Detention for questioning and police interrogation

(1) The police station is now a focal point of investigation in many cases. This situation is now different from the position at common law, certainly as understood a few decades ago. Then, arrest was the step immediately before charging and the bringing before a court - in other words, no further investigation was needed. However, PACE now grants the police time, facilities and powers to conduct inquiries against the suspect held in the police station. At the same time, PACE instituted importnat new forms of control and oversight, to check police abuses. Whether the balance is correct remains controversial. But it is certainly the case that questioning in custody carries inherent dangers from the point of view of fairness:

Article 3

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

Article 6

1.In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

In view of these concerns, one would expect to see both limits on detention time and limits on forms of treatment.

(2) An important figure who is supposed to oversee the welfare of the detainee is the custody officer, as required by PACE sections 34 and 39:

Police and Criminal Evidence Act 1984, s.34
Limitations on police detention

 34. - (1) A person arrested for an offence shall not be kept in police detention except in accordance with the provisions of this Part of this Act.

 (2) Subject to subsection (3) below, if at any time a custody officer -

(a) becomes aware, in relation to any person in police detention, that the grounds for the detention of that person have ceased to apply; and
(b) is not aware of any other grounds on which the continued detention of that person could be justified under the provisions of this Part of this Act,

it shall be the duty of the custody officer, subject to subsection (4) below, to order his immediate release from custody.

 (3) No person in police detention shall be released except on the authority of a custody officer at the police station where his detention was authorised or, if it was authorised at more than one station, a custody officer at the station where it was last authorised.

 (4) A person who appears to the custody officer to have been unlawfully at large when he was arrested is not to be released under subsection (2) above.

 (5) A person whose release is ordered under subsection (2) above shall be released without bail unless it appears to the custody officer -

(a) that there is need for further investigation of any matter in connection with which he was detained at any time during the period of his detention; or
(b) that proceedings may be taken against him in respect of any such matter,

and, if it so appears, he shall be released on bail.

 (6) For the purposes of this Part of this Act a person arrested under section 6(5) of the Road Traffic Act 1988 is arrested for an offence.

 (7) For the purposes of this Part of this Act a person who returns to a police station to answer to bail or is arrested under section 46A below shall be treated as arrested for an offence and the offence in connection with which he was granted bail shall be deemed to be that offence.

 

Police and Criminal Evidence Act 1984, s.39
Responsibilities in relation to persons detained

 39. - (1) Subject to subsections (2) and (4) below, it shall be the duty of the custody officer at a police station to ensure -

(a) that all persons in police detention at that station are treated in accordance with this Act and any code of practice issued under it and relating to the treatment of persons in police detention; and
(b) that all matters relating to such persons which are required by this Act or by such codes of practice to be recorded are recorded in the custody records relating to such persons.

 (2) If the custody officer, in accordance with any code of practice issued under this Act, transfers or permits the transfer of a person in police detention -

(a) to the custody of a police officer investigating an offence for which that person is in police detention; or
(b) to the custody of an officer who has charge of that person outside the police station,

the custody officer shall cease in relation to that person to be subject to the duty imposed on him by subsection (1)(a) above; and it shall be the duty of the officer to whom the transfer is made to ensure that he is treated in accordance with the provisions of this Act and of any such codes of practice as are mentioned in subsection (1) above.

 (3) If the person detained is subsequently returned to the custody officer, it shall be the duty of the officer investigating the offence to report to the custody officer as to the manner in which this section and the codes of practice have been complied with while that person was in his custody.

 (4) If an arrested juvenile is moved to local authority accommodation under section 38(6) above, the custody officer shall cease in relation to that person to be subject to the duty imposed on him by subsection (1) above.

 (5) [Repealed by Children Act 1989, s.108(7) and Sched. 15.]

 (6) Where -

(a) an officer of higher rank than the custody officer gives directions relating to a person in police detention; and
(b) the directions are at variance -
(i) with any decision made or action taken by the custody officer in the performance of a duty imposed on him under this Part of this Act; or
(ii) with any decision or action which would but for the directions have been made or taken by him in the performance of such a duty,

the custody officer shall refer the matter at once to an officer of the rank of superintendent or above who is responsible for the police station for which the custody officer is acting as custody officer.

 

(3) Detention after arrest

The holding of a suspect after arrest is governend by a number of provisions under PACE. First, the person must be taken to a police station as soon as possible under section 30:

Police and Criminal Evidence Act 1984, s. 30
Arrest elsewhere than at police station

 30. - (1) Subject to the following provisions of this section, where a person -

(a) is arrested by a constable for an offence; or
(b) is taken into custody by a constable after being arrested for an offence by a person other than a constable,

at any place other than a police station, he shall be taken to a police station by a constable as soon as practicable after the arrest.

(2) Subject to subsections (3) to (5) below, the police station to which an arrested person is taken under subsection (1) above shall be a designated police station.

 (3) A constable to whom this subsection applies may take an arrested person to any police station unless it appears to the constable that it may be necessary to keep the arrested person in police detention for more than six hours.

 (4) Subsection (3) above applies -

(a) to a constable who is working in a locality covered by a police station which is not a designated police station; and
(b) to a constable belonging to a body of constables maintained by an authority other than a police authority.

 (5) Any constable may take an arrested person to any police station if -

(a) either of the following conditions is satisfied -
(i) the constable has arrested him without the assistance of any other constable and no other constable is available to assist him;
(ii) the constable has taken him into custody from a person other than a constable without the assistance of any other constable and no other constable is available to assist him; and
(b) it appears to the constable that he will be unable to take the arrested person to a designated police station without the arrested person injuring himself, the constable or some other person.

(6) If the first police station to which an arrested person is taken after his arrest is not a designated police station, he shall be taken to a designated police station not more than six hours after his arrival at the first police station unless he is released previously.

(7) A person arrested by a constable at a place other than a police station shall be released if a constable is satisfied, before the person arrested reaches a police station, that there are no grounds for keeping him under arrest.

(8) A constable who releases a person under subsection (7) above shall record the fact that he has done so.

(9) The constable shall make the record as soon as is practicable after the release.

(10) Nothing in subsection (1) above shall prevent a constable delaying taking a person who has been arrested to a police station if the presence of that person elsewhere is necessary in order to carry out such investigations as it is reasonable to carry out immediately.

(11) Where there is delay in taking a person who has been arrested to a police station after his arrest, the reasons for the delay shall be recorded when he first arrives at a police station. 

(12) Nothing in subsection (1) above shall be taken to affect -

(a) paragraphs 16(3) or 18(1) of Schedule 2 to the Immigration Act 1971;
(b) section 34(1) of the Criminal Justice Act 1972; or
(c) section 15(6) and (9) of the Prevention of Terrorism (Temporary Provisions) Act 1989 and paragraphs 7(4) and 8(4) and (5) of Schedule 2 and paragraphs 6(6) and 7(4) and (5) of Schedule 5 to that Act.

(13) Nothing in subsection (10) above shall be taken to affect paragraph 18(3) of Schedule 2 of the Immigration Act 1971.

This is important since it is at the police station where proper facilities and safeguards are provided. Having reached the police station, the custody officer then decides whether detention is necessary under section 37, though there is plenty of evidence that this is a formal rather than searching form of oversight:

Police and Criminal Evidence Act 1984, s.37
Duties of custody officer before charge

 37. - (1) Where -

(a) a person is arrested for an offence -
(i) without a warrant; or
(ii) under a warrant not endorsed for bail ...

the custody officer at each police station where he is detained after his arrest shall determine whether he has before him sufficient evidence to charge that person with the offence for which he was arrested and may detain him at the police station for such period as is necessary to enable him to do so.

 (2) If the custody officer determines that he does not have such evidence before him, the person arrested shall be released either on bail or without bail, unless the custody officer has reasonable grounds for believing that his detention without being charged is necessary to secure or preserve evidence relating to an offence for which he is under arrest or to obtain such evidence by questioning him.

 (3) If the custody officer has reasonable grounds for so believing, he may authorise the person arrested to be kept in police detention.

 (4) Where a custody officer authorises a person who has not been charged to be kept in police detention, he shall, as soon as is practicable, make a written record of the grounds for the detention.

(5) Subject to subsection (6) below, the written record shall be made in the presence of the person arrested who shall at that time be informed by the custody officer of the grounds for his detention.

(6) Subsection (5) above shall not apply where the person arrested is, at the time when the written record is made -

(a) incapable of understanding what is said to him;
(b) violent or likely to become violent; or
(c) in urgent need of medical attention.

(7) Subject to section 41(7) below, if the custody officer determines that he has before him sufficient evidence to charge the person arrested with the offence for which he was arrested, the person arrested -

(a) shall be charged; or
(b) shall be released without charge, either on bail or without bail.

(8) Where -

(a) a person is released under subsection (7)(b) above; and
(b) at the time of his release a decision whether he should be prosecuted for the offence for which he was arrested has not been taken,

it shall be the duty of the custody officer so to inform him. 

(9) If the person arrested is not in a fit state to be dealt with under subsection (7) above, he may be kept in police detention until he is. 

(10) The duty imposed on the custody officer under subsection (1) above shall be carried out by him as soon as practicable after the person arrested arrives at the police station or, in the case of a person arrested at the police station, as soon as practicable after the arrest. 

(11)-(14) [Repealed by Criminal Justice Act 1991, s.72]

(15) In this Part of this Act -

"arrested juvenile" means a person arrested with or without a warrant who appears to be under the age of 17 ... .
"endorsed for bail" means endorsed with a direction for bail in accordance with section 117(2) of the Magistrates' Courts Act 1980.

 

If the custody officer allows detention without charge, this is first limited to 24 hours by section 41:

Police and Criminal Evidence Act 1984, s.41
Limits on period of detention without charge

 41. - (1) Subject to the following provisions of this section and to sections 42 and 43 below, a person shall not be kept in police detention for more than 24 hours without being charged.

 (2) The time from which the period of detention of a person is to be calculated (in this Act referred to as "the relevant time") -

(a) in the case of a person to whom this paragraph applies, shall be -
(i) the time at which that person arrives at the relevant police station; or
(ii) the time 24 hours after the time of that person's arrest,

whichever is the earlier;

(b) in the case of a person arrested outside England and Wales, shall be -
(i) the time at which that person arrives at the first police station to which he is taken in the police area in England or Wales in which the offence for which he was arrested is being investigated; or
(ii) the time 24 hours after the time of that person's entry into England and Wales,

whichever is the earlier;

(c) in the case of a person who -
(i) attends voluntarily at a police station; or
(ii) accompanies a constable to a police station without having been arrested,

and is arrested at the police station, the time of his arrest;
(d) in any other case, except where subsection (5) below applies, shall be the time at which the person arrested arrives at the first police station to which he is taken after his arrest.

(3) Subsection (2)(a) above applies to a person if -

(a) his arrest is sought in one police area in England and Wales;
(b) he is arrested in another police area; and
(c) he is not questioned in the area in which he is arrested in order to obtain evidence in relation to an offence for which he is arrested;

and in sub-paragraph (i) of that paragraph "the relevant police station" means the first police station to which he is taken in the police area in which his arrest was sought.

(4) Subsection (2) above shall have effect in relation to a person arrested under section 31 above as if every reference in it to his arrest or his being arrested were a reference to his arrest or his being arrested for the offence for which he was originally arrested. 

(5) If -

(a) a person is in police detention in a police area in England and Wales ("the first area"); and
(b) his arrest for an offence is sought in some other police area in England and Wales ("the second area"); and
(c) he is taken to the second area for the purposes of investigating that offence, without being questioned in the first area in order to obtain evidence in relation to it,

the relevant time shall be -

(i) the time 24 hours after he leaves the place where he is detained in the first area; or
(ii) the time at which he arrives at the first police station to which he is taken in the second area,

whichever is the earlier.

(6) When a person who is in police detention is removed to hospital because he is in need of medical treatment, any time during which he is being questioned in hospital or on the way there or back by a police officer for the purpose of obtaining evidence relating to an offence shall be included in any period which falls to be calculated for the purposes of this Part of this Act, but any other time while he is in hospital or on his way there or back shall not be included.

(7) Subject to subsection (8) below, a person who at the expiry of 24 hours after the relevant time is in police detention and has not been charged shall be released at that time either on bail or without bail.

(8) Subsection (7) above does not apply to a person whose detention for more than 24 hours after the relevant time has been authorised or is otherwise permitted in accordance with section 42 or 43 below. 

(9) A person released under subsection (7) above shall not be re-arrested without a warrant for the offence for which he was previously arrested unless new evidence justifying a further arrest has come to light since his release, but this subsection does not prevent an arrest under section 46A below.

 

However, this 24 hour limit may be extended, first by a senior police officer under section 42:

Police and Criminal Evidence Act 1984, s.42
Authorisation of continued detention

 42. - (1) Where a police officer of the rank of superintendent or above who is responsible for the police station at which a person is detained has reasonable grounds for believing that -

(a) the detention of that person without charge is necessary to secure or preserve evidence relating to an offence for which he is under arrest or to obtain such evidence by questioning him;
(b) an offence for which he is under arrest is a serious arrestable offence; and
(c) the investigation is being conducted diligently and expeditiously,

he may authorise the keeping of that person in police detention for a period expiring at or before 36 hours after the relevant time. 

(2) Where an officer such as is mentioned in subsection (1) above has authorised the keeping of a person in police detention for a period expiring less than 36 hours after the relevant time, such an officer may authorise the keeping of that person in police detention for a further period expiring not more than 36 hours after that time if the conditions specified in subsection (1) are still satisfied when he gives the authorisation.

(3) If it is proposed to transfer a person in police detention to another police area, the officer determining whether or not to authorise keeping him in detention under section (1) above shall have regard to the distance and the time the journey would take.

(4) No authorisation under subsection (1) above shall be given in respect of any person -

(a) more than 24 hours after the relevant time; or
(b) before the second review of his detention under section 40 above has been carried out. 

(5) Where an officer authorises the keeping of a person in police detention under subsection (1) above, it shall be his duty -

(a) to inform that person of the grounds for his continued detention; and
(b) to record the grounds in that person's custody record.

(6) Before determining whether to authorise the keeping of a person in detention under subsection (1) or (2) above, an officer shall give -

(a) that person; or
(b) any solicitor representing him who is available at the time when it falls to the officer to determine whether to give the authorisation,

an opportunity to make representations to him about the detention.

 (7) Subject to subsection (8) below, the person in detention or his solicitor may make representations under subsection (6) above either orally or in writing.

 (8) The officer to whom it falls to determine whether to give the authorisation may refuse to hear oral representations from the person in detention if he considers that he is unfit to make such representations by reason of his condition or behaviour.

(9) Where -

(a) an officer authorises the keeping of a person in detention under subsection (1) above; and
(b) at the time of the authorisation he has not yet exercised a right conferred on him by section 56 or 58 below,

the officer -

(i) shall inform him of that right;
(ii) shall decide whether he should be permitted to exercise it;
(iii) shall record the decision in his custody record; and
(iv) if the decision is to refuse to permit the exercise of the right, shall also record the grounds for the decision in that record.

(10) Where an officer has authorised the keeping of a person who has not been charged in detention under subsection (1) or (2) above, he shall be released from detention, either on bail or without bail, not later than 36 hours after the relevant time, unless -

(a) he has been charged with an offence; or
(b) his continued detention is authorised or otherwise permitted in accordance with section 43 below.

(11) [Identical to s.41(9), ante, 3-113, save that reference to "subsection (10)" replaces reference to "subsection (7)".]

Then, after 36 hours, the police must obtain authorisation from magistrates under section 43 (and again under section 44):

Police and Criminal Evidence Act 1984, s.43.
Warrants of further detention

 43. - (1) Where, on an application on oath made by a constable and supported by an information, a magistrates' court is satisfied that there are reasonable grounds for believing that the further detention of the person to whom the application relates is justified, it may issue a warrant of further detention authorising the keeping of that person in police detention.

 (2) A court may not hear an application for a warrant of further detention unless the person to whom the application relates -

(a) has been furnished with a copy of the information; and
(b) has been brought before the court for the hearing.

 (3) The person to whom the application relates shall be entitled to be legally represented at the hearing and, if he is not so represented but wishes to be so represented -

(a) the court shall adjourn the hearing to enable him to obtain representation; and
(b) he may be kept in police detention during the adjournment.

 (4) A person's further detention is only justified for the purposes of this section or section 44 below if -

(a) his detention without charge is necessary to secure or preserve evidence relating to an offence for which he is under arrest or to obtain such evidence by questioning him;

(b) an offence for which he is under arrest is a serious arrestable offence; and
(c) the investigation is being conducted diligently and expeditiously.

(5) Subject to subsection (7) below, an application for a warrant of further detention may be made -

(a) at any time before the expiry of 36 hours after the relevant time; or
(b) in a case where -
(i) it is not practicable for the magistrates' court to which the application will be made to sit at the expiry of 36 hours after the relevant time; but
(ii) the court will sit during the 6 hours following the end of that period,

at any time before the expiry of the said 6 hours.

(6) In the case to which subsection (5)(b) above applies -

(a) the person to whom the application relates may be kept in police detention until the application is heard; and
(b) the custody officer shall make a note in that person's custody record -
(i) of the fact that he was kept in police detention for more than 36 hours after the relevant time; and
(ii) of the reason why he was so kept. 

(7) If -

(a) an application for a warrant of further detention is made after the expiry of 36 hours after the relevant time; and
(b) it appears to the magistrates' court that it would have been reasonable for the police to make it before the expiry of that period,

the court shall dismiss the application.

(8) Where on an application such as is mentioned in subsection (1) above a magistrates' court is not satisfied that there are reasonable grounds for believing that the further detention of the person to whom the application relates is justified, it shall be its duty -

(a) to refuse the application; or
(b) to adjourn the hearing of it until a time not later than 36 hours after the relevant time.

(9) The person to whom the application relates may be kept in police detention during the adjournment. 

(10) A warrant of further detention shall -

(a) state the time at which it is issued;
(b) authorise the keeping in police detention of the person to whom it relates for the period stated in it. 

(11) Subject to subsection (12) below, the period stated in a warrant of further detention shall be such period as the magistrates' court thinks fit, having regard to the evidence before it. 

(12) The period shall be no longer than 36 hours. 

(13) If it is proposed to transfer a person in police detention to a police area other than that in which he is detained when the application for a warrant of further detention is made, the court hearing the application shall have regard to the distance and the time the journey would take. 

(14) Any information submitted in support of an application under this section shall state -

(a) the nature of the offence for which the person to whom the application relates has been arrested;
(b) the general nature of the evidence on which that person was arrested;
(c) what inquiries relating to the offence have been made by the police and what further inquiries are proposed by them;
(d) the reasons for believing the continued detention of that person to be necessary for the purpose of such further inquiries.

(15) Where an application under this section is refused, the person to whom the application relates shall forthwith be charged or, subject to subsection (16) below, released, either on bail or without bail.

(16) A person need not be released under subsection (15) above -

(a) before the expiry of 24 hours after the relevant time; or
(b) before the expiry of any longer period for which his continued detention is or has been authorised under section 42 above.

(17) Where an application under this section is refused, no further application shall be made under this section in respect of the person to whom the refusal relates, unless supported by evidence which has come to light since the refusal. 

(18) Where a warrant of further detention is issued, the person to whom it relates shall be released from police detention either on bail or without bail, upon or before the expiry of the warrant unless he is charged.

 

Police and Criminal Evidence Act 1984, s.44
Extension of warrants of further detention

 44. - (1) On an application on oath made by a constable and supported by an information a magistrates' court may extend a warrant of further detention issued under section 43 above if it is satisfied that there are reasonable grounds for believing that the further detention of the person to whom the application relates is justified.

(2) Subject to subsection (3) below, the period for which a warrant of further detention may be extended shall be such period as the court thinks fit, having regard to the evidence before it.

(3) The period shall not -

(a) be longer than 36 hours; or
(b) end later than 96 hours after the relevant time.

(4) Where a warrant of further detention has been extended under subsection (1) above, or further extended under this subsection, for a period ending before 96 hours after the relevant time, on an application such as is mentioned in that subsection a magistrates' court may further extend the warrant if it is satisfied as there mentioned; and subsection (2) and (3) above apply to such further extensions as they apply to extensions under subsection (1) above.

(5) A warrant of further detention shall, if extended or further extended under this section, be endorsed with a note of the period of the extension.

(6) Subsections (2), (3) and (14) of section 43 above shall apply to an application made under this section as they apply to an application made under that section(7) [Identical to s.43(15), ante, 3-121, save that reference to "subsection (8)" replaces reference to "subsection 16".] 

(8) A person need not be released under subsection (7) above before the expiry of any period for which a warrant of further detention issued in relation to him has been extended or further extended on an earlier application made under this section.

 

The total detention permissible is 96 hours, but it should be noted that the vast majority of detentions (over 99%) are for less than 24 hours and the average is around 5 or 6 hours.

If a person is charged at the police station, either on arrival or after questioning, at that point, the rules about detention are set out in section 38:

Police and Criminal Evidence Act 1984, s.38
Duties of custody officer after charge

 38. - (1) Where a person arrested for an offence otherwise than under a warrant endorsed for bail is charged with an offence, the custody officer shall, subject to section 25 of the Criminal Justice and Public Order Act 1994, order his release from police detention, either on bail or without bail, unless -

(a) if the person arrested is not an arrested juvenile -
(i) his name or address cannot be ascertained or the custody officer has reasonable grounds for doubting whether a name or address furnished by him as his name or address is his real name or address;
(ii) the custody officer has reasonable grounds for believing that the person arrested will fail to appear in court to answer to bail;
(iii) in the case of a person arrested for an imprisonable offence, the custody officer has reasonable grounds for believing that the detention of the person arrested is necessary to prevent him from committing an offence;
(iv) in the case of a person arrested for an offence which is not an imprisonable offence, the custody officer has reasonable grounds for believing that the detention of the person arrested is necessary to prevent him from causing physical injury to any other person or from causing loss of or damage to property;
(v) the custody officer has reasonable grounds for believing that the detention of the person arrested is necessary to prevent him from interfering with the administration of justice or with the investigation of offences or of a particular offence; or
(vi) the custody officer has reasonable grounds for believing that the detention of the person arrested is necessary for his own protection;

(b) if he is an arrested juvenile -
(i) any of the requirements of paragraph (a) above is satisfied; or
(ii) the custody officer has reasonable grounds for believing that he ought to be detained in his own interests.

(2) If the release of a person arrested is not required by subsection (1) above, the custody officer may authorise him to be kept in police detention.

 (2A) The custody officer, in taking the decisions required by subsection (1)(a) and (b) above (except (a)(i) and (vi) and (b)(ii), shall have regard to the same considerations as those which a court is required to have regard to in taking the corresponding decisions under paragraph 2 of Part I of Schedule 1 to the Bail Act 1976.

 (3) Where a custody officer authorises a person who has been charged to be kept in police detention, he shall, as soon as practicable, make a written record of the grounds for the detention.

 (4), (5) [Identical to s.37(5), (6), apart from references to subss (5) and (4) in lieu of references to subss (6) and (5) respectively.]

 (6) Where a custody officer authorises an arrested juvenile to be kept in police detention under subsection (1) above, the custody officer shall, unless he certifies -

(a) that, by reason of such circumstances as are specified in the certificate, it is impracticable for him to do so; or
(b) in the case of an arrested juvenile who has attained the age of 12 years, that no secure accommodation is available and that keeping him in other local authority accommodation would not be adequate to protect the public from serious harm from him,

secure that the arrested juvenile is moved to local authority accommodation.

 (6A) In this section -

"local authority accommodation" means accommodation provided by or on behalf of a local authority (within the meaning of the Children Act 1989);
"secure accommodation" means accommodation provided for the purpose of restricting liberty;
"sexual offence" and "violent offence" have the same meanings as in Part I of the Criminal Justice Act 1991;

and any reference, in relation to an arrested juvenile charged with a violent or sexual offence, to protecting the public from serious harm from him shall be construed as a reference to protecting members of the public from death or serious personal injury, whether physical or psychological, occasioned by further such offences committed by him.

 (6B) Where an arrested juvenile is moved to local authority accommodation under subsection (6) above, it shall be lawful for any person acting on behalf of the authority to detain him.

 (7) A certificate made under subsection (6) above in respect of an arrested juvenile shall be produced to the court before which he is first brought thereafter.

 (7A) In this section "imprisonable offence" has the same meaning as in Schedule 1 to the Bail Act 1976.

 (8) In this Part of this Act "local authority" has the same meaning as in the Children Act 1989.

 

Whether the person is charged or not, the police must carry out the following further checks on the necessity for detention under section 40:

Police and Criminal Evidence Act 1984, s.40
Review of police detention

 40. - (1) Reviews of the detention of each person in police detention in connection with the investigation of an offence shall be carried out periodically in accordance with the following provisions of this section -

(a) in the case of a person who has been arrested and charged, by the custody officer; and
(b) in the case of a person who has been arrested but not charged, by an officer of at least the rank of inspector who has not been directly involved in the investigation.

 (2) The officer to whom it falls to carry out a review is referred to in this section as a "review officer".

 (3) Subject to subsection (4) below -

(a) the first review shall be not later than six hours after the detention was first authorised;
(b) the second review shall be not later than nine hours after the first;
(c) subsequent reviews shall be at intervals of not more than nine hours.

 (4) A review may be postponed -

(a) if, having regard to all the circumstances prevailing at the latest time for it specified in subsection (3) above, it is not practicable to carry out the review at that time;
(b) without prejudice to the generality of paragraph (a) above -
(i) if at that time the person in detention is being questioned by a police officer and the review officer is satisfied that an interruption of the questioning for the purpose of carrying out the review would prejudice the investigation in connection with which he is being questioned; or
(ii) if at that time no review officer is readily available.

 (5) If a review is postponed under subsection (4) above it shall be carried out as soon as practicable after the latest time specified for it in subsection (3) above.

 (6) If a review is carried out after postponement under subsection (4) above, the fact that it was so carried out shall not affect any requirement of this section as to the time at which any subsequent review is to be carried out.

 (7) The review officer shall record the reasons for any postponement of a review in the custody record.

 (8) Subject to subsection (9) below, where the person whose detention is under review has not been charged before the time of the review, section 37(1) to (6) above shall have effect in relation to him, but with the substitution -

(a) of references to the person whose detention is under review for references to the person arrested; and
(b) of references to the review officer for references to the custody officer.

(9) Where a person has been kept in police detention by virtue of section 37(9) above, section 37(1) to (6) shall not have effect in relation to him but it shall be the duty of the review officer to determine whether he is yet in a fit state. 

(10) Where the person whose detention is under review has been charged before the time of the review, section 38(1) to (6) above shall have effect in relation to him, but with the substitution of references to the person whose detention is under review for references to the person arrested. 

(11) [Identical to s.39(6), save that (1) references to "review officer" replace references to "custody officer", and (2) the words "in connection with the detention" are added at the end of the subsection.] 

(12) Before determining whether to authorise a person's continued detention the review officer shall give -

(a) that person (unless he is asleep); or
(b) any solicitor representing him who is available at the time of the review,

an opportunity to make representations to him about the detention.

(13) Subject to subsection (14) below, the person whose detention is under review or his solicitor may make representations under subsection (12) above either orally or in writing. 

(14) The review officer may refuse to hear oral representations from the person whose detention is under review if he considers that he is unfit to make such representations by reason of his condition or behaviour.

 

(4) Treatment during detention

The PACE regime attempts to stop abusive or improper treatment by a number of strategies.

Police and Criminal Evidence Act 1984, s.56
Right to have someone informed when arrested

 56. - (1) Where a person has been arrested and is being held in custody in a police station or other premises, he shall be entitled, if he so requests, to have one friend or relative or other person who is known to him or who is likely to take an interest in his welfare told, as soon as is practicable except to the extent that delay is permitted by this section, that he has been arrested and is being detained there. 

(2) Delay is only permitted -

(a) in the case of a person who is in police detention for a serious arrestable offence; and
(b) if an officer of at least the rank of superintendent authorises it. 

(3) In any case the person in custody must be permitted to exercise the right conferred by subsection (1) above within 36 hours from the relevant time, as defined in section 41(2) above. 

(4) An officer may give an authorisation under subsection (2) above orally or in writing but, if he gives it orally, he shall confirm it in writing as soon as is practicable. 

(5) Subject to subsection (5A) below an officer may only authorise delay where he has reasonable grounds for believing that telling the named person of the arrest -

(a) will lead to interference with or harm to evidence connected with a serious arrestable offence or interference with or physical injury to other persons; or
(b) will lead to the alerting of other persons suspected of having committed such an offence but not yet arrested for it; or
(c) will hinder the recovery of any property obtained as a result of such an offence.
 

(5A) An officer may also authorise delay where the serious arrestable offence is a drug trafficking offence or an offence to which Part VI of the Criminal Justice Act 1988 applies (offences in respect of which confiscation orders under that Part may be made) and the officer has reasonable grounds for believing -

(a) where the offence is a drug trafficking offence, that the detained person has benefited from drug trafficking and that the recovery of the value of that person's proceeds of drug trafficking will be hindered by telling the named person of the arrest; and
(b) where the offence is one to which Part VI of the Criminal Justice Act 1988 applies, that the detained person has benefited from the offence and that the recovery of the value of the property obtained by that person from or in connection with the offence or of the pecuniary advantage derived by him from or in connection with it will be hindered by telling the named person of the arrest. 

(6) If a delay is authorised -

(a) the detained person shall be told the reason for it; and
(b) the reason shall be noted on his custody record. 

(7) The duties imposed by subsection (6) above shall be performed as soon as is practicable. 

(8) The rights conferred by this section on a person detained at a police station or other premises are exercisable whenever he is transferred from one place to another; and this section applies to each subsequent occasion on which they are exercisable as it applies to the first such occasion. 

(9) There may be no further delay in permitting the exercise of the right conferred by subsection (1) above once the reason for authorising delay ceases to subsist. 

(10) In the foregoing provisions of this section references to a person who has been arrested include references to a person who has been detained under the terrorism provisions and "arrest" includes detention under those provisions.
 

(11) In its application to a person who has been arrested or detained under the terrorism provisions -

(a) subsection (2)(a) above shall have effect as if for the words "for a serious arrestable offence" there were substituted the words "under the terrorism provisions";
(b) subsection (3) above shall have effect as if for the words from "within" onwards there were substituted the words "before the end of the period beyond which he may no longer be detained without the authority of the Secretary of State"; and
(c) subsection (5) above shall have effect as if at the end there were added "or
(d) will lead to interference with the gathering of information about the commission, preparation or instigation of acts of terrorism; or
(e) by alerting any person, will make it more difficult -
(i) to prevent an act of terrorism; or
(ii) to secure the apprehension, prosecution or conviction of any person in connection with the commission, preparation or instigation of an act of terrorism."

Arguably of even greater importance is access to solicitors, and this is provided for under PACE section 58.

Police and Criminal Evidence Act 1984, s.58
Access to legal advice

 58. - (1) A person arrested and held in custody in a police station or other premises shall be entitled, if he so requests, to consult a solicitor privately at any time. 

(2) Subject to subsection (3) below, a request under subsection (1) above and the time at which it was made shall be recorded in the custody record. 

(3) Such a request need not be recorded in the custody record of a person who makes it at a time while he is at a court after being charged with an offence. 

(4) If a person makes such a request, he must be permitted to consult a solicitor as soon as is practicable except to the extent that delay is permitted by this section. 

(5) In any case he must be permitted to consult a solicitor within 36 hours from the relevant time, as defined in section 41(2) above. 

(6) Delay in compliance with a request is only permitted -

(a) in the case of a person who is in police detention for a serious arrestable offence; and
(b) if an officer of at least the rank of superintendent authorises it.
 

(7) An officer may give an authorisation under subsection (6) above orally or in writing but, if he gives it orally, he shall confirm it in writing as soon as is practicable. 

(8) Subject to subsection (8A) below an officer may only authorise delay where he has reasonable grounds for believing that the exercise of the right conferred by subsection (1) above at the time when the person detained desires to exercise it -

 (8A) An officer may also authorise delay where the serious arrestable offence is a drug trafficking offence or an offence to which Part VI of the Criminal Justice Act 1988 applies and the officer has reasonable grounds for believing -

(a) where the offence is a drug trafficking offence, that the detained person has benefited from drug trafficking and that the recovery of the value of that person's proceeds of drug trafficking will be hindered by the exercise of the right conferred by subsection (1) above; and

(b) where the offence is one to which Part VI of the Criminal Justice Act 1988 applies, that the detained person has benefited from the offence and that the recovery of the value of the property obtained by that person from or in connection with the offence or of the pecuniary advantage derived by him from or in connection with it will be hindered by the exercise of the right conferred by subsection (1) above.

(10) The duties imposed by subsection (9) above shall be performed as soon as is practicable. 

(11) There may be no further delay in permitting the exercise of the right conferred by subsection (1) above once the reason for authorising delay ceases to subsist. 

(12) The reference in subsection (1) above to a person arrested includes a reference to a person who has been detained under the terrorism provisions. 

(13) In the application of this section to a person who has been arrested or detained under the terrorism provisions -

(a) subsection (5) above shall have effect as if for the words from "within" onwards there were substituted the words "before the end of the period beyond which he may no longer be detained without the authority of the Secretary of State";
(b) subsection (6)(a) above shall have effect as if for the words "for a serious arrestable offence" there were substituted the words "under the terrorism provisions"; and
(c) subsection (8) above shall have effect as if at the end there were added "or
(d) will lead to interference with the gathering of information about the commission, preparation or instigation of acts of terrorism; or
(e) by alerting any person, will make it more difficult -
(i) to prevent an act of terrorism; or
(ii) to secure the apprehension, prosecution or conviction of any person in connection with the commission, preparation or instigation of an act of terrorism."

(14) If an officer of appropriate rank has reasonable grounds for believing that, unless he gives a direction under subsection (15) below, the exercise by a person arrested or detained under the terrorism provisions of the right conferred by subsection (1) above will have any of the consequences specified in subsection (8) above (as it has effect by virtue of subsection (13) above), he may give a direction under that subsection. 

(15) A direction under this subsection is a direction that a person desiring to exercise the right conferred by subsection (1) above may only consult a solicitor in the sight and hearing of a qualified officer of the uniformed branch of the force of which the officer giving the direction is a member. 

(16) An officer is qualified for the purpose of subsection (15) above if -

(a) he is of at least the rank of inspector; and
(b) in the opinion of the officer giving the direction he has no connection with the case.

(17) An officer is of appropriate rank to give a direction under subsection (15) above if he is of at least the rank of Commander or Assistant Chief Constable. 

(18) A direction under subsection (15) above shall cease to have effect once the reason for giving it ceases to subsist.

The courts have said they view this as avery important ritht which can ensure the fairness of the proceedings. This point was made in a case called R. v. Samuel [1988] 2 W.L.R. 920. [This case will be available in full soon] In order to ensure the right is effectively exercised, there is a system of duty solicitors under section 59 - in other words, lawyers are provided for free on request. In the case of juveniles or the mentally disordered, there is also a right to contact and access an "appropriate adult" under section 37 and 57.

(5) Enforcement

If the police breach the law or the rules in PACE Code C, they may face legal or disciplinary proceedings. But the most likely consequence is that it may put in doubt the admissibility of any evidence they have obtained from the suspect by way of admission or confession. The rules for admissibility are set out mainly in PACE sections 76 and 78:

Police and Criminal Evidence Act 1984, s.76
Confessions

- s.76 If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained -

(a) by oppression of the person who made it; or

(b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof,

the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid.

In this section "oppression" includes torture, inhuman or degrading treatment and the use or threat of violence (whether or not amounting to torture).

Criminal Justice and Public Order Act 1994, s.78 (1)

In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained,the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

(6) Evidence from silence

The purpose of detention for question is, of course, so that the police can secure damaging admissions or confessions from the suspect. PACE expressly allows this to be attempted - but subject to several safeguards. Afetr a few years of the operation of PACE (and to some extent even before), the police began saying that criminals were taking advantage of the safeguards of PACE and were nullifying the police’s attempts to interrogate them. As a response, the police called for a change in the rules which would allow them to put forward the fact that the suspect had remained silent in the police station as incriminating evidence if the suspect later suggests a defence of some kind. For many years, this idea was resisted, but it has now been enacted by the Criminal Justice and Public Order Act 1994 section 34, 36 and 37. Section 35 also covers silence at trial.

Criminal Justice and Public Order Act 1994, s.34
Effect of accused's failure to mention facts when questioned or charged

 34. - (1) Where, in any proceedings against a person for an offence, evidence is given that the accused -

(a) at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings; or
(b) on being charged with the offence or officially informed that he might be prosecuted for it, failed to mention any such fact,

being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, subsection (2) below applies.

(2) Where this subsection applies -

(a) a magistrates' court inquiring into the offence as examining justices;
(b) a judge, in deciding whether to grant an application made by the accused under -
(i) section 6 of the Criminal Justice Act 1987 (application for dismissal of charge of serious fraud in respect of which notice of transfer has been given under section 4 of that Act); or
(ii) paragraph 5 of Schedule 6 to the Criminal Justice Act 1991 (application for dismissal of charge of violent or sexual offence involving child in respect of which notice of transfer has been given under section 53 of that Act);
(c) the court, in determining whether there is a case to answer; and
(d) the court or jury, in determining whether the accused is guilty of the offence charged,

may draw such inferences from the failure as appear proper.

(3) Subject to any directions by the court, evidence tending to establish the failure may be given before or after evidence tending to establish the fact which the accused is alleged to have failed to mention.

(4) This section applies in relation to questioning by persons (other than constables) charged with the duty of investigating offences or charging offenders as it applies in relation to questioning by constables; and in subsection (1) above "officially informed" means informed by a constable or any such person.

(5) This section does not -

(a) prejudice the admissibility in evidence of the silence or other reaction of the accused in the face of anything said in his presence relating to the conduct in respect of which he is charged, in so far as evidence thereof would be admissible apart from this section; or
(b) preclude the drawing of any inference from any such silence or other reaction of the accused which could properly be drawn apart from this section.

(6) This section does not apply in relation to a failure to mention a fact if the failure occurred before the commencement of this section.

 

Criminal Justice and Public Order Act 1994, s.35
Effect of accused's silence at trial

 35. - (1) At the trial of any person who has attained the age of fourteen years for an offence, subsections (2) and (3) below apply unless -

(a) the accused's guilt is not in issue; or
(b) it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence;

but subsection (2) below does not apply if, at the the conclusion of the evidence for the prosecution, his legal representative informs the court that the accused will give evidence or, where he is unrepresented, the court ascertains from him that he will give evidence.

(2) Where this subsection applies, the court shall, at the conclusion of the evidence for the prosecution, satisfy itself (in the case of proceedings on indictment, in the presence of the jury) that the accused is aware that the stage has been reached at which evidence can be given for the defence and that he can, if he wishes, give evidence and that, if he chooses not to give evidence, or having been sworn, without good cause refuses to answer any question, it will be permissible for the court or jury to draw such inferences as appear proper from his failure to give evidence or his refusal, without good cause, to answer any question.

(3) Where this subsection applies, the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal, without good cause, to answer any question.

(4) This section does not render the accused compellable to give evidence on his own behalf, and he shall accordingly not be guilty of contempt of court by reason of a failure to do so.

(5) For the purposes of this section a person who, having been sworn, refuses to answer any question shall be taken to do so without good cause unless -

(a) he is entitled to refuse to answer the question by virtue of any enactment, whenever passed or made, or on the ground of privilege; or
(b) the court in the exercise of its general discretion excuses him from answering it.

 (6) Where the age of any person is material for the purposes of subsection (1) above, his age shall for those purposes be taken to be that which appears to the court to be his age.

(7) This section applies -

(a) in relation to proceedings on indictment for an offence, only if the person charged with the offence is arraigned on or after the commencement of this section;
(b) in relation to proceedings in a magistrates' court, only if the time when the court begins to receive evidence in the proceedings falls after the commencement of this section.

 

Criminal Justice and Public Order Act 1994, s.36
Effect of accused's failure or refusal to account for objects, substances or marks

 36. - (1) Where -

(a) a person is arrested by a constable, and there is -
(i) on his person; or
(ii) in or on his clothing or footwear; or
(iii) otherwise in his possession; or
(iv) in any place in which he is at the time of his arrest,
any object, substance or mark, or there is any mark on any such object; and
(b) that or another constable investigating the case reasonably believes that the presence of the object, substance or mark may be attributable to the participation of the person arrested in the commission of an offence specified by the constable; and
(c) the constable informs the person arrested that he so believes, and requests him to account for the presence of the object, substance or mark; and
(d) the person fails or refuses to do so,

then if, in any proceedings against the person for the offence so specified, evidence of those matters is given, subsection (2) below applies.

(2) Where this subsection applies -

(a) a magistrates' court inquiring into the offence as examining justices;
(b) a judge, in deciding whether to grant an application made by the accused under -
(i) section 6 of the Criminal Justice Act 1987 (application for dismissal of charge of serious fraud in respect of which notice of transfer has been given under section 4 of that Act); or
(ii) paragraph 5 of Schedule 6 to the Criminal Justice Act 1991 (application for dismissal of charge of violent or sexual offence involving child in respect of which notice of transfer has been given under section 53 of that Act);
(c) the court, in determining whether there is a case to answer; and
(d) the court or jury, in determining whether the accused is guilty of the offence charged,

may draw such inferences from the failure or refusal as appear proper.

(3) Subsections (1) and (2) above apply to the condition of clothing or footwear as they apply to a substance or mark thereon.

(4) Subsections (1) and (2) above do not apply unless the accused was told in ordinary language by the constable when making the request mentioned in subsection (1)(c) above what the effect of this section would be if he failed or refused to comply with the request.

(5) This section applies in relation to officers of customs and excise as it applies in relation to constables.

(6) This section does not preclude the drawing of any inference from a failure or refusal of the accused to account for the presence of an object, substance or mark or from the condition of clothing or footwear which could properly be drawn apart from this section.

(7) This section does not apply in relation to a failure or refusal which occurred before the commencement of this section.

 

Criminal Justice and Public Order Act 1994, s.37
Effect of accused's failure or refusal to account for presence at a particular place

 37. - (1) Where -

(a) a person arrested by a constable was found by him at a place at or about the time the offence for which he was arrested is alleged to have been committed; and
(b) that or another constable investigating the offence reasonably believes that the presence of the person at that place and at that time may be attributable to his participation in the commission of the offence; and
(c) the constable informs the person that he so believes, and requests him to account for that presence; and
(d) the person fails or refuses to do so.

then if, in any proceedings against the person for the offence, evidence of those matters is given, subsection (2) below applies.

(2) Where this subsection applies -

(a) a magistrates' court inquiring into the offence as examining justices;
(b) a judge, in deciding whether to grant an application made by the accused under -
(i) section 6 of the Criminal Justice Act 1987 (application for dismissal of charge of serious fraud in respect of which notice of transfer has been given under section 4 of that Act); or
(ii) paragraph 5 of Schedule 6 to the Criminal Justice Act 1991 (application for dismissal of charge of violent or sexual offence involving child in respect of which notice of transfer has been given under section 53 of that Act);
(c) the court, in determining whether there is a case to answer; and
(d) the court or jury, in determining whether the accused is guilty of the offence charged,

may draw such inferences from the failure or refusal as appear proper.

 (3) Subsections (1) and (2) do not apply unless the accused was told in ordinary language by the constable when making the request mentioned in subsection (1)(c) above what the effect of this section would be if he failed or refused to comply with the request.

(4) This section applies in relation to officers of customs and excise as it applies in relation to constables.

(5) This section does not preclude the drawing of any inference from a failure or refusal of the accused to account for his presence at a place which could properly be drawn apart from this section.

(6) This section does not apply in relation to a failure or refusal which occurred before the commencement of this section.

 


Last Updated October 1998

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