Preliminaries to prosecution - Detention Flashcards
What does a Police Officer have to demonstrate?
- legal authority to exercise the power
- that they have exercised the power lawfully
What is one of the powers a police officer can exercise?
detention without charge - PACE 1984
How can PACE be used as a mnemonic?
P - identify the power
A - what’s the legal authority granting the power?
C - what criteria need to be met & are they met on the facts?
E - how should the power be exercised & has it been exercised correctly on the facts?
When must a person arrested be taken to a police station?
as soon as practicable
Is there an exception to this?
Yes - where their presence at a place other than the police station is necessary to carry out such investigations as it’s reasonable to carry out immediately
What kind of investigations does this include?
- being searched
- being taken to premises being searched
- being taken to a place to check their alibi
Can a person be taken to any police station?
Yes - unless it’s anticipated that they will be detained for more than 6 hours (in which case they must be taken to a designated police station)
What is street bail?
instead of being taken to a police station, the person arrested can be granted bail to attend a police station at a later date - conditions can be attached
What happens when the arrested person arrives at the police station?
- the detainee will see the custody officer who must authorise continued detention
- detainee will be informed of their rights
- they will have certain non-intimate samples taken
- if necessary, they may see the appropriate healthcare professional
- if they request, they may speak to a solicitor
- may be interviewed, often with solicitor present
What happens after the interview?
The detainee may be:
- released under investigation or on police bail
- charged & released on police bail to appear at magistrates court at later date
- charged & remanded on police custody to appear at magistrates court on following day
Who will the arrested person be presented to on arrival at the police station?
The custody officer
What is the role of the custody officer?
- responsible for the handling & welfare of suspects in detention at the police station
- must be a police officer of the rank of at least sergeant
- must be unrelated to the process of the investigation of the offence
What is the procedure that should be followed by the custody officer governed by?
S37 PACE & Code of Practice (COP) C 2, 3 & 4
What must be explained to the custody officer?
Reason for arrest - they can then authorise detention of arrested person
What if the grounds for detaining the the person have ceased to exist?
The custody officer must order the release of the person detained
Upon whose authority can a person be detained/released?
Custody officer
What if a custody officer isn’t available?
Their role may be performed by another officer - that officer must not normally be involved in the investigation of an offence for which the person is in detention
What if there isn’t sufficient evidence to proceed to charge the detainee?
The arrested person must be released unless there are reasonable grounds for believing that detention is necessary to:
- secure or preserve evidence, or
- obtain such evidence by questioning
What will the custody officer do if there are grounds to detain?
- authorise detention of the suspect
- open a custody record
- inform the detainee of the reason for arrest
- inform detainee of reason for detention
- advise detainee of their rights
Who is responsible for the welfare of each detainee?
The custody officer.
Some additional duties:
- conducting a risk assessment procedure for each detainee
- making special arrangements for detainees who may be physically/mentally incapacitated
- arranging for interpreters to be present
- dealing with detainees properly
- contacting healthcare professionals if needed
What if there are procedural flaws in the detention process?
The custody officer is responsible for ensuring that a detained person is treated in accordance with the provisions of COP
- if there are flaws, the result might be the subsequent exclusion of evidence (they can be held accountable)
The Custody Record
- separate custody record must be opened ASAP for each detainee
- all info required to be recorded under COL C must be recorded on custody record
What information must be recorded on the custody record?
- requirement to inform person of reason for arrest
- circumstance of arrest
- why arrest was necessary
- any comments made by arrested person
Why is it essential for a solicitor to view the record?
Because it should contain everything that’s happened to, been said to or said by the detainee
- A solicitor has the right to consult their clients custody record ASAP after arrival at the station & at any time while their client is still detained.
Where can you find the definition of a solicitor?
COP C
What is a ‘solicitor’ under COP C?
A solicitor who holds a current practicing certificate or an accredited/probationary representative included on the register of representatives maintained by the Legal Aid Agency.
Reviews of Detention
When must reviews of detention be carried out?
During the detention of a suspect - S40 PACE
What must the review officer be satisfied about?
That the detention is still necessary.
What must the review officer consider?
Whether the grounds for detention, as authorised by the custody officer under S37, still exist.
What rank should the review officer be?
At least the rank of inspector who isn’t connected to the investigation of offence & isn’t the custody officer.
What does S40 PACE set out?
That the first review of the suspect’s detention will take place not more than six hours after the suspects detention was first authorised by the custody officer & then periodically ever nine hours.
What rights does the detained person have at the time of the review?
- must be reminded of their right to free legal advice
- the right to make representations unless they’re unfit to make such representations or asleep at the time of review
Detention time limits
What is the max period a person can be kept in custody before being charged?
24 hours from the ‘relevant time’ - S41 PACE.
When is the ‘relevant time’?
Mostly, where the arrest has taken place within the particular police area.
Relevant time begins at the moment the suspect arrives at the police station.
Where is the relevant time indicated?
On the custody record.
(NOTE: relevant time is different to when the detention is authorised - generally they’re different)
What must be done before the 24 hour limit on detention has expired?
The suspect must wither be charged or released.
Power to extend beyond 24 hours.
(Authority)
What does S42 PACE set out?
It allows for detention to be extended for a further 12 hours - taking the max period of detention in the police station to 36 hours from the relevant time.
(Exercise)
When must authorisation to extend be given?
Before the expiry of the initial 24 hours but after the second review has occurred - S42.
What must be explained to the suspect & noted in the custody record?
Grounds for extension.
Should there be an opportunity to make represnetations?
Yes, the suspect and/or their solicitor should be allowed an opportunity to make representations.
(Criteria - S42 sets out the criteria for a detention to be extended)
Who must authorise the continued detention?
An officer of at least the rank of superintendent.
What must the superintendent )or above) have reasonable grounds to believe?
That detention is necessary to secure or preserve evidence or obtain evidence by questioning.
What category must the offence be?
Indictable.
How must the investigation be conducted?
Diligently & expeditiously.
Power to detain beyond 36 hours.
What must be done by the police if they want to detain beyond 36 hours?
They must apply to the court for a warrant of further detention under ss 34 & 44 PACE.
What may the warrant authorise?
Continued detention for a further 36 hours on a first application & 36 hours (max of 96) on a second application.
What must the magistrates court have reasonable grounds to believe?
That further detention is necessary to secure/preserve evidence or obtain evidence by questioning.
What category must the offence be?
Indictable.
How must the investigation be conducted?
Diligently & expeditiously.
What is the max period of detention without charge?
24 hours from the relevant time.
When is the relevant time?
The time the arrested person first arrives at the station or 24 hours after arrest - whichever is sooner.
When can the time limit not be extended?
Where the offence being investigated is summary only.
