re-arrested for the offence unless new evidence comes to light (s. 41(7) and (9) of the 1984 Act). If a detained person is taken to hospital for medical treatment, the time at hospital and the period spent travelling to and from the hospital does not count towards the relevant time unless the person is asked questions for the purpose of obtaining evidence about an offence. Where questioning takes place, this period would count towards the relevant time and therefore the custody officer must be informed of it (s. 41(6)).

Answer 32

The procedure under PACE, s. 42 can be conducted in person or by live link. If the authorising officer considers that there is sufficient evidence to charge, he/she cannot authorise further detention beyond 24 hours unless the detained person is in custody for another indictable offence for which further detention can be authorised (R v Samuel [1988] QB 615 and Code H, para. 14.3). It is suggested that in considering the strength of evidence the authorising officer may wish to consult with any readily accessible CPS representative. The grounds for this continuing detention are the same as those when the custody officer made the initial decision to detain, with the additional requirements that the case has been conducted diligently and expeditiously. To be able to satisfy the senior officer of this, it will be necessary for the custody record to be available for inspection and also details of what inquiries have been made and evidence that the investigation has been moving at a pace that will satisfy the senior officer that the inquiries should not already have been completed. Although the authorising officer can authorise detention up to a maximum of 36 hours from the ‘relevant time’ of detention, the period can be shorter than this. It can then be further authorised by that officer or any other officer of the rank of superintendent or above who is responsible for the station at which the person is detained to allow the period to be further extended up to the maximum 36-hour period (s. 42(2)). The officer responsible for the station holding the detainee includes a superintendent or above who, in accordance with their force operational policy or police regulations, is given that responsibility on a temporary basis whilst the appointed long-term holder is off duty or otherwise unavailable. Section 42(5)–(8) mirrors the responsibility on the authorising officer at this stage with those of the review officer (see para.1.7.16.13) during the ‘general period’ of detention with regard to allowing representations, informing the detained person of the decision to authorise further detention and the need to record the decision. The main difference here is that the authorising officer must look into how the case is being investigated and whether this is being done diligently and expeditiously. Consequently, the authorising officer must also consider any representations on these points and these points should also be covered in any record as to whether detention should continue. When considering whether to authorise further detention the authorising officer must check whether the detained person has exercised his/her right to have someone informed and to consult with a legal representative. If it is proposed to transfer a detained person from one police area to another for the purpose of investigating the offences for which he/she is detained, the authorising officer may take into consideration the period it will take to get to the other police area when deciding whether detention can go beyond 24 hours (s. 42(3)). Where a person has been arrested under s. 41 of the Terrorism Act 2000 he/she can be kept in police detention (in this case, this is generally from the time of the arrest) up to 48 hours without the court authorising an extension of time.

Answer 33

* an offence being investigated is an ‘indictable offence’; and * an officer of the rank of superintendent or above is responsible for the station at which the person is detained (referred to here as the authorising officer); and * that senior officer is satisfied that: * there is not sufficient evidence to charge; and * the investigation is being conducted diligently and expeditiously; and the person’s detention is necessary to secure or preserve evidence relating to the offence or to obtain such evidence by questioning that person.

Answer 34

Once the 36-hour limit has been reached, a person’s detention can only continue with the authority of the courts through the issuing of a warrant of further detention. Applications for warrants of further detention are made at the magistrates’ court. Initially, the magistrates can issue a warrant for further detention for a period of up to 36 hours. This can be extended by the courts on further applications by police up to a maximum total period of detention of 96 hours. The warrant will specify what period of further detention the court has authorised. The grounds on which the court must decide whether to grant a warrant authorising further detention are the same as those that must be considered by a ‘superintendent’s review’. Should it be necessary to apply for a warrant, it is important that the time restraints are kept in mind at all times and the application procedure followed closely.

Answer 35

The application is made in the magistrates’ court and both the detained person and the police must be in attendance (s. 43(1) and (2) of the Police and Criminal Evidence Act 1984). The application is made by laying an information before the court. The officer making the application does so on oath and is subject to cross-examination. It will be important to be able to demonstrate why the person needs to remain in detention while additional inquiries are made, for instance that further facts need to be verified before further questioning of the suspect can continue and that this cannot be done effectively if the person is released. The detained person must be provided with a copy of the information before the matter can be heard (s. 43(2)). He/she is also entitled to be legally represented. If the person is not legally represented but then requests legal representation at court, the case must be adjourned to allow representation (s. 43(3)). In cases where the person is not represented it may be prudent to remind the person of his/her right to legal representation prior to the court hearing and to make a record of this in the custody record. Should the detained person choose to be legally represented at court, and thereby try to delay the police investigation, s. 43(3)(b) allows the person to be taken back into police detention during the adjournment.

Answer 36

* the nature of the offence (this must be an indictable offence); * the general nature of the evidence on which the person was arrested; * what inquiries have been made; * what further inquiries are proposed; and * the reasons for believing that continuing detention is necessary for such further inquiries.

Answer 37

Officers should be mindful of whether a warrant for further detention may be required. If it appears likely that the investigation of the indictable offence requires the person’s detention to go beyond 36 hours, then thought must be given as to when to make the application to the magistrates’ court, and whether a court will be available to hear the application. If a court will not be available, then consideration should be given to making an earlier application. An application to a magistrates’ court should be made between 10 am and 9 pm, and if possible during normal court hours. It will not usually be practicable to arrange for a court to sit specially outside the hours of 10 am to 9 pm. If it appears that a special sitting may be needed outside normal court hours but between 10 am and 9 pm, the clerk to the justices should be given notice and informed of this possibility, while the court is sitting if possible. Section 43(5) allows the application to be made before the expiry of the 36-hour period (calculated from the relevant time) or, where it has not been practicable for the court to sit within the 36-hour period, the application can be made within the next six hours. There are dangers in applying outside the 36-hour period as if the court feels that it would have been reasonable to make the application within the 36-hour period it must refuse the application for the warrant regardless of the merits of the case (s. 43(7)). In R v Slough Justices, ex parte Stirling [1987] Crim LR 576, the 36-hour period expired at 12.53 pm. The case was not heard by the justices until 2.45 pm. The Divisional Court held that the police should have made their application between 10.30 am and 11.30 am, even though this was before the 36-hour time limit had been reached. If the court is not satisfied that there are reasonable grounds for believing that further detention is justified, the court may either refuse the application or adjourn the hearing until such time as it specifies up to the end of the 36-hour period of detention (s. 43(8)). If the application is refused, the person must be charged or released with or without bail at the expiry of the current permissible period of detention (s. 43(15)). The application for the warrant can be made at any time, even before a superintendent’s review has been carried out. If the application is made within the 36-hour period and it is refused, it does not mean that the person must be released straight away. Section 43(16) allows the person to be detained until the end of the current detention period (24 hours or 36 hours). The benefit of an early application has to be set against the risk that, once the court has refused an application, it is not allowed to hear any further applications for a warrant of further detention unless new evidence has come to light since the application was refused (s. 43(17)).

Answer 38

Under s. 44 of the 1984 Act, the process for applying to extend the warrant follows the same procedure as for the initial warrant, with the exception that the application must be made before the expiry of the extension given in the previous warrant. Once the period of detention that has been authorised has expired, and no other applications have been made, the detained person must be charged or released with or without bail.

Answer 39

The court can extend the period of detention of a person up to a total of 14 days. In the case of those arrested under s. 41 this starts at the time of arrest or, if the person was being detained under sch. 7 when he/she was arrested under s. 41, it starts at the time his/her examination under that schedule began (Terrorism Act 2000, sch. 8, para. 36(3)). A person detained in these circumstances may only be held for a maximum of 48 hours without charge before an application must be made to a court to issue or extend a warrant of further detention. At the end of that period, the detained person must either be released or an application to a court for a warrant for an extension to that detention must have been made and granted prior to the expiry of the initial 48-hour period. Extensions by the court will normally be for a seven-day period unless the application for a warrant of further detention requests a shorter period or the court is satisfied that it would be inappropriate for the period to be as long as seven days. If detention is required beyond the first seven days, further applications are required to be made to the court as it is not possible for the court to issue a warrant authorising the full 14 days’ detention on the first occasion a warrant for detention is sought (Code H, Note 14C). The application to the court must be made by a superintendent or a Crown Prosecutor. Applications are heard by a district judge in the magistrates’ court. Paragraph 37 of sch. 8 to the Terrorism Act 2000 states that if at any time the police officer or person in charge of the case considers that the grounds on which the warrant of further detention authorised by the court no longer apply the detained person must be released. Paragraph 33 of sch. 8 to the Terrorism Act 2000 allows for these applications to be conducted by live television links. The person who makes the application may also apply to the court for an order that specified information upon which he/she intends to rely should be withheld from the person to whom the application relates and anyone representing him/her.

Answer 40

* evidence of an offence under any of the provisions mentioned in s. 40(1)(a) of the Terrorism Act 2000 would be interfered with or harmed; * the recovery of property obtained as a result of an offence under any of those provisions would be hindered; * the recovery of property in respect of which a forfeiture order could be made under s. 23 of the Terrorism Act 2000 would be hindered; * the apprehension, prosecution or conviction of a person who is suspected of committing offences under the Terrorism Act 2000 would be made more difficult as a result of his/her being alerted; * the prevention of an act of terrorism would be made more difficult as a result of the person being alerted; * the gathering of information about the commission, preparation or instigation of an act of terrorism would be interfered with; * a person would be interfered with or physically injured; * the detained person has benefited from his criminal conduct and the recovery of the value of the property constituting the benefit would be hindered if the information were disclosed. (sch. 8, part III, para. 34 to the Terrorism Act 2000)

Answer 41

(1) A person arrested under section 137A in respect of a specified offence may be detained but only for the purpose of— (a) enabling a warrant for the person’s arrest in respect of the offence to be obtained and then executed under section 136, or (b) enabling the person to be re-arrested under section 137. (2) The person may be detained for that purpose— (a) for an initial period of 3 hours beginning with the time of the arrest; (b) for a second period of no more than 21 hours beginning with the end of the initial period, but only if detention for that period is authorised by both an officer of at least the rank of inspector in the arresting force and an officer of at least the rank of inspector in the investigating force; © for a third period of no more than 12 hours beginning with the end of the second period, but only if detention for that period is authorised by both an officer of a rank above that of inspector in the arresting force and an officer of a rank above that of inspector in the investigating force. (3) An officer of the arresting force may give an authorisation for the purpose of subsection (2)(b) or (c) only if satisfied that it is in the interests of justice to do so. (4) An officer of the investigating force may give an authorisation for the purpose of subsection (2)(b) only if satisfied that— (a) there are reasonable grounds to suspect that the person has committed the specified offence, (b) a constable intends that the person be arrested as soon as is reasonably practicable (whether by the obtaining and execution of a warrant under section 136 or under section 137) and is acting expeditiously for that purpose, and © it is in the interests of justice to give the authorisation. (5) An officer of the investigating force may give an authorisation for the purpose of subsection (2)(c) only if satisfied that— (a) there continue to be reasonable grounds to suspect that the person has committed the specified offence, (b) a constable intends that the person be arrested as soon as is reasonably practicable (whether by the obtaining and execution of a warrant under section 136 or under section 137) and is acting expeditiously for that purpose, and © it is in the interests of justice to give the authorisation. (6) If, at any time while the person is detained, an appropriate officer in the investigating force is satisfied that it is no longer in the interests of justice for the person to be detained— (a) the officer must notify the arresting force, and (b) the person must be released immediately. (7) In subsection (6), ‘appropriate officer’ means— (a) in relation to the person’s detention for the initial period, any constable; (b) in relation to the person’s detention for the second period, an officer of at least the rank of inspector; © in relation to the person’s detention for the third period, an officer of a rank above that of inspector.

Answer 42

This review acts as another safeguard to protect the detained person’s right to be detained for only such periods as are necessary. Reviews of police detention are covered by s. 40 of the Police and Criminal Evidence Act 1984.

Answer 43

The ‘review officer’ for the purposes of ss. 40, 40A and 45A of the 1984 Act means, in the case of a person arrested but not charged, an officer of at least inspector rank not directly involved in the investigation and, if a person has been arrested and charged, the custody officer. It is important to understand the difference between the action of authorising an extension to the ‘detention clock’ and the role of the review officer. These are two distinct roles and both need to be carried out. When an officer of the rank of superintendent or above extends the ‘relevant time’ period, this is not automatically a review (although there is nothing to stop that officer from conducting the review). This means that the ‘reviewing’ officer may still have to conduct a review even though the relevant time has only recently been extended, unless the officer of the rank of superintendent or above extending the relevant time has shown the review as having been conducted in the custody record.

Answer 44

The periods set out in s. 40(3) are the maximum periods that a review can be left; should the review officer wish to review before this time for operational reasons, etc. the review could be brought forward. The first review must be made within six hours of the custody officer authorising detention (this, it must be remembered, is not the time from which the 24-hour clock starts, i.e. the time the detainee came into the station, but the time at which the custody officer authorised detention). Thereafter, each review must be made within nine hours of the last review.

Answer 45

(3) Subject to subsection (4) … (a) the first review shall be not later than six hours after the detention was first authorised; (b) the second review shall be not later than nine hours after the first; © subsequent reviews shall be at intervals of not more than nine hours.

Answer 46

Section 40 reviews can be conducted in person, by live link or on the telephone where live link is not available. The provisions of PACE, s. 40A allowing telephone reviews or live link do not apply to reviews of detention after charge by the custody officer. In considering whether the use of the live link is appropriate in the case of a juvenile or vulnerable person, the custody officer and the superintendent should have regard to the detainee’s ability to understand the purpose of the authorisation or (as the case may be) the court hearing, and be satisfied that the suspect is able to take part effectively in the process (see para. 1.4(c)). The appropriate adult should always be involved. For the purpose of paras 15.11D and 15.11E, the consent required from a parent or guardian may, for a juvenile in the care of a local authority or voluntary organisation, be given by that authority or organisation. In the case of a juvenile, nothing in paras 15.11D and 15.11E require the parent, guardian or representative of a local authority or voluntary organisation to be present with the juvenile to give their consent, unless they are acting as the appropriate adult. However, it is important that the parent, guardian or representative of a local authority or voluntary organisation who is not present is fully informed before being asked to consent. They must be given the same information as that given to the juvenile and the appropriate adult in accordance with para. 15.11E. They must also be allowed to speak to the juvenile and the appropriate adult if they wish. Provided the consent is fully informed and is not withdrawn, it may be obtained at any time before the live link is used.

Answer 47

* Is there sufficient evidence to charge? If ‘yes’, charge or release the person with or without bail. If ‘no’, then: * Is detention necessary in order to secure or preserve evidence or is it necessary to detain the person in order to obtain such evidence by questioning him/her? If ‘yes’, authorise continued detention. If ‘no’, release the person with or without bail.

Answer 48

It is suggested that in order to consider whether there is sufficient evidence to charge, the review officer should have consideration for the Code for Crown Prosecutors and the Threshold Test. The situation may arise where the review officer considers that there is sufficient evidence to charge and only authorises continued detention to charge even though the custody officer disagrees. In this case, it is suggested that the custody officer must either charge or release the person with or without bail in line with s. 37B of the Police and Criminal Evidence Act 1984. Where bailed this may be in order to submit papers to the CPS in order for a decision to be made as to whether to charge and for what offence. There may also be situations where the custody officer has concluded that there is sufficient evidence to charge but the review officer disagrees; in these cases the review officer cannot overrule the custody officer’s decision under s. 37(7). In any case where the decision has been made that there is sufficient evidence to charge, the review officer should confirm that the referral has been made, note the custody record to this effect and, thereafter, check to ensure that the decision is made within a reasonable time. It is also suggested that the reviewing officer (or any other officer other than a superintendent or above) cannot tell the custody officer what he/she must do. The reviewing officer may wish to give advice but it will be for the custody officer to decide whether to take that advice. Clearly failure to do so could lead to internal criticism, but legally there is no requirement to follow that advice. If there is not sufficient evidence to charge, the review officer may want to consider the question: ‘If this person is released what evidence will be lost?’ If the answer is none, continued detention would seem unlawful. In cases where it has been decided that a person should be charged but he/she has been detained because he/she is not in a fit state to be charged (s. 37(9)), the review officer must determine whether the person is yet in a fit state. If the detainee is in a fit state, the custody officer should be informed that the person should be charged or released. If the detainee is not in a fit state, detention can be authorised for a further period (s. 40(9)). In such cases, if the person is still unfit, it may be prudent to consider his/her welfare. The detainee need not be woken for the review. However, if the detainee is likely to be asleep, e.g. during a period of rest, at the latest time a review or authorisation to extend detention may take place, the officer should, if the legal obligations and time constraints permit, bring forward the procedure to allow the detainee to make representations. A detainee not asleep during the review must be present when the grounds for his/her continued detention are recorded and must at the same time be informed of those grounds unless the review officer considers that the person is incapable of understanding what is said, is violent or likely to become violent or is in urgent need of medical attention. In relation to the detainee’s solicitor or appropriate adult being ‘available’ to make representations, this includes being contactable in time to enable him/her to make representations remotely by telephone or other electronic means or in person by attending the station. Reasonable efforts should therefore be made to give the solicitor and appropriate adult sufficient notice of the time the decision is expected to be made so that they can make themselves available.

Answer 49

Section 40(4)(b) does allow reviews to be delayed if it is not practicable to carry out the review. Conducting late reviews should be avoided where at all possible. In Roberts v Chief Constable of Cheshire Constabulary [1999] 1 WLR 662, the defendant had his first review conducted 8 hours 20 minutes after his detention had been authorised. The Court of Appeal held that under s. 40(1)(b) of the 1984 Act a review of his detention should have been carried out by an officer of the rank of inspector or above six hours after detention was first authorised. Section 34(1) was mandatory and provided that a person must not be kept in police detention except in accordance with the relevant provisions of the Act. Therefore, the respondent’s detention had been unlawful unless some event occurred to have made it lawful. The court made it clear that the 1984 Act existed in order to ensure that members of the public were not detained except in certain defined circumstances. In the absence of a review, the time spent in detention between 5.25 am and 7.45 am, meant that for that period the defendant’s detention was unlawful and amounted to a false imprisonment. It is likely that it will be necessary to justify why no review officer was available and that where it is known that a review may fall during an interview, the review is conducted prior to the interview where appropriate. With the ability to undertake reviews by telephone (or video link when regulations allow), a delay to a review is likely to need greater justification. If the review is delayed, then it must still be conducted as soon as practicable and the reason for the delay must be recorded in the custody record by the review officer. In these circumstances the nine-hour period until the next review is calculated from the latest time the review should have been carried out and not from the time it was actually carried out. For instance, if the review was due at 3.15 pm and was delayed until 4 pm, the next review would have to be conducted no later than 12.15 am and not 1 am. When the review is conducted the review officer does not have to authorise detention for the full nine-hour period; he/she could decide that the case should be reviewed again within a shorter period and the review decision would reflect this.

Answer 50

* the person in detention is being questioned by a police officer and the review officer is satisfied that an interruption of the questioning for the purpose of carrying out the review would prejudice the investigation in connection with which he/she is being questioned (s. 40(4)(b)(i)); * no review officer is readily available (s. 40(4)(b)(ii)).

Answer 51

The detention of persons in police custody not subject to the statutory review requirement in para. 15.1 should still be reviewed periodically as a matter of good practice. The purpose of such reviews is to check that the particular power under which a detainee is held continues to apply, any associated conditions are complied with, and to make sure that appropriate action is taken to deal with any changes. This includes the detainee’s prompt release when the power no longer applies, or his/her transfer if the power requires the detainee be taken elsewhere as soon as the necessary arrangements are made. Examples include persons: arrested on warrant because they failed to answer bail to appear at court; arrested under the Bail Act 1976, s. 7(3) for breaching a condition of bail granted after charge and in police custody for specific purposes and periods under the Crime (Sentences) Act 1997, sch. 1; convicted or remand prisoners, held in police stations on behalf of the Prison Service under the Imprisonment (Temporary Provisions) Act 1980, s. 6; being detained to prevent them causing a breach of the peace; detained at police stations on behalf of Immigration Enforcement (formerly the UK Immigration Service); or detained by order of a magistrates’ court under the Criminal Justice Act 1988, s. 152 (as amended by the Drugs Act 2005, s. 8) to facilitate the recovery of evidence after being charged with drug possession or drug trafficking and suspected of having swallowed drugs. The detention of persons remanded into police detention by order of a court under the Magistrates’ Courts Act 1980, s. 128 is subject to a statutory requirement to review that detention. This is to make sure that the detainee is taken back to court no later than the end of the period authorised by the court or when the need for his/her detention by police ceases, whichever is the sooner.

Answer 52

In cases where the person has been detained under the Terrorism Act 2000, the first review should be conducted as soon as reasonably practicable after his/her arrest and then at least every 12 hours; after 24 hours it must be conducted by an officer of the rank of superintendent or above. Once a warrant of further detention has been obtained there is no requirement to conduct further reviews. If an officer of higher rank than the review officer gives directions relating to the detained person, and those directions are at variance with the performance by the review officer of a duty imposed on him/her, then he/she must refer the matter at once to an officer of at least the rank of superintendent. Section 14 of Code H provides guidance on terrorism reviews and extensions of detention. In all cases the review officer must be satisfied that the matter is being dealt with diligently and expeditiously. Where the detained person’s rights to a solicitor have been withheld or he/she is being held incommunicado at the time of the review, the review officer must consider whether the reason or reasons for which the delay was authorised continue to exist. If in his/her opinion the reason or reasons no longer exist, he/she must inform the officer who authorised the delay of his/her opinion. When recording the grounds for the review the officer must also include his/her conclusion on whether there is a continuing need to withhold the detained person’s rights. In cases where the person is detained under the Terrorism Act 2000 and the review officer does not authorise continued detention, the person does not have to be released if an application for a warrant for further detention is going to be applied for or if an application has been made and the result is pending (s. 41 and sch. 8).

Answer 53

(a) to obtain relevant evidence whether by questioning the person or otherwise; (b) to preserve relevant evidence; © while awaiting the result of an examination or analysis of relevant evidence; (d) for the examination or analysis of anything with a view to obtaining relevant evidence; € pending a decision to apply to the Secretary of State for a deportation notice to be served on the detainee, the making of any such application, or the consideration of any such application by the Secretary of State; (f) pending a decision to charge the detainee with an offence.

Answer 54

There is no power under PACE to detain a person and delay action under paras 16.2 to 16.5 solely to await the arrival of the appropriate adult. Reasonable efforts should therefore be made to give the appropriate adult sufficient notice of the time the decision (charge etc.) is to be implemented so that he/she can be present. If the appropriate adult is not, or cannot be, present at that time, the detainee should be released on bail to return for the decision to be implemented when the adult is present, unless the custody officer determines that the absence of the appropriate adult makes the detainee unsuitable for bail for this purpose. After charge, bail cannot be refused, or release on bail delayed, simply because an appropriate adult is not available, unless the absence of that adult provides the custody officer with the necessary grounds to authorise detention after charge under s. 38 of the 1984 Act. Except as in para. 16.7, neither a juvenile’s behaviour nor the nature of the offence provides grounds for the custody officer to decide it is impracticable to arrange the juvenile’s transfer to local authority care. Impracticability concerns the transport and travel requirements and the lack of secure accommodation which is provided for the purposes of restricting liberty does not make it impracticable to transfer the juvenile. Rather, ‘impracticable’ should be taken to mean that exceptional circumstances render movement of the child impossible or that the juvenile is due at court in such a short space of time that transfer would deprive them of rest or cause them to miss a court appearance. When the reason for not transferring the juvenile is an imminent court appearance, details of the travelling and court appearance times which justify the decision should be included in the certificate. The availability of secure accommodation is only a factor in relation to a juvenile aged 12 or over when other local authority accommodation would not be adequate to protect the public from serious harm from them. The obligation to transfer a juvenile to local authority accommodation applies as much to a juvenile charged during the daytime as to a juvenile to be held overnight, subject to a requirement to bring the juvenile before a court under PACE, s. 46. The Concordat on Children in Custody published by the Home Office in 2017 provides detailed guidance with the aim of preventing the detention of children in police stations following charge.

Answer 55

Section 37 of the Police and Criminal Evidence Act 1984 states: (7) Subject to section 41(7) below [expiry of 24 hours after the relevant time], if the custody officer determines that he has before him sufficient evidence to charge the person arrested with the offence for which he was arrested, the person arrested— (a) shall be— (i) released without charge and on bail, or (ii) kept in police detention, for the purpose of enabling the Director of Public Prosecutions to make a decision under section 37B below, (b) shall be released without charge and without bail unless the pre-conditions for bail are satisfied, © shall be released without charge and on bail if those pre-conditions are satisfied but not for the purpose mentioned in paragraph (a), or (d) shall be charged. (7A) The decision as to how a person is to be dealt with under subsection (7) above shall be that of the custody officer. (7B) Where a person is released under subsection (7)(a) above, it shall be the duty of the custody officer to inform him that he is being released or (as the case may be) detained, to enable the Director of Public Prosecutions to make a decision under section 37B below. (8) Where— (a) a person is released under subsection (7)(b) or (c) above; and (b) at the time of his release a decision whether he should be prosecuted for the offence for which he was arrested has not been taken, it shall be the duty of the custody officer so to inform him/her. Section 37A of the Police and Criminal Evidence Act 1984 states: (1) The Director of Public Prosecutions may issue guidance— (a) for the purpose of enabling custody officers to decide how persons should be dealt with under section 37(7) above or 37(C) or 37CA(2) below, and (b) as to the information to be sent to the Director of Public Prosecutions under section 37B(1) below. … (3) Custody officers are to have regard to guidance under this section in deciding how persons should be dealt with under section 37(7) above or 37C(2) or 37CA(2) below. Unless officers are still investigating other offences for which the person has been arrested and is in police detention, s. 37(7) requires the custody officer to review the evidence in order to determine whether there is sufficient evidence to charge the detained person. If the custody officer decides that there is sufficient evidence to charge the detained person that person must be charged or, if not charged, released in relation to that matter, as set out in s. 37(7) above. Under s. 37A(1) guidance has been issued to enable custody officers to decide whether there is sufficient evidence to charge and for which offences the police may charge without reference to the CPS. Where in accordance with the guidance the case is referred to the CPS for decision, the custody officer should ensure that an officer involved in the investigation sends to the CPS such information as is specified in the guidance. A detained person should not be kept in custody just for the sole purpose of seeking advice from the CPS as to what offences the offender should be charged with (R (On the Application of G) v Chief Constable of West Yorkshire Police and DPP [2008] EWCA Civ 28). Charging decisions in cases will be made following a review of evidence and in accordance with the Code for Crown Prosecutors. This requires that the custody officer or Crown Prosecutor making the decision is satisfied that there is enough evidence for there to be a realistic prospect of conviction and that it is in the public interest to prosecute (Full Code Test). In order to allow the matter to have full consideration, often the time needed to consider the matter will require the detained person to be bailed. However, there will clearly be occasions when it will not be desirable to bail the detained person but the evidence required to permit the Full Code Test to be applied is not available. In such a case, the Threshold Test should be applied; this requires there to be reasonable suspicion that the suspect has committed an offence and it is in the public interest to charge that suspect.

Answer 56

50A Interpretation of references to pre-conditions for bail For the purposes of this Part the following are the pre-conditions for bail in relation to the release of a person by a custody officer— (a) that the custody officer is satisfied that releasing the person on bail is necessary and proportionate in all the circumstances (having regard, in particular, to any conditions of bail which would be imposed), and (b) that an officer of the rank of inspector or above authorises the release on bail (having considered any representations made by the person or the person’s legal representative).

Answer 57

* there is insufficient evidence currently available to apply the evidential stage of the Full Code Test; and * there are reasonable grounds for believing that further evidence will become available within a reasonable period; and * the seriousness or the circumstances of the case justifies the making of an immediate charging decision; and * there are continuing substantial grounds to object to bail in accordance with the Bail Act 1976 and in all the circumstances of the case it is proper to do so. The Code for Crown Prosecutors advises that a prosecution will automatically take place once the evidential stage is met. A prosecution will usually take place unless the prosecutor is satisfied that there are public interest factors tending against prosecution which outweigh those tending in favour. The public interest factors to be considered are: * How serious is the offence committed? * What is the level of culpability of the suspect? * What are the circumstances of and the harm caused to the victim? * Was the suspect under the age of 18 at the time of the offence? * What is the impact on the community? * Is prosecution a proportionate response? * Do sources of information require protecting? It is quite possible that one public interest factor alone may outweigh a number of other factors. When a person is arrested under the provisions of the Criminal Justice Act 2003 which allow a person to be retried after being acquitted of a serious offence, provided a further prosecution has not been precluded by the Court of Appeal, an officer of the rank of superintendent or above who has not been directly involved in the investigation is responsible for determining whether the evidence is sufficient to charge.

Answer 58

Here the custody officer is looking at the evidence in order to satisfy him/herself that no further investigation is needed before the person can be charged. If this is the case, detention may be authorised for the purpose of charging the detained person. Where the custody officer is considering bail as in para. 16.1B, see para. 1.7.17.5. Where Guidance issued by the DPP under s. 37A is in force, a custody officer who determines in accordance with that Guidance that there is sufficient evidence to charge the detainee may detain that person for no longer than is reasonably necessary to decide how that person is to be dealt with under PACE, s. 37(7)(a)–(d), including, where appropriate, consultation with the Duty Prosecutor. The period is subject to the maximum period of detention before charge determined by PACE, ss. 41 to 44. Where in accordance with the Guidance the case is referred to the CPS for decision, the custody officer should ensure that an officer involved in the investigation sends to the CPS such information as is specified in the Guidance. The DPP has published the sixth edition of Charging (The Director’s Guidance), which is effective from 31 December 2020. Where there is sufficient evidence to charge, a delay in bringing charges may be seen to be unreasonable under Article 6 of the European Convention on Human Rights (D v HM Advocate [2000] HRLR 389). In deciding whether there is sufficient evidence to charge for the purposes of authorising detention or when a person’s detention is reviewed, where there is a conflict between the detained person’s account and victims’ or witnesses’ accounts it is reasonable to be in possession of at least one witness statement in the English language before preferring charges (R (On the Application of Wiles) v Chief Constable of Hertfordshire [2002] EWHC 387 (Admin)). There is no breach of PACE in keeping the detained person in police detention while a statement is translated. It is suggested that the translation needs to be completed expeditiously. Under s. 37(9) of the 1984 Act release can be delayed if the person is not in a fit state to be released (e.g. he/she is drunk) until he/she is fit.

Answer 59

* secure and preserve evidence relating to an offence for which the person is arrested; or * obtain such evidence by questioning the detained person.

Answer 60

If the custody officer has determined that there is not sufficient evidence to charge the person, the person must be released unless the custody officer has reasonable grounds for believing that the person’s detention is necessary to preserve or obtain such evidence by questioning the person and the custody officer must be able to justify any decision not to release a person from detention. When deciding if detention should be authorised in order to obtain evidence by questioning, the case of R v McGuinness [1999] Crim LR 318 should be considered. There the court held that the words ‘sufficient evidence to prosecute’ and ‘sufficient evidence for a prosecution to succeed’, in Code C, para. 16.1 (this was the wording under the previous PACE Code of Practice), had to involve some consideration of any explanation, or lack of one, from the suspect. While an interview may not be needed in all cases, questioning of detained people before they are charged may be necessary, particularly where intention or dishonesty is involved or where there may be a defence. It may also be important to put questions to the person about the offence or his/her explanation, as this may be important to negate any defence the person raises at court (see s. 34 of the Criminal Justice and Public Order Act 1994) (see para. 1.9.2.3). Where initial suspicion rests on several people, it may be appropriate to hold all suspects until they all are interviewed before deciding whether there is enough evidence to warrant a charge against any of them. Detention for questioning where there are reasonable grounds for suspecting that an offence has been committed is lawful so long as the suspicion has not been dispelled in the interim and the questioning is not unnecessarily delayed (Clarke v Chief Constable of North Wales [2000] All ER (D) 477). The mere fact that a person needs to be interviewed about the offence is not of itself justification for authorising detention. The question that has to be asked is whether the person can be bailed prior to the interview or even bailed before being taken to the police station (s. 30A of the 1984 Act). Factors which might be relevant in making this decision include: * whether the person may interfere with witnesses; * whether he/she is likely to return if bailed; * where there is more than one suspect, that they would have an opportunity to confer before their interviews; * whether there is outstanding property; * whether the person’s name and address are verified. The fact that the officers and any legal representative will be ready to start the interview shortly may also be relevant when making this decision.

Answer 61

Where a person has been bailed under s. 37(7)(a) with or without bail conditions, the CPS must be consulted in order to determine what case disposal decision will be made (this may itself require further inquiries to gather further evidence). This referral should be made using forms MG3 (Report to Crown Prosecutor for a Charging Decision), and MG3A (Further Report to Crown Prosecutor for a Charging Decision). The prosecutor will decide whether there is sufficient evidence to charge or caution the person and shall give written notice of the decision to an officer involved in the investigation of the details of the offence. This decision must be followed (s. 37B(6)) if the decision was for the person to be cautioned (this includes conditional cautions), and if the person refuses, or for some other reason a caution cannot be given, he/she must be charged with the offence (s. 37B(7)). In cases where the prosecutor decides that there is not sufficient evidence to charge the person with an offence, or that there is sufficient evidence to charge the person with an offence but that the person should not be charged with an offence or given a caution in respect of an offence, the custody officer must inform the person in writing of the decision. Similarly the person must be informed of those cases where there is insufficient evidence to charge him/her, but if further evidence or information comes to light in the future the case may be reconsidered under the Code for Crown Prosecutors. In cases where further time is needed to obtain evidence or for the prosecutor to make a case disposal decision, the person can be further bailed. In these cases the custody officer must give the person notice in writing. This does not affect any bail conditions that were included when the detained person was bailed (s. 37D(1)–(3)).

Answer 62

Pre-charge Expedited Report * MG3; * MG11(s)—Witness statement or Index notes (if offence is witnessed by more than one officer and up to four, use the statement of one officer and summarise the others); * MG15—Record of interview; * Phoenix print of suspect(s)’ previous convictions/cautions/reprimands/final warnings. If there is any other information that may be relevant, include it on form MG6—Case File Information. Pre-charge Evidential Report * MG3; * MG5—Case summary (unless the statements cover all elements of the case); * MG6—Case file information; * MG11—Key witness statement(s), or Index notes (if offence is witnessed by police use the statement of one officer and summarise the others); * MG12—Exhibit list; * MG15—Interview record; * Crime report and incident log; * Unused material likely to undermine the case; * Copies of key documentary exhibits; * Phoenix print of suspect(s)’ pre-cons/cautions/reprimands/final warnings.

Answer 63

Section 47 of the Police and Criminal Evidence Act 1984 states: (1A) The normal powers to impose conditions of bail shall be available to him where a custody officer releases a person on bail under this Part [sections 34–52] (except sections 37C(2)(b) and 37CA(2)(b)). In this subsection, ‘the normal powers to impose conditions of bail’ has the meaning given in s. 3(6) of the Bail Act 1976. Where the person is bailed after charge or bailed without charge and on bail for the purpose of enabling the CPS to make a decision regarding case disposal, the custody officer may impose conditions on that bail (see para. 1.10.7). In cases where a person is released without being charged under s. 37(7)(b) or (c), that is to say bail is not given for the purposes of a CPS referral, the custody officer cannot impose new conditions on that bail (s. 47(1A)).

Answer 64

The custody officer must take into account alternatives to prosecution under the Crime and Disorder Act 1998 applicable to persons under 18, and in national guidance on the cautioning of offenders applicable to persons aged 18 and over.

Answer 65

There are occasions where a person for whom there is sufficient evidence to charge may be cautioned as an alternative method of disposing with the case. A simple caution (once known as a formal or police caution) is a formal warning that may be given by the police to persons aged 18 or over who admit to committing an offence (‘offenders’). The simple caution scheme is designed to provide a means of dealing with low-level, mainly first-time, offending without a prosecution. A simple caution may only be given where specified criteria are met. Guidance as to the use of cautioning is provided by the Ministry of Justice’s Simple cautions: guidance for police and prosecutors (MoJ Guidance): see < https://www.gov.uk/government/publications/simple-cautions-guidance-for-police-and-prosecutors>. The MoJ Guidance applies to all decisions relating to simple cautions from the commencement date, regardless of when the offence was committed. Section 17(3) of the Criminal Justice and Courts Act 2015 prohibits a constable from giving a simple caution if the offence is an either-way offence specified by order made by the Secretary of State, except in exceptional circumstances relating to the person or the offence. An either-way offence is an offence which, if committed by an adult, is triable either on indictment or summarily. The offences specified by the Secretary of State are set out in Annex B of the MoJ guidance; it should be noted that some of these offences have been repealed but they may still be cautionable where the offence was committed before the date of repeal. The MoJ Guidance states that ‘simple cautions are generally intended for low level, mainly first time offending. An assessment of the seriousness of the offence is the starting point for considering whether a simple caution may be appropriate.’ Officers are referred to the National Decision Model and the Association of Chief Police Officers (ACPO) Gravity Factors Matrix to assist them in reaching this decision. The guidelines should be considered carefully in all cases as any decision can be challenged by judicial review. It is important that the full implications of accepting a caution are made clear to suspects so that they are able to give informed consent or there is a risk that the courts may overturn the caution (R (On the Application of Stratton) v Chief Constable of Thames Valley [2013] EWHC 1561 (Admin)). While there is no general obligation on the police to disclose material prior to charge, there may be a need to make some disclosure to a suspect’s legal representative in order that he/she can advise on whether a caution should be accepted (DPP v Ara [2001] EWHC Admin 493). In Ara, the suspect had been interviewed without a legal representative being present but the officers refused to disclose the terms of the interview. In cases where the case has been referred to the CPS under s. 37B of the 1984 Act and a decision has been made that the suspect should receive a caution, an officer involved in the investigation of the offence will be informed in writing. The notification will include the offence in respect of which a caution should be administered. If it is not possible to give the suspect such a caution then he/she must be charged with the offence (s. 37B(7)).

Answer 66

A case which considered the level of evidence required before a caution can be considered. There the court said that, provided it was clear that there had been an admission of guilt, it was not necessary, for the purposes of administering a caution, to show that the admission had been obtained in circumstances which satisfied the Codes of Practice. However, police officers would be well advised to take precautions that would satisfy Code C. It would be both fairer and more reliable for a formal interview to take place.

Answer 67

Before making a case disposal decision it is essential that the matter has been fully investigated in order to reach an informed decision. the Divisional Court quashed a caution that had been administered in order to allow a prosecution to be pursued. The court held that a number of reasonable lines of inquiry had not been made; for instance, the police had failed to take a statement from the victim’s friend or obtain CCTV footage that was available or fully investigate the victim’s injuries. Further, the length of time in custody (17 hours) should not have been a relevant consideration and also the suspect’s admission was ambiguous. Therefore, it was in the public interest that a decision to caution rather than to charge should not prevent the subsequent pursuit of the prosecution of the offender.

Answer 68

Sections 66A to 66G, 66ZA and 66ZB of the Crime and Disorder Act 1998 make provisions for youth cautions and youth conditional cautions, which replace reprimands and warnings for children and young persons (see chapter 2.4). A reprimand or warning of a person under s. 65 of the Crime and Disorder Act 1998 is to be treated as a youth caution given to that person under s. 66ZA(1) of the 1998 Act.

Answer 69

Sections 22 to 27 of the Criminal Justice Act 2003 introduced conditional cautioning, the aim being to deal with offenders without the involvement of the usual court processes. A conditional caution allows an authorised person (usually a police officer) or a relevant prosecutor (usually the CPS) to decide to give a caution to an offender aged 18 or over with one or more conditions attached. When an offender is given a conditional caution for an offence, criminal proceedings for that offence are halted while the offender is given an opportunity to comply with the conditions. Where the conditions are complied with, the prosecution is not normally commenced. However, where there is no reasonable excuse for non-compliance, criminal proceedings may be commenced for the original offence and the conditional caution will cease to have effect. A conditional caution can be given for one or more offences. Section 24A of the Criminal Justice Act 2003 allows a constable to arrest without warrant any person whom the officer has reasonable grounds for believing has failed, without reasonable excuse, to comply with any of the conditions attached to the conditional caution. Certain provisions of the Police and Criminal Evidence Act 1984 relating to detention, reviews, searches, and searches and examinations to ascertain identity apply, with modifications, to a person arrested under s. 24A of the Criminal Justice Act 2003.

Answer 70

The power to take samples is subject to notification by the Secretary of State that appropriate arrangements for the taking of samples have been made for the police area as a whole or for the particular police station concerned for whichever of the following is specified in the notification: persons in respect of whom the arrest condition is met; persons in respect of whom the charge condition is met; and/or persons who have not attained the age of 18. A sample has to be sufficient and suitable. A sufficient sample is sufficient in quantity and quality to enable drug-testing analysis to take place. A suitable sample is one which by its nature is suitable for a particular form of drug analysis. It can only be taken by a prescribed person as defined in regulations made by the Secretary of State under s. 63B(6) of the Police and Criminal Evidence Act 1984. The regulations are currently contained in the Police and Criminal Evidence Act 1984 (Drug Testing Persons in Police Detention) (Prescribed Persons) Regulations 2001 (SI 2001/2645). Samples, and the information derived from them, may not subsequently be used in the investigation of any offence or in evidence against the persons from whom they were taken.

Answer 71

An intimate search can only be authorised in relation to a person who has been arrested and is in police detention (s. 55(1)) (see para.1.7.5.2). An officer may give an authorisation under subsection (1) orally or in writing but, if he/she gives it orally, he/she shall confirm it in writing as soon as practicable (s. 55(3)). Before authorising any intimate search, the authorising officer must make every reasonable effort to persuade the detainee to hand the article over without a search. If the detainee agrees, a registered medical practitioner or registered nurse should whenever possible be asked to assess the risks involved and, if necessary, attend to assist the detainee. If the detainee does not agree to hand the article over without a search, the authorising officer must carefully review all the relevant factors before authorising an intimate search. In particular, the officer must consider whether the grounds for believing that an article may be concealed are reasonable. If authority is given for a search for anything which the detained person could and might use to cause physical injury to him/herself or others at the station, a registered medical practitioner or registered nurse shall be consulted whenever possible. The presumption should be that the search will be conducted by the registered medical practitioner or registered nurse and the authorising officer must make every reasonable effort to persuade the detainee to allow the medical practitioner or nurse to conduct the search. A constable should only be authorised to carry out a search as a last resort and when all other approaches have failed. In these circumstances, the authorising officer must be satisfied that the detainee might use the article to cause physical injury to him/herself and/or others at the station and the physical injury likely to be caused is sufficiently severe to justify authorising a constable to carry out the search. If an officer has any doubts whether to authorise an intimate search by a constable, the officer should seek advice from an officer of superintendent rank or above. Annex L should be referred to for guidance when establishing the gender of persons for the purpose of searching.

Answer 72

Annex A, para. 11 applies to all the powers given to custody officers under s. 54 of the 1984 Act, including the power to remove and seize clothing under s. 54(4). In Davies v Chief Constable of Merseyside [2015] EWCA Civ 114 the court held that Annex A, para. 11 applied to any strip search, not just those strip searches carried out in compliance with para. 10. For example it would apply where the custody officer determines that a detained person is a suicide risk and orders the removal of their clothing under s. 54 so they can be dressed in a safety gown. The Codes do not preclude officers of the opposite sex being indirectly involved in the strip search process. In the case of PD (by her mother and litigation friend ZD) v Chief Constable of Merseyside Police [2015] EWCA Civ 114 a 14-year-old, female detainee was flagged as a suicide risk by the custody officer; as a result of this she was ordered to have her clothing removed, as part of a safety procedure to reduce risk factors. Two female officers, and two male officers, took the claimant into a private room. The court found that para 11(b) of Annex A allows a male officer to be involved in the management of the detained person. The essential requirement was that the removal should take place in an area where no one who was not immediately involved, and no male officer, could observe the detainee. In this case the two male officers left the cell and stayed in the corridor outside while the 14-year-old was undressed. The cell door was left ajar for security reasons but a safety blanket was used to protect the detainee’s dignity.

Answer 73

Even if Annex B applies in the case of a juvenile, or a vulnerable person, action to inform the appropriate adult and the person responsible for a juvenile’s welfare, if that is a different person, must nevertheless be taken as in paras 3.13 and 3.15. Similarly, for detained persons who are citizens of independent Commonwealth countries or foreign nationals the exercise of the rights in Code C, s. 7 may not be interfered with. When considering the delay of access to a solicitor the authorising officer must bear in mind that access to a solicitor is ‘a fundamental right of a citizen’ (R v Samuel [1988] QB 615). The authorising officer must actually believe that by allowing access to the solicitor he/she will intentionally or inadvertently alert other suspects. Occasions where delay will be authorised in such circumstances will be rare and only when it can be shown that the suspect is capable of misleading that particular solicitor and there is more than a substantial risk that the suspect will succeed in causing information to be conveyed which will lead to one or more of the specified consequences. In deciding whether such an interview will be admissible the court will consider how reliable it is and will consider how the refusal to allow that particular detained person access to a solicitor affected his/her decision to make a confession. One such case where the confession was excluded is R v Sanusi [1992] Crim LR 43, where a person from another country was denied access to a solicitor and the court held that his right to advice was particularly significant due to his lack of familiarity with police procedures.

Answer 74

* interference with or harm to evidence of a serious offence; * interference with or physical injury to any person; * the alerting of persons who are suspected of having committed a serious offence but who have not been arrested for it; * the hindering of the recovery of property obtained as a result of a serious offence or in respect of which a forfeiture order could be made under s. 23; * interference with the gathering of information about the commission, preparation or instigation of acts of terrorism; * the alerting of a person and thereby making it more difficult to prevent an act of terrorism; * the alerting of a person and thereby making it more difficult to secure a person’s apprehension, prosecution or conviction in connection with the commission, preparation or instigation of an act of terrorism; * the detained person having benefited from his/her criminal conduct, and the recovery of the value of the property constituting the benefit will be hindered by informing the named person of the detained person’s detention or access to legal advice. For these purposes whether a person has benefited from his/her criminal conduct is to be decided in accordance with part 2 of the Proceeds of Crime Act 2002. Briefly, criminal conduct is conduct which constitutes an offence in England and Wales, or would constitute such an offence if it occurred in England and Wales. A person benefits from conduct if he/she obtains property as a result of or in connection with the conduct (Code H, Annex B, paras 1 and 2).

Answer 75

The purpose of the provisions at paras 3.19 and 6.5A (access to legal advice) is to protect the rights of a vulnerable person who does not understand the significance of what is said to them. A vulnerable person should always be given an opportunity, when an appropriate adult is called to the police station, to consult privately with a solicitor in the absence of the appropriate adult if they want. Although vulnerable persons are often capable of providing reliable evidence, they may, without knowing or wanting to do so, be particularly prone in certain circumstances to provide information that may be unreliable, misleading or self-incriminating. Special care should always be taken when questioning such a person, and the appropriate adult should be involved if there is any doubt about a person’s mental state or capacity. Because of the risk of unreliable evidence, it is important to obtain corroboration of any facts admitted whenever possible. Because of the risks referred to above, which the presence of the appropriate adult is intended to minimise, officers of superintendent rank or above should exercise their discretion to authorise the commencement of an interview in the appropriate adult’s absence only in exceptional cases, if it is necessary to avert one or more of the specified risks in para. 11.1. See paras 11.1 and 11.18 to 11.20. There is no requirement for an appropriate adult to be present if a person is detained under s. 136 of the Mental Health Act 1983 for assessment. The Mental Health Act 1983 Code of Practice at page 26 describes the range of clinically recognised conditions which can fall with the meaning of mental disorder for the purpose of para. 1.13(d). The Code is published at: < https://www.gov.uk/government/publications/code-of-practice-mental-health-act-1983>. When a person is under the influence of drink and/or drugs, it is not intended that they are to be treated as vulnerable and requiring an appropriate adult for the purpose of Annex E, para. 1 unless other information indicates that any of the factors described in para. 1.13(d) may apply to that person. When the person has recovered from the effects of drink and/or drugs, they should be reassessed in accordance with Annex E, para. 1. See para. 15.4A for application to live link.

Answer 76

* the behaviour of the adult or juvenile; * the mental health and capacity of the adult or juvenile; * what the adult or juvenile says about themselves; * information from relatives and friends of the adult or juvenile; * information from police officers and staff and from police records; information from health and social care (including liaison and diversion services) and other professionals who know, or have had previous contact with, the individual and may be able to contribute to assessing their need for help and support from an appropriate adult. This includes contacts and assessments arranged by the police or at the request of the individual or (as applicable) their appropriate adult or solicitor.

Answer 77

If authority is given for an x-ray to be taken or an ultrasound scan to be carried out (or both), consideration should be given to asking a registered medical practitioner or registered nurse to explain to the detainee what is involved and to allay any concerns that the detainee might have about the effect on him/her of taking an x-ray or carrying out an ultrasound scan. If appropriate consent is not given, evidence of the explanation may, if the case comes to trial, be relevant to determining whether the detainee had a good cause for refusing.

Answer 78

While there is no agreed definition of transgender (or trans), it is generally used as an umbrella term to describe people whose gender identity (self-identification as being a woman, man, neither or both) differs from the sex they were registered as at birth. The term includes, but is not limited to, transsexual people. Transsexual means a person who is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of gender reassignment which is a protected characteristic under the Equality Act 2010 by changing physiological or other attributes of their sex. This includes aspects of gender such as dress and title. It would apply to a woman making the transition to being a man and a man making the transition to being a woman, as well as to a person who has only just started out on the process of gender reassignment and to a person who has completed the process. Both would share the characteristic of gender reassignment with each having the characteristics of one sex, but with certain characteristics of the other sex. Transvestite means a person of one gender who dresses in the clothes of a person of the opposite gender. However, transvestites do not live permanently in the gender opposite to their birth sex. It is important to check the force guidance and instructions for the deployment of transgender officers and staff under their direction and control to duties which involve carrying out, or being present at, any of the searches and procedures described in para. 1. Force guidance which must be provided by each force’s chief officer must comply with the Equality Act 2010. The reason for the exception in relation to paras 3.21A, 9.4A and 9.4B is to modify the same sex/gender approach for searching, procedures or requirements to acknowledge the possible needs of transgender individuals in respect of menstrual products and other personal needs relating to health, hygiene and welfare and ensure that these are not overlooked as a result of their expressed preference or predominant lifestyle.

Answer 79

This Annex lists the essential documents and the requirements to provide translations to reflect the terms of EU Directive 2010/64. It is not necessary to disclose information in any translation which is capable of undermining or otherwise adversely affecting any investigative processes, for example, by enabling the suspect to fabricate an innocent explanation or to conceal lies from the interviewer. No police officer or police staff shall indicate to any suspect, except to answer a direct question, whether the period for which they are liable to be detained or if not detained, the time taken to complete the interview, might be reduced: * if they do not ask for legal advice before deciding whether they wish to waive their right to a written translation of an essential document; or * if they decide to waive their right to a written translation of an essential document. There is no power under PACE to detain a person or to delay their release solely to create and provide a written translation of any essential document.

Answer 80

For purposes other than an interview, audio-only live-link interpretation, for example by telephone (see Code C, para. 13.12(b)) may provide an appropriate option until an interpreter is physically present or audio-visual live-link interpretation becomes available. A particular example would be the initial action required when a detained suspect arrives at a police station to inform them of, and to explain, the reasons for their arrest and detention and their various rights and entitlements. Another example would be to inform the suspect by telephone, that an interpreter they will be able to see and hear is being arranged. In these circumstances, telephone live-link interpretation may help to allay the suspect’s concerns and contribute to the completion of the risk assessment (see Code C, para. 3.6). In deciding whether to give authority for the use of live link the authorising officer may take account of the availability of a suitable interpreter in relation to the location of the police station and the language and type of interpretation (oral or sign language) required. The explanation and demonstration of live-link interpretation to the suspect prior to its use is intended to help the suspect, solicitor and appropriate adult make an informed decision and to allay any concerns they may have.

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Detention and Treatment of Persons by Police Officers Flashcards

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