PACE Flashcards
Most police powers regarding investigating criminal offences are contained within…
PACE 1984 and Codes and Practice
Definition of Interview
‘Interview’ is widely defined by Code C, para. 11.1A, in purposive terms
An interview is the ‘questioning of a person regarding their involvement or suspected involvement in a criminal offence or offences which, under para. 10.1, must be carried out under caution’.
Interview
A caution is NOT necessary where questions are asked for other purposes, such as:
(a) solely to establish identity or ownership of a vehicle;
(b) to obtain info in accordance with a statutory requirement, eg to obtain the name & address of the driver of a vehicle;
(c) in furtherance of the proper & effective conduct of a search; or
(d) to seek verification of a written record of comments made by the person outside of an interview.
Grounds for administering a caution (required if ‘reasonable suspicion’)
Para 10.1 requires a caution to be given to a person ‘whom there are grounds to suspect of an offence’ means there must be ‘some reasonable, objective grounds for the suspicion, based on known facts or information’.
Is it an interview if a caution does not have to be administered?
NO!
questioning of a person in circumstances where a caution does not have to be administered does not amount to an interview for the purposes of Code C.
Does questioning of a person about an offence of which there are grounds to suspect him or her amount to an interview even if the person has not been arrested and no decision to arrest has been made?
YES!
The reference to ‘an offence’ means that a caution must be given if the person is questioned about an offence other than that for which he or she has been arrested if there are grounds to suspect the person of it.
Where an Interview May be Conducted
The general rules for the conduct of interviews are contained in Code C, section 11.
o Following a decision to arrest a suspect,
*only at a police station or other authorised place of detention *
Where an Interview May be Conducted
The reference to ‘a decision to arrest’ means
that if a police officer has decided to arrest a person, the arrest should not be delayed in order to question the suspect before doing so.
- The requirement that an interview be conducted at a police station is subject to exception where delay would be likely to:
(a) lead to interference with or harm to evidence connected with an offence, interference with or physical harm to other persons, or serious loss of, or damage to, property; or
(b) lead to the alerting of other persons suspected of having committed an offence but not yet arrested for it; or
(c) hinder the recovery of property obtained in consequence of the commission of an offence (para. 11.1).
Interviewing in such circumstances (i.e. not at police station) must cease once the relevant risk has been averted or the necessary questions have been put to aver the risk.
Live link - interviewed by an officer who is not in the police station
The PACE 1984, s. 39, as amended by the PCA 2017, s. 75, makes provision
enabling persons in police detention to be interviewed by an officer who is not at the police station, using live link. ‘Live link’ is defined for this purpose by s. 39(3E).
Live link - does the officer who is not in the police station have the same duty as someone in the station?
YES!
The officer who is not at the police station has the same duty as the officer to whom custody of the person has been entrusted to ensure that the person is treated in accordance with the provisions of the PACE 1984 and the codes of practice (s. 39(3B); Code C, para. 3.21A).
A caution must be administered at the
commencement of an interview
whether or not it is conducted at a police station
Does the caution need to be given again after a break?
MUST be reminded
The suspect must also be reminded that he or she is under caution at the recommencement of an interview after any break, and if there is any doubt, the caution should be given again in full
Does caution need to be given on arrest?
YES
MUST
Tell me an example of a normal caution
You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in Court. Anything you do say may be given in evidence.
Does the caution need to be exact?
NO
Minor deviation = allowed
Caution - if a interpreter is used, must it be exact?
NO!
will not render it invalid provided that the essential features are adequately conveyed to the suspect
What should the PC do if the suspect does not understand the caution?
the person giving it should explain it in his or her own words
If a suspect is (exceptionally) interviewed after charge or interviewed in circumstances where the suspect has requested a solicitor but has not been permitted to consult with one: what are the terms of caution?
o ‘You do not have to say anything, but anything you do say may be given in evidence’.
The reason for the different caution is that in such circumstances inferences cannot be drawn
Whilst Code C, para. 10.1, requires a caution to be given to a person ‘whom there are grounds to suspect’ of an offence,
Note for Guidance 10A explains this phrase by stating that there must be
‘some reasonable, objective grounds for the suspicion, based on known facts or information’.
What to consider when considering whether there are sufficient grounds for a caution to be administered
- An objective question,
- does not simply depend on how the police officer regarded the matter
Case law about whether to caution
- In Ibrahim v UK [2016] the police deliberately decided not to caution the fourth applicant when, on being interviewed as a witness, he started to incriminate himself, and the UK government accepted that he should have been cautioned at this point.
- This can be contrasted with the position in Shepherd [2019] , where it was found that there was no obligation to caution when the police officers were unaware of the existence of a byelaw which could have given rise to a reasonable suspicion.
o For examples of interpretation of the cautioning requirement by the courts,
- Sneyd v DPP [2006], in which the decision went the other way. Failure to administer a caution in circumstances where it is required is a significant and substantial breach of Code C, although it will not necessarily result in exclusion of evidence of the interview
- Similarly, giving the wrong caution will not necessarily lead to exclusion (Ibrahim )
Before interview
+
Solicitor is present (if represented)
= - Whenever a person is interviewed he or she, sufficient information must be given to
make it possible to understand the nature of the suspected offence and why the person is suspected of committing it.
When info is given about the nature of the suspected offence and why the person is suspected of committing it prior to interview, this does not require the disclosure of details which might prejudice the investigation
- In Kirk [1999] 4 All ER 698, D was arrested for theft and was not told that V had died; believing himself to be facing a charge of theft only, he made admissions.
- It was held that these should have been excluded.
Also Charles v DPP.
- The decision on what should be disclosed rests with the investigating officer, who must make a record of what was disclosed and when it was disclosed
In addition to the caution, where a suspect is interviewed at a police station or other authorised place of detention following arrest, a special warning must be given when (Code C, para. 10.11) :
(a) is asked to account for any object, mark or substance, or mark on such objects found on his or her person, in or on his or her clothing or footwear, otherwise in his or her possession, or in the place where the arrest took place; or
- (b) to account for his or her presence at the place where the arrest took place,
Code C, para. 10.11
if the special warning is not given where a suspect is interviewed at a police station or other authorised place of detention when special circs apply, what impact does this have?
Inferences cannot be drawn if the warning is not given
Code C, para. 10.11
Where a suspect is interviewed at a police station or other authorised place of detention when special circs apply, when does the requirement to give a special warning does not apply?
where the person who has requested a solicitor is interviewed without having been given an opportunity to consult the solicitor
Information about Legal Advice
Prior to the commencement or recommencement of an interview at a police station or other authorised place of detention, the interviewing officer must, unless access to a solicitor has been delayed or one of the exceptions applies, remind the suspect of the entitlement to free legal advice and that the interview can be delayed for legal advice to be obtained
Significant Statement or Silence
At the beginning of an interview carried out at a police station or other authorised place of detention, the interviewing officer must, after cautioning the suspect, put to the suspect any significant statement or silence which occurred in the presence and hearing of a police officer or other police staff (and which has not been put in the course of a previous interview) (Code C, para. 11.4).
What is a significant statement?
i) one which appears to be capable of being used in evidence
ii) and in particular a direct admission of guilt
iii) It does not include what a suspect is alleged to have said as part of the conduct constituting the offence
iv) - A significant silence is a failure or refusal to answer a question, or answer satisfactorily when under caution which might, allowing for the restrictions on drawing inferences from silence, give rise to an adverse inference under the CJPO 1994
Conduct of the Interview
oppression, nor indicate
No police officer or other interviewer may try to obtain answers to questions or to elicit a statement by the use of oppression, nor indicate
except in answer to a direct question, what action the police will take if the suspect answers or refuses to answer questions or make a statement.
If the suspect asks the officer directly what action will be taken in any of those events, the officer may inform the suspect of the proposed action, which could be, e.g., keeping the person in detention if further action is to be taken.
The proposed action must, however, be proper and warranted (Code C, para. 11.5). Thus it was improper for the police to tell a church organist accused of theft from choirboys that the police would interview all of the choirboys if he did not confess (Howden-Simpson [1991] Crim LR 49).
Conditional caution - police interview
Conditional caution - The police should not seek a confession by offering a caution
Case law about interview - some indication of what is acceptable.
- legitimate for police officers to pursue their interrogation of a suspect with a view to eliciting admissions even where the suspect denies involvement in the offence or declines to answer specific questions (Holgate-Mohammed v Duke)
- confession should be excluded where the police falsely informed D that incriminating fingerprints had been found, although the fact that his solicitor was also deceived may have been an important factor. (Mason)
- the Court of Appeal stated that there was a positive duty on the police not to actively mislead a suspect
- The asking of hypothetical questions is permissible, although it may need to be approached with care (Stringer [2008] EWCA Crim 1222).
- Police questioning which is carried on after repeated denials or refusals may become oppressive (Paris (1993) 97 Cr App R 99).
- Hectoring and bullying throughout an interview has been held to be oppressive (Beales [1991] Crim LR 118),
- whereas questioning that was rude and discourteous, with raised voices and some bad language, was not (Emmerson (1991) 92 Cr App R 284).
When Interviews Should Cease
The interview of a person who has not been charged or informed that he or she may be prosecuted must cease when
a) the officer in charge of the investigation is satisfied that all the questions the officer considers relevant to obtaining accurate and reliable information about the offence have been put to the suspect,
b) the officer has taken account of other available evidence; AND
c) the officer (or the custody officer in the case of a detained suspect) reasonably believes there is sufficient evidence to provide a realistic prospect of conviction
- Code C, para. 11.6, gives the police a large degree of latitude in determining when interviewing should cease since it appears to permit the police to continue questioning beyond the point when they are satisfied that there is sufficient evidence to charge if, e.g., the officer believes that further questions could or should be put to the suspect.
o However, there is some inconsistency within Code C and thus uncertainty about the effect of para. 11.6. It provides that in the case of a detained suspect (presumably, as opposed to a volunteer) it is for the custody officer and not the investigating officer to determine whether there is sufficient evidence to charge.
o On the other hand, para. 16.1 states that when the officer in charge of the investigation believes that there is sufficient evidence to provide a realistic prospect of conviction, the suspect must be taken to the custody officer without delay.
o It may be that this is intended to reflect the fact that the custody officer has formal responsibility for making the decision as to whether there is sufficient evidence to charge.
o However, para. 16.1 implies that when the officer in charge of the investigation is so satisfied, the suspect must be taken to the custody officer even though the investigating officer still may have further questions to put to the suspect. In any event, under the PACE 1984, s. 37(7), once the custody officer determines that there is sufficient evidence to charge the person the custody officer must proceed under that subsection, which would normally preclude further interviewing. ‘Sufficient evidence to charge’ is not defined, but the Director’s Guidance on Charging provides that the custody officer must normally apply the Full Code Test (see D2.4).
Recording of Interviews,
Interviews of suspects must normally be contemporaneously recorded
Recording
Further, any comment that might be relevant made outside the context of an interview, including unsolicited comments =
must be recorded and, where practicable, the suspect must be given the opportunity to verify the record.
Failure to comply with the recording requirements may lead
(though not
necessarily) to exclusion of evidence of what was allegedly said.
Does interviews have to be recorded if not in a police station?
yes!
Interviews conducted under caution, whether or not at a police station, must normally be recorded using an authorised recording device
Juveniles & mentally disordered/vulnerable persons - can they be interviewed?
(1) Must not be interviewed; or
(2) asked to provide or sign a written statement in the absence of the appropriate adult unless the conditions for conducting an interview away from a police station under Code C, para 11.1, are satisfied
Juveniles & mentally disordered/vulnerable persons - can they be interviewed?
(1) Must not be interviewed; or
(2) asked to provide or sign a written statement in the absence of the appropriate adult unless the conditions for conducting an interview away from a police station under Code C, para 11.1, are satisfied
A child or young person should be interviewed at …
his or her place of education only in exceptional circumstances and then only if the principal or principal’s nominee agrees.
- Efforts should be made to notify parents and the appropriate adult. In cases of necessity, and provided that the school was not the victim of the alleged offence, the principal may act as the appropriate adult
- Efforts should be made to notify parents and the appropriate adult. In cases of necessity, and provided that the school was not the victim of the alleged offence, the principal may act as the appropriate adult
A person whom the custody officer has determined requires an interpreter - can they be interviewed without an interpreter ?
NO
- unless authorised by an officer of the rank of superintendent or above, being satisfied that delaying the interview will lead to the consequences in Code C, para. 11.1(a) to (c), and that the interview would not significantly harm the person’s physical or mental state
A person whom the custody officer has determined requires an interpreter - notes
- Normally, the interpreter must be physically present
- If live link is used, the modifications to various procedures as set out in Code C, annex N, part 2, apply. Where a suspect cannot read and an interview is recorded in writing, the record must be read over to the suspect who must be asked to verify it
No person should be interviewed if they are:
(a) unable to appreciate the significance of the questions asked and their
answers; OR
(b) unable to understand what is happening because of effect of drink,
drugs, any illness/ailment/condition
(c) UNLESS 11.18 applies, i.e.:
i. authorised by rank of Superintendent;
ii. one of the three consequences applies [DRINK,DRUGS, ILLNESS]; &
iii. satisfied would not significantly harm the person’s physical or mental state.
Main powers of arrest and the detention and treatment of suspects
A number of police powers premised upon the constable having reasonable grounds for suspicion
N.B: ‘reasonable suspicion’ relates to facts, not law: thus a constable who arrest
on the basis of a mistaken view of the law does not have reasonable suspicion
Two-part test for ‘reasonable suspicion’:
o (1) [subjective test, a genuine suspicion]: the constable carrying out the arrest must actually suspect;
o (2) [[objective test, objective basis for suspicion]]: a reasonable person, in possession of the same facts as the constable at that time, would also suspect
AND the arrest must be Wednesbury reasonable (not so unreasonable that
no reasonable person acting reasonably could have made it
Information required to form a reasonable suspicion is of a lower standard than that required to establish a prima facie case.
Prima facie proof must be based on admissible evidence whereas reasonable suspicion may take into account matters which are not admissible in evidence or matters which, while admissible, could not form part of a prima facie case
Section 117 of PACE 1984
The use of force
Where power is conferred and does not provide that it may only be exercised with consent the officer may use reasonable force if necessary in the exercise of the power
Reasonable force
So force can be used in connection with:
- Power of arrest
- stop and search under the PACE 1984, part I,
- entry and search of premises under s. 17, arrest under s. 24,
- detention of a person at a police station under the PACE 1984, part IV,
But would not include the use of force where consent is required, such as:
i) the conduct of a visual identification, PACE Code D,
ii) or the taking of an intimate sample under s. 62
Who can use such reasonable force other than PC constable?
- A civilian designated under the Police Reform Act 2002, s. 38
- the CLA 1967, s. 3, empowers any person to use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of an offender or suspected offender or of persons unlawfully at large
In determining what force is ‘reasonable’: the court may take into account all the circumstances,
including
- nature & degree of force used;
- the gravity of the offence for which the arrest is made;
- the harm that would flow from use of force;
- the possibility of effecting the arrest without use of force.
Does the fact that force results in serious injury does necessarily make it unreasonable?
no!
Does the use of excessive of force will render the arrest unlawful?
NO
Use of Handcuffs
used only where they are reasonably necessary to prevent an escape or to prevent a violent breach of the peace by a prisoner
What is the result of where handcuffs are unjustifiably resorted to
their use will constitute a trespass even though the arrest itself is lawful
Has a person been ‘arrested’?
A deprivation of liberty is required to constitute arrest.
Difference between a ‘deprivation’ of liberty (= an arrest) and a mere ‘restriction’ of movement (e.g. hold of arm X arrest)
Arrest is unlawful where:
the arresting officer knows that there is no possibility of the arrest person being charged with an offence.
If the lawfulness of an arrest carried out by an officer at the request of another,
is challenged: who is it upon to prove the officer who asked for the arrest to
be made acted in good faith in making the request?
it is for police to prove the officer who asked for the arrest to be made acted in good faith in making the request
o Burden of proof of showing lawful arrest is on the police:
o But if an arrest is lawful, the burden of proving excessive force was used is on the complainant.
In order for the arrest to be lawful, at the time of the arrest or as soon as is practicable after arrest, a person arrested by a constable must be informed of
(1) the fact he is under arrest (for arrest to be lawful) – as soon as practicable after arrest
(2) the ground for the arrest (for arrest to be lawful); and
(3) the reason for the arrest (not legal requirement – doesn’t render arrest unlawful,
although breach of Code C); and
(4) a caution - ‘You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything
you do so many be given in evidence’. (not a legal requirement - Failure to administer
the caution does NOT render the arrest unlawful, though it is a breach of Code C, and
may provide grounds for exclusion of evidence under s78 PACE 1984.
For the arrest to be lawful
The test for whether the words used were sufficient is =
whether, having regard to all the circumstances of the case, the person arrested was told, in simple, non-technical language that the person could understand, the essential legal and factual grounds for the arrest
Does the arresting officer has to be the one who gives the info to the offender (eg the nature of offence) or can it be a colleague?
it can be a colleague
Where no reasons are given at the time of arrest because it is impracticable to inform the suspect, acts done at the time of arrest do not become retrospectively invalid because of a later failure to inform the suspect
- In addition to the information required under s. 28, a person who is arrested, or who is further arrested (e.g., under the PACE 1984, s. 31), must be cautioned at the time of arrest or as soon as is practicable afterwards unless it is impracticable to do so because of the person’s condition or behaviour at the time or the person has already been cautioned immediately before arrest (e.g., where initially questioned regarding a suspected offence without being arrested)
Should the reasons for the arrest be recorded in the pocket notebook?
YES!
Should record in his PNB (Pocket notebook):
o Nature & circumstances of offence leading to the arrest;
o The reason(s) why arrest was necessary
o The giving of the caution
o Anything said by arrested person at time of arrest
o If person arrested is subsequently detained at the police station those
details must be attached to, or recorded in, the custody record.
Where a person is arrested at any place other than a police statioimmen, is PC obligated to take accused to a police station?
Where a person is arrested at any place other than a police station, or is taken into custody by a constable following an arrest made by a civilian, the constable is normally obliged to take the person to a designated police station as soon as is practicable thereafter
In which exceptional circumstances, the person may be taken to a non-designated station instead of police station after arrest?
The constable may delay taking the arrested person to a police station or releasing on bail under s. 30A if the person’s presence at a place other than a police station is necessary in order to carry out such investigations as it is reasonable to carry out immediately
Reasons must be recorded!
Examples when the person may be taken to a non-designated station instead of police station after arrest…
o Taking the suspect to entry & search of premises;
o Search of the arrested person;
o or taking the suspect to another place to check his alibi.
o The reasons must be recorded
Can an arrested person may, instead of being taken to a police station, be released either without bail or on bail, to attend at a police station on a future date?
YES
A constable may release on bail a person who is arrested or taken into custody if the constable is satisfied that releasing the person on bail is necessary and roportionate in all the circumstances (having regard, in particular, to any conditions of bail which would be imposed).
Any decision to release on bail must be authorised by a custody officer
The term ‘custody officer’ includes an officer other than a custody officer who is performing the functions of a custody office
When PC is determining whether releasing the person on bail is necessary and proportionate in all the circumstances, the constable must have regard in particular to:
- (a) the need to secure that the person surrenders to custody,
- (b) the need to prevent offending by the person,
- (c) the need to safeguard victims of crime and witnesses, taking into account any vulnerabilities of any alleged victim of, or alleged witness to, the offence for which the person was arrested where these vulnerabilities have been identified by the constable
- (d) the need to safeguard the person, taking into account any vulnerabilities of the person where these vulnerabilities have been identified by the constable, and
- (e) the need to manage risks to the public.
Can a PC who released a person on bail apply conditions?
YES
conditions may be imposed for the purpose of securing surrender, preventing further offences, preventing interference with witnesses or obstruction of the administration of justice, or for the person’s own protection
Bail - amending conditions
An application to vary conditions may be made to the police and, thereafter, to a magistrates’ court.
If an application is made to vary a ‘relevant condition’, being a condition that relates to the safeguarding of the alleged victim, then the investigating officer must, if it is reasonably practicable to do so, seek the views of the alleged victim of the relevant offence
Powers of arrest without warrant:
(1) S24 of PACE 1984: a police officer may arrest for any offence
-> subject to a test of necessity.
Powers of arrest without warrant:
(2) S24A of PACE 1984, civilian powers of arrest: a civilian may arrest only for an indictable offence
-> subject to a test of necessity.
are confined to indictable offences
Powers of arrest without warrant:
(3) Common law power to prevent breach of the peace
every constable and civilian has a power to arrest to: prevent a breach of the peace; whether breach is being committed (or has been committed) at the time or anticipated in immediate future (“reasonably believes”.
A breach of the peace ‘occurs’ whenever harm is actually done, or is likely to be done to:
a) to a person
b) or, in his presence, to his property;
c) or where a person is in fear of being harmed through an assault,
affray, riot, unlawful assembly or other disturbance.
Powers of arrest without warrant:
(3) Common law power to prevent breach of the peace
An arrest must be for the purpose of bringing the person before a competent legal authority (in order to comply with Art 5(1)(c) ECHR).
Reasonable belief is an objective requirement
Where a reasonable apprehension of an imminent breach of the peace exists,
the preventive action taken must be reasonable, necessary and proportionate
For a lawful arrest there must be:
Police and Criminal Evidence Act 1984, s. 24
- a GROUND for the arrest; AND
- a REASON why it is necessary to arrest the suspect.
Grounds – a constable may arrest without warrant anyone (A/A/RGS):
Police and Criminal Evidence Act 1984, s. 24
1 a) who is about to commit an offence
b) who is in the act of committing an offence
c) whom he has reasonable grounds for suspecting to be about to commit
an offence;
d) whom he has reasonable grounds for suspecting to be committing an
offence.
(2) If a constable has reasonable grounds for suspecting that an offence has been committed, he may arrest
without a warrant: anyone whom he has reasonable grounds to suspect of being guilty of it
(3) If an offence has been committed, a constable may arrest without a warrant
(a) anyone who is guilty of the offence;
(b) anyone whom he has reasonable grounds for suspecting to be guilty of it.
A REASON why it is necessary to arrest the suspect
Can only arrest for a ground above, IF has ‘reasonable grounds’ for believing that the arrest is necessary, for one of the following REASONs:
(a) to enable the name of the person to be ascertained (constable doesn’t know or has RG for doubting name given)
(b) to enable the address of the person to be ascertained
(c) to prevent the person in question—
(i) causing physical injury to himself or any other person;
(ii) suffering physical injury
(iii) causing loss of or damage to property;
(iv) committing an offence against public decency (subject to subsection (6):
(6) the above reason applies only where: members of the public going out their normal business cannot reasonably be expected to avoid the person.
(v) causing an unlawful obstruction of the highway
(d) to protect a child or other vulnerable person from the person in question;
(e) to allow the prompt and effective investigation of the offence or of the conduct of the person in question;
(f) to prevent any prosecution for the offence from being hindered by the disappearance of the person in question.
Arrest under warrant: who can issue a warrant?
CC/MC
Warrants issued by magistrates’ court
MCA 1980 s1: gives the magistrates’ court the power to issue an arrest warrant on basis of written information substantiated on oath that a person has committed an offence or is suspected of having committed an offence
Warrants issued by magistrates’ court: does it have to include bail?
no
Warrant may or may not be endorsed for bail.
- If endorsed for bail, the warrant will (if relevant) specify the amounts in which any sureties are to be bound. If bail is to be granted with sureties, the police must release the offender if the sureties approved by the officer enter into recognizances in accordance with the endorsement. The person bailed is then obliged to appear before a magistrates’ court at the time and place named in the recognizance (s. 117).
For MC to issue warrant, the offence must be:
(a) Indictable; or
(b) Punishable with imprisonment; or
(c) Person’s address must be insufficiently established for a summons to be served on him
MC can also issue a warrant for arrest of a person who:
(a) Failed to appear in summons; or
(b) FTS to custody after grant bail
Warrants issued by Crown Court
CC can issue an arrest warrant where:
(a) a person has failed to attend Crown Court when bailed to do so; and
(b) S20(2) SCA 1981: where an indictment has been signed but person charged has not been sent for trial: = Crown Court may either issue a summons requiring that person to appear before it; OR may issue a
warrant for his arrest.
Warrants issued by CC: does it have to include bail?
A warrant for arrest may be endorsed for bail, in which case the officer in charge of the police station to which D is taken has the same powers and duties as in the parallel case where the warrant is issued by magistrates
The PACE 1984 distinguishes between: persons in police detention; and others who may be held in custody at a police station
A person is “in police detention” if:
o he has been taken to a police station after being arrested for an offence;
or
under the TA 2000, s. 41
o has been arrested at a police station after attending voluntarily or accompanying a constable to it, and is detained there or detained elsewhere in the charge of a constable
a person is in police detention if in the custody of a designated civilian detention, investigating or escort officer by virtue of the Police Reform Act 2002, sch. 4, paras. 22,34(1) or 35(3) (PACE 1984, s. 118(2A)
Are they in police detention:
A person who is at court after being charged
A person who attends a police station to answer to live link bail in accordance with a direction under the CDA 1998, s. 57C
NO!
Where a person has been arrested, he must normally be taken to a police station.
He may be taken to any police station; unless
it is anticipated that it will be necessary to detain him for more than six hours = in which case he should be taken to a police station designated under s.35
Who is is responsible for the handling and welfare of suspects in detention?
The custody officer,
What rank must a custody officer be of?
A custody officer must be of at least the rank of sergeant
What happens if a custody officer is not readily available, or if a person is taken to a non-designated police station?
Another officer may perform the role although that officer must normally not be involved in the investigation of an offence for which the person is in detention
A person can only be detained at the police station on the authority of the custody
officer; and may be released only on his/her authority. Reason for the arrest must
be explained to the CO who can then authorise detention
Generally, it is the responsibility of the custody officer to ensure that a person in police detention is treated in accordance with the PACE 1984 and the codes of practice, although responsibility is temporarily transferred to any officer to whom custody of the person is transferred in accordance with the codes of practice
A custody record
must be opened as soon as is practicable in respect of each person who is brought to a police station under arrest, or who is arrested at a police station after having attended voluntarily, or who attends a police station in accordance with bail granted under the PACE 1984, s. 30A
Who is responsible for recording in the custody record all matters that are required by the PACE 1984 or the codes of practice to be recorded (s. 39(1)(b) and Code C, para. 2.3)?
The custody officer
Custody record: notes
o If the detained person is transferred to another police station, the custody record or a copy of it must accompany the person, and must show the time of and reason for the transfer (Code C, para. 2.3).
o It is not clear whether a new custody record should be opened where a person is further detained on surrendering to custody following a release on police bail or whether the original custody record should be continued.
o However, time in police detention before the release on bail will normally count for the purpose of calculating the maximum periods of detention
The Rights of a detained person
Right to Notification
A person who has been arrested (whether or not for an offence) and who is being held in custody at a police station or other premises has a right, at the person’s request, to have one friend, or relative or other person who is known to him or her or who is likely to take an interest in his or her welfare, told of the arrest and the place of detention.
This is to be done as soon as is practicable
The custody officer must inform the suspect of this right (Code C, para. 3.1(i)), and ask whether the suspect wishes to exercise it (para. 3.5(a)(iii)).
The Rights of a detained person
Right to Notification
The person chosen by the detainee is to be informed of the detainee’s whereabouts at public expense and, if the detainee requests, on each occasion that the detainee is taken to another police station
- If that person cannot be contacted, the detainee may choose up to two alternatives. If they too cannot be contacted, the custody officer or the person in charge of the investigation has discretion to allow further attempts until the information has been conveyed
- If the detainee does not know of anyone to contact for advice, the custody officer should bear in mind local voluntary bodies who may be able to help
The Rights of a detained person
The Rights of a detained person
consult privately with a solicitor
o Person arrest & held in custody has a right, at his request, to consult a solicitor privately at any time.
o If legal advice is declined, that should be noted in the custody record.
o Where legal advice is sought, it must be provided as soon as practicable.
o The start of an interview should usually wait the arrival of a solicitor
The Rights of a detained person
consult privately with a solicitor: when does this right apply?
the right to legal assistance may apply prior to the decision to detain a person at a police station, and even before the person has been formally arrested
A person must be told of the right to free legal advice when:
1) brought to a police station under arrest,
2) when arrested having initially attended voluntarily (Code C, paras. 3.1 and 6.1)
3) immediately before the beginning or recommencement of any interview at a police station or other authorised place of detention (para. 11.2);
3) before a review of detention is conducted or before a decision is made whether to extend the period of detention (para. 15.4);
4) after charge or being informed that the person may be prosecuted,
5) where a police officer wishes to bring to the person’s attention any statement or the content of any interview,
6) or where the person is re-interviewed (paras. 16.4 and 16.5); before being asked to provide an intimate sample (Code D, para. 6.3);
7) before an intimate drug search is conducted under the PACE 1984, s. 55(1)(b) (Code C, annex A, para. 2B),
8) an x-ray or ultrasound scan is taken under s. 55A(1) (Code C, annex K, para. 3);
9) before the person is (exceptionally) interviewed after charge (Code C, para. 16.5); and before an identification parade or group or video identification is conducted (Code D, para. 3.17).
With regard to mental disorder or vulnerability, if an officer has any reason to suspect that a person of any age may be vulnerable, in the absence of clear evidence to dispel that suspicion, the person must be treated as such for the purposes of the codes of practice
- It is imperative that a mentally disordered or otherwise mentally vulnerable person detained under the Mental Health Act 1983, s. 136, be assessed as soon as possible
The Mental Health Act 1983, ss. 135 and 136, provide that:
(a) before deciding to remove a person to, or to keep a person at, a place of safety, a constable must, if practicable, consult a registered medical practitioner, registered nurse, approved mental health practitioner, or a person of a description specified in regulations made by the Secretary of State;
(b) a child cannot be detained in a police cell as a place of safety; and
(c) the maximum period that a person can be detained at a police station is reduced from 72 hours to 24 hours, which may be extended by 12 hours where authorised by the responsible medical practitioner
These regulations provide that a police station may only be used as a place of safety in respect of an adult where the relevant decision-maker is satisfied that:
(a) the behaviour of the person poses an imminent risk of serious injury or death to him or herself or another;
(b) because of that risk, no place of safety other than a police station can reasonably be expected to detain the person; and
(c) the requirement in reg. 4(1)(b) (so far as reasonably practicable, a healthcare professional is present and available to the detained person throughout the period of detention at the police station) will be met.
Detention in such circumstances must be authorised by an officer of the rank of inspector or above
The right to an appropriate adult (where required
o “Appropriate adult” is defined as: a parent or guardian
A parent or guardian
- OR, in the case of a young person looked after under Children Act 1989: ‘appropriate adult’ = a representative of the care authority or a voluntary organisation; or a social worker.
- Failing these: any responsible person aged 18+ who is not a police officer or police employee.
can this person be a appropriate adult: An estranged parent, whom an arrested juvenile does not wish to attend
NO.
An illiterate parent with a low IQ who cannot appreciate the gravity of the situation in which his or her child is placed should not act as an appropriate adult
Can A solicitor attending a police station on a suspect’s behalf act as an appropriate adult?
NO!
A person should not be the appropriate adult if the person
(a) is suspected of involvement in the suspected offence,
(b) is the victim or a witness,
(c) is involved in the investigation, or
(d) has received admissions from the suspect before acting as the appropriate adult
Role of the Appropriate Adult
o (a) to ensure the detained person understands what is happening to him &
why
o (b) support, advise and assist him;
o (c) observe whether the police are acting properly & fairly and to intervene
if they are not;
o (d) assist with communication between the detained person & the police;
o (e) ensure that the detained person understands his rights & and the
appropriate adult’s role in protecting those rights
a child or young person or mentally disordered or vulnerable person must not be interviewed by the police or asked to provide a written statement in the absence of an appropriate adult, unless delay would be likely to lead to interference with or harm to evidence connected with an offence, interference with or physical harm to other people or serious loss of or damage to property, to alerting other suspects not yet arrested, or to hindering the recovery of property obtained in consequence of commission of the offence. If an interview at a police station is necessary for one or more of these reasons, it must be authorised by an officer of the rank of superintendent or above
The starting point is that the maximum period of detention without charge is
24 hours from the “relevant time”.
Relevant time =
(a) The time at which arrested person arrives at the first police station that he is taken to; OR
(b) 24 hours after arrest
= whichever is the earlier.
(c) If person released on bail is arrested under S46A (FTS) RT = that which applies to the original detention/if person is granted bail and then re-arrested RT = same as normal
Can The period of detention without charge be extended for indictable offences?
yes
for up to a total of 36 hours from the relevant time by an officer of the rank of superintendent or above
When can the period of detention be extended further than 36 hours?
YES - for up to a total of 96 hours from the relevant time by a magistrates’ court
Can a detention time-limit has expired and the person is released without charge, can the person be re-arrested?
Where a detention time-limit has expired and the person is released without charge, he may not be rearrested without warrant for the offence for which he was previously arrested (subject to the power to arrest for failure to answer to police bail) unless new evidence justifying a further arrest has come to light since the original arrest.
Does time where a detainee is removed to hospital for medical treatment count towards relevant time?
where a detainee is removed to hospital for medical treatment, time spent at the hospital or travelling to or from hospital does not count, except for any time spent questioning the person for the purpose of obtaining evidence in respect of an offence
- A person in police detention at a hospital must not be questioned without the agreement of a responsible doctor
- If a person is questioned in these circumstances, the person is entitled to consult a solicitor
Preliminary evidential matters
