Detention and Treatment of Persons by Police Officers Flashcards
Custody Officers
Custody officers are responsible for the reception and treatment of prisoners detained at the police station.
The role of the custody officer is to act independently of those conducting the investigation, thereby ensuring the welfare and rights of the detained person (this requirement is contained in s. 36(5) of the 1984 Act). Section 36 requires that one or more custody officers must be appointed for each designated police station. However, in Vince v Chief Constable of Dorset [1993] 1 WLR 415, it was held that a chief constable was under a duty to appoint one custody officer for each designated police station and had a discretionary power to appoint more than one, but this duty did not go so far as to require a sufficient number to ensure that the functions of custody officer were always performed by them. The provision of the facility of a custody officer must be reasonable. Section 36(3) states that a custody officer must be an officer of at least the rank of sergeant. However, s. 36(4) allows officers of any rank to perform the functions of custody officer at a designated police station if a custody officer is not readily available to perform them. The effect of s. 36(3) and (4) is that the practice of allowing officers of any other rank to perform the role of custody officer where a sergeant (who has no other role to perform) is in the police station must therefore be unlawful. Should a decision be made to use acting sergeants or untrained custody officers, this may lead to a claim in negligence by the officer or the detained person where there is a breach of the Codes or someone is injured as a result of the failure to manage the custody suite effectively. It could also lead to a prosecution under health and safety legislation.
For cases where arrested people are taken to a non-designated police station, s. 36(7) states that an officer of any rank not involved in the investigation should perform the role of custody officer. If no such person is at the station, the arresting officer (or any other officer involved in the investigation) or the officer that released him/her under s. 30A of the 1984 Act (bail prior to being taken to a police station) should perform the role. In these cases, an officer of at least the rank of inspector at a designated police station must be informed. It is suggested that once informed, that officer should consider the circumstances of the detained person.
Where a custody officer feels that he/she is unable to comply with the minimum standards of detention as required by the 1984 Act, it is suggested that he/she should draw this to the attention of the line manager and/or the superintendent responsible for the custody suite. Custody officers should be mindful of Article 5 of the European Convention on Human Rights in considering whether they are able to manage the number of detained persons in their custody to ensure that their detention is not longer than needed.
Designated Support Staff
Sections 38 and 39 of the Police Reform Act 2002, as amended by the Policing and Crime Act 2017, allow the chief officer of police of any police force to designate a relevant employee as either or both of the following:
- a community support officer;
- a policing support officer.
Previously designated officers fell under four headings, these being community support officer, investigating officer, detention officer and escort officer. It is suggested that policing support officers will still perform these roles.
Designated officers are given powers to carry out certain functions that would up to this time have been carried out by police officers only. Before a person can be given the powers of a designated officer, the chief officer of police must be satisfied that the person is a suitable person to carry out the functions for which he/she is designated, is capable of effectively carrying out those functions, and has received adequate training in the carrying out of those functions and in the exercise and performance of the powers and duties of a designated officer.
The powers and duties that may be conferred or imposed on a community support officer or a policing support officer include any power or duty of a constable, except the following powers and functions:
- any power or duty of a constable to make an arrest;
- any power or duty of a constable to stop and search an individual or a vehicle or other thing;
- the power of a constable, under s. 36(4) of PACE, to perform the functions of a custody officer at a designated police station if a custody officer is not readily available to perform them;
- any power that is exercisable only by a constable of a particular rank.
Where these powers have been given to a community support officer or police support officer they can be used within their police force area or in such areas outside their police area as set out by the chief officer of the force. It should be noted that not all designated officers will be designated with the same range of powers and it will be important to know what powers a particular designated officer has been given and therefore what his/her role will be. Although the titles of investigating officer, detention officer and escort officer no longer exist, it is suggested that the functions will still be performed by policing support officers and therefore the roles are set out below.
Investigating Officers
- To act as the supervisor of any access to seized material to which a person is entitled, to supervise the taking of a photograph of seized material or to photograph it him/herself.
- There is no power for a community support officer or policing support officer to arrest a detainee for further offences.
- Power for the custody officer to transfer to a designated officer responsibility for a detainee. This power includes a duty for the person investigating the offence, once the detainee is returned to the custody of the custody officer, to report back to the custody officer on how the Codes were complied with.
- To question an arrested person under ss. 36 and 37 of the Criminal Justice and Public Order Act 1994 about facts which may be attributable to the person’s participation in an offence. The designated person may also give the suspect the necessary warning about the capacity of a court to draw inferences from a failure to give a satisfactory account in response to questioning.
Detention Officers
- Powers to search detained persons, to take fingerprints and certain samples without consent and to take photographs.
- To require certain defined categories of persons who have been convicted, cautioned, reprimanded or warned in relation to recordable offences to attend a police station to have their fingerprints taken.
- To carry out non-intimate searches of persons detained at police stations or elsewhere and to seize items found during such searches.
- To carry out searches and examinations in order to determine the identity of persons detained at police stations. Identifying marks found during such processes may be photographed.
- To carry out intimate searches in the same very limited circumstances that are applicable to constables.
- To take fingerprints without consent in the same circumstances that a constable can.
- To take non-intimate samples without consent and to inform the person from whom the sample is to be taken of any necessary authorisation by a senior officer and of the grounds for that authorisation.
- To require certain defined categories of persons who have been charged with or convicted of recordable offences to attend a police station to have a sample taken.
- To inform a person that intimate samples taken from him/her may be the subject of a speculative search (i.e. this will satisfy the requirement that the person must be informed that the sample will be the subject of a speculative search).
- To photograph detained persons in the same way that constables can.
Escort Officers
- To transport arrested persons to police stations and escort detained persons from one police station to another or between police stations and other locations specified by the custody officer.
- To carry out the duty of taking a person arrested by a constable to a police station as soon as practicable.
- With the authority of the custody officer, to escort detainees between police stations or between police stations and other specified locations.
- To conduct non-intimate searches of the detainee; and to seize or retain, or cause to be seized or retained, anything found on such a search (restrictions on power to seize personal effects are the same as for police officers, as is the requirement that the search be carried out by a member of the same sex).
Where any of the powers allow for the use of reasonable force when exercised by a police constable, a designated person has the same entitlement to use reasonable force as a constable.
It is important to note that not all support staff will be designated for the purposes of the Police Reform Act 2002 and non-designated staff will not have the additional powers as outlined above.
Designated Police Stations
Section 30 of the Police and Criminal Evidence Act 1984 requires that a person who has been arrested must be taken to a police station as soon as practicable after arrest, unless the arrested person has been released prior to arrival at the police station. Section 30A of the 1984 Act allows a constable to release a person who is under arrest. However, not all police stations have charge rooms or facilities for dealing with prisoners, so the 1984 Act requires that prisoners who will be detained (or who are likely to be detained) for more than six hours must go to a ‘designated’ police station. A designated police station is one that has enough facilities for the purpose of detaining arrested people. Section 35 requires the chief officer of police to designate sufficient police stations to deal with prisoners. It is for the chief officer to decide which stations are to be designated stations and these details are then published. Police stations can be designated permanently or for any specified periods provided that they are not designated for part of a day.
Meaning of Police Detention
Paragraph 22 of sch. 4 to the Police Reform Act 2002 refers to the power to transfer persons into the custody of investigating officers, para. 34(1) relates to designated escort officers taking an arrested person to a police station and para. 35(3) deals with a designated escort officer transferring a detainee from one police station to another. Code C, para. 2.1A states that a person is at a police station when they are in the boundary of any building or enclosed yard which forms part of that police station. Therefore they are in police detention when they are within that boundary/yard.
Vulnerable Person as a Result of Mental Health Condition or Mental Disorder
A person may be vulnerable as a result of having a mental health condition or mental disorder. Similarly, simply because an individual does not have, or is not known to have, any such condition or disorder, does not mean that they are not vulnerable for the purposes of this Code. It is therefore important that the custody officer in the case of a detained person or the officer investigating the offence in the case of a person who has not been arrested or detained, as appropriate, considers on a case-by-case basis, whether any of the factors described in para. 1.13(d) might apply to the person in question. In doing so, the officer must take into account the particular circumstances of the individual and how the nature of the investigation might affect them and bear in mind that juveniles, by virtue of their age, will always require an appropriate adult.
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).
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 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 para. 1.4. See para. 15.4A for application to live link.
In relation to the reasonable inquiries to ascertain what information is available that is relevant to any of the factors described in para. 1.13(d), indicating that the person may be vulnerable, examples of relevant information that may be available include:
- 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.
Appropriate Adults
In R v Aspinall [1999] 2 Cr App R 115, the Court of Appeal emphasised the importance of appropriate adults. There it was held that an appropriate adult played a significant role in respect of a vulnerable person whose condition rendered him/her liable to provide information which was unreliable, misleading or self-incriminating.
If a juvenile’s parent is estranged from the juvenile, he/she should not be asked to act as the appropriate adult if the juvenile expressly and specifically objects to his/her presence.
Paragraph 1.5 reflects the statutory definition of ‘arrested juvenile’ in s. 37(15) of PACE. This section was amended by s. 42 of the Criminal Justice and Courts Act 2015 with effect from 26 October 2015, and includes anyone who appears to be under the age of 18. This definition applies for the purposes of the detention and bail provisions in ss. 34 to 51 of PACE. With effect from 3 April 2017, amendments made by the Policing and Crime Act 2017 require persons under the age of 18 to be treated as juveniles for the purposes of all other provisions of PACE and the Codes.
If a juvenile (see Code C, para. 1.5) admits an offence to, or in the presence of, a social worker or member of a youth offending team other than during the time that person is acting as the juvenile’s appropriate adult, another appropriate adult should be appointed in the interest of fairness.
In the case of someone who is vulnerable, it may be more satisfactory if the appropriate adult is someone experienced or trained in their care rather than a relative lacking such qualifications. But if the person prefers a relative to a better qualified stranger or objects to a particular person their wishes should, if practicable, be respected.
A detainee should always be given an opportunity, when an appropriate adult is called to the police station, to consult privately with a solicitor in the appropriate adult’s absence if he/she wants. An appropriate adult is not subject to legal privilege.
An appropriate adult who is not a parent or guardian in the case of a juvenile, or a relative, guardian or carer in the case of a vulnerable person, must be independent of the police as their role is to safeguard the person’s rights and entitlements. Additionally, a solicitor or independent custody visitor who is present at the police station and acting in that capacity, may not be the appropriate adult. The custody officer must remind the appropriate adult and detainee about the right to legal advice and record any reasons for waiving it in accordance with s. 6.
A person, including a parent or guardian, should not be an appropriate adult if he/she is:
- suspected of involvement in the offence;
- the victim;
- a witness;
- involved in the investigation; or
has received admissions prior to attending to act as the appropriate adult.
Butcher v DPP [2003]
While an appropriate adult should be given access to a juvenile in police detention, this does not mean that he/she has free access to the custody area.
The custody officer physically escorted the detainee’s appropriate adult from the custody suite as she had entered it without being invited and had been verbally abusive and aggressive. The court held that the custody sergeant had not detained the appropriate adult, but had merely used reasonable force to remove her in order to maintain the operational effectiveness of the custody suite. The court held that the custody sergeant was entitled to ask her to leave and to use reasonable force when she failed to comply with that request.
Leach v Chief Constable of Gloucestershire Constabulary [1999]
The welfare of the appropriate adult.
Here L was asked by a police officer to attend police interviews of a murder suspect who was also thought to be mentally disordered, as an ‘appropriate adult’ per the requirement of the Codes. She was told only that the suspect was a 52-year-old male, and was not informed of the nature of the case. The suspect was in fact Frederick West, who was being questioned in connection with murders committed in particularly harrowing and traumatic circumstances. For many weeks L acted as an appropriate adult, accompanying the officer and suspect to murder scenes, and on many occasions being left alone in a locked cell with the suspect. She claimed to be suffering from post-traumatic stress and psychological injury as well as a stroke as a result of her experiences. The Court of Appeal said that the Fred West case was notorious among modern crimes and it was foreseeable that psychiatric harm might arise. While there was no requirement to, in such cases counselling or trained help should be offered.
Using Live Link for a Detained Person with Eyesight or Hearing Impairment
For the purpose of the provisions of PACE that allow a live link to be used, any impairment of the detainee’s eyesight or hearing is to be disregarded. This means that if a detainee’s eyesight or hearing is impaired, the arrangements which would be needed to ensure effective communication if all parties were physically present in the same location, for example using sign language, would apply to the live link arrangements.
Keynote - Custody Records
The purpose of using warrant or identification numbers instead of names referred to in Code C, para. 2.6A is to protect those involved in serious organised crime investigations or arrests of particularly violent suspects when there is reliable information that those arrested or their associates may threaten or cause harm to those involved. In cases of doubt, an officer of inspector rank or above should be consulted.
Detention of People under Arrest
It is suggested that the custody officer record all the reasons for authorising the person’s detention as it may be necessary in any criminal or civil proceedings. Indeed, it will be difficult for the custody officer to explain his/her decision without such information.
Section 37(6) states that subs. (5) above shall not apply where the person arrested is, at the time when the written record is made: incapable of understanding what is said to him; violent or likely to become violent; or in urgent need of medical attention.
Having heard the details of and grounds for the arrest, the custody officer must decide whether or not there are reasons which justify authorising that person’s detention (s. 37 of the 1984 Act deals with the procedures to be followed before a person is charged). Some commentators have suggested that it is also the role of the custody officer to establish that the arrest itself was lawful. While good practice, the custody officer’s duty is confined to acting in accordance with the requirements set out in s. 37 of the 1984 Act. These duties do not appear to include considering whether the arrest was lawful unless this is relevant to the main question of whether there is sufficient evidence to charge the suspect. The view is supported by the decision of the Divisional Court in DPP v L [1999] Crim LR 752, where the court held that there was no express or implied requirement imposing a duty on a custody officer to inquire into the legality of an arrest and in that case the custody officer was therefore entitled to assume that it was lawful. A subsequent finding that the arrest was unlawful did not invalidate the decision of the custody officer to hold the person in custody. However, where the custody officer is aware that the arrest is unlawful, he/she will need to consider whether continued detention is justifiable, particularly in light of the Human Rights Act 1998. The Codes allow for the custody officer to delegate actions to other members of staff; a custody officer or other officer who, in accordance with this Code, allows or directs the carrying out of any task or action relating to a detainee’s care, treatment, rights and entitlements to another officer or any police staff must be satisfied that the officer or police staff concerned is suitable, trained and competent to carry out the task or action in question.
Paragraphs 3.2, 3.4 and 3.12 set out the minimum of what should be included in the notice of entitlement, which should be available in Welsh, the main minority ethnic languages and the principal European languages, whenever they are likely to be helpful.
Access to ‘easy read’ illustrated versions should also be provided if they are available. For access to currently available notices see < https://www.gov.uk/notice-of-rights-and-entitlements-a-persons-rights-in-police-detention>.
The need for detained persons to understand their rights is fundamental to their fair treatment. 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.
Paragraph 3.21 sets out what information should be given to a person voluntarily attending a police station or other location; it should be noted that it does not include any requirement to provide a written notice other than the detail concerning the arrangements for obtaining legal advice.
If the person is arrested on a warrant, any directions given by the court in the warrant must be followed. Consideration can always be given to contacting the court to get a variation on the conditions of the warrant. (If the warrant was issued for the arrest of a person who has not yet been charged or summonsed for an offence, he/she should be dealt with as any other person arrested for an offence without warrant unless there are any additional directions on the warrant that must be followed.)
Where a person who has been bailed under s. 37(7)(a) in order that the DPP can make a case disposal decision answers his/her bail or is arrested for failing to return on bail, detention can only be authorised to allow him/her to be further bailed under s. 37D of the 1984 Act or in order that he/she can be charged or cautioned for offences connected with the original bail. If the person is not in a fit state to be dealt with he/she may be kept in police detention until he/she is (s. 37D of the 1984 Act).
Al-Fayed v Metropolitan Police Commissioner [2004]
People who have been arrested, returned on bail or have voluntarily given themselves up at a police station, which includes a person who has attended the police station after having been given street bail, will be brought before a custody officer who must decide whether the person should be detained at the police station or released. People who attend police stations voluntarily to assist the police with their investigations are not subject to this procedure; their treatment is dealt with by s. 29 of the 1984 Act. However, if an officer forms a view that the person should be arrested at the police station for the purpose of interview and informs the custody officer of this view, the custody officer can authorise detention for the interview and is entitled to assume that the arrest by the officer is lawful.
Wilson v Chief Constable of Lancashire [2000] Po LR 367
If the grounds were not given at the time of arrest (on justifiable grounds) the custody officer should consider whether the arrested person is now in a position to be given the grounds for the arrest (as being the first practicable opportunity (s. 28(3) of the 1984 Act)). If the grounds for arrest were not given when they should have been, the arrest is unlawful regardless of what information is given later.
Authorising a Person’s Detention
A custody officer can authorise the detention of a person when there is sufficient evidence to charge and, more commonly, when there is not sufficient evidence to charge the suspect. If there is insufficient evidence to charge, the custody officer must decide if the detention is necessary to secure or preserve evidence relating to an offence for which the person is under arrest or to obtain such evidence by questioning him/her.
If a person representing the detained person does not consider that the detention is lawful he/she can apply to the court for the detainee’s release (habeas corpus). A detainee may also be able to make an application for release or damages following the incorporation of the European Convention on Human Rights (Article 5(4)).
Where a detained person wishes to consult the Codes of Practice, this does not entitle the person concerned to delay unreasonably any necessary investigative or administrative action whilst he/she does so. Examples of action which need not be delayed unreasonably include: procedures requiring the provision of breath, blood or urine specimens under the Road Traffic Act 1988 or the Transport and Works Act 1992; searching detainees at the police station; taking fingerprints, footwear impressions or non-intimate samples without consent for evidential purposes.
Risk Assessments in Custody
The custody officer is responsible for initiating a risk assessment to consider whether detainees are likely to present specific risks to custody staff or themselves (Code C, para. 3.6). The risk assessment must follow a structured process which clearly defines the categories of risk to be considered (the Detention and Custody Authorised Professional Practice (APP) produced by the College of Policing (see https://www.app.college.police.uk/app-content/detention-and-custody-2/) provides more detailed guidance on risk assessments). For this reason it is suggested that the risk assessment should be completed prior to the detainee being placed in a cell or detention room.
In addition to considering risk assessments for detained persons, the custody officer also needs to consider the safety of others who are in the custody area. Home Office Circular 34/2007 provides guidance on the arrangements for the safety and security of the custody suite, in particular in respect of solicitors and accredited and probationary representatives working in custody suites. The guidance has been issued following a number of incidents having been brought to the attention of the Home Office and the Health and Safety Executive (HSE), highlighting the actual and potential risks faced by solicitors, particularly when carrying out private consultations with their clients in the custody area, and the Authorised Professional Practice (APP) on Detention and Custody provides more detailed guidance on risk assessments and identifies key risk areas which should always be considered.
Documents or Material that Undermine the Need to Keep a Suspect in Custody
For the purposes of para. 3.4(b) and Code C, s. 15: investigating officers are responsible for bringing to the attention of the officer who is responsible for authorising the suspect’s detention, or (as the case may be) 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. It is suggested that a record should be made of what material was provided.
Detained Persons—Special Groups
The Children and Young Persons Act 1933, s. 31, requires that arrangements must be made for ensuring that a girl under the age of 18, while detained in a police station, is under the care of a woman.
In cases where a juvenile is in police detention it may be necessary to inform more than one person. For instance, if the juvenile is in local authority or voluntary organisation care but living with his/her parents or other adults responsible for his/her welfare, although there is no legal obligation to inform them, they should normally be contacted, as well as the authority or organisation, unless suspected of involvement in the offence concerned. Even if the juvenile is not living with his/her parents, consideration should be given to informing them.
The purpose of the provisions at paras 3.19 and 6.5A is to protect the rights of juvenile and vulnerable persons who may not understand the significance of what is said to them. They 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.
Interviews Elsewhere than a Police Station
An interviewer who is not sure, or has any doubt, about whether a place or location elsewhere than a police station is suitable for carrying out a voluntary interview, particularly in the case of a juvenile or vulnerable person, should consult an officer of the rank of sergeant or above for advice. Detailed guidance for police officers and staff concerning the conduct and recording of voluntary interviews has been published by the College of Policing (Investigative Interviewing App). It follows a review of operational issues arising when voluntary interviews need to be arranged. The aim is to ensure the effective implementation of the safeguards in paras 3.21 to 3.22B particularly concerning the rights of suspects, the location for the interview and supervision. For voluntary interviews conducted by non-police investigators, the provision of legal advice is set out by the Legal Aid Agency at para. 9.54 of the 2017 Standard Crime Contract Specification and the rules mean that a non-police interviewer who does not have their own statutory power of arrest would have to inform the suspect that they have a right to seek legal advice if they wish, but payment would be a matter for them to arrange with the solicitor.
Section 54 of the 1984 Act
The custody officer must also consider what property the detained person might have in his/her possession for an unlawful or harmful purpose while in custody. The safekeeping of any property taken from the detained person and kept at the police station is the responsibility of the custody officer.
The custody officer does not need to record everything a detained person has with him/her. The custody officer will have a discretion as to the nature and detail of any recording and there is no requirement for this to be recorded in the custody record. However, custody officers should be mindful of any force instructions as to what will need to be recorded and where. It is suggested that it will still be necessary to make records, not least to ensure against claims that property has been mishandled or removed. The custody officer will have to make judgements about how to balance the need for recording against the amount of administrative work involved.
Pile v Chief Constable of Merseyside Police [2020]
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.
The Search
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.
In order to safeguard the rights of the detained person, there are three levels to which searches can be conducted:
- 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.
Searches that Do Not Involve the Removal of More than the Detained Person’s Outer Clothing
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.
Intimate Searches
A search which consists of the physical examination of a person’s body orifices other than the mouth.
Drug Search—X-rays and Ultrasound Scans
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).
Conduct of a Search
- 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.
What Property Can Be Retained?
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.
Right to Have Someone Informed
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.
Right to Legal Advice
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).
R v Alladice (1988)
… 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.
Free legal advice will be limited to telephone advice provided by the Criminal Defence Service Direct (CDS Direct) if a detainee is:
- 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.
When detainees want to pay for legal advice themselves:
- 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.
Keynote - Conditions of detention
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.
Keynote - Care and Treatment
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.
Medical Record Forming Part of the Custody Record
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.
Independent Custody Visiting (Lay Visitors)
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 https://www.icva.org.uk).
