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Detention and Treatment of Persons by Police Officers: PACE Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers (Code C) 

Detention and Treatment of Persons by Police Officers: PACE Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers (Code C)
Chapter:
Detention and Treatment of Persons by Police Officers: PACE Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers (Code C)
Author(s):

David Johnston

and Glenn Hutton

DOI:
10.1093/law/9780198806110.003.0008
Page of

Subscriber: null; date: 15 August 2018

A thick grey line down the margin denotes text that is an extract of the PACE Code itself (i.e. the actual wording of the legislation). This material is examinable for both Sergeants and Inspectors.

2.8.1 Introduction

The powers to detain people who have been arrested and the manner in which they must be dealt with are primarily contained in the Police and Criminal Evidence Act 1984 and the PACE Codes of Practice. These Codes are intended to protect the basic rights of detained people. If these Codes are followed, it is more likely that evidence obtained while people are in custody will be admissible; the provisions of the 1984 Act give guidance in numerous areas. The Human Rights Act 1998 makes it even more important to comply with the 1984 Act and its associated Codes of Practice. This can be seen from the case of R v Chief Constable of Kent Constabulary, ex parte Kent Police Federation Joint Branch Board [2000] 2 Cr App R 196, where the court stated that the 1984 Act and the Codes of Practice represented the balance between the important duty of the police to investigate crime and apprehend criminals and the rights of the private citizen. A breach of Code C is fundamental in affecting the fairness of the evidence (R v Aspinall [1999] 2 Cr App R 115).

This chapter examines the treatment of persons who have been detained by police. The majority of this is contained within PACE Code C, which was amended in October 2013. Some sections of Code C deal with the interviewing of suspects and as such are included in chapter 2.10. Code H is the corresponding Code which applies to persons detained for the purposes of a terrorist investigation; the two Codes are similar and provide further clarity on their application. They also reflect changes to legislation that apply to both these Codes. These include consequential changes to custody records as a result of the reduced stop and search recording requirements in s. 3 of the Police and Criminal Evidence Act 1984, introduced in March 2011. References to terrorism matters, where appropriate, are included in the keynotes to this chapter.

The main responsibility for a detained person lies with the custody officer; however, it is important that all staff, including supervisors involved in investigations or those dealing with detained persons, are aware of the provisions of the Act and the Codes.

As the key reference point for the treatment of detained persons lies in the PACE Codes, this chapter and the subsequent chapters that deal with those in police detention are based around the Codes of Practice with the keynotes combining the Notes for Guidance to the legislation, and case law that support the Codes.

As Code C uses terms such as ‘custody officer’ and ‘designated person’ (amongst others), it is useful to examine briefly what they mean before examining Code C in detail.

2.8.2 Custody Officers

Custody officers are responsible for the reception and treatment of prisoners detained at the police station.

The role of the custody officer is to act independently of those conducting the investigation, thereby ensuring the welfare and rights of the detained person (this requirement is contained in s. 36(5) of the 1984 Act). Section 36 requires that one or more custody officers must be appointed for each designated police station. However, in Vince v Chief Constable of Dorset [1993] 1 WLR 415, it was held that a chief constable was under a duty to appoint one custody officer for each designated police station and had a discretionary power to appoint more than one, but this duty did not go so far as to require a sufficient number to ensure that the functions of custody officer were always performed by them. The provision of the facility of a custody officer must be reasonable. Section 36(3) states that a custody officer must be an officer of at least the rank of sergeant. However, s. 36(4) allows officers of any rank to perform the functions of custody officer at a designated police station if a sergeant is not readily available to perform them. The effect of s. 36(3) and (4) is that the practice of allowing officers of any other rank to perform the role of custody officer where a sergeant (who has no other role to perform) is in the police station must therefore be unlawful. Should a decision be made to use acting sergeants or untrained custody officers, this may lead to a claim in negligence by the officer or the detained person where there is a breach of the Codes or someone is injured as a result of the failure to manage the custody suite effectively. It could also lead to a prosecution under health and safety legislation.

For cases where arrested people are taken to a non-designated police station, s. 36(7) states that an officer of any rank not involved in the investigation should perform the role of custody officer. If no such person is at the station, the arresting officer (or any other officer involved in the investigation) or the officer that released him/her under s. 30A of the 1984 Act (bail prior to being taken to a police station) should perform the role. In these cases, an officer of at least the rank of inspector at a designated police station must be informed. It is suggested that once informed, that officer should consider the circumstances of the detained person.

Where a custody officer feels that he/she is unable to comply with the minimum standards of detention as required by the 1984 Act, it is suggested that he/she should draw this to the attention of the line manager and/or the superintendent responsible for the custody suite. Custody officers should be mindful of Article 5 of the European Convention on Human Rights in considering whether they are able to manage the number of detained persons in their custody to ensure that their detention is not longer than needed.

2.8.3 Designated Support Staff

Sections 38 and 39 of the Police Reform Act 2002 allow persons employed by the Local Policing Body or persons employed by a contractor of the Local Policing Body (in relation to detention and escort officers) to be designated as investigating officers, detention officers and escort officers.

Designated officers are given powers to carry out certain functions that would up to this time have been carried out by police officers only. Before a person can be given the powers of a designated officer, the chief officer of police must be satisfied that the person is a suitable person to carry out the functions for which he/she is designated, is capable of effectively carrying out those functions, and has received adequate training in the carrying out of those functions and in the exercise and performance of the powers and duties of a designated officer. It should be noted that not all designated officers will be designated with the same range of powers and it will be important to know what powers a particular designated officer has been given and therefore what his/her role will be. Schedule 4 to the Police Reform Act 2002 outlines these powers, some of which are set out below.

2.8.3.1 Investigating Officers

  • To act as the supervisor of any access to seized material to which a person is entitled, to supervise the taking of a photograph of seized material or to photograph it him/herself.

  • To arrest a detainee for a further offence if it appears to him/her that the detainee would be liable to arrest for that further offence if released from his/her initial arrest.

  • Power for the custody officer to transfer to a designated civilian investigating officer responsibility for a detainee. This power includes a duty for the person investigating the offence, once the detainee is returned to the custody of the custody officer, to report back to the custody officer on how the Codes were complied with.

  • To question an arrested person under ss. 36 and 37 of the Criminal Justice and Public Order Act 1994 about facts which may be attributable to the person’s participation in an offence. The designated person may also give the suspect the necessary warning about the capacity of a court to draw inferences from a failure to give a satisfactory account in response to questioning.

2.8.3.2 Detention Officers

  • Powers to search detained persons, to take fingerprints and certain samples without consent and to take photographs.

  • To require certain defined categories of persons who have been convicted, cautioned, reprimanded or warned in relation to recordable offences to attend a police station to have their fingerprints taken.

  • To carry out non-intimate searches of persons detained at police stations or elsewhere and to seize items found during such searches.

  • To carry out searches and examinations in order to determine the identity of persons detained at police stations. Identifying marks found during such processes may be photographed.

  • To carry out intimate searches in the same very limited circumstances that are applicable to constables.

  • To take fingerprints without consent in the same circumstances that a constable can.

  • To take non-intimate samples without consent and to inform the person from whom the sample is to be taken of any necessary authorisation by a senior officer and of the grounds for that authorisation.

  • To require certain defined categories of persons who have been charged with or convicted of recordable offences to attend a police station to have a sample taken.

  • To inform a person that intimate samples taken from him/her may be the subject of a speculative search (i.e. this will satisfy the requirement that the person must be informed that the sample will be the subject of a speculative search).

  • To photograph detained persons in the same way that constables can.

2.8.3.3 Escort Officers

  • To transport arrested persons to police stations and escort detained persons from one police station to another or between police stations and other locations specified by the custody officer.

  • To carry out the duty of taking a person arrested by a constable to a police station as soon as practicable.

  • With the authority of the custody officer, to escort detainees between police stations or between police stations and other specified locations.

  • To conduct non-intimate searches of the detainee; and to seize or retain, or cause to be seized or retained, anything found on such a search (restrictions on power to seize personal effects are the same as for police officers, as is the requirement that the search be carried out by a member of the same sex).

Where any of the powers allow for the use of reasonable force when exercised by a police constable, a designated person has the same entitlement to use reasonable force as a constable.

It is important to note that not all support staff will be designated for the purposes of the Police Reform Act 2002 and non-designated staff will not have the additional powers as outlined above.

2.8.4 Designated Police Stations

Section 30 of the Police and Criminal Evidence Act 1984 requires that a person who has been arrested must be taken to a police station as soon as practicable after arrest, unless the arrested person has been released prior to arrival at the police station. Section 30A of the 1984 Act allows a constable to release a person who is under arrest. However, not all police stations have charge rooms or facilities for dealing with prisoners, so the 1984 Act requires that prisoners who will be detained (or who are likely to be detained) for more than six hours must go to a ‘designated’ police station. A designated police station is one that has enough facilities for the purpose of detaining arrested people. Section 35 requires the Chief Officer of Police to designate sufficient police stations to deal with prisoners. It is for the Chief Officer to decide which stations are to be designated stations and these details are then published. Police stations can be designated permanently or for any specified periods provided that they are not designated for part of a day.

2.8.5

PACE Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers (Code C)

This Code applies to people in police detention after 00.00 on 23 February 2017, notwithstanding that their period of detention may have commenced before that time.

1 General

1.0 The powers and procedures in this Code must be used fairly, responsibly, with respect for the people to whom they apply and without unlawful discrimination. Under the Equality Act 2010, section 149 (Public sector Equality Duty), police forces must, in carrying out their functions, have due regard to the need to eliminate unlawful discrimination, harassment, victimisation and any other conduct which is prohibited by that Act, to advance equality of opportunity between people who share a relevant protected characteristic and people who do not share it, and to foster good relations between those persons. The Equality Act also makes it unlawful for police officers to discriminate against, harass or victimise any person on the grounds of the ‘protected characteristics’ of age, disability, gender reassignment, race, religion or belief, sex and sexual orientation, marriage and civil partnership, pregnancy and maternity, when using their powers.

1.1 All persons in custody must be dealt with expeditiously, and released as soon as the need for detention no longer applies.

1.1A A custody officer must perform the functions in this Code as soon as practicable. A custody officer will not be in breach of this Code if delay is justifiable and reasonable steps are taken to prevent unnecessary delay. The custody record shall show when a delay has occurred and the reason.

1.2 This Code of Practice must be readily available at all police stations for consultation by:

  • police officers;

  • police staff;

  • detained persons;

  • members of the public.

1.3 The provisions of this Code:

  • include the Annexes

  • do not include the Notes for Guidance.

1.4 If an officer has any suspicion, or is told in good faith, that a person of any age may be mentally disordered or otherwise mentally vulnerable, in the absence of clear evidence to dispel that suspicion, the person shall be treated as such for the purposes of this Code.

1.5 Anyone who appears to be under 18, shall, in the absence of clear evidence that they are older and subject to paragraph 1.5A, be treated as a juvenile for the purposes of this Code and any other Code.

1.5A Paragraph 1.5 does not change the statutory provisions in section 65(1) of PACE (appropriate consent) which require the consent of a juvenile’s parent or guardian.

In this Code, section 65(1) is relevant to Annex A paragraphs 2(b) and 2B (Intimate searches) and Annex K paragraphs 1(b) and 3 (X-Ray and ultrasound scan). In Code D (Identification), section 65(1) is relevant to paragraph 2.12 and Note 2A, which apply to identification procedures, to taking fingerprints, samples, footwear impressions, photographs and to evidential searches and examinations.

1.6 If a person appears to be blind, seriously visually impaired, deaf, unable to read or speak or has difficulty orally because of a speech impediment, they shall be treated as such for the purposes of this Code in the absence of clear evidence to the contrary.

1.7 ‘The appropriate adult’ means, in the case of a:

  1. (a) juvenile:

    1. (i) the parent, guardian or, if the juvenile is in the care of a local authority or voluntary organisation, a person representing that authority or organisation,

    2. (ii) a social worker of a local authority;

    3. (iii) failing these, some other responsible adult aged 18 or over who is not:

      • ~ a police officer;

      • ~ employed by the police;

      • ~ under the direction or control of the chief officer of a police force; or

      • ~ a person who provides services under contractual arrangements (but without being employed by the chief officer of a police force), to assist that force in relation to the discharge of its chief officer’s functions, whether or not they are on duty at the time.

  2. (b) person who is mentally disordered or mentally vulnerable:

    1. (i) a relative, guardian or other person responsible for their care or custody;

    2. (ii) someone experienced in dealing with mentally disordered or mentally vulnerable people but who is not:

      • ~ a police officer;

      • ~ employed by the police;

      • ~ under the direction or control of the chief officer of a police force; or

      • ~ a person who provides services under contractual arrangements (but without being employed by the chief officer of a police force), to assist that force in relation to the discharge of its chief officer’s functions, whether or not they are on duty at the time;

    3. (iii) failing these, some other responsible adult aged 18 or over other than a person described in the bullet points in sub-paragraph (b)(ii) above.

1.8 If this Code requires a person be given certain information, they do not have to be given it if at the time they are incapable of understanding what is said, are violent or may become violent or in urgent need of medical attention, but they must be given it as soon as practicable.

1.9 References to a custody officer include any police officer who, for the time being, is performing the functions of a custody officer.

1.9A When this Code requires the prior authority or agreement of an officer of at least inspector or superintendent rank, that authority may be given by a sergeant or chief inspector authorised to perform the functions of the higher rank under the Police and Criminal Evidence Act 1984 (PACE), section 107.

1.10 Subject to paragraph 1.12, this Code applies to people in custody at police stations in England and Wales, whether or not they have been arrested, and to those removed to a police station as a place of safety under the Mental Health Act 1983, sections 135 and 136, as a last resort (see paragraph 3.16). Section 15 applies solely to people in police detention, e.g. those brought to a police station under arrest or arrested at a police station for an offence after going there voluntarily.

1.11 No part of this Code applies to a detained person:

  1. (a) to whom PACE Code H applies because:

    • they are detained following arrest under section 41 of the Terrorism Act 2000 (TACT) and not charged; or

    • an authorisation has been given under section 22 of the Counter-Terrorism Act 2008 (CTACT) (post-charge questioning of terrorist suspects) to interview them.

  2. (b) to whom the Code of Practice issued under paragraph 6 of Schedule 14 to TACT applies because they are detained for examination under Schedule 7 to TACT.

1.12 This Code does not apply to people in custody:

  1. (i) arrested by officers under the Criminal Justice and Public Order Act 1994, section 136(2) on warrants issued in Scotland, or arrested or detained without warrant under section 137(2) by officers from a police force in Scotland. In these cases, police powers and duties and the person’s rights and entitlements whilst at a police station in England or Wales are the same as those in Scotland;

  2. (ii) arrested under the Immigration and Asylum Act 1999, section 142(3) in order to have their fingerprints taken;

  3. (iii) whose detention has been authorised under Schedules 2 or 3 to the Immigration Act 1971 or section 62 of the Nationality, Immigration and Asylum Act 2002;

  4. (iv) who are convicted or remanded prisoners held in police cells on behalf of the Prison Service under the Imprisonment (Temporary Provisions) Act 1980;

  5. (v) Not used.

  6. (vi) detained for searches under stop and search powers except as required by Code A.

The provisions on conditions of detention and treatment in sections 8 and 9 must be considered as the minimum standards of treatment for such detainees.

1.13 In this Code:

  1. (a) ‘designated person’ means a person other than a police officer, who has specified powers and duties conferred or imposed on them by designation under section 38 or 39 of the Police Reform Act 2002;

  2. (b) reference to a police officer includes a designated person acting in the exercise or performance of the powers and duties conferred or imposed on them by their designation;

  3. (c) where a search or other procedure to which this Code applies may only be carried out or observed by a person of the same sex as the detainee, the gender of the detainee and other parties present should be established and recorded in line with Annex L of this Code.

1.14 Designated persons are entitled to use reasonable force as follows:

  1. (a) when exercising a power conferred on them which allows a police officer exercising that power to use reasonable force, a designated person has the same entitlement to use force; and

  2. (b) at other times when carrying out duties conferred or imposed on them that also entitle them to use reasonable force, for example:

    • when at a police station carrying out the duty to keep detainees for whom they are responsible under control and to assist any police officer or designated person to keep any detainee under control and to prevent their escape;

    • when securing, or assisting any police officer or designated person in securing, the detention of a person at a police station;

    • when escorting, or assisting any police officer or designated person in escorting, a detainee within a police station;

    • for the purpose of saving life or limb;

    • or preventing serious damage to property.

1.15 Nothing in this Code prevents the custody officer, or other police officer or designated person (see paragraph 1.13) given custody of the detainee by the custody officer, from allowing another person (see (a) and (b) below) to carry out individual procedures or tasks at the police station if the law allows. However, the officer or designated person given custody remains responsible for making sure the procedures and tasks are carried out correctly in accordance with the Codes of Practice (see paragraph 3.5 and Note 3F ). The other person who is allowed to carry out the procedures or tasks must be someone who at that time, is:

  1. (a) under the direction and control of the chief officer of the force responsible for the police station in question; or

  2. (b) providing services under contractual arrangements (but without being employed by the chief officer the police force), to assist a police force in relation to the discharge of its chief officer’s functions.

1.16 Designated persons and others mentioned in sub-paragraphs (a) and (b) of paragraph 1.15, must have regard to any relevant provisions of the Codes of Practice.

1.17 In any provision of this or any other Code which allows or requires police officers or police staff to make a record in their report book, the reference to report book shall include any official report book or electronic recording device issued to them that enables the record in question to be made and dealt with in accordance with that provision. References in this and any other Code to written records, forms and signatures include electronic records and forms and electronic confirmation that identifies the person making the record or completing the form.

Chief officers must be satisfied as to the integrity and security of the devices, records and forms to which this paragraph applies and that use of those devices, records and forms satisfies relevant data protection legislation.

2.8.5.1

Keynote

Code C recognises that detained persons are treated in accordance with the Equality Act 2010; for these Codes ‘relevant protected characteristic’ includes age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex and sexual orientation. For further detailed guidance and advice on the Equality Act, see <https://www.gov.uk/guidance/equality-act-2010-guidance>. Code C does not affect the principle that all citizens have a duty to help police officers to prevent crime and discover offenders. This is a civic rather than a legal duty; but when a police officer is trying to discover whether, or by whom, an offence has been committed, he/she is entitled to question any person from whom he/she thinks useful information can be obtained, subject to the restrictions imposed by this Code. A person’s declaration that he/she is unwilling to reply does not alter this entitlement.

Paragraph 1.1A is intended to cover delays which may occur in processing detainees, e.g. if a large number of suspects are brought into the station simultaneously to be placed in custody, or interview rooms are all being used, or perhaps there are difficulties contacting an appropriate adult, solicitor or interpreter. However, if that delay was not ‘justified’, it could lead to actions for unlawful detention and false imprisonment, and any evidence obtained as a result may be held to be inadmissible (Roberts v Chief Constable of Cheshire Constabulary [1999] 1 WLR 662).

Although certain sections of this Code apply specifically to people in custody at police stations, those there voluntarily to assist with an investigation should be treated with no less consideration, e.g. offered refreshments at appropriate times, and enjoy an absolute right to obtain legal advice or communicate with anyone outside the police station.

2.8.5.2

Keynote

Meaning of Police Detention

Police detention is defined by s. 118 of the Police and Criminal Evidence Act 1984 which states:

  1. (2) Subject to subsection (2A) a person is in police detention for the purposes of this Act if—

    1. (a) he has been taken to a police station after being arrested for an offence or after being arrested under section 41 of the Terrorism Act 2000, or

    2. (b) he is arrested at a police station after attending voluntarily at the station or accompanying a constable to it, and is detained there or is detained elsewhere in the charge of a constable, except that a person who is at a court after being charged is not in police detention for those purposes.

  2. (2A) Where a person is in another’s lawful custody by virtue of paragraph 22, 34(1) or 35(3) of Schedule 4 to the Police Reform Act 2002, he shall be treated as in police detention.

Paragraph 22 of sch. 4 to the Police Reform Act 2002 refers to the power to transfer persons into the custody of investigating officers, para. 34(1) relates to designated escort officers taking an arrested person to a police station and para. 35(3) deals with a designated escort officer transferring a detainee from one police station to another. Code C, para. 2.1A states that a person is at a police station when they are in the boundary of any building or enclosed yard which forms part of that police station. Therefore they are in police detention when they are within that boundary/yard.

2.8.5.3

Keynote

Mentally Vulnerable/Disordered

‘Mentally vulnerable’ applies to any detainee who, because of his/her mental state or capacity, may not understand the significance of what is said, of questions or of his/her replies. ‘Mental disorder’ is defined in the Mental Health Act 1983, s. 1(2) as ‘any disorder or disability of mind’. When the custody officer has any doubt about the mental state or capacity of a detainee, that detainee should be treated as mentally vulnerable and an appropriate adult called.

2.8.5.4

Keynote

Appropriate Adults

In R v Aspinall [1999] 2 Cr App R 115, the Court of Appeal emphasised the importance of appropriate adults. There it was held that an appropriate adult played a significant role in respect of a vulnerable person whose condition rendered him/her liable to provide information which was unreliable, misleading or self-incriminating.

A person, including a parent or guardian, should not be an appropriate adult if he/she is:

  • suspected of involvement in the offence;

  • the victim;

  • a witness;

  • involved in the investigation; or

  • has received admissions prior to attending to act as the appropriate adult.

If a juvenile’s parent is estranged from the juvenile, he/she should not be asked to act as the appropriate adult if the juvenile expressly and specifically objects to his/her presence.

If a juvenile (see Code C, para. 1.5) admits an offence to, or in the presence of, a social worker or member of a youth offending team other than during the time that person is acting as the juvenile’s appropriate adult, another appropriate adult should be appointed in the interest of fairness.

In the case of people who are mentally disordered or otherwise mentally vulnerable, it may be more satisfactory if the appropriate adult is someone experienced or trained in their care rather than a relative lacking such qualifications. But if the detainee prefers a relative to a better qualified stranger or objects to a particular person, his/her wishes should, if practicable, be respected.

A detainee should always be given an opportunity, when an appropriate adult is called to the police station, to consult privately with a solicitor in the appropriate adult’s absence if he/she wants. An appropriate adult is not subject to legal privilege.

A solicitor or independent custody visitor (formerly a lay visitor) present at the police station in that capacity may not be the appropriate adult.

The custody officer must remind the appropriate adult and detainee about the right to legal advice and record any reasons for waiving it in accordance with s. 6.

Evidence obtained while a person is in custody where the person called as an appropriate adult does not have that person’s best interests in mind or is not capable of assisting that person could be excluded.

Paragraph 1.5 reflects the statutory definition of ‘arrested juvenile’ in s. 37(15) of PACE. This section was amended by s. 42 of the Criminal Justice and Courts Act 2015 with effect from 26 October 2015, and includes anyone who appears to be under the age of 18. This definition applies for the purposes of the detention and bail provisions in ss. 34 to 51 of PACE.

It is important to note that para. 1.5A does not amend s. 37(15) of PACE which defines the term ‘arrested juvenile’ for the purposes of ss. 34 to 51 of PACE, or provisions in any other enactment which expressly refer and apply to persons under the age of 18. See para. 2.8.17.1 for amendments to the definition of an arrested juvenile.

While an appropriate adult should be given access to a juvenile, this does not mean that he/she has free access to the custody area. In Butcher v DPP [2003] EWHC 580 (Admin), the custody officer physically escorted the detainee’s appropriate adult from the custody suite as she had entered it without being invited and had been verbally abusive and aggressive. The court held that the custody sergeant had not detained the appropriate adult, but had merely used reasonable force to remove her in order to maintain the operational effectiveness of the custody suite. The court held that the custody sergeant was entitled to ask her to leave and to use reasonable force when she failed to comply with that request.

It is also important to consider the welfare of the appropriate adult. This is demonstrated by the case of Leach v Chief Constable of Gloucestershire Constabulary [1999] 1 WLR 1421. Here L was asked by a police officer to attend police interviews of a murder suspect who was also thought to be mentally disordered, as an ‘appropriate adult’ per the requirement of the Codes. She was told only that the suspect was a 52-year-old male, and was not informed of the nature of the case. The suspect was in fact Frederick West, who was being questioned in connection with murders committed in particularly harrowing and traumatic circumstances. For many weeks L acted as an appropriate adult, accompanying the officer and suspect to murder scenes, and on many occasions being left alone in a locked cell with the suspect. She claimed to be suffering from post-traumatic stress and psychological injury as well as a stroke as a result of her experiences. The Court of Appeal said that the Fred West case was notorious among modern crimes and it was foreseeable that psychiatric harm might arise. While there was no requirement to cases counselling or trained help should be offered.

2.8.6

2 Custody Records

2.1A When a person:

  • is brought to a police station under arrest

  • is arrested at the police station having attended there voluntarily or

  • attends a police station to answer bail

    they must be brought before the custody officer as soon as practicable after their arrival at the station or if applicable, following their arrest after attending the police station voluntarily.

    This applies to both designated and non-designated police stations. A person is deemed to be ‘at a police station’ for these purposes if they are within the boundary of any building or enclosed yard which forms part of that police station.

2.1 A separate custody record must be opened as soon as practicable for each person brought to a police station under arrest or arrested at the station having gone there voluntarily or attending a police station in answer to street bail. All information recorded under this Code must be recorded as soon as practicable in the custody record unless otherwise specified. Any audio or video recording made in the custody area is not part of the custody record.

2.2 If any action requires the authority of an officer of a specified rank, subject to paragraph 2.6A, their name and rank must be noted in the custody record.

2.3 The custody officer is responsible for the custody record’s accuracy and completeness and for making sure the record or copy of the record accompanies a detainee if they are transferred to another police station. The record shall show the:

  • time and reason for transfer;

  • time a person is released from detention.

2.3A If a person is arrested and taken to a police station as a result of a search in the exercise of any stop and search power to which PACE Code A (Stop and search) or the ‘search powers code’ issued under TACT applies, the officer carrying out the search is responsible for ensuring that the record of that stop and search is made as part of the person’s custody record. The custody officer must then ensure that the person is asked if they want a copy of the search record and if they do, that they are given a copy as soon as practicable. The person’s entitlement to a copy of the search record which is made as part of their custody record is in addition to, and does not affect, their entitlement to a copy of their custody record or any other provisions of section 2 (Custody records) of this Code. (See Code A, paragraph 4.2B and the TACT search powers code paragraph 5.3.5).

2.4 The detainee’s solicitor and appropriate adult must be permitted to inspect the whole of the detainee’s custody record as soon as practicable after their arrival at the station and at any other time on request, whilst the person is detained. This includes the following specific records relating to the reasons for the detainee’s arrest and detention and the offence concerned, to which paragraph 3.1(b) refers:

  1. (a) The information about the circumstances and reasons for the detainee’s arrest as recorded in the custody record in accordance with paragraph 4.3 of Code G. This applies to any further offences for which the detainee is arrested whilst in custody;

  2. (b) The record of the grounds for each authorisation to keep the person in custody. The authorisations to which this applies are the same as those described at items (i)(a) to (d) in the table in paragraph 2 of Annex M of this Code.

Access to the records in sub-paragraphs (a) and (b) is in addition to the requirements in paragraphs 3.4(b), 11.1A, 15.0, 15.7A(c) and 16.7A to make certain documents and materials available and to provide information about the offence and the reasons for arrest and detention.

Access to the custody record for the purposes of this paragraph must be arranged and agreed with the custody officer and may not unreasonably interfere with the custody officer’s duties. A record shall be made when access is allowed and whether it includes the records described in sub-paragraphs (a) and (b) above.

Note: Paragraph 1.5A extends this paragraph to the person called to fulfil the role of the appropriate adult for a 17-year-old detainee.

2.4A When a detainee leaves police detention or is taken before a court they, their legal representative or appropriate adult shall be given, on request, a copy of the custody record as soon as practicable. This entitlement lasts for 12 months after release.

Note: Paragraph 1.5A extends this paragraph to the person called to fulfil the role of the appropriate adult for a 17-year-old detainee.

2.5 The detainee, appropriate adult or legal representative shall be permitted to inspect the original custody record after the detainee has left police detention provided they give reasonable notice of their request. Any such inspection shall be noted in the custody record.

Note: Paragraph 1.5A extends this paragraph to the person called to fulfil the role of the appropriate adult for a 17-year-old detainee.

2.6 Subject to paragraph 2.6A, all entries in custody records must be timed and signed by the maker. Records entered on computer shall be timed and contain the operator’s identification.

2.6A Nothing in this Code requires the identity of officers or other police staff to be recorded or disclosed:

  1. (a) Not used.

  2. (b) if the officer or police staff reasonably believe recording or disclosing their name might put them in danger.

    In these cases, they shall use their warrant or other identification numbers and the name of their police station.

2.7 The fact and time of any detainee’s refusal to sign a custody record, when asked in accordance with this Code, must be recorded.

2.8.6.1

Keynote

The purpose of using warrant or identification numbers instead of names referred to in Code C, para. 2.6A is to protect those involved in serious organised crime investigations or arrests of particularly violent suspects when there is reliable information that those arrested or their associates may threaten or cause harm to those involved. In cases of doubt, an officer of inspector rank or above should be consulted.

2.8.7

3 Initial Action

(a) Detained persons—normal procedure

3.1 When a person is brought to a police station under arrest or arrested at the station having gone there voluntarily, the custody officer must make sure the person is told clearly about:

  1. (a) the following continuing rights, which may be exercised at any stage during the period in custody:

    1. (i) their right to consult privately with a solicitor and that free independent legal advice is available as in section 6;

    2. (ii) their right to have someone informed of their arrest as in section 5;

    3. (iii) their right to consult the Codes of Practice; and

    4. (iv) if applicable, their right to interpretation and translation (see paragraph 3.12) and their right to communicate with their High Commission, Embassy or Consulate (see paragraph 3.12A).

  2. (b) their right to be informed about the offence and (as the case may be) any further offences for which they are arrested whilst in custody and why they have been arrested and detained in accordance with paragraphs 2.4, 3.4(a) and 11.1A of this Code and paragraph 3.3 of Code G.

3.2 The detainee must also be given a written notice, which contains information:

  1. (a) to allow them to exercise their rights by setting out:

    1. (i) their rights under paragraph 3.1, paragraph 3.12 and 3.12A;

    2. (ii) the arrangements for obtaining legal advice, see section 6;

    3. (iii) their right to a copy of the custody record as in paragraph 2.4A;

    4. (iv) their right to remain silent as set out in the caution in the terms prescribed in section 10;

    5. (v) their right to have access to materials and documents which are essential to effectively challenging the lawfulness of their arrest and detention for any offence and (as the case may be) any further offences for which they are arrested whilst in custody, in accordance with paragraphs 3.4(b), 15.0, 15.7A(c) and 16.7A of this Code;

    6. (vi) the maximum period for which they may be kept in police detention without being charged, when detention must be reviewed and when release is required;

    7. (vii) their right to medical assistance in accordance with section 9 of this Code;

    8. (viii) their right, if they are prosecuted, to have access to the evidence in the case before their trial in accordance with the Criminal Procedure and Investigations Act 1996, the Attorney General’s Guidelines on Disclosure, the common law and the Criminal Procedure Rules; and

  2. (b) briefly setting out their other entitlements while in custody, by:

    1. (i) mentioning:

      • ~ the provisions relating to the conduct of interviews;

      • ~ the circumstances in which an appropriate adult should be available to assist the detainee and their statutory rights to make representations whenever the need for their detention is reviewed;

    2. (ii) listing the entitlements in this Code, concerning;

      • ~ reasonable standards of physical comfort;

      • ~ adequate food and drink;

      • ~ access to toilets and washing facilities, clothing, medical attention, and exercise when practicable.

3.2A The detainee must be given an opportunity to read the notice and shall be asked to sign the custody record to acknowledge receipt of the notice. Any refusal to sign must be recorded on the custody record.

3.3 Not used.

3.3A An ‘easy read’ illustrated version should also be provided if available.

3.4

  1. (a) The custody officer shall:

    • record the offence(s) that the detainee has been arrested for and the reason(s) for the arrest on the custody record. See paragraph 10.3 and Code G paragraphs 2.2 and 4.3;

    • note on the custody record any comment the detainee makes in relation to the arresting officer’s account but shall not invite comment. If the arresting officer is not physically present when the detainee is brought to a police station, the arresting officer’s account must be made available to the custody officer remotely or by a third party on the arresting officer’s behalf. If the custody officer authorises a person’s detention, subject to paragraph 1.8, that officer must record the grounds for detention in the detainee’s presence and at the same time, inform them of the grounds. The detainee must be informed of the grounds for their detention before they are questioned about any offence;

    • note any comment the detainee makes in respect of the decision to detain them but shall not invite comment;

    • not put specific questions to the detainee regarding their involvement in any offence, nor in respect of any comments they may make in response to the arresting officer’s account or the decision to place them in detention. Such an exchange is likely to constitute an interview as in paragraph 11.1A and require the associated safeguards in section 11.

      Note: This sub-paragraph also applies to any further offences and grounds for detention which come to light whilst the person is detained.

      See paragraph 11.13 in respect of unsolicited comments.

  2. (b) Documents and materials which are essential to effectively challenging the lawfulness of the detainee’s arrest and detention must be made available to the detainee or their solicitor. Documents and materials will be ‘essential’ for this purpose if they are capable of undermining the reasons and grounds which make the detainee’s arrest and detention necessary. The decision about whether particular documents or materials must be made available for the purpose of this requirement therefore rests with the custody officer who determines whether detention is necessary, in consultation with the investigating officer who has the knowledge of the documents and materials in a particular case necessary to inform that decision. A note should be made in the detainee’s custody record of the fact that documents or materials have been made available under this sub-paragraph and when. The investigating officer should make a separate note of what is made available and how it is made available in a particular case. This sub-paragraph also applies (with modifications) for the purposes of sections 15 (Reviews and extensions of detention) and 16 (Charging detained persons). See paragraphs 15.0 and 16.7A.

3.5 The custody officer or other custody staff as directed by the custody officer shall:

  1. (a) ask the detainee whether at this time, they:

    1. (i) would like legal advice, see paragraph 6.5;

    2. (ii) want someone informed of their detention, see section 5;

  2. (b) ask the detainee to sign the custody record to confirm their decisions in respect of (a);

  3. (c) determine whether the detainee:

    1. (i) is, or might be, in need of medical treatment or attention, see section 9;

    2. (ii) requires:

  4. (d) record the decision in respect of (c).

Where any duties under this paragraph have been carried out by custody staff at the direction of the custody officer, the outcomes shall, as soon as practicable, be reported to the custody officer who retains overall responsibility for the detainee’s care and treatment and ensuring that it complies with this Code.

3.6 When the needs mentioned in paragraph 3.5(c) are being determined, the custody officer is responsible for initiating an assessment to consider whether the detainee is likely to present specific risks to custody staff, any individual who may have contact with detainee (e.g. legal advisers, medical staff) or themselves. This risk assessment must include the taking of reasonable steps to establish the detainee’s identity and to obtain information about the detainee that is relevant to their safe custody, security and welfare and risks to others. Such assessments should therefore always include a check on the Police National Computer (PNC), to be carried out as soon as practicable, to identify any risks that have been highlighted in relation to the detainee. Although such assessments are primarily the custody officer’s responsibility, it may be necessary for them to consult and involve others, e.g. the arresting officer or an appropriate healthcare professional, see paragraph 9.13. Other records held by or on behalf of the police and other UK law enforcement authorities that might provide information relevant to the detainee’s safe custody, security and welfare and risk to others and to confirming their identity should also be checked. Reasons for delaying the initiation or completion of the assessment must be recorded.

3.7 Chief officers should ensure that arrangements for proper and effective risk assessments required by paragraph 3.6 are implemented in respect of all detainees at police stations in their area.

3.8 Risk assessments must follow a structured process which clearly defines the categories of risk to be considered and the results must be incorporated in the detainee’s custody record. The custody officer is responsible for making sure those responsible for the detainee’s custody are appropriately briefed about the risks. If no specific risks are identified by the assessment, that should be noted in the custody record. See paragraph 9.14.

3.8A The content of any risk assessment and any analysis of the level of risk relating to the person’s detention is not required to be shown or provided to the detainee or any person acting on behalf of the detainee. But information should not be withheld from any person acting on the detainee’s behalf, for example, an appropriate adult, solicitor or interpreter, if to do so might put that person at risk.

3.9 The custody officer is responsible for implementing the response to any specific risk assessment, e.g.:

  • reducing opportunities for self harm; •calling an appropriate healthcare professional;

  • increasing levels of monitoring or observation; •reducing the risk to those who come into contact with the detainee.

3.10 Risk assessment is an ongoing process and assessments must always be subject to review if circumstances change.

3.11 If video cameras are installed in the custody area, notices shall be prominently displayed showing cameras are in use. Any request to have video cameras switched off shall be refused.

(b) Detained persons—special groups

3.12 If the detainee appears to be someone who does not speak or understand English or who has a hearing or speech impediment, the custody officer must ensure:

  1. (a) that without delay, arrangements (see paragraph 13.1ZA) are made for the detainee to have the assistance of an interpreter in the action under paragraphs 3.1 to 3.5. If the person appears to have a hearing or speech impediment, the reference to ‘interpreter’ includes appropriate assistance necessary to comply with paragraphs 3.1 to 3.5. See paragraph 13.1C if the detainee is in Wales. See section 13 and Note 13B;

  2. (b) that in addition to the continuing rights set out in paragraph 3.1(a)(i) to (iv), the detainee is told clearly about their right to interpretation and translation;

  3. (c) that the written notice given to the detainee in accordance with paragraph 3.2 is in a language the detainee understands and includes the right to interpretation and translation together with information about the provisions in section 13 and Annex M, which explain how the right applies; and

  4. (d) that if the translation of the notice is not available, the information in the notice is given through an interpreter and a written translation provided without undue delay.

3.12A If the detainee is a citizen of an independent Commonwealth country or a national of a foreign country, including the Republic of Ireland, the custody officer must ensure that in addition to the continuing rights set out in paragraph 3.1(a)(i) to (iv), they are informed as soon as practicable about their rights of communication with their High Commission, Embassy or Consulate set out in section 7. This right must be included in the written notice given to the detainee in accordance with paragraph 3.2.

3.13 If the detainee is a juvenile, the custody officer must, if it is practicable, ascertain the identity of a person responsible for their welfare. That person:

  • may be:

    • ~ the parent or guardian;

    • ~ if the juvenile is in local authority or voluntary organisation care, or is otherwise being looked after under the Children Act 1989, a person appointed by that authority or organisation to have responsibility for the juvenile’s welfare;

    • ~ any other person who has, for the time being, assumed responsibility for the juvenile’s welfare.

  • must be informed as soon as practicable that the juvenile has been arrested, why they have been arrested and where they are detained. This right is in addition to the juvenile’s right in section 5 not to be held incommunicado.

3.14 If a juvenile is known to be subject to a court order under which a person or organisation is given any degree of statutory responsibility to supervise or otherwise monitor them, reasonable steps must also be taken to notify that person or organisation (the ‘responsible officer’). The responsible officer will normally be a member of a Youth Offending Team, except for a curfew order which involves electronic monitoring when the contractor providing the monitoring will normally be the responsible officer.

3.15 If the detainee is a juvenile, mentally disordered or otherwise mentally vulnerable, the custody officer must, as soon as practicable:

  • inform the appropriate adult, who in the case of a juvenile may or may not be a person responsible for their welfare, as in paragraph 3.13, of:

    • ~ the grounds for their detention;

    • ~ their whereabouts.

  • ask the adult to come to the police station to see the detainee.

3.16 It is imperative that a mentally disordered or otherwise mentally vulnerable person, detained under the Mental Health Act 1983, section 136, be assessed as soon as possible. A police station should only be used as a place of safety as a last resort but if that assessment is to take place at the police station, an approved mental health professional and a registered medical practitioner shall be called to the station as soon as possible to carry it out. See Note 9D. The appropriate adult has no role in the assessment process and their presence is not required. Once the detainee has been assessed and suitable arrangements made for their treatment or care, they can no longer be detained under section 136. A detainee must be immediately discharged from detention under section 136 if a registered medical practitioner, having examined them, concludes they are not mentally disordered within the meaning of the Act.

3.17 If the appropriate adult is:

  • already at the police station, the provisions of paragraphs 3.1 to 3.5 must be complied with in the appropriate adult’s presence;

  • not at the station when these provisions are complied with, they must be complied with again in the presence of the appropriate adult when they arrive,

and a copy of the notice given to the detainee in accordance with paragraph 3.2, shall also be given to the appropriate adult.

3.18 The detainee shall be advised that:

  • the duties of the appropriate adult include giving advice and assistance;

  • they can consult privately with the appropriate adult at any time.

3.19 If the detainee, or appropriate adult on the detainee’s behalf, asks for a solicitor to be called to give legal advice, the provisions of section 6 apply.

3.20 If the detainee is blind, seriously visually impaired or unable to read, the custody officer shall make sure their solicitor, relative, appropriate adult or some other person likely to take an interest in them and not involved in the investigation is available to help check any documentation. When this Code requires written consent or signing the person assisting may be asked to sign instead, if the detainee prefers. This paragraph does not require an appropriate adult to be called solely to assist in checking and signing documentation for a person who is not a juvenile, or mentally disordered or otherwise mentally vulnerable (see paragraph 3.15 and Note 13C).

3.20A The Children and Young Persons Act 1933, section 31, requires that arrangements must be made for ensuring that a girl under the age of 18, while detained in a police station, is under the care of a woman. It also requires that arrangements must be made for preventing any person under 18, while being detained in a police station, from associating with an adult charged with any offence, unless that adult is a relative or the adult is jointly charged with the same offence as the person under 18.

(c) Persons attending a police station or elsewhere voluntarily

3.21 Anybody attending a police station or other location (see paragraph 3.22) voluntarily to assist police with the investigation of an offence may leave at will unless arrested. See Note 1K. The person may only be prevented from leaving at will if their arrest on suspicion of committing the offence is necessary in accordance with Code G. See Code G Note 2G.

  1. (a) If during an interview it is decided that their arrest is necessary, they must:

    • be informed at once that they are under arrest and of the grounds and reasons as required by Code G, and

    • be brought before the custody officer at the police station where they are arrested or, as the case may be, at the police station to which they are taken after being arrested elsewhere. The custody officer is then responsible for making sure that a custody record is opened and that they are notified of their rights in the same way as other detainees as required by this Code.

  2. (b) If they are not arrested but are cautioned as in section 10, the person who gives the caution must, at the same time, inform them they are not under arrest and they are not obliged to remain at the station or other location, but if they agree to remain, they may obtain free and independent legal advice if they want. They shall also be given a copy of the notice explaining the arrangements for obtaining legal advice and told that the right to legal advice includes the right to speak with a solicitor on the telephone and be asked if they want advice. If advice is requested, the interviewer is responsible for securing its provision without delay by contacting the Defence Solicitor Call Centre. The interviewer is responsible for confirming that the suspect has given their agreement to be interviewed voluntarily. In the case of a juvenile or mentally vulnerable suspect, this must be given in the presence of the appropriate adult and for a juvenile, the agreement of a parent or guardian of the juvenile is also required. The interviewer must ensure that other provisions of this Code and Codes E and F concerning the conduct and recording of interviews of suspects and the rights and entitlements and safeguards for suspects who have been arrested and detained are followed insofar as they can be applied to suspects who are not under arrest. This includes:

    • informing them of the offence and, as the case may be, any further offences, they are suspected of and the grounds and reasons for that suspicion and their right to be so informed (see paragraph 3.1(b));

    • the caution as required in section 10;

    • determining whether they require an appropriate adult and help to check documentation (see paragraph 3.5(c)(ii)); and

    • determining whether they require an interpreter and the provision of interpretation and translation services and informing them of that right. See paragraphs 3.1(a)(iv), 3.5(c)(ii) and 3.12, Note 6B and section 13.

but does not include any requirement to provide a written notice in addition to that above which concerns the arrangements for obtaining legal advice.

3.22 If the other location mentioned in paragraph 3.21 is any place or premises for which the interviewer requires the person’s informed consent to remain, for example, the person’s home, then the references that the person is ‘not obliged to remain’ and that they ‘may leave at will’ mean that the person may also withdraw their consent and require the interviewer to leave.

(d) Documentation

3.23 The grounds for a person’s detention shall be recorded, in the person’s presence if practicable. See paragraph 1.8.

3.24 Action taken under paragraphs 3.12 to 3.20 shall be recorded.

(e) Persons answering street bail

3.25 When a person is answering street bail, the custody officer should link any documentation held in relation to arrest with the custody record. Any further action shall be recorded on the custody record in accordance with paragraphs 3.23 and 3.24 above.

(f) Requirements for suspects to be informed of certain rights

3.26 The provisions of this section identify the information which must be given to suspects who have been cautioned in accordance with section 10 of this Code according to whether or not they have been arrested and detained. It includes information required by EU Directive 2012/13 on the right to information in criminal proceedings. If a complaint is made by or on behalf of such a suspect that the information and (as the case may be) access to records and documents has not been provided as required, the matter shall be reported to an inspector to deal with as a complaint for the purposes of paragraph 9.2, or paragraph 12.9 if the challenge is made during an interview. This would include, for example:

  1. (a) in the case of a detained suspect:

  2. (b) in the case of a suspect who is not detained:

    • not informing them of their rights or providing the required information (see paragraph 3.21(b)).

2.8.7.1

Keynote

Detention of People under Arrest

Section 37 of the 1984 Act states:

  1. (1) Where—

    1. (a) a person is arrested for an offence—

      1. (i) without a warrant; or

      2. (ii) under a warrant not endorsed for bail,

    2. (b) repealed,

      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. (2) If the custody officer determines that he does not have such evidence before him, the person arrested shall be released(a)without bail unless the pre-conditions for bail are satisfied, or (b)on bail if those pre-conditions are satisfied, (subject to subsection (3)),

  3. (3) If the custody officer has reasonable grounds for believing that the person’s detention without being charged is necessary to secure or preserve evidence relating to an offence for which the person is under arrest or to obtain such evidence by questioning the person he may authorise the person arrested to be kept in police detention.

  4. (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. (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.

It is suggested that the custody officer record all the reasons for authorising the person’s detention. It is suggested that detail of at least minimal level should be included, as it may be necessary in any criminal or civil proceedings. Indeed, it will be difficult for the custody officer to explain his/her decision without such information.

Section 37(6) states that subsection (5) above shall not apply where the person arrested is, at the time when the written record is made: incapable of understanding what is said to him; violent or likely to become violent; or in urgent need of medical attention.

People who have been arrested, returned on bail or have voluntarily given themselves up at a police station, which includes a person who has attended the police station after having been given street bail, will be brought before a custody officer who must decide whether the person should be detained at the police station or released. People who attend police stations voluntarily to assist the police with their investigations are not subject to this procedure; their treatment is dealt with by s. 29 of the 1984 Act (see General Police Duties, chapter 4.5). However, if an officer forms a view that the person should be arrested at the police station for the purpose of interview and informs the custody officer of this view, the custody officer can authorise detention for the interview and is entitled to assume that the arrest by the officer is lawful (Al-Fayed v Metropolitan Police Commissioner [2004] EWCA Civ 1579).

If the grounds were not given at the time of arrest (on justifiable grounds) the custody officer should consider whether the arrested person is now in a position to be given the grounds for the arrest (as being the first practicable opportunity (s. 28(3) of the 1984 Act)). If the grounds for arrest were not given when they should have been, the arrest is unlawful regardless of what information is given later (Wilson v Chief Constable of Lancashire [2000] Po LR 367).

Having heard the details of and grounds for the arrest, the custody officer must decide whether or not there are reasons which justify authorising that person’s detention (s. 37 of the 1984 Act deals with the procedures to be followed before a person is charged). Some commentators have suggested that it is also the role of the custody officer to establish that the arrest itself was lawful. While good practice, the custody officer’s duty is confined to acting in accordance with the requirements set out in s. 37 of the 1984 Act. These duties do not appear to include considering whether the arrest was lawful unless this is relevant to the main question of whether there is sufficient evidence to charge the suspect. The view is supported by the decision of the Divisional Court in DPP v L [1999] Crim LR 752, where the court held that there was no express or implied requirement imposing a duty on a custody officer to inquire into the legality of an arrest and in that case the custody officer was therefore entitled to assume that it was lawful. A subsequent finding that the arrest was unlawful did not invalidate the decision of the custody officer to hold the person in custody. However, where the custody officer is aware that the arrest is unlawful, he/she will need to consider whether continued detention is justifiable, particularly in light of the Human Rights Act 1998. The Codes allow for the custody officer to delegate actions to other members of staff; a custody officer or other officer who, in accordance with this Code, allows or directs the carrying out of any task or action relating to a detainee’s care, treatment, rights and entitlements to another officer or any police staff must be satisfied that the officer or police staff concerned is suitable, trained and competent to carry out the task or action in question.

Paragraphs 3.2, 3.4 and 3.12 set out the minimum of what should be included in the notice of entitlement, which should be available in Welsh, the main minority ethnic languages and the principal European languages, whenever they are likely to be helpful.

Access to ‘easy read’ illustrated versions should also be provided if they are available. For access to currently available notices see <https://www.gov.uk/notice-of-rights-and-entitlements-a-persons-rights-in-police-detention>.

The need for detained persons to understand their rights is fundamental to their fair treatment. A procedure for determining whether a person needs an interpreter might involve a telephone interpreter service or using cue cards or similar visual aids which enable detainees to indicate their ability to speak and understand English and their preferred language. This could be confirmed through an interpreter who could also assess the extent to which the person can speak and understand English.

Paragraph 3.21 sets out what information should be given to a person voluntarily attending a police station or other location; it should be noted that it does not include any requirement to provide a written notice other than the detail concerning the arrangements for obtaining legal advice.

In cases where a juvenile is in police detention it may be necessary to inform more than one person. For instance, if the juvenile is in local authority or voluntary organisation care but living with his/her parents or other adults responsible for his/her welfare, although there is no legal obligation to inform them, they should normally be contacted, as well as the authority or organisation, unless suspected of involvement in the offence concerned. Even if the juvenile is not living with his/her parents, consideration should be given to informing them.

If the person is arrested on a warrant, any directions given by the court in the warrant must be followed. Consideration can always be given to contacting the court to get a variation on the conditions of the warrant. (If the warrant was issued for the arrest of a person who has not yet been charged or summonsed for an offence, he/she should be dealt with as any other person arrested for an offence without warrant unless there are any additional directions on the warrant that must be followed.)

Where a person who has been bailed under s. 37(7)(a) in order that the DPP can make a case disposal decision answers his/her bail or is arrested for failing to return on bail, detention can only be authorised to allow him/her to be further bailed under s. 37D of the 1984 Act or in order that he/she can be charged or cautioned for offences connected with the original bail. If the person is not in a fit state to be dealt with he/she may be kept in police detention until he/she is (s. 37D of the 1984 Act).

2.8.7.2

Keynote

Authorising a Person’s Detention

A custody officer can authorise the detention of a person when there is sufficient evidence to charge and, more commonly, when there is not sufficient evidence to charge the suspect. If there is insufficient evidence to charge, the custody officer must decide if the detention is necessary to secure or preserve evidence relating to an offence for which the person is under arrest or to obtain such evidence by questioning him/her.

If a person representing the detained person does not consider that the detention is lawful he/she can apply to the court for the detainee’s release (habeas corpus). A detainee may also be able to make an application for release or damages following the incorporation of the European Convention on Human Rights (Article 5(4)).

Where a detained person wishes to consult the Codes of Practice, this does not entitle the person concerned to delay unreasonably any necessary investigative or administrative action whilst he/she does so. Examples of action which need not be delayed unreasonably include: procedures requiring the provision of breath, blood or urine specimens under the Road Traffic Act 1988 or the Transport and Works Act 1992; searching detainees at the police station; taking fingerprints, footwear impressions or non-intimate samples without consent for evidential purposes.

2.8.7.3

Keynote

Risk Assessments

The custody officer is responsible for initiating a risk assessment to consider whether detainees are likely to present specific risks to custody staff or themselves (Code C, para. 3.6). The risk assessment must follow a structured process which clearly defines the categories of risk to be considered (the Detention and Custody Authorised Professional Practice (APP) produced by the College of Policing (see <http://www.app.college.police.uk>) provides more detailed guidance on risk assessments). For this reason it is suggested that the risk assessment should be completed prior to the detainee being placed in a cell or detention room.

In addition to considering risk assessments for detained persons, the custody officer also needs to consider the safety of others who are in the custody area. Home Office Circular 34/2007 provides guidance on the arrangements for the safety and security of the custody suite, in particular in respect of solicitors and accredited and probationary representatives working in custody suites. The guidance has been issued following a number of incidents having been brought to the attention of the Home Office and the Health and Safety Executive (HSE), highlighting the actual and potential risks faced by solicitors, particularly when carrying out private consultations with their clients in the custody area, and the Authorised Professional Practice (APP) on Detention and Custody provides more detailed guidance on risk assessments and identifies key risk areas which should always be considered.

2.8.7.4

Keynote

Documents or Material that Undermine the Need to Keep a Suspect in Custody

For the purposes of paras 3.4(b) and 15.0: investigating officers are responsible for bringing to the attention of the officer who is responsible for authorising the suspect’s detention, or (as the case may be) continued detention (before or after charge), any documents and materials in their possession or control which appear to undermine the need to keep the suspect in custody. In accordance with part IV of PACE, this officer will be either the custody officer, the officer reviewing the need for detention before or after charge (PACE, s. 40), or the officer considering the need to extend detention without charge from 24 to 36 hours (PACE, s. 42). The authorising officer is then responsible for determining, which, if any, of those documents and materials are capable of undermining the need to detain the suspect and must therefore be made available to the suspect or their solicitor. It is not the case that documents need to be copied and provided to the suspect or their solicitor; the way in which documents and materials are ‘made available’ is a matter for the investigating officer to determine on a case-by-case basis and having regard to the nature and volume of the documents and materials involved. For example, they may be made available by supplying a copy or allowing supervised access to view. However, for view-only access, it will be necessary to demonstrate that sufficient time is allowed for the suspect and solicitor to view and consider the documents and materials in question.

2.8.7.5

Keynote

Detained Persons—Special Groups

The Children and Young Persons Act 1933, s. 31, requires that arrangements must be made for ensuring that a girl under the age of 18, while detained in a police station, is under the care of a woman. Guidance for police officers and police staff on the operational application of s. 31 of the Children and Young Persons Act 1933 has been published by the College of Policing and is available at: <https://www.app.college.police.uk/detention-and-custody-index/#children-and-young-persons>.

2.8.8

4 Detainee’s Property

(a) Action

4.1 The custody officer is responsible for:

  1. (a) ascertaining what property a detainee:

    1. (i) has with them when they come to the police station, whether on:

      • arrest or re-detention on answering to bail;

      • commitment to prison custody on the order or sentence of a court;

      • lodgement at the police station with a view to their production in court from prison custody;

      • transfer from detention at another station or hospital;

      • detention under the Mental Health Act 1983, section 135 or 136;

      • remand into police custody on the authority of a court.

    2. (ii) might have acquired for an unlawful or harmful purpose while in custody;

  2. (b) the safekeeping of any property taken from a detainee which remains at the police station.

The custody officer may search the detainee or authorise their being searched to the extent they consider necessary, provided a search of intimate parts of the body or involving the removal of more than outer clothing is only made as in Annex A. A search may only be carried out by an officer of the same sex as the detainee. See Annex L.

4.2 Detainees may retain clothing and personal effects at their own risk unless the custody officer considers they may use them to cause harm to themselves or others, interfere with evidence, damage property, effect an escape or they are needed as evidence. In this event the custody officer may withhold such articles as they consider necessary and must tell the detainee why.

4.3 Personal effects are those items a detainee may lawfully need, use or refer to while in detention but do not include cash and other items of value.

(b) Documentation

4.4 It is a matter for the custody officer to determine whether a record should be made of the property a detained person has with him or had taken from him on arrest. Any record made is not required to be kept as part of the custody record but the custody record should be noted as to where such a record exists and that record shall be treated as being part of the custody record for the purpose of this and any other Code of Practice (see paragraphs 2.4, 2.4A and 2.5). Whenever a record is made the detainee shall be allowed to check and sign the record of property as correct. Any refusal to sign shall be recorded.

4.5 If a detainee is not allowed to keep any article of clothing or personal effects, the reason must be recorded.

2.8.8.1

Keynote

Section 54 of the 1984 Act states:

  1. (1) The custody officer at a police station shall ascertain everything which a person has with him when he is—

    1. (a) brought to the station after being arrested elsewhere or after being committed to custody by an order or sentence of a court; or

    2. (b) arrested at the station or detained there, as a person falling within section 34(7), under section 37 above.

  2. (2) The custody officer may record or cause to be recorded all or any of the things which he ascertains under subsection (1).

  3. (2A) In the case of an arrested person, any such record may be made as part of his custody record.

  4. (3) Subject to subsection (4) below, a custody officer may seize and retain any such thing or cause any such thing to be seized and retained.

  5. (4) Clothes and personal effects may only be seized if the custody officer—

    1. (a) believes that the person from whom they are seized may use them—

      1. (i) to cause physical injury to himself or any other person;

      2. (ii) to damage property;

      3. (iii) to interfere with evidence; or

      4. (iv) to assist him to escape; or

    2. (b) has reasonable grounds for believing that they may be evidence relating to an offence.

  6. (5) Where anything is seized, the person from whom it is seized shall be told the reason for the seizure unless he is—

    1. (a) violent or likely to become violent; or

    2. (b) incapable of understanding what is said to him.

  7. (6) Subject to subsection (7) below, a person may be searched if the custody officer considers it necessary to enable him to carry out his duty under subsection (1) above and to the extent that the custody officer considers necessary for that purpose.

  8. (6A) A person who is in custody at a police station or is in police detention otherwise than at a police station may at any time be searched in order to ascertain whether he has with him anything which he could use for any of the purposes specified in subsection (4) (a) above.

  9. (6B) Subject to subsection (6C) below, a constable may seize and retain, or cause to be seized and retained, anything found on such a search.

  10. (6C) A constable may only seize clothes and personal effects in the circumstances specified in subsection (4) above.

  11. (7) An intimate search may not be conducted under this section.

  12. (8) A search under this section shall be carried out by a constable.

  13. (9) The constable carrying out a search shall be of the same sex as the person searched.

The custody officer must also consider what property the detained person might have in his/her possession for an unlawful or harmful purpose while in custody. The safekeeping of any property taken from the detained person and kept at the police station is the responsibility of the custody officer.

The custody officer does not need to record everything a detained person has with him/her. The custody officer will have a discretion as to the nature and detail of any recording and there is no requirement for this to be recorded in the custody record. However, custody officers should be mindful of any force instructions as to what will need to be recorded and where. It is suggested that it will still be necessary to make records, not least to ensure against claims that property has been mishandled or removed. The custody officer will have to make judgements about how to balance the need for recording against the amount of administrative work involved.

2.8.8.2

Keynote

The Search

While the custody officer has a duty to ascertain what property a person has with him/her (often by means of searching the person), there is also a need to consider the rights of the detained person. The custody officer may authorise a constable to search a detained person, or may search the detained person him/herself in order to ascertain what property the detained person has with him/her (s. 54(6)). It should be noted that the custody officer must first authorise any search and the extent of the search; officers should not search a person until this authority has been given. Therefore the custody officer may only authorise a search to the extent that he/she considers necessary to comply with this duty. In order to safeguard the rights of the detained person, there are three levels to which searches can be conducted:

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

  • strip searches;

  • intimate searches.

Each of these is examined below.

The extent of the search is determined by the custody officer on the basis of what he/she honestly believes is necessary in order to comply with the above duties. Both the decision to search the detained person and the extent of the search must be decided on the facts of the case in question. It may be important to consider cultural issues that might affect the detained person; for instance, would it be necessary and justifiable to search a Sikh’s turban? Force standing orders are not an automatic right to search all detained persons (Brazil v Chief Constable of Surrey [1983] 1 WLR 1155). A custody officer can authorise a strip search but an intimate search can only be authorised by an officer of the rank of inspector or above.

2.8.8.3

Keynote

Searches that Do Not Involve the Removal of More than the Detained Person’s Outer Clothing

In effect, this is any search that does not become a strip search or an intimate search. This type of search applies to almost every person coming before the custody officer. Typically this will involve emptying out all items that are in the person’s pockets, removing jewellery and the searching of other areas that can be conducted without the need to remove more than outer garments, such as coats and possibly items such as jumpers. This type of authorisation would also lend itself to a ‘pat down’ of the detained person. If there is any doubt as to whether the search goes beyond one that falls into this category, it is suggested that it should be treated as a strip search. Where metal detectors are used in custody suites, an indication from the device may give the grounds for authorising a strip search.

Not all detained persons need to be searched; s. 54(1) and para. 4.1 require a detainee to be searched when it is clear the custody officer will have continuing duties in relation to that detainee or when that detainee’s behaviour or offence makes an inventory appropriate. They do not require every detainee to be searched, e.g. if it is clear that a person will only be detained for a short period and is not to be placed in a cell, the custody officer may decide not to search him/her. In such a case the custody record will be endorsed ‘not searched’, para. 4.4 will not apply, and the detainee will be invited to sign the entry. If the detainee refuses, the custody officer will be obliged to ascertain what property he/she has in accordance with para. 4.1.

2.8.8.4

Keynote

Strip Searches

Strip searches are dealt with in Code C, Annex A, paras 9 to 12.

2.8.8.5

Keynote

Intimate Searches

Intimate searches are dealt with in Code C, Annex A. An intimate search is a search which consists of the physical examination of a person’s body orifices other than the mouth.

2.8.8.6

Keynote

Drug Search—X-rays and Ultrasound Scans

Section 55A of the 1984 Act allows detained persons to have an X-ray taken of them or an ultrasound scan to be carried out on them (or both). This is dealt with in Code C, Annex K.

2.8.8.7

Keynote

Conduct of a Search

  • Reasonable force may be used (s. 117 of the 1984 Act).

  • The custody officer should specify the level of the search to be conducted and this must be recorded in the person’s record.

  • Reference to Code A, para. 3.1 may be useful when considering how to conduct the search: ‘Every reasonable effort must be made to minimise the embarrassment that a person being searched may experience.’

  • Annex L should be referred to for guidance when establishing the gender of persons for the purpose of searching.

2.8.8.8

Keynote

What Property Can Be Retained?

Once a person has been searched and the custody officer has ascertained what property the detained person has with him/her, a decision must be made as to what property will be returned to the detained person and what property will be retained by the police.

It is suggested that the custody officer may authorise the seizure of an article of clothing under s. 54(4)(b) of the 1984 Act, where he/she has reasonable grounds for believing that such clothing may be evidence relating to an offence. For instance, if the detained person is wearing a pair of trainers of the same type as those which are reasonably believed to have made impressions at the scene of a recent burglary and the detained person has a burglary record then, unless the custody officer knows of other facts clearly putting the suspect at some other place at the time of the offence, he/she is plainly justified in having those shoes forensically examined. However, it is submitted that this does not authorise the custody officer to seize footwear on the off-chance that some officer or some other police force may have obtained impressions at a burglary site which might match the trainers of the detained person.

Where property by virtue of its nature, quantity or size in the detainee’s possession at the time of arrest has not been brought to the police station the custody officer is not required to record this on the custody record. Only items of clothing worn by the detained person which have been withheld need to be recorded on the custody record.

Unless the property has been seized and retained as evidence under s. 22 of the 1984 Act, it must be returned to the detained person on his/her release. If property has been seized from a third party in the course of the investigation the property can only be retained for so long as is necessary in accordance with s. 22(1) of the 1984 Act; even if it might be needed for another matter it should be returned to the third party unless there was an additional power to seize the item (Settelen v Metropolitan Police Commissioner [2004] EWHC 2171 (Ch)). If property is rightfully seized but retained unnecessarily this would be unlawful and could lead to a claim for damages (Martin v Chief Constable of Nottinghamshire (1998) 1 May, unreported). The seizure of a person’s property is also protected by the European Convention on Human Rights, First Protocol, Article 1.

2.8.9

5 Right not to be Held Incommunicado

(a) Action

5.1 Subject to paragraph 5.7B, any person arrested and held in custody at a police station or other premises may, on request, have one person known to them or likely to take an interest in their welfare informed at public expense of their whereabouts as soon as practicable. If the person cannot be contacted the detainee may choose up to two alternatives. If they cannot be contacted, the person in charge of detention or the investigation has discretion to allow further attempts until the information has been conveyed.

5.2 The exercise of the above right in respect of each person nominated may be delayed only in accordance with Annex B.

5.3 The above right may be exercised each time a detainee is taken to another police station.

5.4 If the detainee agrees, they may at the custody officer’s discretion, receive visits from friends, family or others likely to take an interest in their welfare, or in whose welfare the detainee has an interest.

5.5 If a friend, relative or person with an interest in the detainee’s welfare enquires about their whereabouts, this information shall be given if the suspect agrees and Annex B does not apply.

5.6 The detainee shall be given writing materials, on request, and allowed to telephone one person for a reasonable time. Either or both of these privileges may be denied or delayed if an officer of inspector rank or above considers sending a letter or making a telephone call may result in any of the consequences in:

  1. (a) Annex B paragraphs 1 and 2 and the person is detained in connection with an indictable offence;

  2. (b) Not used.

Nothing in this paragraph permits the restriction or denial of the rights in paragraphs 5.1 and 6.1.

5.7 Before any letter or message is sent, or telephone call made, the detainee shall be informed that what they say in any letter, call or message (other than in a communication to a solicitor) may be read or listened to and may be given in evidence. A telephone call may be terminated if it is being abused. The costs can be at public expense at the custody officer’s discretion.

5.7A Any delay or denial of the rights in this section should be proportionate and should last no longer than necessary.

5.7B In the case of a person in police custody for specific purposes and periods in accordance with a direction under the Crime (Sentences) Act 1997, Schedule 1 (productions from prison etc.), the exercise of the rights in this section shall be subject to any additional conditions specified in the direction for the purpose of regulating the detainee’s contact and communication with others whilst in police custody.

(b) Documentation

5.8 A record must be kept of any:

  1. (a) request made under this section and the action taken;

  2. (b) letters, messages or telephone calls made or received or visit received;

  3. (c) refusal by the detainee to have information about them given to an outside enquirer.

The detainee must be asked to countersign the record accordingly and any refusal recorded.

2.8.9.1

Keynote

Right to Have Someone Informed

A person may request an interpreter to interpret a telephone call or translate a letter. In addition to Code C, this right can be denied or delayed where a person is detained under s. 41 of or sch. 7 to the Terrorism Act 2000 by an officer of the rank of inspector or above (Code H, s. 5). The grounds are the same as those regulating the holding of people incommunicado. Should there be any delay in complying with a request by a detained person to have someone informed of his/her detention or to communicate with someone, the detained person should be informed of this and told the reason for it and a record kept (s. 56(6) of the 1984 Act). Subject to having sufficient personnel to supervise a visit and any possible hindrance to the investigation, the custody officer also has a discretion to allow visits to the detained person at the police station.

It is suggested that with the Codes of Practice outlining the limited rights for the detained person to make telephone calls and the right to restrict these calls, if the person has a mobile telephone it can be seized for the period of his/her detention. There is no case law on this point and any force policy should be followed. If the detainee does not know anyone to contact for advice or support or cannot contact a friend or relative, the custody officer should bear in mind any local voluntary bodies or other organisations which might be able to help. Paragraph 6.1 applies if legal advice is required.

In some circumstances, it may not be appropriate to use the telephone to disclose information under paras 5.1 and 5.5. So for example there may be occasions when officers wish to conduct a search under s. 18 of the 1984 Act and the detained person has requested to have someone informed. Clearly, if that person is informed before the search is conducted, vital evidence or property may be lost. Often, the custody officer has two methods by which he/she can inform the person requested about the detained person’s detention: either in person or on the phone. Contacting the person by telephone is likely to be the quickest; however, there is no requirement to use the quickest method in order to pass on this information. While there is no case law on this point, Code C supports the view that, where the s. 18 search is to be conducted relatively quickly after the request is made by the detained person, it would be permissible to inform that person at the time the s. 18 search is conducted. Where the search is not to be conducted straight away, a lengthy delay may be seen as a breach of this right, which may lead to a stay of proceedings or a claim for damages as a breach of the detained person’s human rights.

The additional conditions mentioned in para. 5.7B are contained in Prison Service Instruction 26/2012 (Production of Prisoners at the Request of Warranted Law Enforcement Agencies), which provides detailed guidance and instructions for police officers and Governors and Directors of Prisons regarding applications for prisoners to be transferred to police custody and their safe custody and treatment while in police custody.

2.8.10

6 Right to Legal Advice

(a) Action

6.1 Unless Annex B applies, all detainees must be informed that they may at any time consult and communicate privately with a solicitor, whether in person, in writing or by telephone, and that free independent legal advice is available. See paragraph 3.1, Notes 1I,

6.2 Not used.

6.3 A poster advertising the right to legal advice must be prominently displayed in the charging area of every police station.

6.4 No police officer should, at any time, do or say anything with the intention of dissuading any person who is entitled to legal advice in accordance with this Code, whether or not they have been arrested and are detained, from obtaining legal advice.

6.5 The exercise of the right of access to legal advice may be delayed only as in Annex B. Whenever legal advice is requested, and unless Annex B applies, the custody officer must act without delay to secure the provision of such advice. If the detainee has the right to speak to a solicitor in person but declines to exercise the right the officer should point out that the right includes the right to speak with a solicitor on the telephone. If the detainee continues to waive this right, or a detainee whose right to free legal advice is limited to telephone advice from the Criminal Defence Service (CDS) Direct declines to exercise that right, the officer should ask them why and any reasons should be recorded on the custody record or the interview record as appropriate. Reminders of the right to legal advice must be given as in paragraphs 3.5, 11.2, 15.4, 16.4, 16.5, 2B of Annex A, 3 of Annex K and 5 of Annex M of this Code and Code D, paragraphs 3.17(ii) and 6.3. Once it is clear a detainee does not want to speak to a solicitor in person or by telephone they should cease to be asked their reasons.

6.5A In the case of a person who is a juvenile or is mentally disordered or otherwise mentally vulnerable, an appropriate adult should consider whether legal advice from a solicitor is required. If such a detained person wants to exercise the right to legal advice, the appropriate action should be taken and should not be delayed until the appropriate adult arrives. If the person indicates that they do not want legal advice, the appropriate adult has the right to ask for a solicitor to attend if this would be in the best interests of the person. However, the person cannot be forced to see the solicitor if they are adamant that they do not wish to do so.

6.6 A detainee who wants legal advice may not be interviewed or continue to be interviewed until they have received such advice unless:

  1. (a) Annex B applies, when the restriction on drawing adverse inferences from silence in Annex C will apply because the detainee is not allowed an opportunity to consult a solicitor; or

  2. (b) an officer of superintendent rank or above has reasonable grounds for believing that:

    1. (i) the consequent delay might:

      • lead to interference with, or harm to, evidence connected with an offence;

      • lead to interference with, or physical harm to, other people;

      • lead to serious loss of, or damage to, property;

      • lead to alerting other people suspected of having committed an offence but not yet arrested for it;

      • hinder the recovery of property obtained in consequence of the commission of an offence.

    2. (ii) when a solicitor, including a duty solicitor, has been contacted and has agreed to attend, awaiting their arrival would cause unreasonable delay to the process of investigation.

      Note: In these cases the restriction on drawing adverse inferences from silence in Annex C will apply because the detainee is not allowed an opportunity to consult a solicitor.

  3. (c) the solicitor the detainee has nominated or selected from a list:

    1. (i) cannot be contacted;

    2. (ii) has previously indicated they do not wish to be contacted; or

    3. (iii) having been contacted, has declined to attend; and

      • the detainee has been advised of the Duty Solicitor Scheme but has declined to ask for the duty solicitor;

      • in these circumstances the interview may be started or continued without further delay provided an officer of inspector rank or above has agreed to the interview proceeding.

        Note: The restriction on drawing adverse inferences from silence in Annex C will not apply because the detainee is allowed an opportunity to consult the duty solicitor;

  4. (d) the detainee changes their mind about wanting legal advice or (as the case may be) about wanting a solicitor present at the interview and states that they no longer wish to speak to a solicitor. In these circumstances, the interview may be started or continued without delay provided that:

    1. (i) an officer of inspector rank or above:

      • speaks to the detainee to enquire about the reasons for their change of mind, and

      • makes, or directs the making of, reasonable efforts to ascertain the solicitor’s expected time of arrival and to inform the solicitor that the suspect has stated that they wish to change their mind and the reason (if given);

    2. (ii) the detainee’s reason for their change of mind (if given) and the outcome of the action in (i) are recorded in the custody record;

    3. (iii) the detainee, after being informed of the outcome of the action in (i) above, confirms in writing that they want the interview to proceed without speaking or further speaking to a solicitor or (as the case may be) without a solicitor being present and do not wish to wait for a solicitor by signing an entry to this effect in the custody record;

    4. (iv) an officer of inspector rank or above is satisfied that it is proper for the interview to proceed in these circumstances and:

      • gives authority in writing for the interview to proceed and, if the authority is not recorded in the custody record, the officer must ensure that the custody record shows the date and time of the authority and where it is recorded, and

      • takes, or directs the taking of, reasonable steps to inform the solicitor that the authority has been given and the time when the interview is expected to commence and records or causes to be recorded, the outcome of this action in the custody record.

    5. (v) When the interview starts and the interviewer reminds the suspect of their right to legal advice (see paragraph 11.2, Code E paragraph 4.5 and Code F paragraph 4.5), the interviewer shall then ensure that the following is recorded in the written interview record or the interview record made in accordance with Code E or F:

      • confirmation that the detainee has changed their mind about wanting legal advice or (as the case may be) about wanting a solicitor present and the reasons for it if given;

      • the fact that authority for the interview to proceed has been given and, subject to paragraph 2.6A, the name of the authorising officer;

      • that if the solicitor arrives at the station before the interview is completed, the detainee will be so informed without delay and a break will be taken to allow them to speak to the solicitor if they wish, unless paragraph 6.6(a) applies, and

      • that at any time during the interview, the detainee may again ask for legal advice and that if they do, a break will be taken to allow them to speak to the solicitor, unless paragraph 6.6(a), (b), or (c) applies.

        Note: In these circumstances, the restriction on drawing adverse inferences from silence in Annex C will not apply because the detainee is allowed an opportunity to consult a solicitor if they wish.

6.7 If paragraph 6.6(a) applies, where the reason for authorising the delay ceases to apply, there may be no further delay in permitting the exercise of the right in the absence of a further authorisation unless paragraph 6.6(b), (c) or (d) applies. If paragraph 6.6(b)(i) applies, once sufficient information has been obtained to avert the risk, questioning must cease until the detainee has received legal advice unless paragraph 6.6(a), (b)(ii), (c) or (d) applies.

6.8 A detainee who has been permitted to consult a solicitor shall be entitled on request to have the solicitor present when they are interviewed unless one of the exceptions in paragraph 6.6 applies.

6.9 The solicitor may only be required to leave the interview if their conduct is such that the interviewer is unable properly to put questions to the suspect.

6.10 If the interviewer considers a solicitor is acting in such a way, they will stop the interview and consult an officer not below superintendent rank, if one is readily available, and otherwise an officer not below inspector rank not connected with the investigation. After speaking to the solicitor, the officer consulted will decide if the interview should continue in the presence of that solicitor. If they decide it should not, the suspect will be given the opportunity to consult another solicitor before the interview continues and that solicitor given an opportunity to be present at the interview.

6.11 The removal of a solicitor from an interview is a serious step and, if it occurs, the officer of superintendent rank or above who took the decision will consider if the incident should be reported to the Solicitors Regulatory Authority. If the decision to remove the solicitor has been taken by an officer below superintendent rank, the facts must be reported to an officer of superintendent rank or above, who will similarly consider whether a report to the Solicitors Regulatory Authority would be appropriate. When the solicitor concerned is a duty solicitor, the report should be both to the Solicitors Regulatory Authority and to the Legal Aid Agency.

6.12 ‘Solicitor’ in this Code means:

  • a solicitor who holds a current practising certificate;

  • an accredited or probationary representative included on the register of representatives maintained by the Legal Aid Agency.

6.12A An accredited or probationary representative sent to provide advice by, and on behalf of, a solicitor shall be admitted to the police station for this purpose unless an officer of inspector rank or above considers such a visit will hinder the investigation and directs otherwise. Hindering the investigation does not include giving proper legal advice to a detainee. Once admitted to the police station, paragraphs 6.6 to 6.10 apply.

6.13 In exercising their discretion under paragraph 6.12A, the officer should take into account in particular:

  • whether:

    • ~ the identity and status of an accredited or probationary representative have been satisfactorily established;

    • ~ they are of suitable character to provide legal advice, e.g. a person with a criminal record is unlikely to be suitable unless the conviction was for a minor offence and not recent.

  • any other matters in any written letter of authorisation provided by the solicitor on whose behalf the person is attending the police station.

6.14 If the inspector refuses access to an accredited or probationary representative or a decision is taken that such a person should not be permitted to remain at an interview, the inspector must notify the solicitor on whose behalf the representative was acting and give them an opportunity to make alternative arrangements. The detainee must be informed and the custody record noted.

6.15 If a solicitor arrives at the station to see a particular person, that person must, unless Annex B applies, be so informed whether or not they are being interviewed and asked if they would like to see the solicitor. This applies even if the detainee has declined legal advice or, having requested it, subsequently agreed to be interviewed without receiving advice. The solicitor’s attendance and the detainee’s decision must be noted in the custody record.

(b) Documentation

6.16 Any request for legal advice and the action taken shall be recorded.

6.17 A record shall be made in the interview record if a detainee asks for legal advice and an interview is begun either in the absence of a solicitor or their representative, or they have been required to leave an interview.

2.8.10.1

Keynote

Right to Legal Advice

A poster or posters of the right to legal advice containing translations into Welsh, the main minority ethnic languages and the principal European languages should be displayed wherever they are likely to be helpful and it is practicable to do so.

Section 58 of the Police and Criminal Evidence Act 1984 provides an almost inalienable right for a person arrested and held in custody at a police station or other premises to consult privately with a solicitor free of charge at any time if he/she requests it. In R v Alladice (1988) 87 Cr App R 380 the Court of Appeal made it clear that:

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

A detainee has a right to free legal advice and to be represented by a solicitor. Note for Guidance 6B explains the arrangements which enable detainees to obtain legal advice. An outline of these arrangements is also included in the Notice of Rights and Entitlements given to detainees in accordance with para. 3.2. The arrangements also apply, with appropriate modifications, to persons attending a police station or other location voluntarily who are cautioned prior to being interviewed. See para. 3.21. When a detainee asks for free legal advice, the Defence Solicitor Call Centre (DSCC) must be informed of the request. Free legal advice will be limited to telephone advice provided by the Criminal Defence Service Direct (CDS Direct) if a detainee is:

  • detained for a non-imprisonable offence;

  • arrested on a bench warrant for failing to appear and being held for production at court (except where the solicitor has clear documentary evidence available that would result in the client being released from custody);

  • arrested for drink driving (driving/in charge with excess alcohol, failing to provide a specimen, driving/in charge whilst unfit through drink); or

  • detained in relation to breach of police or court bail conditions

unless one or more exceptions apply, in which case the DSCC should arrange for advice to be given by a solicitor at the police station, for example:

  • the police want to interview the detainee or carry out an eye-witness identification procedure;

  • the detainee needs an appropriate adult;

  • the detainee is unable to communicate over the telephone;

  • the detainee alleges serious misconduct by the police;

  • the investigation includes another offence not included in the list;

  • the solicitor to be assigned is already at the police station.

When free advice is not limited to telephone advice, detainees can ask for free advice from a solicitor they know or if they do not know a solicitor or the solicitor they know cannot be contacted, from the duty solicitor.

To arrange free legal advice, the police should telephone the DSCC. The call centre will decide whether legal advice should be limited to telephone advice from CDS Direct, or whether a solicitor known to the detainee or the duty solicitor should speak to the detainee.

When detainees want to pay for legal advice themselves:

  • the DSCC will contact a solicitor of their choice on their behalf;

  • they may, when free advice is only available by telephone from CDS Direct, still speak to a solicitor of their choice on the telephone for advice, but the solicitor would not be paid by legal aid and may ask the person to pay for the advice;

  • they should be given an opportunity to consult a specific solicitor or another solicitor from that solicitor’s firm. If this solicitor is not available, they may choose up to two alternatives. If these alternatives are not available, the custody officer has discretion to allow further attempts until a solicitor has been contacted and agreed to provide advice;

  • they are entitled to a private consultation with their chosen solicitor on the telephone or the solicitor may decide to come to the police station;

  • If their chosen solicitor cannot be contacted, the DSCC may still be called to arrange free legal advice.

Apart from carrying out duties necessary to implement these arrangements, an officer must not advise the suspect about any particular firm of solicitors.

No police officer or police staff shall indicate to any suspect, except to answer a direct question, that the period for which he/she is liable to be detained, or if not detained, the time taken to complete the interview, might be reduced: if the suspect does not ask for legal advice or does not want a solicitor present when he/she is interviewed; or if he/she has asked for legal advice or (as the case may be) asked for a solicitor to be present when he/she is interviewed but changes his/her mind and agrees to be interviewed without waiting for a solicitor.

A detainee has a right to free legal advice and to be represented by a solicitor. A detainee is not obliged to give reasons for declining legal advice and should not be pressed to do so. The solicitor’s only role in the police station is to protect and advance the legal rights of his/her client. On occasions, this may require the solicitor to give advice which has the effect of the client avoiding giving evidence which strengthens a prosecution case. The solicitor may intervene in order to seek clarification, challenge an improper question to the client or the manner in which it is put, advise the client not to reply to particular questions or if he/she wishes to give the client further legal advice.

An officer who takes the decision to exclude a solicitor must be in a position to satisfy the court that the decision was properly made. In order to do this he/she may need to witness what is happening. Paragraph 6.9 only applies if the solicitor’s approach or conduct prevents or unreasonably obstructs proper questions being put to the suspect or the suspect’s response being recorded. Examples of unacceptable conduct include answering questions on a suspect’s behalf or providing written replies for the suspect to quote.

If an officer of at least inspector rank considers that a particular solicitor or firm of solicitors is persistently sending probationary representatives who are unsuited to provide legal advice, he/she should inform an officer of at least superintendent rank, who may wish to take the matter up with the Solicitors Regulation Authority.

Whenever a detainee exercises his/her right to legal advice by consulting or communicating with a solicitor, he/she must be allowed to do so in private. This right to consult or communicate in private is fundamental. If the requirement for privacy is compromised because what is said or written by the detainee or solicitor for the purpose of giving and receiving legal advice is overheard, listened to or read by others without the informed consent of the detainee, the right will effectively have been denied. When a detainee chooses to speak to a solicitor on the telephone, he/she should be allowed to do so in private unless this is impractical because of the design and layout of the custody area or the location of telephones. However, the normal expectation should be that facilities will be available, unless they are being used, at all police stations to enable detainees to speak in private to a solicitor either face to face or over the telephone.

This right to have a private consultation also applies to juveniles who, should they wish to have a private consultation without the appropriate adult being present, must be permitted to do so. This point was considered in R (On the Application of M (A Child)) v Commissioner of the Police of the Metropolis [2001] EWHC 533 (Admin), where the court said that ideally there ought be a consultation room at every police station and facilities for private telephone calls to be made for legal consultations. However, there was no breach of Article 6(3) of the European Convention on Human Rights where it could not be shown that a detainee had been denied adequate facilities for the preparation of his defence.

Once a person has indicated a wish to have a solicitor, and has not yet been advised by a solicitor, he/she can only be interviewed in limited circumstances as set out in Code C, para. 6.6. In considering whether a detainee can be interviewed or continue to be interviewed under para. 6.6 without having received legal advice which he/she has requested, the officer making this decision should, if practicable, ask the solicitor for an estimate of how long it will take to come to the station and relate this to the time that detention is permitted, the time of day (i.e. whether the rest period under para. 12.2 is imminent) and the requirements of other investigations. Subject to the constraints of Annex B, a solicitor may advise more than one client in an investigation if he/she wishes. Any question of a conflict of interest is for the solicitor under his/her professional code of conduct. If, however, waiting for a solicitor to give advice to one client may lead to unreasonable delay to the interview with another, the provisions of para. 6.6(b) may apply.

Where the solicitor is on the way or is to set off immediately, it will not normally be appropriate to begin an interview before he/she arrives. If it appears necessary to begin an interview before the solicitor’s arrival, he/she should be given an indication of how long the police would be able to wait before starting the interview so that there is an opportunity to make arrangements for someone else to provide legal advice.

Code C, Annex B provides an exception to this right to legal advice. The same exception also applies where the person is held under prevention of terrorism legislation (Terrorism Act 2000, s. 41 or sch. 8) and the conditions in Code H, Annex B apply. In addition, a uniformed officer of at least the rank of inspector not connected with the case may be present if authorised by an Assistant Chief Constable or Commander (Terrorism Act 2000, sch. 8, para. 9 and Code H, paras 6.4, 6.5). The delay can only be for a maximum of 36 hours (48 hours from the time of arrest in terrorism cases) or until the time the person will first appear at court, whichever is the sooner (see below). The 36-hour period is calculated from the ‘relevant time’.

Another exception is in relation to the drink-drive procedure for s. 7 of the Road Traffic Act 1988. In DPP v Noe [2000] RTR 351 a request to see a solicitor or alternatively to consult a law book to verify the legality of the police request for a specimen of breath was not a reasonable excuse under s. 7. This is confirmed by Campbell v DPP [2002] EWHC 1314 (Admin), in which it was held that it was entirely proportionate to allow a police officer to require a member of the community to provide a specimen, albeit that legal advice had not been obtained.

Where Code C, para. 6.6 is used it will have to be justified at court if the interview is to be admissible. This power might prove useful in circumstances where there are ‘delaying tactics’ by legal representatives, particularly where they are aware that the detained person’s relevant time is due to expire within a short period.

When detainees who wanted legal advice change their mind, an officer of inspector rank or above must authorise the continuation of the interview. It is permissible for such authorisation to be given over the telephone, if the authorising officer is able to satisfy him/herself about the reason for the detainee’s change of mind and is satisfied that it is proper to continue the interview in those circumstances.

In terrorism cases a direction may be given by an officer of at least the rank of Commander or Assistant Chief Constable which may provide that a detained person who wishes to exercise the right to consult a solicitor may do so only in the sight and hearing of a qualified officer, this person being a uniformed officer of at least the rank of inspector not connected with the investigation from the authorising officer’s force (Code H, para. 6.5).

2.8.11

7 Citizens of Independent Commonwealth Countries or Foreign Nationals

(a) Action

7.1 A detainee who is a citizen of an independent Commonwealth country or a national of a foreign country, including the Republic of Ireland, has the right, upon request, to communicate at any time with the appropriate High Commission, Embassy or Consulate. That detainee must be informed as soon as practicable of this right and asked if they want to have their High Commission, Embassy or Consulate told of their whereabouts and the grounds for their detention. Such a request should be acted upon as soon as practicable.

7.2 A detainee who is a citizen of a country with which a bilateral consular convention or agreement is in force requiring notification of arrest must also be informed that subject to paragraph 7.4, notification of their arrest will be sent to the appropriate High Commission, Embassy or Consulate as soon as practicable, whether or not they request it. A list of the countries to which this requirement currently applies and contact details for the relevant High Commissions, Embassies and Consulates can be obtained from the Consular Directorate of the Foreign and Commonwealth Office (FCO) as follows:

7.3 Consular officers may, if the detainee agrees, visit one of their nationals in police detention to talk to them and, if required, to arrange for legal advice. Such visits shall take place out of the hearing of a police officer.

7.4 Notwithstanding the provisions of consular conventions, if the detainee claims that they are a refugee or have applied or intend to apply for asylum, the custody officer must ensure that UK Visas and Immigration (UKVI) (formerly the UK Border Agency) is informed as soon as practicable of the claim. UKVI will then determine whether compliance with relevant international obligations requires notification of the arrest to be sent and will inform the custody officer as to what action police need to take.

(b) Documentation

7.5 A record shall be made:

  • when a detainee is informed of their rights under this section and of any requirement in paragraph 7.2;

  • of any communications with a High Commission, Embassy or Consulate, and

  • of any communications with UKVI about a detainee’s claim to be a refugee or to be seeking asylum and the resulting action taken by police.

2.8.11.1

Keynote

The exercise of the rights in this section may not be interfered with even where Code C, Annex B applies.

2.8.12

8 Conditions of Detention

(a) Action

8.1 So far as it is practicable, not more than one detainee should be detained in each cell.

8.2 Cells in use must be adequately heated, cleaned and ventilated. They must be adequately lit, subject to such dimming as is compatible with safety and security to allow people detained overnight to sleep. No additional restraints shall be used within a locked cell unless absolutely necessary and then only restraint equipment, approved for use in that force by the chief officer, which is reasonable and necessary in the circumstances having regard to the detainee’s demeanour and with a view to ensuring their safety and the safety of others. If a detainee is deaf, mentally disordered or otherwise mentally vulnerable, particular care must be taken when deciding whether to use any form of approved restraints.

8.3 Blankets, mattresses, pillows and other bedding supplied shall be of a reasonable standard and in a clean and sanitary condition.

8.4 Access to toilet and washing facilities must be provided.

8.5 If it is necessary to remove a detainee’s clothes for the purposes of investigation, for hygiene, health reasons or cleaning, replacement clothing of a reasonable standard of comfort and cleanliness shall be provided. A detainee may not be interviewed unless adequate clothing has been offered.

8.6 At least two light meals and one main meal should be offered in any 24-hour period. Drinks should be provided at meal times and upon reasonable request between meals. Whenever necessary, advice shall be sought from the appropriate healthcare professional, see Note 9A, on medical and dietary matters. As far as practicable, meals provided shall offer a varied diet and meet any specific dietary needs or religious beliefs the detainee may have. The detainee may, at the custody officer’s discretion, have meals supplied by their family or friends at their expense.

8.7 Brief outdoor exercise shall be offered daily if practicable.

8.8 A juvenile shall not be placed in a police cell unless no other secure accommodation is available and the custody officer considers it is not practicable to supervise them if they are not placed in a cell or that a cell provides more comfortable accommodation than other secure accommodation in the station. A juvenile may not be placed in a cell with a detained adult.

(b) Documentation

8.9 A record must be kept of replacement clothing and meals offered.

8.10 If a juvenile is placed in a cell, the reason must be recorded.

8.11 The use of any restraints on a detainee whilst in a cell, the reasons for it and, if appropriate, the arrangements for enhanced supervision of the detainee whilst so restrained, shall be recorded. See paragraph 3.9.

2.8.12.1

Keynote

The provision of bedding, medical and dietary matters are of particular importance in the case of a person likely to be detained for an extended period. In deciding whether to allow meals to be supplied by family or friends, the custody officer is entitled to take account of the risk of items being concealed in any food or package and the officer’s duties and responsibilities under food handling legislation. Meals should, so far as practicable, be offered at recognised meal times, or at other times that take account of when the detainee last had a meal.

It is suggested that the custody officer should undertake a further risk assessment which should be recorded in the custody record before more than one person is placed in a cell. Any steps taken to minimise the risk should also be included in the custody record. (Paragraph 2.3 requires the time of release to be recorded; this is relevant in calculating any period of detention which may still be remaining if the person has been bailed, and periods in police detention also count towards the period a person serves in custody.)

Section 117 of the 1984 Act provides that where any provision of the Act confers a power on a constable and does not provide that the power may only be exercised with the consent of some person, other than a police officer, the officer may use reasonable force, if necessary, in the exercise of the power.

This is not a blanket power to use force. In R v Jones (1999) The Times, 21 April, the court said that s. 117 should not be interpreted as giving a right to police to exercise force whenever the consent of a suspect was not required.

2.8.13

9 Care and Treatment of Detained Persons

(a) General

9.1 Nothing in this section prevents the police from calling an appropriate healthcare professional to examine a detainee for the purposes of obtaining evidence relating to any offence in which the detainee is suspected of being involved.

9.2 If a complaint is made by, or on behalf of, a detainee about their treatment since their arrest, or it comes to notice that a detainee may have been treated improperly, a report must be made as soon as practicable to an officer of inspector rank or above not connected with the investigation. If the matter concerns a possible assault or the possibility of the unnecessary or unreasonable use of force, an appropriate healthcare professional must also be called as soon as practicable.

9.3 Detainees should be visited at least every hour. If no reasonably foreseeable risk was identified in a risk assessment, see paragraphs 3.6–3.10, there is no need to wake a sleeping detainee. Those suspected of being under the influence of drink or drugs or both or of having swallowed drugs, or whose level of consciousness causes concern must, subject to any clinical directions given by the appropriate healthcare professional, see paragraph 9.13:

  • be visited and roused at least every half hour;

  • have their condition assessed as in Annex H;

  • and clinical treatment arranged if appropriate.

9.4 When arrangements are made to secure clinical attention for a detainee, the custody officer must make sure all relevant information which might assist in the treatment of the detainee’s condition is made available to the responsible healthcare professional. This applies whether or not the healthcare professional asks for such information. Any officer or police staff with relevant information must inform the custody officer as soon as practicable.

(b) Clinical treatment and attention

9.5 The custody officer must make sure a detainee receives appropriate clinical attention as soon as reasonably practicable if the person:

  1. (a) appears to be suffering from physical illness; or

  2. (b) is injured; or

  3. (c) appears to be suffering from a mental disorder; or

  4. (d) appears to need clinical attention.

9.5A This applies even if the detainee makes no request for clinical attention and whether or not they have already received clinical attention elsewhere. If the need for attention appears urgent, e.g. when indicated as in Annex H, the nearest available healthcare professional or an ambulance must be called immediately.

9.5B The custody officer must also consider the need for clinical attention in relation to those suffering the effects of alcohol or drugs.

9.6 Paragraph 9.5 is not meant to prevent or delay the transfer to a hospital if necessary of a person detained under the Mental Health Act 1983, section 136. When an assessment under that Act is to take place at a police station, see paragraph 3.16, the custody officer must consider whether an appropriate healthcare professional should be called to conduct an initial clinical check on the detainee. This applies particularly when there is likely to be any significant delay in the arrival of a suitably qualified medical practitioner.

9.7 If it appears to the custody officer, or they are told, that a person brought to a station under arrest may be suffering from an infectious disease or condition, the custody officer must take reasonable steps to safeguard the health of the detainee and others at the station. In deciding what action to take, advice must be sought from an appropriate healthcare professional. The custody officer has discretion to isolate the person and their property until clinical directions have been obtained.

9.8 If a detainee requests a clinical examination, an appropriate healthcare professional must be called as soon as practicable to assess the detainee’s clinical needs. If a safe and appropriate care plan cannot be provided, the appropriate healthcare professional’s advice must be sought. The detainee may also be examined by a medical practitioner of their choice at their expense.

9.9 If a detainee is required to take or apply any medication in compliance with clinical directions prescribed before their detention, the custody officer must consult the appropriate healthcare professional before the use of the medication. Subject to the restrictions in paragraph 9.10, the custody officer is responsible for the safekeeping of any medication and for making sure the detainee is given the opportunity to take or apply prescribed or approved medication. Any such consultation and its outcome shall be noted in the custody record.

9.10 No police officer may administer or supervise the self-administration of medically prescribed controlled drugs of the types and forms listed in the Misuse of Drugs Regulations 2001, Schedule 2 or 3. A detainee may only self-administer such drugs under the personal supervision of the registered medical practitioner authorising their use or other appropriate healthcare professional. The custody officer may supervise the self-administration of, or authorise other custody staff to supervise the self-administration of, drugs listed in Schedule 4 or 5 if the officer has consulted the appropriate healthcare professional authorising their use and both are satisfied self-administration will not expose the detainee, police officers or anyone else to the risk of harm or injury.

9.11 When appropriate healthcare professionals administer drugs or authorise the use of other medications, supervise their self-administration or consult with the custody officer about allowing self-administration of drugs listed in Schedule 4 or 5, it must be within current medicines legislation and the scope of practice as determined by their relevant statutory regulatory body.

9.12 If a detainee has in their possession, or claims to need, medication relating to a heart condition, diabetes, epilepsy or a condition of comparable potential seriousness then, even though paragraph 9.5 may not apply, the advice of the appropriate healthcare professional must be obtained.

9.13 Whenever the appropriate healthcare professional is called in accordance with this section to examine or treat a detainee, the custody officer shall ask for their opinion about:

  • any risks or problems which police need to take into account when making decisions about the detainee’s continued detention;

  • when to carry out an interview if applicable; and

  • the need for safeguards.

9.14 When clinical directions are given by the appropriate healthcare professional, whether orally or in writing, and the custody officer has any doubts or is in any way uncertain about any aspect of the directions, the custody officer shall ask for clarification. It is particularly important that directions concerning the frequency of visits are clear, precise and capable of being implemented.

(c) Documentation

9.15 A record must be made in the custody record of:

  1. (a) the arrangements made for an examination by an appropriate healthcare professional under paragraph 9.2 and of any complaint reported under that paragraph together with any relevant remarks by the custody officer;

  2. (b) any arrangements made in accordance with paragraph 9.5;

  3. (c) any request for a clinical examination under paragraph 9.8 and any arrangements made in response;

  4. (d) the injury, ailment, condition or other reason which made it necessary to make the arrangements in (a) to (c);

  5. (e) any clinical directions and advice, including any further clarifications, given to police by a healthcare professional concerning the care and treatment of the detainee in connection with any of the arrangements made in (a) to (c);

  6. (f) if applicable, the responses received when attempting to rouse a person using the procedure in Annex H.

9.16 If a healthcare professional does not record their clinical findings in the custody record, the record must show where they are recorded. However, information which is necessary to custody staff to ensure the effective ongoing care and well being of the detainee must be recorded openly in the custody record, see paragraph 3.8 and Annex G, paragraph 7.

9.17 Subject to the requirements of Section 4, the custody record shall include:

  • a record of all medication a detainee has in their possession on arrival at the police station;

  • a note of any such medication they claim to need but do not have with them.

2.8.13.1

Keynote

A ‘health care professional’ means a clinically qualified person working within the scope of practice as determined by his/her relevant professional body. Whether a health care professional is ‘appropriate’ depends on the circumstances of the duties he/she carries out at the time.

Paragraph 9.3 also applies to a person in police custody by order of a magistrates’ court under the Criminal Justice Act 1988, s. 152 (as amended by the Drugs Act 2005, s. 8) to facilitate the recovery of evidence after being charged with drug possession or drug trafficking and suspected of having swallowed drugs. In the case of the healthcare needs of a person who has swallowed drugs, the custody officer, subject to any clinical directions, should consider the necessity for rousing every half hour. This does not negate the need for regular visiting of the suspect in the cell. Whenever possible, juveniles (which includes 17-year-olds) and mentally vulnerable detainees should be visited more frequently. The purpose of recording a person’s responses when attempting to rouse them using the procedure in Annex H is to enable any change in the individual’s consciousness level to be noted and clinical treatment arranged if appropriate.

Paragraph 9.5 does not apply to minor ailments or injuries which do not need attention. However, all such ailments or injuries must be recorded in the custody record and any doubt must be resolved in favour of calling the appropriate health care professional. The custody officer should always seek to clarify directions that the detainee requires constant observation or supervision and should ask the appropriate health care professional to explain precisely what action needs to be taken to implement such directions.

A detainee who appears drunk or behaves abnormally may be suffering from illness, the effects of drugs or may have sustained injury, particularly a head injury which is not apparent. A detainee needing or dependent on certain drugs, including alcohol, may experience harmful effects within a short time of being deprived of his/her supply. In these circumstances, when there is any doubt, police should always act urgently to call an appropriate health care professional or an ambulance.

Any information that is available about the detained person should be considered in deciding whether to request a medical examination. In R v HM Coroner for Coventry, ex parte Chief Constable of Staffordshire Police (2000) 164 JP 665 the detained person had been drunk on arrest and was detained to be interviewed. The detained person made no complaint of his condition but his sister called the police to advise them that he would get the shakes. It was clear at interview and the following morning that he did have the shakes but no complaint was made and no doctor was called. A verdict of accidental death aggravated by neglect was an option in the case as the deceased had died while in police custody. The court considered the facts, such as the deceased’s withdrawal and the warning as to his condition, from which a properly directed jury could have concluded that had certain steps been taken it was at least possible that the deceased would not have died. In this case, a verdict of accidental death aggravated by neglect was left open to the jury, even though a doctor at the inquest gave evidence that he doubted whether calling a doctor would have made any difference to the eventual outcome.

Whenever practicable, arrangements should be made for persons detained for assessment under s. 136 of the Mental Health Act 1983 to be taken to a hospital. Chapter 10 of the Mental Health Act 1983 Code of Practice (as revised) provides more detailed guidance about arranging assessments under s. 136 of the 1983 Act and transferring detainees from police stations to other places of safety.

2.8.13.2

Keynote

Medical Record Forming Part of the Custody Record

It is important to respect a person’s right to privacy, and information about his/her health must be kept confidential and only disclosed with his/her consent or in accordance with clinical advice when it is necessary to protect the detainee’s health or that of others who come into contact with him/her.

A solicitor or appropriate adult must be permitted to consult a detainee’s custody record as soon as practicable after his/her arrival at the station and at any other time while the person is detained (Code C, para. 2.4). Therefore details required to be included in the custody record concerning the detainee’s injuries and ailments will be accessible to both the solicitor and appropriate adult. However, paras 9.15 and 9.16 do not require any information about the cause of any injury, ailment or condition to be recorded on the custody record if it appears capable of providing evidence of an offence.

As the Codes specify matters which must be included within the custody record, it is suggested that all other matters recorded by the appropriate health care professional do not form part of the custody record and therefore do not need to be made available to the solicitor or appropriate adult under Code C, para. 2.4, i.e. the notes made by the health care professional.

2.8.13.3

Keynote

Independent Custody Visiting (Lay Visitors)

Section 51 of the Police Reform Act 2002 introduced independent custody visitors on a statutory basis. The arrangements may confer on independent custody visitors such powers as the police authority considers necessary to enable them to carry out their functions under the arrangements and may, in particular, confer on them powers to:

  • require access to be given to each police station;

  • examine records relating to the detention of persons;

  • meet detainees for the purposes of a discussion about their treatment and conditions while detained; and

  • inspect the facilities including, in particular, cell accommodation, washing and toilet facilities and the facilities for the provision of food.

A Code of Practice on Independent Custody Visiting has been published outlining the role of the independent visitor (this can be found at <http://www.icva.org.uk>).

  1. 10 Cautions [see chapter 2.10]

  2. 11 Interviews—General [see chapter 2.10]

  3. 12 Interviews in Police Stations [see chapter 2.10]

2.8.14

13 Interpreters

(a) General

13.1 Chief officers are responsible for making arrangements (see paragraph 13.1ZA) to provide appropriately qualified independent persons to act as interpreters and to provide translations of essential documents for:

  1. (a) detained suspects who, in accordance with paragraph 3.5(c)(ii), the custody officer has determined require an interpreter, and

  2. (b) suspects who are not under arrest but are cautioned as in section 10 who, in accordance with paragraph 3.21(b), the interviewer has determined require an interpreter. In these cases, the responsibilities of the custody officer are, if appropriate, assigned to the interviewer. An interviewer who has any doubts about whether and what arrangements for an interpreter must be made or about how the provisions of this section should be applied to a suspect who is not under arrest should seek advice from an officer of the rank of sergeant or above.

If the suspect has a hearing or speech impediment, references to ‘interpreter’ and ‘interpretation’ in this Code include arrangements for appropriate assistance necessary to establish effective communication with that person. See paragraph 13.1C below if the person is in Wales.

13.1ZA References in paragraph 13.1 above and elsewhere in this Code (see paragraphs 3.12(a), 13.2, 13.2A, 13.5, 13.6, 13.9, 13.10, 13.10A, 13.10D and 13.11 below and in any other Code, to making arrangements for an interpreter to assist a suspect, mean making arrangements for the interpreter to be physically present in the same location as the suspect unless the provisions in paragraph 13.12 below, and Part 1 of Annex N, allow live-link interpretation to be used.

13.1A The arrangements must comply with the minimum requirements set out in Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings. The provisions of this Code implement the requirements for those to whom this Code applies. These requirements include the following:

  • That the arrangements made and the quality of interpretation and translation provided shall be sufficient to ‘safeguard the fairness of the proceedings, in particular by ensuring that suspected or accused persons have knowledge of the cases against them and are able to exercise their right of defence’. This term which is used by the Directive means that the suspect must be able to understand their position and be able to communicate effectively with police officers, interviewers, solicitors and appropriate adults as provided for by this and any other Code in the same way as a suspect who can speak and understand English and who does not have a hearing or speech impediment and who would therefore not require an interpreter. See paragraphs 13.12 to 13.14 and Annex N for application to live-link interpretation.

  • The provision of a written translation of all documents considered essential for the person to exercise their right of defence and to ‘safeguard the fairness of the proceedings’ as described above. For the purposes of this Code, this includes any decision to authorise a person to be detained and details of any offence(s) with which the person has been charged or for which they have been told they may be prosecuted, see Annex M.

  • Procedures to help determine:

    • ~ whether a suspect can speak and understand English and needs the assistance of an interpreter, see paragraph 13.1; and

    • ~ whether another interpreter should be arranged or another translation should be provided when a suspect complains about the quality of either or both, see paragraphs 13.10A and 13.10C.

13.1B All reasonable attempts should be made to make the suspect understand that interpretation and translation will be provided at public expense.

13.1C With regard to persons in Wales, nothing in this or any other Code affects the application of the Welsh Language Schemes produced by police and crime commissioners in Wales in accordance with the Welsh Language Act 1993. See paragraphs 3.12 and 13.1.

(b) Interviewing suspects—foreign languages

13.2 Unless paragraphs 11.1 or 11.18(c) apply, a suspect who for the purposes of this Code requires an interpreter because they do not appear to speak or understand English (see paragraphs 3.5(c)(ii) and 3.12) must not be interviewed unless arrangements are made for a person capable of interpreting to assist the suspect to understand and communicate.

13.2A If a person who is a juvenile or is mentally disordered or mentally vulnerable is interviewed and the person acting as the appropriate adult does not appear to speak or understand English, arrangements must be made for an interpreter to assist communication between the person, the appropriate adult and the interviewer, unless the interview is urgent and paragraphs 11.1 or 11.18(c) apply.

13.3 When a written record of the interview is made (see paragraph 11.7), the interviewer shall make sure the interpreter makes a note of the interview at the time in the person’s language for use in the event of the interpreter being called to give evidence, and certifies its accuracy. The interviewer should allow sufficient time for the interpreter to note each question and answer after each is put, given and interpreted. The person should be allowed to read the record or have it read to them and sign it as correct or indicate the respects in which they consider it inaccurate. If an audio or visual record of the interview is made, the arrangements in Code E or F shall apply. See paragraphs 13.12 to 13.14 and Annex N for application to live-link interpretation.

13.4 In the case of a person making a statement under caution (see Annex D) to a police officer or other police staff in a language other than English:

  1. (a) the interpreter shall record the statement in the language it is made;

  2. (b) the person shall be invited to sign it;

  3. (c) an official English translation shall be made in due course. See paragraphs 13.12 to 13.14 and Annex N for application to live-link interpretation.

(c) Interviewing suspects who have a hearing or speech impediment

13.5 Unless paragraphs 11.1 or 11.18(c) (urgent interviews) apply, a suspect who for the purposes of this Code requires an interpreter or other appropriate assistance to enable effective communication with them because they appear to have a hearing or speech impediment (see paragraphs 3.5(c)(ii) and 3.12) must not be interviewed without arrangements having been made to provide an independent person capable of interpreting or of providing other appropriate assistance.

13.6 An interpreter should also be arranged if a person who is a juvenile or who is mentally disordered or mentally vulnerable is interviewed and the person who is present as the appropriate adult, appears to have a hearing or speech impediment, unless the interview is urgent and paragraphs 11.1 or 11.18(c) apply.

13.7 If a written record of the interview is made, the interviewer shall make sure the interpreter is allowed to read the record and certify its accuracy in the event of the interpreter being called to give evidence. If an audio or visual recording is made, the arrangements in Code E or F apply.

See paragraphs 13.12 to 13.14 and Annex N for application to live-link interpretation.

(d) Additional rules for detained persons

13.8 Not used.

13.9 If paragraph 6.1 applies and the detainee cannot communicate with the solicitor because of language, hearing or speech difficulties, arrangements must be made for an interpreter to enable communication. A police officer or any other police staff may not be used for this purpose.

13.10 After the custody officer has determined that a detainee requires an interpreter (see paragraph 3.5(c)(ii)) and following the initial action in paragraphs 3.1 to 3.5, arrangements must also be made for an interpreter to:

  • explain the grounds and reasons for any authorisation for their continued detention, before or after charge and any information about the authorisation given to them by the authorising officer and which is recorded in the custody record. See paragraphs 15.3, 15.4 and 15.16(a) and (b);

  • to provide interpretation at the magistrates’ court for the hearing of an application for a warrant of further detention or any extension or further extension of such warrant to explain any grounds and reasons for the application and any information about the authorisation of their further detention given to them by the court (see PACE, sections 43 and 44 and paragraphs 15.2 and 15.16(c)); and

  • explain any offence with which the detainee is charged or for which they are informed they may be prosecuted and any other information about the offence given to them by or on behalf of the custody officer, see paragraphs 16.1 and 16.3.

13.10A If a detainee complains that they are not satisfied with the quality of interpretation, the custody officer or (as the case may be) the interviewer, is responsible for deciding whether to make arrangements for a different interpreter in accordance with the procedures set out in the arrangements made by the chief officer, see paragraph 13.1A.

(e) Translations of essential documents

13.10B Written translations, oral translations and oral summaries of essential documents in a language the detainee understands shall be provided in accordance with Annex M (Translations of documents and records).

13.10C If a detainee complains that they are not satisfied with the quality of the translation, the custody officer or (as the case may be) the interviewer, is responsible for deciding whether a further translation should be provided in accordance with the procedures set out in the arrangements made by the chief officer, see paragraph 13.1A.

(f) Decisions not to provide interpretation and translation

13.10D If a suspect challenges a decision:

  • made by the custody officer or (as the case may be) by the interviewer, in accordance with this Code (see paragraphs 3.5(c)(ii) and 3.21(b)) that they do not require an interpreter, or

  • made in accordance with paragraphs 13.10A, 13.10B or 13.10C not to make arrangements to provide a different interpreter or another translation or not to translate a requested document,

the matter shall be reported to an inspector to deal with as a complaint for the purposes of paragraph 9.2 or paragraph 12.9 if the challenge is made during an interview.

(g) Documentation

13.11 The following must be recorded in the custody record or, as applicable, the interview record:

  1. (a) Action taken to arrange for an interpreter, including the live-link requirements in Annex N as applicable;

  2. (b) Action taken when a detainee is not satisfied about the standard of interpretation or translation provided, see paragraphs 13.10A and 13.10C;

  3. (c) When an urgent interview is carried out in accordance with paragraph 13.2 or 13.5 in the absence of an interpreter;

  4. (d) When a detainee has been assisted by an interpreter for the purpose of providing or being given information or being interviewed;

  5. (e) Action taken in accordance with Annex M when:

    • a written translation of an essential document is provided;

    • an oral translation or oral summary of an essential document is provided instead of a written translation and the authorising officer’s reason(s) why this would not prejudice the fairness of the proceedings (see Annex M, paragraph 3);

    • a suspect waives their right to a translation of an essential document (see Annex M, paragraph 4);

    • when representations that a document which is not included in the table is essential and that a translation should

    • be provided are refused and the reason for the refusal (see Annex M, paragraph 8).

(h) Live-link interpretation

13.12 In this section and in Annex N, ‘live-link interpretation’ means an arrangement to enable communication between the suspect and an interpreter who is not physically present with the suspect. The arrangement must ensure that anything said by any person in the suspect’s presence and hearing can be interpreted in the same way as if the interpreter was physically present at that time. The communication must be by audio and visual means for the purpose of an interview, and for all other purposes it may be either; by audio and visual means, or by audio means only, as follows:

  1. (a) Audio and visual communication

    This applies for the purposes of an interview conducted and recorded in accordance with Code E (Audio recording) or Code F (Visual recording) and during that interview, live link interpretation must enable:

    1. (i) the suspect, the interviewer, solicitor, appropriate adult and any other person physically present with the suspect at any time during the interview and an interpreter who is not physically present, to see and hear each other; and

    2. (ii) the interview to be conducted and recorded in accordance with the provisions of Codes C, E and F, subject to the modifications in Part 2 of Annex N.

  2. (b) Audio and visual or audio without visual communication.

This applies to communication for the purposes of any provision of this or any other Code except as described in (a), which requires or permits information to be given to, sought from, or provided by a suspect, whether orally or in writing, which would include communication between the suspect and their solicitor and/or appropriate adult, and for these cases, live link interpretation must:

  1. (i) enable the suspect, the person giving or seeking that information, any other person physically present with the suspect at that time and an interpreter who is not so present, to either see and hear each other, or to hear without seeing each other (for example by using a telephone); and

  2. (ii) enable that information to be given to, sought from, or provided by, the suspect in accordance with the provisions of this or any other Code that apply to that information, as modified for the purposes of the live-link, by Part 2 of Annex N.

13.12A The requirement in sub-paragraphs 13.12(a)(ii) and (b)(ii), that live-link interpretation must enable compliance with the relevant provisions of the Codes C, E and F, means that the arrangements must provide for any written or electronic record of what the suspect says in their own language which is made by the interpreter, to be securely transmitted without delay so that the suspect can be invited to read, check and if appropriate, sign or otherwise confirm that the record is correct or make corrections to the record.

13.13 Chief officers must be satisfied that live-link interpretation used in their force area for the purposes of paragraphs 3.12(a) and (b), provides for accurate and secure communication with the suspect. This includes ensuring that at any time during which live link interpretation is being used: a person cannot see, hear or otherwise obtain access to any communications between the suspect and interpreter or communicate with the suspect or interpreter unless so authorised or allowed by the custody officer or, in the case of an interview, the interviewer and that as applicable, the confidentiality of any private consultation between a suspect and their solicitor and appropriate adult (see paragraphs 13.2A, 13.6 and 13.9) is maintained. See Annex N paragraph 4.

2.8.14.1

Keynote

Where the detained person is unable to speak effectively in English, an interpreter must be called to safeguard the rights of the person and to allow him/her to communicate. A procedure for determining whether a person needs an interpreter might involve a telephone interpreter service or using cue cards or similar visual aids which enable detainees to indicate their ability to speak and understand English and their preferred language. This could be confirmed through an interpreter who could also assess the extent to which the person can speak and understand English. There should also be a procedure for determining whether suspects who require an interpreter require assistance in accordance with para. 3.20 to help them check and if applicable sign any documentation. Chief Officers have discretion when determining the individuals or organisations they use to provide interpretation and translation services for their forces provided that these services are compatible with the requirements of the Directive.

The importance of the role of the interpreter in proceedings can be seen in Bielecki v DPP [2011] EWHC 2245 (Admin). This was a drink-drive case where the defendant, who was Polish, had been required to provide breath specimens for analysis under the Road Traffic Act; this had been communicated through a Polish-speaking interpreter, who was present to translate at the police station. The defendant failed to provide the breath specimens and his defence was that he did not understand the requirement. The court held that it was a legitimate inference for the magistrates to draw that the words had been translated accurately. There was no evidence that the interpreter suggested to the officers that the defendant had not understood what was being said. A court could draw the inference, if the evidence supported it, that someone being asked to do something in a police station by a police officer with the assistance of an accredited interpreter of the relevant language had been asked the correct question and understood it and also the consequences of not responding to it (Bielecki v DPP [2011] EWHC 2245 (Admin)).

The interpreter is there for the benefit of the detained person and should not be considered to be part of the prosecution team. The case of R (On the Application of Bozkurt) v Thames Magistrates’ Court [2001] EWHC Admin 400 demonstrates the importance of the interpreter’s independence in proceedings. In Bozkurt, the police arranged for an interpreter to attend the custody suite and interpret for the drink-drive procedure at the police station. The police then arranged for the interpreter to attend court. The interpreter translated for the defendant while he took advice from the duty solicitor at court. The interpreter failed to inform the solicitor that he had translated for the drink-drive procedure at the police station. The court held that an interpreter was under an equal duty to that of the solicitor to keep confidential what he might hear during a conference. In these circumstances, it would have been preferable for a different interpreter to be used, or at least for the interpreter to have obtained the permission of the solicitor to interpret for the conference.

The Codes provide consistency with paras 3.5(c)(ii) and 3.12 where the need for an interpreter is determined according to a person’s ability to speak and understand English. The EU Directive requires interpreters to be independent. It is important to note that police officers acting as interpreters is not allowed as this causes a conflict with the requirement for interpreters to be independent. The revised Codes enable the use of live-link electronic communication systems to provide interpretation services for suspects while not requiring the interpreter to be physically present at the police station. The revisions incorporate detailed conditions and safeguards to ensure that live-link interpretation does not adversely impact on the suspect.

Where live-link interpretation has been authorised some changes need to be made to s. 13 of Code C. For the third sentence of para. 13.3, substitute: ‘A clear legible copy of the complete record shall be sent without delay via the live-link to the interviewer. The interviewer, after confirming with the suspect that the copy is legible and complete, shall allow the suspect to read the record, or have the record read to them by the interpreter and to sign the copy as correct or indicate the respects in which they consider it inaccurate. The interviewer is responsible for ensuring that that the signed copy and the original record made by the interpreter are retained with the case papers for use in evidence if required and must advise the interpreter of their obligation to keep the original record securely for that purpose.’

For para. 13.4(b), substitute: ‘A clear legible copy of the complete statement shall be sent without delay via the live-link to the interviewer. The interviewer, after confirming with the suspect that the copy is legible and complete, shall invite the suspect to sign it. The interviewer is responsible for ensuring that that the signed copy and the original record made by the interpreter are retained with the case papers for use in evidence if required and must advise the interpreter of their obligation to keep the original record securely for that purpose.’

Finally for para. 13.7 after the first sentence, insert: ‘A clear legible copy of the certified record must be sent without delay via the live-link to the interviewer. The interviewer is responsible for ensuring that the original certified record and the copy are retained with the case papers for use as evidence if required and must advise the interpreter of their obligation to keep the original record securely for that purpose.’

2.8.15

14 Questioning—Special Restrictions

14.1 If a person is arrested by one police force on behalf of another and the lawful period of detention in respect of that offence has not yet commenced in accordance with PACE, section 41 no questions may be put to them about the offence while they are in transit between the forces except to clarify any voluntary statement they make.

14.2 If a person is in police detention at a hospital they may not be questioned without the agreement of a responsible doctor.

2.8.15.1

Keynote

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

2.8.16

15 Reviews and Extensions of Detention

(a) Persons detained under PACE

15.0 The requirement in paragraph 3.4(b) that documents and materials essential to challenging the lawfulness of the detainee’s arrest and detention must be made available to the detainee or their solicitor, applies for the purposes of this section as follows:

  1. (a) The officer reviewing the need for detention without charge (PACE, section 40), or (as the case may be) the officer considering the need to extend detention without charge from 24 to 36 hours (PACE, section 42), is responsible, in consultation with the investigating officer, for deciding which documents and materials are essential and must be made available.

  2. (b) When paragraph 15.7A applies (application for a warrant of further detention or extension of such a warrant), the officer making the application is responsible for deciding which documents and materials are essential and must be made available before the hearing. See Note 3ZA.

15.1 The review officer is responsible under PACE, section 40 for periodically determining if a person’s detention, before or after charge, continues to be necessary. This requirement continues throughout the detention period and, except as in paragraph 15.10, the review officer must be present at the police station holding the detainee.

15.2 Under PACE, section 42, an officer of superintendent rank or above who is responsible for the station holding the detainee may give authority any time after the second review to extend the maximum period the person may be detained without charge by up to 12 hours. Further detention without charge may be authorised only by a magistrates’ court in accordance with PACE, sections 43 and 44.

15.2A An authorisation under section 42(1) of PACE extends the maximum period of detention permitted before charge for indictable offences from 24 hours to 36 hours. Detaining a juvenile or mentally vulnerable person for longer than 24 hours will be dependent on the circumstances of the case and with regard to the person’s:

  1. (a) special vulnerability;

  2. (b) the legal obligation to provide an opportunity for representations to be made prior to a decision about extending detention;

  3. (c) the need to consult and consider the views of any appropriate adult; and

  4. (d) any alternatives to police custody.

15.3 Before deciding whether to authorise continued detention the officer responsible under paragraph 15.1 or 15.2 shall give an opportunity to make representations about the detention to:

  1. (a) the detainee, unless in the case of a review as in paragraph 15.1, the detainee is asleep;

  2. (b) the detainee’s solicitor if available at the time; and

  3. (c) the appropriate adult if available at the time.

15.3A Other people having an interest in the detainee’s welfare may also make representations at the authorising officer’s discretion.

15.3B Subject to paragraph 15.10, the representations may be made orally in person or by telephone or in writing. The authorising officer may, however, refuse to hear oral representations from the detainee if the officer considers them unfit to make representations because of their condition or behaviour.

15.3C The decision on whether the review takes place in person or by telephone or by video conferencing is a matter for the review officer. In determining the form the review may take, the review officer must always take full account of the needs of the person in custody. The benefits of carrying out a review in person should always be considered, based on the individual circumstances of each case with specific additional consideration if the person is:

  1. (a) a juvenile (and the age of the juvenile); or

  2. (b) suspected of being mentally vulnerable; or

  3. (c) in need of medical attention for other than routine minor ailments; or

  4. (d) subject to presentational or community issues around their detention.

15.4 Before conducting a review or determining whether to extend the maximum period of detention without charge, the officer responsible must make sure the detainee is reminded of their entitlement to free legal advice, see paragraph 6.5, unless in the case of a review the person is asleep.

15.5 If, after considering any representations, the review officer under paragraph 15.1 decides to keep the detainee in detention or the superintendent under paragraph 15.2 extends the maximum period for which they may be detained without charge, then any comment made by the detainee shall be recorded. If applicable, the officer shall be informed of the comment as soon as practicable. See also paragraphs 11.4 and 11.13.

15.6 No officer shall put specific questions to the detainee:

  • regarding their involvement in any offence;

  • or in respect of any comment they may make:

    • ~ when given the opportunity to make representations; or

    • ~ in response to a decision to keep them in detention or extend the maximum period of detention.

Such an exchange could constitute an interview as in paragraph 11.1A and would be subject to the associated safeguards in section 11 and, in respect of a person who has been charged, paragraph 16.5. See also paragraph 11.13.

15.7 A detainee who is asleep at a review, see paragraph 15.1, and whose continued detention is authorised must be informed about the decision and reason as soon as practicable after waking.

15.7A When an application is made to a magistrates’ court under PACE, section 43 for a warrant of further detention to extend detention without charge of a person arrested for an indictable offence, or under section 44, to extend or further extend that warrant, the detainee:

  1. (a) must be brought to court for the hearing of the application;

  2. (b) is entitled to be legally represented if they wish, in which case, Annex B cannot apply; and

  3. (c) must be given a copy of the information which supports the application and states:

    1. (i) the nature of the offence for which the person to whom the application relates has been arrested;

    2. (ii) the general nature of the evidence on which the person was arrested;

    3. (iii) what inquiries about the offence have been made and what further inquiries are proposed;

    4. (iv) the reasons for believing continued detention is necessary for the purposes of the further inquiries;

Note: A warrant of further detention can only be issued or extended if the court has reasonable grounds for believing that the person’s further detention is necessary for the purpose of obtaining evidence of an indictable offence for which the person has been arrested and that the investigation is being conducted diligently and expeditiously.

See paragraph 15.0(b).

15.8 Not used.

(b) Review of detention by telephone and video conferencing facilities

15.9 PACE, section 40A provides that the officer responsible under section 40 for reviewing the detention of a person who has not been charged, need not attend the police station holding the detainee and may carry out the review by telephone.

15.9A PACE, section 45A(2) provides that the officer responsible under section 40 for reviewing the detention of a person who has not been charged, need not attend the police station holding the detainee and may carry out the review by video conferencing facilities.

15.9B A telephone review is not permitted where facilities for review by video conferencing exist and it is practicable to use them.

15.9C The review officer can decide at any stage that a telephone review or review by video conferencing should be terminated and that the review will be conducted in person. The reasons for doing so should be noted in the custody record.

15.10 When a review is carried out by telephone or by video conferencing facilities, an officer at the station holding the detainee shall be required by the review officer to fulfil that officer’s obligations under PACE section 40 and this Code by:

  1. (a) making any record connected with the review in the detainee’s custody record;

  2. (b) if applicable, making the record in (a) in the presence of the detainee; and

  3. (c) for a review by telephone, giving the detainee information about the review.

15.11 When a review is carried out by telephone or by video conferencing facilities, the requirement in paragraph 15.3 will be satisfied:

  1. (a) if facilities exist for the immediate transmission of written representations to the review officer, e.g. fax or email message, by allowing those who are given the opportunity to make representations, to make their representations:

    1. (i) orally by telephone or (as the case may be) by means of the video conferencing facilities; or

    2. (ii) in writing using the facilities for the immediate transmission of written representations; and

  2. (b) in all other cases, by allowing those who are given the opportunity to make representations, to make their representations orally by telephone or by means of the video conferencing facilities.

(c) Documentation

15.12 It is the officer’s responsibility to make sure all reminders given under paragraph 15.4 are noted in the custody record.

15.13 The grounds for, and extent of, any delay in conducting a review shall be recorded.

15.14 When a review is carried out by telephone or video conferencing facilities, a record shall be made of:

  1. (a) the reason the review officer did not attend the station holding the detainee;

  2. (b) the place the review officer was;

  3. (c) the method representations, oral or written, were made to the review officer, see paragraph 15.11.

15.15 Any written representations shall be retained.

15.16 A record shall be made as soon as practicable of:

  1. (a) the outcome of each review of detention before or after charge, and if paragraph 15.7 applies, of when the person was informed and by whom;

  2. (b) the outcome of any determination under PACE, section 42 by a superintendent whether to extend the maximum period of detention without charge beyond 24 hours from the relevant time. If an authorisation is given, the record shall state the number of hours and minutes by which the detention period is extended or further extended.

  3. (c) the outcome of each application under PACE, section 43, for a warrant of further detention or under section 44, for an extension or further extension of that warrant. If a warrant for further detention is granted under section 43 or extended or further extended under 44, the record shall state the detention period authorised by the warrant and the date and time it was granted or (as the case may be) the period by which the warrant is extended or further extended.

Note: Any period during which a person is released on bail does not count towards the maximum period of detention without charge allowed under PACE, sections 41 to 44.

2.8.16.1

Keynote

Relevant Time

There are limits on how long a person can be detained. The Police and Criminal Evidence Act 1984 and the Codes of Practice talk of the ‘relevant time’. This is the time from which the limits of detention are calculated. The relevant time of a person’s detention starts in accordance with s. 41(2)–(5) of the 1984 Act. Section 41 states:

  1. (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’)—

    1. (a) in the case of a person to whom this paragraph applies, shall be—

      1. (i) the time at which that person arrives at the relevant police station; or

      2. (ii) the time 24 hours after the time of that person’s arrest,

        whichever is the earlier;

    2. (b) in the case of a person arrested outside England and Wales, shall be—

      1. (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

      2. (ii) the time 24 hours after the time of that person’s entry into England and Wales,

        whichever is the earlier;

    3. (c) in the case of a person who—

      1. (i) attends voluntarily at a police station; or

      2. (ii) accompanies a constable to a police station without having been arrested, and is arrested at the police station, the time of his arrest;

    4. (ca) in the case of a person who attends a police station to answer to bail granted under section 30A, the time he arrives at the police station;

    5. (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.

  2. (3) Subsection (2)(a) above applies to a person if—

    1. (a) his arrest is sought in one police area in England and Wales;

    2. (b) he is arrested in another police area; and

    3. (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.

  3. (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.

  4. (5) If—

    1. (a) a person is in police detention in a police area in England and Wales (‘the first area’); and

    2. (b) his arrest for an offence is sought in some other police area in England and Wales (‘the second area’); and

    3. (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—

      1. (i) the time 24 hours after he leaves the place where he is detained in the first area; or

      2. (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.

Note that under s. 41(5) the relevant time may vary, depending on whether the detainee is interviewed in relation to the offence while still in the first police area.

For those detained under the Terrorism Act 2000 the detention clock starts from the time the person is arrested, not the time he/she arrives at the police station.

The Criminal Justice Act 2003 inserted s. 41(2)(ca) into the Police and Criminal Evidence Act 1984. This allows for a person who has been arrested to be released before being taken to a police station. When the person attends the police station to which he/she has been bailed the relevant time starts when he/she arrives at the police station.

For the provisions of s. 31 of the 1984 Act relating to people who have been arrested for one offence and if released from the police station would be liable to arrest for some other offence, see General Police Duties, chapter 4.4.

Some situations occur where a person is arrested at one police station and has been circulated as wanted by another police station in the same force area. In these cases, where the person is not wanted on warrant, the detention clock for the second offence starts at the same time as for the original offence for which he/she was arrested. Consideration will need to be given as to how to protect the detention period for the second offence while officers are dealing with the first matter. Options that might be considered would include bailing the person for one of the offences or conducting both investigations at the same station. Here there may be a risk of ‘confusing’ the suspect, which may allow him/her to retract or qualify any confession he/she might make.

In Henderson v Chief Constable of Cleveland [2001] EWCA Civ 335 the court considered the policy of not executing a court warrant until after other matters for which the person had been detained were completed. The court held that, once a warrant was executed, there was a requirement to follow the directions of the warrant. The police, however, had a discretion as to when to execute the warrant. This may be relevant where a person has been arrested for one offence and it is discovered that he/she is also wanted for another offence or where there are warrants in existence for that person at more than one court. In such cases, if the warrant is executed immediately, the direction on the warrant tells officers to take the person before the next available court, an action which could interfere with the investigation. If Henderson is followed there is no requirement to execute the warrant straight away and the other matters can be dealt with before the requirement to produce the person at court under the warrant applies.

2.8.16.2

Keynote

Limits on Detention and Review

Once detention has been authorised this does not mean that a person can be detained indefinitely. Section 34 of the Police and Criminal Evidence Act 1984 requires the custody officer to release a person if he/she becomes aware that the grounds for detention no longer apply and that no other grounds exist for the continuing detention (unless the person appears to have been unlawfully at large when he/she was arrested). Failure to comply with this could also lead to a breach of Article 5 of the European Convention on Human Rights. If there are additional grounds, these should be recorded in the custody record and the person informed of these additional grounds in the same way as when a person is first detained. For example, this could be for new offences or it could be that it becomes necessary to preserve evidence by questioning the detained person.

It is only the custody officer who can authorise the release of a detained person (s. 34(3)). In addition to the requirement to release a person should the grounds for detention no longer exist, there are also maximum time limits for which a person can be detained without charge. Once this limit has been reached any prosecution will need to proceed by summons or by warrant.

2.8.16.3

Keynote

Time Limits: Without Charge

While a person is in police detention there is a requirement that his/her continuing detention is reviewed. There are minimum time requirements for when these reviews must be conducted, with the timing of the first review being calculated from the time detention is authorised. This time can be considered as the ‘review time’. The question of whether a person should be kept in custody is a continuous one and the review process is intended as an added protection to the detained person.

The maximum period that a person can be detained without charge is 96 hours (with the exception of suspected acts of terrorism, in which case it is 14 days). The necessity for the continued detention of the person must be reviewed throughout this time. The period of detention is calculated from the ‘relevant time’ which can be calculated from Table A below (do not confuse the relevant time with the time from which reviews are due). The relevant time ‘clock’ will always start before, or at the same time as, the review ‘clock’. This is because the review clock does not start until detention has been authorised, which clearly cannot happen until the person is brought before the custody officer which, as can be seen from the table below, is at the very latest the time the prisoner walks into the custody suite (with the exception of where the person has been under arrest for 24 hours but has not yet been taken to a police station).

This relevant time period (that is, the maximum period a person can be detained for) relates to the actual time spent in custody and not a 24-hour period in time. This means that every time the person is bailed the clock stops and usually continues from the time that the person returns to custody for the offence(s) for which he/she was bailed. Any time during which a person is on bail does not count when calculating how long a detained person has been in police detention (Police (Detention and Bail) Act 2011). This legislation applies retrospectively and therefore the changes to ss. 34 and 47 brought about by this Act are deemed always to have had effect.

Where a person has been released and re-arrested for an offence, it is possible that the relevant time will start again. This is covered by s. 47 of the 1984 Act:

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

In cases where this subsection applies, the relevant time starts again and a fresh clock starts. This will apply where the person has been re-arrested for the same offence because of some new evidence (except at such time as when he/she is returning on bail at the appointed time) under ss. 30C(4), 41(9) or 47(2).

Section 41 states:

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

Section 47 states:

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

Section 30C states:

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

The issue will be whether new evidence has come to light since the grant of bail and it will be a question of fact as to what the new evidence is. It is suggested that this must be evidence which was not available at the time the person was last in detention or which would not have been available even if all reasonable inquiries had been conducted.

It will always be important to check how much time is left on the person’s ‘relevant time’ and when his/her next review is due.

For the purposes of Code C, paras 3.4(b) and 15.0, investigating officers are responsible for bringing to the attention of the officer who is responsible for authorising the suspect’s continued detention (before or after charge), any documents and materials in their possession or control which appear to undermine the need to keep the suspect in custody. In accordance with part IV of PACE, this officer will be either the custody officer, the officer reviewing the need for detention before or after charge (PACE, s. 40), or the officer considering the need to extend detention without charge from 24 to 36 hours (PACE, s. 42). The authorising officer is then responsible for determining, which, if any, of those documents and materials are capable of undermining the need to detain the suspect and must therefore be made available to the suspect or their solicitor. It is not the case that documents need to be copied and provided to the suspect or their solicitor; the way in which documents and materials are ‘made available’ is a matter for the investigating officer to determine on a case-by-case basis and having regard to the nature and volume of the documents and materials involved. For example, they may be made available by supplying a copy or allowing supervised access to view. However, for view-only access, it will be necessary to demonstrate that sufficient time is allowed for the suspect and solicitor to view and consider the documents and materials in question.

2.8.16.4

Keynote

The Three Stages of Pre-charge Detention

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

The three stages of detention under the 1984 Act are:

  • the basic period of detention, which is the period of detention up to 24 hours, as first authorised by the custody officer;

  • those authorised by an officer of the rank of superintendent or above (s. 42) up to 36 hours (indictable offences only);

  • those authorised by a magistrates’ court (ss. 43 and 44) up to a maximum of 96 hours.

Each of these is examined in detail below.

2.8.16.5

Keynote

The Basic Period of Detention

The majority of people detained by the police are detained for less than six hours; most other cases are dealt with within 24 hours. If a person’s continued detention is not authorised beyond 24 hours and the person is not charged with an offence, he/she must be released (with or without bail) and cannot be re-arrested for the offence unless new evidence comes to light (s. 41(7) and (9) of the 1984 Act).

If a detained person is taken to hospital for medical treatment, the time at hospital and the period spent travelling to and from the hospital does not count towards the relevant time unless the person is asked questions for the purpose of obtaining evidence about an offence. Where questioning takes place, this period would count towards the relevant time and therefore the custody officer must be informed of it (s. 41(6)).

2.8.16.6

Keynote

Detention Authorised by an Officer of the Rank of Superintendent or Above

Under s. 42(1) of the Police and Criminal Evidence Act 1984, detention can only be authorised beyond 24 hours and up to a maximum of 36 hours from the relevant time if:

  • an offence being investigated is an ‘indictable offence’; and

  • an officer of the rank of superintendent or above is responsible for the station at which the person is detained (referred to here as the authorising officer); and

  • that senior officer is satisfied that:

    • there is not sufficient evidence to charge; and

    • the investigation is being conducted diligently and expeditiously; and

    • the person’s detention is necessary to secure or preserve evidence relating to the offence or to obtain such evidence by questioning that person.

The procedure under PACE, s. 42 must be done in person.

If the authorising officer considers that there is sufficient evidence to charge, he/she cannot authorise further detention beyond 24 hours unless the detained person is in custody for another indictable offence for which further detention can be authorised (R v Samuel [1988] QB 615 and Code H, para. 14.3). It is suggested that in considering the strength of evidence the authorising officer may wish to consult with any readily accessible CPS representative.

The grounds for this continuing detention are the same as those when the custody officer made the initial decision to detain, with the additional requirements that the case has been conducted diligently and expeditiously. To be able to satisfy the senior officer of this, it will be necessary for the custody record to be available for inspection and also details of what inquiries have been made and evidence that the investigation has been moving at a pace that will satisfy the senior officer that the inquiries should not already have been completed.

Although the authorising officer can authorise detention up to a maximum of 36 hours from the ‘relevant time’ of detention, the period can be shorter than this. It can then be further authorised by that officer or any other officer of the rank of superintendent or above who is responsible for the station at which the person is detained to allow the period to be further extended up to the maximum 36-hour period (s. 42(2)). The officer responsible for the station holding the detainee includes a superintendent or above who, in accordance with their force operational policy or police regulations, is given that responsibility on a temporary basis whilst the appointed long-term holder is off duty or otherwise unavailable.

Section 42(5)–(8) mirrors the responsibility on the authorising officer at this stage with those of the review officer (see para. 2.8.16.12) during the ‘general period’ of detention with regard to allowing representations, informing the detained person of the decision to authorise further detention and the need to record the decision. The main difference here is that the authorising officer must look into how the case is being investigated and whether this is being done diligently and expeditiously. Consequently, the authorising officer must also consider any representations on these points and these points should also be covered in any record as to whether detention should continue. When considering whether to authorise further detention the authorising officer must check whether the detained person has exercised his/her right to have someone informed and to consult with a legal representative.

If it is proposed to transfer a detained person from one police area to another for the purpose of investigating the offences for which he/she is detained, the authorising officer may take into consideration the period it will take to get to the other police area when deciding whether detention can go beyond 24 hours (s. 42(3)).

Where a person has been arrested under s. 41 of the Terrorism Act 2000 he/she can be kept in police detention (in this case, this is generally from the time of the arrest) up to 48 hours without the court authorising an extension of time.

Table A Maximum Periods of Detention for Non-terrorism Act Offences

Arrest

Relevant time starts

Review clock relevant time

24 hours from detention

24 to 36 hours’ detention

36 to 42 hours’ detention

42 to 78 hours’ detention

up to 96 hours

Arrested locally.

24 hours from arrest or arrival at police station, whichever earliest.

All offences other than indictable offences where the detention period has been extended by superintendent or above.

Only indictable offences.

Only indictable offences.

Only indictable offences.

Only indictable offences.

Arrested outside England and Wales.

Time first arrives at police station in police area where matter being investigated or 24 hours after first entered England or Wales, whichever is earliest.

Time custody officer authorises detention.

Release unless s. 41(1) applies.

Detention authorised by superintendent or above (s. 42).

Where delay in applying for warrant of further detention is reasonable (s. 43(5)).

First warrant for further detention issued by magistrates’ court (s. 42).

Further warrants of detention issued by magistrates’ court (s. 43).

Arrested for an offence in one police area in England or Wales then transferred to another police area for separate offence in that second police area, which is also in England or Wales.

24 hours from time he/she leaves the police station in the first police area or the time he/she arrives at the first police station in second police area where the crime is being investigated, provided not interviewed about the offence while detained in the first police area, whichever is the earliest.

This timing applies where the person was in detention for an offence in the first police area (s. 41(5)).

See para. 2.8.16.9 for the dangers of not applying within the 36-hour period.

Remember the warrant can be applied for at any stage of detention.

Arrested and bailed at a place other than a police station.

Time of arrival at the police station to which the notice of bail states he/she must attend.

Voluntarily attends police station or accompanies constable to station but not under arrest.

Time of arrest.

Arrested in one police area in England or Wales for an offence in another police area in England or Wales, there being no ‘local’ offence(s) for which he/she has been arrested.

From time the suspect arrives at the first police station in the area he/she is being sought or from 24 hours after the time he/she is arrested or if questioned about the offence while in the first police area, the relevant time starts from the time he/she first arrived at a police station in the first police area, whichever is the earliest.

2.8.16.7

Keynote

Warrants of Further Detention

Once the 36-hour limit has been reached, a person’s detention can only continue with the authority of the courts through the issuing of a warrant of further detention.

Applications for warrants of further detention are made at the magistrates’ court. Initially, the magistrates can issue a warrant for further detention for a period of up to 36 hours. This can be extended by the courts on further applications by police up to a maximum total period of detention of 96 hours. The warrant will specify what period of further detention the court has authorised.

The grounds on which the court must decide whether to grant a warrant authorising further detention are the same as those that must be considered by a ‘superintendent’s review’.

Should it be necessary to apply for a warrant, it is important that the time restraints are kept in mind at all times and the application procedure followed closely.

2.8.16.8

Keynote

Warrants of Further Detention: Procedure

The application is made in the magistrates’ court and both the detained person and the police must be in attendance (s. 43(1) and (2) of the Police and Criminal Evidence Act 1984). The application is made by laying an information before the court. The officer making the application does so on oath and is subject to cross-examination (see chapter 2.4). Under s. 43(14) the information must set out:

  • the nature of the offence (this must be an indictable offence);

  • the general nature of the evidence on which the person was arrested;

  • what inquiries have been made;

  • what further inquiries are proposed; and

  • the reasons for believing that continuing detention is necessary for such further inquiries.

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

2.8.16.9

Keynote

Warrants of Further Detention: Timing of the Application

Officers should be mindful of whether a warrant for further detention may be required. If it appears likely that the investigation of the indictable offence requires the person’s detention to go beyond 36 hours, then thought must be given as to when to make the application to the magistrates’ court, and whether a court will be available to hear the application. If a court will not be available, then consideration should be given to making an earlier application. An application to a magistrates’ court should be made between 10 am and 9 pm, and if possible during normal court hours. It will not usually be practicable to arrange for a court to sit specially outside the hours of 10 am to 9 pm. If it appears that a special sitting may be needed outside normal court hours but between 10 am and 9 pm, the clerk to the justices should be given notice and informed of this possibility, while the court is sitting if possible.

Section 43(5) allows the application to be made before the expiry of the 36-hour period (calculated from the relevant time) or, where it has not been practicable for the court to sit within the 36-hour period, the application can be made within the next six hours. There are dangers in applying outside the 36-hour period as if the court feels that it would have been reasonable to make the application within the 36-hour period it must refuse the application for the warrant regardless of the merits of the case (s. 43(7)). In R v Slough Justices, ex parte Stirling [1987] Crim LR 576, the 36-hour period expired at 12.53 pm. The case was not heard by the justices until 2.45 pm. The Divisional Court held that the police should have made their application between 10.30 am and 11.30 am, even though this was before the 36-hour time limit had been reached.

If the court is not satisfied that there are reasonable grounds for believing that further detention is justified, the court may either refuse the application or adjourn the hearing until such time as it specifies up to the end of the 36-hour period of detention (s. 43(8)). If the application is refused, the person must be charged or released with or without bail at the expiry of the current permissible period of detention (s. 43(15)).

The application for the warrant can be made at any time, even before a superintendent’s review has been carried out. If the application is made within the 36-hour period and it is refused, it does not mean that the person must be released straight away. Section 43(16) allows the person to be detained until the end of the current detention period (24 hours or 36 hours). The benefit of an early application has to be set against the risk that, once the court has refused an application, it is not allowed to hear any further applications for a warrant of further detention unless new evidence has come to light since the application was refused (s. 43(17)).

2.8.16.10

Keynote

Applying to Extend Warrants of Further Detention

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

2.8.16.11

Keynote

Terrorism Cases

The court can extend the period of detention of a person up to a total of 14 days. In the case of those arrested under s. 41 this starts at the time of arrest or, if the person was being detained under sch. 7 when he/she was arrested under s. 41, it starts at the time his/her examination under that schedule began (Terrorism Act 2000, sch. 8, para. 36(3)).

A person detained in these circumstances may only be held for a maximum of 48 hours without charge before an application must be made to a court to issue or extend a warrant of further detention. At the end of that period, the detained person must either be released or an application to a court for a warrant for an extension to that detention must have been made and granted prior to the expiry of the initial 48-hour period. Extensions by the court will normally be for a seven-day period unless the application for a warrant of further detention requests a shorter period or the court is satisfied that it would be inappropriate for the period to be as long as seven days.

If detention is required beyond the first seven days, further applications are required to be made to the court as it is not possible for the court to issue a warrant authorising the full 14 days’ detention on the first occasion a warrant for detention is sought (Code H, Note 14C).

The application to the court must be made by a superintendent or a Crown Prosecutor. Usually applications that cover a period of detention that does not extend beyond 14 days are heard by a district judge in the magistrates’ court (unless an application in that case has already been considered by a High Court judge) and those that cover the period beyond 14 days are heard by a High Court judge. Paragraph 37 of sch. 8 to the Terrorism Act 2000 states that if at any time the police officer or person in charge of the case considers that the grounds on which the warrant of further detention authorised by the court no longer apply the detained person must be released. Paragraph 33 of sch. 8 to the Terrorism Act 2000 allows for these applications to be conducted by live television links. The person who makes the application may also apply to the court for an order that specified information upon which he/she intends to rely should be withheld from the person to whom the application relates and anyone representing him/her. The order to withhold information can only be made if one of the following applies:

  • evidence of an offence under any of the provisions mentioned in s. 40(1)(a) of the Terrorism Act 2000 would be interfered with or harmed;

  • the recovery of property obtained as a result of an offence under any of those provisions would be hindered;

  • the recovery of property in respect of which a forfeiture order could be made under s. 23 of the Terrorism Act 2000 would be hindered;

  • the apprehension, prosecution or conviction of a person who is suspected of committing offences under the Terrorism Act 2000 would be made more difficult as a result of his/her being alerted;

  • the prevention of an act of terrorism would be made more difficult as a result of the person being alerted;

  • the gathering of information about the commission, preparation or instigation of an act of terrorism would be interfered with;

  • a person would be interfered with or physically injured;

  • the detained person has benefited from his criminal conduct and the recovery of the value of the property constituting the benefit would be hindered if the information were disclosed.

(sch. 8, part III, para. 34 to the Terrorism Act 2000)

Where a warrant is issued which authorises detention beyond a period of 14 days from the time of arrest, the detainee must be transferred from detention in a police station to detention in a designated prison as soon as practicable, unless:

  1. (a) the detainee specifically requests to remain in detention at a police station and that request can be accommodated; or

  2. (b) there are reasonable grounds to believe that transferring a person to a prison would:

    1. (i) significantly hinder a terrorism investigation;

    2. (ii) delay charging of the detainee or his/her release from custody; or

    3. (iii) otherwise prevent the investigation from being conducted diligently and expeditiously.

(Code H, para. 14.5)

If any of the grounds in (b)(i)–(iii) are relied upon, these must be presented to the judicial authority as part of the application for the warrant that would extend detention beyond a period of 14 days from the time of arrest. After grounds (b)(i)–(iii) cease to apply, the person must be transferred to a prison as soon as practicable.

2.8.16.12

Keynote

The Review

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

The Review Officer

The ‘review officer’ for the purposes of ss. 40, 40A and 45A of the 1984 Act means, in the case of a person arrested but not charged, an officer of at least inspector rank not directly involved in the investigation and, if a person has been arrested and charged, the custody officer.

It is important to understand the difference between the action of authorising an extension to the ‘detention clock’ and the role of the review officer. These are two distinct roles and both need to be carried out. When an officer of the rank of superintendent or above extends the ‘relevant time’ period, this is not automatically a review (although there is nothing to stop that officer from conducting the review). This means that the ‘reviewing’ officer may still have to conduct a review even though the relevant time has only recently been extended, unless the officer of the rank of superintendent or above extending the relevant time has shown the review as having been conducted in the custody record.

Timing of the Review

Section 40 sets out the times when reviews must be conducted:

  1. (3) Subject to subsection (4) …

    1. (a) the first review shall be not later than six hours after the detention was first authorised;

    2. (b) the second review shall be not later than nine hours after the first;

    3. (c) subsequent reviews shall be at intervals of not more than nine hours.

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

Method of the Review

Where a review is due under s. 40 and the detainee has not been charged, the review may be carried out by means of a discussion, conducted by telephone, with one or more persons at the police station where the arrested person is held. The provisions of s. 40A of the 1984 Act allowing telephone reviews do not apply to reviews of detention after charge by the custody officer.

Video conferencing facilities means any facilities (whether a live television link or other facilities) by means of which the review can be carried out with the review officer, the detainee concerned and the detainee’s solicitor all being able to both see and hear each other. However, while s. 45A of the 1984 Act allows for pre-charge reviews to be conducted by video-conferencing facilities and provision for video conferencing is included within Code C, there are currently no regulations allowing such remote reviews.

Review Considerations

When reviewing the detention of a person the review officer goes through the same process as the custody officer did when detention was first authorised (ss. 40(8) and 37(1)–(6)), namely by asking:

  • Is there sufficient evidence to charge? If ‘yes’, charge or release the person with or without bail. If ‘no’, then:

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

It is suggested that in order to consider whether there is sufficient evidence to charge, the review officer should have consideration for the Code for Crown Prosecutors and the Threshold Test. The situation may arise where the review officer considers that there is sufficient evidence to charge and only authorises continued detention to charge even though the custody officer disagrees. In this case, it is suggested that the custody officer must either charge or release the person with or without bail in line with s. 37B of the Police and Criminal Evidence Act 1984. Where bailed this may be in order to submit papers to the CPS in order for a decision to be made as to whether to charge and for what offence. There may also be situations where the custody officer has concluded that there is sufficient evidence to charge but the review officer disagrees; in these cases the review officer cannot overrule the custody officer’s decision under s. 37(7). In any case where the decision has been made that there is sufficient evidence to charge, the review officer should confirm that the referral has been made, note the custody record to this effect and, thereafter, check to ensure that the decision is made within a reasonable time.

It is also suggested that the reviewing officer (or any other officer other than a superintendent or above) cannot tell the custody officer what he/she must do. The reviewing officer may wish to give advice but it will be for the custody officer to decide whether to take that advice. Clearly failure to do so could lead to internal criticism, but legally there is no requirement to follow that advice.

If there is not sufficient evidence to charge, the review officer may want to consider the question: ‘If this person is released what evidence will be lost?’ If the answer is none, continued detention would seem unlawful.

In cases where it has been decided that a person should be charged but he/she has been detained because he/she is not in a fit state to be charged (s. 37(9)), the review officer must determine whether the person is yet in a fit state. If the detainee is in a fit state, the custody officer should be informed that the person should be charged or released. If the detainee is not in a fit state, detention can be authorised for a further period (s. 40(9)). In such cases, if the person is still unfit, it may be prudent to consider his/her welfare.

The detainee need not be woken for the review. However, if the detainee is likely to be asleep, e.g. during a period of rest, at the latest time a review or authorisation to extend detention may take place, the officer should, if the legal obligations and time constraints permit, bring forward the procedure to allow the detainee to make representations. A detainee not asleep during the review must be present when the grounds for his/her continued detention are recorded and must at the same time be informed of those grounds unless the review officer considers that the person is incapable of understanding what is said, is violent or likely to become violent or is in urgent need of medical attention. In relation to the detainee’s solicitor or appropriate adult being ‘available’ to make representations, this includes being contactable in time to enable him/her to make representations remotely by telephone or other electronic means or in person by attending the station. Reasonable efforts should therefore be made to give the solicitor and appropriate adult sufficient notice of the time the decision is expected to be made so that they can make themselves available.

Delaying the Review

Section 40(4)(b) does allow reviews to be delayed if it is not practicable to carry out the review. Conducting late reviews should be avoided where at all possible. In Roberts v Chief Constable of Cheshire Constabulary [1999] 1 WLR 662, the defendant had his first review conducted 8 hours 20 minutes after his detention had been authorised. The Court of Appeal held that under s. 40(1)(b) of the 1984 Act a review of his detention should have been carried out by an officer of the rank of inspector or above six hours after detention was first authorised. Section 34(1) was mandatory and provided that a person must not be kept in police detention except in accordance with the relevant provisions of the Act. Therefore, the respondent’s detention had been unlawful unless some event occurred to have made it lawful. The court made it clear that the 1984 Act existed in order to ensure that members of the public were not detained except in certain defined circumstances. In the absence of a review, the time spent in detention between 5.25 am and 7.45 am, meant that for that period the defendant’s detention was unlawful and amounted to a false imprisonment.

Section 40(4) provides two other occasions where it may be justified to delay the review 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/she is being questioned (s. 40(4)(b)(i));

  • no review officer is readily available (s. 40(4)(b)(ii)).

It is likely that it will be necessary to justify why no review officer was available and that where it is known that a review may fall during an interview, the review is conducted prior to the interview where appropriate. With the ability to undertake reviews by telephone (or video link when regulations allow), a delay to a review is likely to need greater justification.

If the review is delayed, then it must still be conducted as soon as practicable and the reason for the delay must be recorded in the custody record by the review officer. In these circumstances the nine-hour period until the next review is calculated from the latest time the review should have been carried out and not from the time it was actually carried out. For instance, if the review was due at 3.15 pm and was delayed until 4 pm, the next review would have to be conducted no later than 12.15 am and not 1 am. When the review is conducted the review officer does not have to authorise detention for the full nine-hour period; he/she could decide that the case should be reviewed again within a shorter period and the review decision would reflect this.

Non-Statutory Reviews

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

The detention of persons remanded into police detention by order of a court under the Magistrates’ Courts Act 1980, s. 128 is subject to a statutory requirement to review that detention. This is to make sure that the detainee is taken back to court no later than the end of the period authorised by the court or when the need for his/her detention by police ceases, whichever is the sooner.

2.8.16.13

Keynote

Terrorism Act Reviews

In cases where the person has been detained under the Terrorism Act 2000, the first review should be conducted as soon as reasonably practicable after his/her arrest and then at least every 12 hours; after 24 hours it must be conducted by an officer of the rank of superintendent or above. Once a warrant of further detention has been obtained there is no requirement to conduct further reviews. If an officer of higher rank than the review officer gives directions relating to the detained person, and those directions are at variance with the performance by the review officer of a duty imposed on him/her, then he/she must refer the matter at once to an officer of at least the rank of superintendent.

A review officer may authorise a person’s continued detention if satisfied that detention is necessary:

  1. (a) to obtain relevant evidence whether by questioning the person or otherwise;

  2. (b) to preserve relevant evidence;

  3. (c) while awaiting the result of an examination or analysis of relevant evidence;

  4. (d) for the examination or analysis of anything with a view to obtaining relevant evidence;

  5. (e) pending a decision to apply to the Secretary of State for a deportation notice to be served on the detainee, the making of any such application, or the consideration of any such application by the Secretary of State;

  6. (f) pending a decision to charge the detainee with an offence.

Section 14 of Code H provides guidance on terrorism reviews and extensions of detention. In all cases the review officer must be satisfied that the matter is being dealt with diligently and expeditiously. Where the detained person’s rights to a solicitor have been withheld or he/she is being held incommunicado at the time of the review, the review officer must consider whether the reason or reasons for which the delay was authorised continue to exist. If in his/her opinion the reason or reasons no longer exist, he/she must inform the officer who authorised the delay of his/her opinion. When recording the grounds for the review the officer must also include his/her conclusion on whether there is a continuing need to withhold the detained person’s rights.

In cases where the person is detained under the Terrorism Act 2000 and the review officer does not authorise continued detention, the person does not have to be released if an application for a warrant for further detention is going to be applied for or if an application has been made and the result is pending (s. 41 and sch. 8).

2.8.17

16 Charging Detained Persons

(a) Action

16.1 When the officer in charge of the investigation reasonably believes there is sufficient evidence to provide a realistic prospect of conviction for the offence (see paragraph 11.6), they shall without delay, and subject to the following qualification, inform the custody officer who will be responsible for considering whether the detainee should be charged. When a person is detained in respect of more than one offence it is permissible to delay informing the custody officer until the above conditions are satisfied in respect of all the offences, but see paragraph 11.6. If the detainee is a juvenile, mentally disordered or otherwise mentally vulnerable, any resulting action shall be taken in the presence of the appropriate adult if they are present at the time.

16.1A Where guidance issued by the Director of Public Prosecutions under PACE, section 37A is in force the custody officer must comply with that Guidance in deciding how to act in dealing with the detainee.

16.1B Where in compliance with the DPP’s Guidance the custody officer decides that the case should be immediately referred to the CPS to make the charging decision, consultation should take place with a Crown Prosecutor as soon as is reasonably practicable. Where the Crown Prosecutor is unable to make the charging decision on the information available at that time, the detainee may be released without charge and on bail (with conditions if necessary) under section 37(7)(a). In such circumstances, the detainee should be informed that they are being released to enable the Director of Public Prosecutions to make a decision under section 37B.

16.2 When a detainee is charged with or informed they may be prosecuted for an offence, they shall, unless the restriction on drawing adverse inferences from silence applies, see Annex C, be cautioned as follows:

‘You do not have to say anything. But it may harm your defence if you do not mention now something which you later rely on in court. Anything you do say may be given in evidence.’

Where the use of the Welsh Language is appropriate, a constable may provide the caution directly in Welsh in the following terms:

‘Does dim rhaid i chi ddweud dim byd. Ond gall niweidio eich amddiffyniad os na fyddwch chi’n sôn, yn awr, am rywbeth y byddwch chi’n dibynnu arno nes ymlaen yn y llys. Gall unrhyw beth yr ydych yn ei ddweud gael ei roi fel tystiolaeth.’

Annex C, paragraph 2 sets out the alternative terms of the caution to be used when the restriction on drawing adverse inferences from silence applies.

16.3 When a detainee is charged they shall be given a written notice showing particulars of the offence and, subject to paragraph 2.6A, the officer’s name and the case reference number. As far as possible the particulars of the charge shall be stated in simple terms, but they shall also show the precise offence in law with which the detainee is charged. The notice shall begin:

‘You are charged with the offence(s) shown below.’ Followed by the caution.

If the detainee is a juvenile, mentally disordered or otherwise mentally vulnerable, a copy of the notice should also be given to the appropriate adult.

16.4 If, after a detainee has been charged with or informed they may be prosecuted for an offence, an officer wants to tell them about any written statement or interview with another person relating to such an offence, the detainee shall either be handed a true copy of the written statement or the content of the interview record brought to their attention. Nothing shall be done to invite any reply or comment except to:

  1. (a) caution the detainee, ‘You do not have to say anything, but anything you do say may be given in evidence.’;

    Where the use of the Welsh Language is appropriate, caution the detainee in the following terms:

    ‘Does dim rhaid i chi ddweud dim byd, ond gall unrhyw beth yr ydych yn ei ddweud gael ei roi fel tystiolaeth.’

    and

  2. (b) remind the detainee about their right to legal advice.

16.4A If the detainee:

  • cannot read, the document may be read to them;

  • is a juvenile, mentally disordered or otherwise mentally vulnerable, the appropriate adult shall also be given a copy, or the interview record shall be brought to their attention.

16.5 A detainee may not be interviewed about an offence after they have been charged with, or informed they may be prosecuted for it, unless the interview is necessary:

  • to prevent or minimise harm or loss to some other person, or the public

  • to clear up an ambiguity in a previous answer or statement

  • in the interests of justice for the detainee to have put to them, and have an opportunity to comment on, information concerning the offence which has come to light since they were charged or informed they might be prosecuted.

Before any such interview, the interviewer shall:

  1. (a) caution the detainee, ‘You do not have to say anything, but anything you do say may be given in evidence.’

    Where the use of the Welsh Language is appropriate, the interviewer shall caution the detainee: ‘Does dim rhaid i chi ddweud dim byd, ond gall unrhyw beth yr ydych yn ei ddweud gael ei roi fel tystiolaeth.’

  2. (b) remind the detainee about their right to legal advice.

16.6 The provisions of paragraphs 16.2 to 16.5 must be complied with in the appropriate adult’s presence if they are already at the police station. If they are not at the police station then these provisions must be complied with again in their presence when they arrive unless the detainee has been released.

16.7 When a juvenile is charged with an offence and the custody officer authorises their continued detention after charge, the custody officer must make arrangements for the juvenile to be taken into the care of a local authority to be detained pending appearance in court unless the custody officer certifies in accordance with PACE, section 38(6), that:

  1. (a) for any juvenile; it is impracticable to do so and the reasons why it is impracticable must be set out in the certificate that must be produced to the court; or,

  2. (b) in the case of a juvenile of at least 12 years old, no secure accommodation is available and other accommodation would not be adequate to protect the public from serious harm from that juvenile.

Note: Chief officers should ensure that the operation of these provisions at police stations in their areas is subject to supervision and monitoring by an officer of the rank of inspector or above.

16.7A The requirement in paragraph 3.4(b) that documents and materials essential to effectively challenging the lawfulness of the detainee’s arrest and detention must be made available to the detainee and, if they are represented, their solicitor, applies for the purposes of this section and a person’s detention after charge. This means that the custody officer making the bail decision (PACE, section 38) or reviewing the need for detention after charge (PACE, section 40), is responsible for determining what, if any, documents or materials are essential and must be made available to the detainee or their solicitor.

(b) Documentation

16.8 A record shall be made of anything a detainee says when charged.

16.9 Any questions put in an interview after charge and answers given relating to the offence shall be recorded in full during the interview on forms for that purpose and the record signed by the detainee or, if they refuse, by the interviewer and any third parties present. If the questions are audibly recorded or visually recorded the arrangements in Code E or F apply.

16.10 If arrangements for a juvenile’s transfer into local authority care as in paragraph 16.7 are not made, the custody officer must record the reasons in a certificate which must be produced before the court with the juvenile.

2.8.17.1

Keynote

Juveniles and Appropriate Adults

There is no power under PACE to detain a person and delay action under paras 16.2 to 16.5 solely to await the arrival of the appropriate adult. Reasonable efforts should therefore be made to give the appropriate adult sufficient notice of the time the decision (charge etc.) is to be implemented so that he/she can be present. If the appropriate adult is not, or cannot be, present at that time, the detainee should be released on bail to return for the decision to be implemented when the adult is present, unless the custody officer determines that the absence of the appropriate adult makes the detainee unsuitable for bail for this purpose. After charge, bail cannot be refused, or release on bail delayed, simply because an appropriate adult is not available, unless the absence of that adult provides the custody officer with the necessary grounds to authorise detention after charge under s. 38 of the 1984 Act.

Except as in para. 16.7, neither a juvenile’s behaviour nor the nature of the offence provides grounds for the custody officer to decide it is impracticable to arrange the juvenile’s transfer to local authority care. Impracticability concerns the transport and travel requirements, and the lack of secure accommodation which is provided for the purposes of restricting liberty does not make it impracticable to transfer the juvenile. The availability of secure accommodation is only a factor in relation to a juvenile aged 12 or over when other local authority accommodation would not be adequate to protect the public from serious harm from the juvenile. The obligation to transfer a juvenile to local authority accommodation applies as much to a juvenile charged during the daytime as to a juvenile to be held overnight, subject to a requirement to bring the juvenile before a court under s. 46 of the 1984 Act. Section 38(6) of PACE requires juveniles who are not released on bail after being charged to be moved to local authority accommodation pending appearance at court unless transfer is impracticable. To promote compliance, the Code provides that the reasons why transfer is not practicable must be shown on the certificate that must be provided to the court and requires supervision and monitoring by an inspector or above.

2.8.17.2

Keynote

The Decision Whether or Not to Charge

Section 37 of the Police and Criminal Evidence Act 1984 states:

  1. (7) Subject to section 41(7) below [expiry of 24 hours after the relevant time], if the custody officer determines that he has before him sufficient evidence to charge the person arrested with the offence for which he was arrested, the person arrested—

    1. (a) shall be—

      1. (i) released without charge and on bail, or

      2. (ii) kept in police detention,

        for the purpose of enabling the Director of Public Prosecutions to make a decision under section 37B below,

    2. (b) shall be released without charge and without bail unless the pre-conditions for bail are satisfied,

    3. (c) shall be released without charge and on bail if those pre-conditions are satisfied but not for the purpose mentioned in paragraph (a), or

    4. (d) shall be charged.

  2. (7A) The decision as to how a person is to be dealt with under subsection (7) above shall be that of the custody officer.

  3. (7B) Where a person is released under subsection (7)(a) above, it shall be the duty of the custody officer to inform him that he is being released or (as the case may be) detained, to enable the Director of Public Prosecutions to make a decision under section 37B below.

  4. (8) Where—

    1. (a) a person is released under subsection (7)(b) or (c) above; and

    2. (b) at the time of his release a decision whether he should be prosecuted for the offence for which he was arrested has not been taken,

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

Section 37A of the Police and Criminal Evidence Act 1984 states:

  1. (1) The Director of Public Prosecutions may issue guidance—

    1. (a) for the purpose of enabling custody officers to decide how persons should be dealt with under section 37(7) above or 37(C) or 37CA(2) below, and

    2. (b) as to the information to be sent to the Director of Public Prosecutions under section 37B(1) below.

  2. (3) Custody officers are to have regard to guidance under this section in deciding how persons should be dealt with under section 37(7) above or 37C(2) or 37CA(2) below.

Unless officers are still investigating other offences for which the person is in police detention, s. 37(7) requires the custody officer to review the evidence in order to determine whether there is sufficient evidence to charge the detained person. If the custody officer decides that there is sufficient evidence to charge the detained person that person must be charged or, if not charged, released in relation to that matter, as set out in s. 37(7) above. The pre-conditions mentioned in s. 37(7)(b) are set out in s. 50A of the Police and Criminal Evidence Act 1984:

50A Interpretation of references to pre-conditions for bail

For the purposes of this Part the following are the pre-conditions for bail in relation to the release of a person by a custody officer—

  1. (a) that the custody officer is satisfied that releasing the person on bail is necessary and proportionate in all the circumstances (having regard, in particular, to any conditions of bail which would be imposed), and

  2. (b) that an officer of the rank of inspector or above authorises the release on bail (having considered any representations made by the person or the person’s legal representative).

Under s. 37A(1) guidance has been issued to enable custody officers to decide whether there is sufficient evidence to charge and for which offences the police may charge without reference to the CPS. Where in accordance with the guidance the case is referred to the CPS for decision, the custody officer should ensure that an officer involved in the investigation sends to the CPS such information as is specified in the guidance. A detained person should not be kept in custody just for the sole purpose of seeking advice from the CPS as to what offences the offender should be charged with (R (On the Application of G) v Chief Constable of West Yorkshire Police and DPP [2008] EWCA Civ 28).

Charging decisions in cases will be made following a review of evidence and in accordance with the Code for Crown Prosecutors. This requires that the custody officer or Crown Prosecutor making the decision is satisfied that there is enough evidence for there to be a realistic prospect of conviction and that it is in the public interest to prosecute (Full Code Test). In order to allow the matter to have full consideration, often the time needed to consider the matter will require the detained person to be bailed. However, there will clearly be occasions when it will not be desirable to bail the detained person but the evidence required to permit the Full Code Test to be applied is not available. In such a case, the Threshold Test should be applied; this requires there to be reasonable suspicion that the suspect has committed an offence and it is in the public interest to charge that suspect. The evidential considerations include:

  • there is insufficient evidence currently available to apply the evidential stage of the Full Code Test; and

  • there are reasonable grounds for believing that further evidence will become available within a reasonable period; and

  • the seriousness or the circumstances of the case justifies the making of an immediate charging decision; and

  • there are continuing substantial grounds to object to bail in accordance with the Bail Act 1976 and in all the circumstances of the case it is proper to do so.

The Code for Crown Prosecutors advises that a prosecution will automatically take place once the evidential stage is met. A prosecution will usually take place unless the prosecutor is satisfied that there are public interest factors tending against prosecution which outweigh those tending in favour.

The public interest factors to be considered are:

  • How serious is the offence committed?

  • What is the level of culpability of the suspect?

  • What are the circumstances of and the harm caused to the victim?

  • Was the suspect under the age of 18 at the time of the offence?

  • What is the impact on the community?

  • Is prosecution a proportionate response?

  • Do sources of information require protecting?

It is quite possible that one public interest factor alone may outweigh a number of other factors.

When a person is arrested under the provisions of the Criminal Justice Act 2003 which allow a person to be retried after being acquitted of a serious offence, provided a further prosecution has not been precluded by the Court of Appeal, an officer of the rank of superintendent or above who has not been directly involved in the investigation is responsible for determining whether the evidence is sufficient to charge.

2.8.17.3

Keynote

Sufficient Evidence to Charge

Here the custody officer is looking at the evidence in order to satisfy him/herself that no further investigation is needed before the person can be charged. If this is the case, detention may be authorised for the purpose of charging the detained person. Where the custody officer is considering bail as in para. 16.7A, see para. 2.8.7.4.

Where Guidance issued by the DPP under s. 37B is in force, a custody officer who determines in accordance with that Guidance that there is sufficient evidence to charge the detainee may detain that person for no longer than is reasonably necessary to decide how that person is to be dealt with under PACE, s. 37(7)(a)–(d), including, where appropriate, consultation with the Duty Prosecutor. The period is subject to the maximum period of detention before charge determined by PACE, ss. 41 to 44. Where in accordance with the Guidance the case is referred to the CPS for decision, the custody officer should ensure that an officer involved in the investigation sends to the CPS such information as is specified in the Guidance.

Where there is sufficient evidence to charge, a delay in bringing charges may be seen to be unreasonable under Article 6 of the European Convention on Human Rights (D v HM Advocate [2000] HRLR 389). In deciding whether there is sufficient evidence to charge for the purposes of authorising detention or when a person’s detention is reviewed, where there is a conflict between the detained person’s account and victims’ or witnesses’ accounts it is reasonable to be in possession of at least one witness statement in the English language before preferring charges (R (On the Application of Wiles) v Chief Constable of Hertfordshire [2002] EWHC 387 (Admin)). There is no breach of PACE in keeping the detained person in police detention while a statement is translated. It is suggested that the translation needs to be completed expeditiously.

Under s. 37(9) of the 1984 Act release can be delayed if the person is not in a fit state to be released (e.g. he/she is drunk) until he/she is fit.

2.8.17.4

Keynote

Insufficient Evidence to Charge

This creates two separate criteria for detention, that is to say, where detention is necessary to:

  • secure and preserve evidence relating to an offence for which the person is arrested; or

  • obtain such evidence by questioning the detained person.

If the custody officer has determined that there is not sufficient evidence to charge the person, the person must be released unless the custody officer has reasonable grounds for believing that the person’s detention is necessary to preserve or obtain such evidence by questioning the person and the custody officer must be able to justify any decision not to release a person from detention.

When deciding if detention should be authorised in order to obtain evidence by questioning, the case of R v McGuinness [1999] Crim LR 318 should be considered. There the court held that the words ‘sufficient evidence to prosecute’ and ‘sufficient evidence for a prosecution to succeed’, in Code C, para. 16.1 (this was the wording under the previous PACE Code of Practice), had to involve some consideration of any explanation, or lack of one, from the suspect. While an interview may not be needed in all cases, questioning of detained people before they are charged may be necessary, particularly where intention or dishonesty is involved or where there may be a defence. It may also be important to put questions to the person about the offence or his/her explanation, as this may be important to negate any defence the person raises at court (see s. 34 of the Criminal Justice and Public Order Act 1994).

Where initial suspicion rests on several people, it may be appropriate to hold all suspects until they all are interviewed before deciding whether there is enough evidence to warrant a charge against any of them. Detention for questioning where there are reasonable grounds for suspecting that an offence has been committed is lawful so long as the suspicion has not been dispelled in the interim and the questioning is not unnecessarily delayed (Clarke v Chief Constable of North Wales [2000] Po LR 83).

The mere fact that a person needs to be interviewed about the offence is not of itself justification for authorising detention. The question that has to be asked is whether the person can be bailed prior to the interview or even bailed before being taken to the police station (s. 30A of the 1984 Act). Factors which might be relevant in making this decision include:

  • whether the person may interfere with witnesses;

  • whether he/she is likely to return if bailed;

  • where there is more than one suspect, that they would have an opportunity to confer before their interviews;

  • whether there is outstanding property;

  • whether the person’s name and address are verified.

The fact that the officers and any legal representative will be ready to start the interview shortly may also be relevant when making this decision.

2.8.17.5

Keynote

Cases where the Detained Person is Bailed to Allow Consultation with the CPS

Section 37B of the Police and Criminal Evidence Act 1984 states:

  1. (1) Where a person is dealt with under section 37(7)(a) above, an officer involved in the investigation of the offence shall, as soon as is practicable, send to the Director of Public Prosecutions such information as may be specified in guidance under section 37A above.

  2. (2) The Director of Public Prosecutions shall decide whether there is sufficient evidence to charge the person with an offence.

  3. (3) If he decides that there is sufficient evidence to charge the person with an offence, he shall decide—

    1. (a) whether or not the person should be charged and, if so, the offence with which he should be charged, and

    2. (b) whether or not the person should be given a caution and, if so, the offence in respect of which he should be given a caution.

  4. (4) The Director of Public Prosecutions shall give notice of his decision to an officer involved in the investigation of the offence.

  5. (4A) Notice under subsection (4) above shall be in writing, but in the case of a person kept in police detention under section 37(7)(a) above it may be given orally in the first instance and confirmed in writing subsequently.

  6. (5) If his decision is—

    1. (a) that there is not sufficient evidence to charge the person with an offence, or

    2. (b) that there is sufficient evidence to charge the person with an offence but that the person should not be charged with an offence or given a caution in respect of an offence,

      a custody officer shall give the person notice in writing that he is not to be prosecuted.

Where a person has been bailed under s. 37(7)(a) with or without bail conditions, the CPS must be consulted in order to determine what case disposal decision will be made (this may itself require further inquiries to gather further evidence). This referral should be made using forms MG3 (Report to Crown Prosecutor for a Charging Decision), and MG3A (Further Report to Crown Prosecutor for a Charging Decision). The pre-charge advice file can be a pre-charge expedited report (straightforward and guilty plea cases) or a pre-charge evidential report (contested/Crown Court cases) and must also include other relevant information, including:

Pre-charge Expedited Report

  • MG3;

  • MG11(s)—Witness statement or Index notes (if offence is witnessed by more than one officer and up to four, use the statement of one officer and summarise the others);

  • MG15—Record of interview;

  • Phoenix print of suspect(s)’ previous convictions/cautions/reprimands/final warnings. If there is any other information that may be relevant, include it on form MG6—Case File Information.

Pre-charge Evidential Report

  • MG3;

  • MG5—Case summary (unless the statements cover all elements of the case);

  • MG6—Case file information;

  • MG11—Key witness statement(s), or Index notes (if offence is witnessed by police use the statement of one officer and summarise the others);

  • MG12—Exhibit list;

  • MG15—Interview record;

  • Crime report and incident log;

  • Unused material likely to undermine the case;

  • Copies of key documentary exhibits;

  • Phoenix print of suspect(s)’ pre-cons/cautions/reprimands/final warnings.

The prosecutor will decide whether there is sufficient evidence to charge or caution the person and shall give written notice of the decision to an officer involved in the investigation of the details of the offence. This decision must be followed (s. 37B(6)) if the decision was for the person to be cautioned (this includes conditional cautions), and if the person refuses, or for some other reason a caution cannot be given, he/she must be charged with the offence (s. 37B(7)).

In cases where the prosecutor decides that there is not sufficient evidence to charge the person with an offence, or that there is sufficient evidence to charge the person with an offence but that the person should not be charged with an offence or given a caution in respect of an offence, the custody officer must inform the person in writing of the decision. Similarly the person must be informed of those cases where there is insufficient evidence to charge him/her, but if further evidence or information comes to light in the future the case may be reconsidered under the Code for Crown Prosecutors.

In cases where further time is needed to obtain evidence or for the prosecutor to make a case disposal decision, the person can be further bailed. In these cases the custody officer must give the person notice in writing. This does not affect any bail conditions that were included when the detained person was bailed (s. 37D(1)–(3)).

2.8.17.6

Keynote

Bail to Allow Referral to the CPS

Section 47 of the Police and Criminal Evidence Act 1984 states:

(1A) The normal powers to impose conditions of bail shall be available to him where a custody officer releases a person on bail under section 37 above or section 38(1) above (including that subsection as applied by section 40(10) above) but not in any other cases.

In this subsection, ‘the normal powers to impose conditions of bail’ has the meaning given in s. 3(6) of the Bail Act 1976.

Where the person is bailed after charge or bailed without charge and on bail for the purpose of enabling the CPS to make a decision regarding case disposal, the custody officer may impose conditions on that bail (see para. 2.3.7). In cases where a person is released without being charged under s. 37(7)(b) or (c), that is to say bail is not given for the purposes of a CPS referral, the custody officer cannot impose new conditions on that bail (s. 47(1A)).

2.8.17.7

Keynote

Alternatives to Prosecution

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

2.8.17.8

Keynote

Simple Caution

There are occasions where a person for whom there is sufficient evidence to charge may be cautioned as an alternative method of disposing with the case. A simple caution (once known as a formal or police caution) is a formal warning that may be given by the police to persons aged 18 or over who admit to committing an offence (‘offenders’). The simple caution scheme is designed to provide a means of dealing with low-level, mainly first-time, offending without a prosecution. A simple caution may only be given where specified criteria are met.

Guidance as to the use of cautioning is provided by the Ministry of Justice’s Simple cautions for adult offenders: guidance for police officers and Crown Prosecutors (MoJ Guidance): see <https://www.gov.uk/government/publications/simple-cautions-guidance-for-police-and-prosecutors>. The MoJ Guidance applies to all decisions relating to simple cautions from the commencement date, regardless of when the offence was committed.

Section 17(3) of the Criminal Justice and Courts Act 2015 prohibits a constable from giving a simple caution if the offence is an either-way offence specified by order made by the Secretary of State, except in exceptional circumstances relating to the person or the offence. An either-way offence is an offence which, if committed by an adult, is triable either on indictment or summarily.

The offences specified by the Secretary of State are set out in Annex B of the MoJ guidance; it should be noted that some of these offences have been repealed but they may still be cautionable where the offence was committed before the date of repeal.

R v Chief Constable of Lancashire Constabulary, ex parte Atkinson (1998) 162 JP 275 is a case which considered the level of evidence required before a caution can be considered. There the court said that, provided it was clear that there had been an admission of guilt, it was not necessary, for the purposes of administering a caution, to show that the admission had been obtained in circumstances which satisfied the Codes of Practice. However, police officers would be well advised to take precautions that would satisfy Code C. It would be both fairer and more reliable for a formal interview to take place.

Before making a case disposal decision it is essential that the matter has been fully investigated in order to reach an informed decision. In Omar v Chief Constable of Bedfordshire Constabulary [2002] EWHC 3060 (Admin), the Divisional Court quashed a caution that had been administered in order to allow a prosecution to be pursued. The court held that a number of reasonable lines of inquiry had not been made; for instance, the police had failed to take a statement from the victim’s friend or obtain CCTV footage that was available or fully investigate the victim’s injuries. Further, the length of time in custody (17 hours) should not have been a relevant consideration and also the suspect’s admission was ambiguous. Therefore, it was in the public interest that a decision to caution rather than to charge should not prevent the subsequent pursuit of the prosecution of the offender.

The MoJ Guidance states that ‘simple cautions are generally intended for low level, mainly first time offending. An assessment of the seriousness of the offence is the starting point for considering whether a simple caution may be appropriate.’ Officers are referred to the National Decision Model and the Association of Chief Police Officers (ACPO) Gravity Factors Matrix to assist them in reaching this decision. The guidelines should be considered carefully in all cases as any decision can be challenged by judicial review. It is important that the full implications of accepting a caution are made clear to suspects so that they are able to give informed consent or there is a risk that the courts may overturn the caution (R (On the Application of Stratton) v Chief Constable of Thames Valley [2013] EWHC 1561 (Admin)).

While there is no general obligation on the police to disclose material prior to charge, there may be a need to make some disclosure to a suspect’s legal representative in order that he/she can advise on whether a caution should be accepted (DPP v Ara [2001] EWHC Admin 493). In Ara, the suspect had been interviewed without a legal representative being present but the officers refused to disclose the terms of the interview.

In cases where the case has been referred to the CPS under s. 37B of the 1984 Act and a decision has been made that the suspect should receive a caution, an officer involved in the investigation of the offence will be informed in writing. The notification will include the offence in respect of which a caution should be administered. If it is not possible to give the suspect such a caution then he/she must be charged with the offence (s. 37B(7)).

2.8.17.9

Keynote

Young Offenders, Youth Cautions

Sections 66A to 66G, 66ZA and 66ZB of the Crime and Disorder Act 1998 make provisions for youth cautions and youth conditional cautions, which replace reprimands and warnings for children and young persons (see chapter 2.5). A reprimand or warning of a person under s. 65 of the Crime and Disorder Act 1998 is to be treated as a youth caution given to that person under s. 66ZA(1) of the 1998 Act.

2.8.17.10

Keynote

Conditional Cautioning

Sections 22 to 27 of the Criminal Justice Act 2003 introduced conditional cautioning, the aim being to deal with offenders without the involvement of the usual court processes. A conditional caution allows an authorised person (usually a police officer) or a relevant prosecutor (usually the CPS) to decide to give a caution to an offender aged 18 or over with one or more conditions attached. When an offender is given a conditional caution for an offence, criminal proceedings for that offence are halted while the offender is given an opportunity to comply with the conditions. Where the conditions are complied with, the prosecution is not normally commenced. However, where there is no reasonable excuse for non-compliance, criminal proceedings may be commenced for the original offence and the conditional caution will cease to have effect. A conditional caution can be given for one or more offences.

Section 24A of the Criminal Justice Act 2003 allows a constable to arrest without warrant any person whom the officer has reasonable grounds for believing has failed, without reasonable excuse, to comply with any of the conditions attached to the conditional caution. Certain provisions of the Police and Criminal Evidence Act 1984 relating to detention, reviews, searches, and searches and examinations to ascertain identity apply, with modifications, to a person arrested under s. 24A of the Criminal Justice Act 2003.

Guidance on conditional cautioning to police officers and Crown prosecutors issued by the Director of Public Prosecutions under s. 37A of the Police and Criminal Evidence Act 1984 is set out below.

1. Introduction

1.1 In determining whether to offer a Conditional Caution in any case authorised persons and relevant prosecutors must follow the Code of Practice for Adult Conditional Cautions 2013 and comply with this Guidance.

1.2 This Guidance assists Authorised Persons and Relevant Prosecutors (the decision makers) to apply the Code of Practice on Adult Conditional Cautions in deciding how an offender should be dealt with when it is determined that:

  • there is sufficient evidence to charge an offender with an offence; and

  • the public interest in the case may be met by a caution with suitable conditions providing reparation to the victim or community; which may modify offending behaviour; ensure the departure and non return of a foreign offender from the UK; or provide an appropriate penalty; and

  • In all the circumstances of the case a Conditional Caution appears appropriate.

1.3This Guidance specifies:

  • the offences and circumstances when a Conditional Caution may be considered and whether the decision to offer one may be made by a police officer or is to be referred to a prosecutor.

  • the practical arrangements for recording decisions in cases, consulting with the UK Border Agency, making referrals to prosecutors and for dealing with non-compliance with any conditions.

2. Authorised persons

2.1 An authorised person (for the purpose of administering a Conditional Caution) is a police officer not below the rank of Sergeant or any person specifically authorised to do so by the Director of Public Prosecutions.

3. Excluded Offences—for which a Conditional Caution may not be offered

3.1 A Conditional Caution may not be offered for any offence classified as Hate Crime or Domestic Violence, otherwise it may be considered in any case in the circumstances set out below.

4. Summary offences and either way cases

4.1 An authorised person may offer a Conditional Caution for any summary only offence and any either way offence. For serious either way offences, a Conditional Caution may only be offered if the Foreign National Offender provisions apply or in exceptional circumstances as set out below. The decision that exceptional circumstances exist in any case may only be made by a police officer not below the rank of Inspector.

5. Offences committed by Relevant Foreign Offenders

5.1 The Code of Practice makes specific provision for offences committed by Foreign Offenders where a Conditional Caution is proposed to facilitate the removal of the offender from the jurisdiction and ensure non return. In such cases the greater public interest is in removal from the jurisdiction and the Code permits consideration in any case where the decision maker considers that the sentence likely to be imposed by the court for the offence concerned will not exceed 2 years imprisonment. Further guidance is provided below on how to assess that. The authorised person or prosecutor must record the reasons for reaching this conclusion in any case.

6. Indictable only offences to be referred to prosecutors

6.1 As such offences will generally attract significant custodial sentences on conviction the maintenance of public confidence in the Justice System will ordinarily require such cases to be dealt with at court. Any indictable only case considered by the police as suitable for a Conditional Caution must be referred to a prosecutor.

6.2 Unless the foreign offender conditions are to be offered only in the most exceptional circumstances will a Conditional Caution be an appropriate way of dealing with such a case. The decision to authorise a Conditional Caution in any Indictable Only case must be approved by a Deputy Chief Crown Prosecutor.

6.3 Before considering referring any indictable only offence to a prosecutor, authorised persons must first determine that exceptional circumstances as set out below are present in the case or that the foreign offender conditions are appropriate.

7. Identification of cases in which a Conditional Caution is permissible

7.1 Police and prosecutors should ensure that a Conditional Caution is considered in any case for which it is permitted and provides an appropriate outcome for the victim, community and offender.

7.2 Where a Conditional Caution with suitable conditions may provide reparation to the victim or community; be effective in modifying offending behaviour; facilitate removal from the jurisdiction and ensure non return; or provide an appropriate penalty, the offender should not be charged unless it is determined that the case is too serious for a conditional caution to be appropriate.

8. Making prompt decisions

8.1 Wherever possible, the decision to administer a Conditional Caution should be made as early as possible and while the offender is still in custody. If, for any reason, this is not possible, the offender (including a foreign national) may be released on bail, with or without conditions (under section 37(7) PACE) for a short period unless there are operational reasons or other circumstances relating to the victim or offender justifying a longer period, or where further information is required relating to the consideration of any specific condition.

9. Prosecutor’s post charge review—cases that should have been considered for a Conditional Caution

9.1 Where an offender is charged with an offence, but it appears upon review by a prosecutor that a Conditional Caution is more appropriate, the reviewing prosecutor should direct an authorised person to offer a Conditional Caution. This includes any case where authorised persons ordinarily make that decision. The current prosecution should be adjourned whilst this action is taken. The authorised person shall then offer a caution with conditions as specified by the prosecutor. If it proves then not to be possible to administer the caution an alternative out of court disposal may not be offered and the prosecution must continue.

9.2 In the case of foreign offenders this may include cases where an asylum or human rights claim has been withdrawn or resolved after charge.

10. Deciding whether a Conditional Caution is a suitable response—Requirement for sufficient evidence to charge the offender

10.1 Before a Conditional Caution can be considered, there must be sufficient evidence available to provide a realistic prospect of conviction in accordance with the Full Code Test set out in the Code for Crown Prosecutors.

10.2 In making this assessment, an authorised person may offer a Conditional Caution where;

  • The suspect has made a clear and reliable admission to the offence and has said nothing that could be used as a defence, or

  • The suspect has made no admission but has not denied the offence or otherwise indicated it will be contested and the commission of the offence and the identification of the offender can be established by reliable evidence or the suspect can be seen clearly committing the offence on a good quality visual recording.

11. Deciding whether a Conditional Caution is a suitable response—Assessing the Public Interest

11.1 Once the evidential test is met, the decision maker must then be satisfied that the public interest can best be served by the offender complying with suitable conditions aimed at reparation; rehabilitation; removal from the UK and ensuring no return for a period; or punishment, taking into account the interests of the victim, the community, and/or needs of the offender. They must also be satisfied that a prosecution will continue to be necessary, and could go ahead, should the offer of a Conditional Caution be declined or the offender does not complete the conditions.

11.2 In determining whether a Conditional Caution is appropriate to the circumstances of an offence decision makers must assess the seriousness of the case to ensure that this out of court disposal provides an appropriate and proportionate response to the offending behaviour and meets the justice of the case.

12. Assessing Seriousness

12.1 An assessment of the seriousness of the offence is the starting point for considering whether a Conditional Caution may be appropriate. The more serious the offence, the less likely a Conditional Caution will be appropriate. Wherever the circumstances of an offence indicate that an immediate custodial sentence or high level community order is the appropriate sentence, a Conditional Caution should not be offered unless the specific provisions concerning foreign nationals apply or the exceptional circumstances set out below are met. The Magistrates’ Court Sentencing Guidelines provides a sentencing starting point for a range of offences at high level community order or period of imprisonment. Those specific either way offences are set out in Annex A.

12.2 The seriousness of the offence and the range of penalties likely to be imposed must be carefully considered in every case taking into account the Magistrates’ Court Sentencing Guidelines. Cases routinely dealt with at the crown court (specified in the Guidelines and set out in Annex A) or likely to be considered for a high level community order or period of imprisonment should generally proceed to court.

12.3 Indictable only offences must be referred to prosecutors to determine whether a Conditional Caution is appropriate, including where foreign offender conditions may be suitable. A Conditional Caution will only be appropriate for an indictable only offence in the most exceptional circumstances. In considering such cases prosecutors will assess the factors referred to below and make a review record of the exceptional circumstances found.

12.4 Police decision makers will also need to consider and apply the ACPO gravity factors matrix when considering whether to issue a Conditional Caution.

13. Considering the totality of offending and history of offending

13.1 In assessing the seriousness of the offence under consideration and determining whether the case should proceed to court or is suitable for a Conditional Caution the decision maker should also take into account the totality of any current offending and any history of previous convictions and cautions particularly any which are recent or of a similar nature. However a record of previous offending should not rule out the possibility of a Conditional Caution especially where there have been no similar offences during the last two years or where it appears that the Conditional Caution is likely to change the pattern of offending behaviour.

14. Exceptional circumstances where a Conditional Caution may be appropriate for an offence likely to attract a high level community order or a custodial sentence

14.1 The decision to offer a Conditional Caution for an indictable only offence, an either way offence routinely dealt with at the crown court or likely to attract a high level community order or sentence of imprisonment, may only be taken in exceptional circumstances where the decision maker is able to conclude that the public interest does not require the immediate prosecution of the offender and that if it took place a court would not impose a period of imprisonment or high level community order.

14.2 In reaching that conclusion, the decision maker must carefully assess the public interest in the case and the likely sentence informed by the appropriate sentencing guidelines and authorities. The decision maker must record (on an MG6) the reason for concluding that exceptional circumstances are met in the case. Authorised persons should only refer indictable only cases to prosecutors where they are able to clearly specify the exceptional circumstances present in the case in accordance with this guidance.

14.3 In assessing whether exceptional circumstances exist in a case, the following factors must be taken into account:

  • The extent of culpability and/or harm caused

  • The degree of intention or the foreseeability of any resultant harm

  • Any significant aggravating factors

  • Any significant mitigating factors

  • The lack of any recent similar previous convictions or cautions

  • Any other factors relating the offender or commission of the offence likely to have a significant impact on sentence

  • The overall justice of the case and whether the circumstances require it to be dealt with in open court

  • The range of sentences appropriate to the circumstances of the case.

14.4 Any aggravating circumstances, including the methodology employed by the offender (for example, any breach of trust or advantage taken of the vulnerable or young) may all increase the seriousness of the offence to the point where the case should proceed to court.

15. The decision to offer a Conditional Caution

15.1 The decision makers’ review

15.1.1 A Conditional Caution may be appropriate where the decision maker believes that while the public interest requires a prosecution in the first instance the interests of the victim, community or offender are better served by the offender complying with suitable conditions aimed at reparation, rehabilitation, punishment or in the case of a foreign national offender removal from the jurisdiction.

15.1.2 It must be determined that a Conditional Caution is likely to be effective and should be offered. Where the offender shows genuine remorse, indicates a willingness to be cautioned and comply with the proposed conditions a Conditional Caution may be considered. A Conditional Caution will not be appropriate for an offender who fails to accept responsibility at the time the caution is administered.

15.1.3 Where the offender indicates that they do not wish to accept the caution or any of the conditions at that stage, the case will be considered again by the decision maker who will determine whether alternative conditions are appropriate or whether the case should proceed to prosecution. Where it proves not to be possible to give the caution because it is not accepted or reasonable conditions are declined the offender should be charged with the offence. In such circumstances an alternative out of court disposal may not be offered.

15.2 Foreign Offender Conditions

15.2.1 Such conditions may only be offered to a foreign offender having no leave to enter or remain in the UK and in respect of whom there is power to enforce departure. They cannot be offered where the offender makes or has an outstanding asylum or Human rights claim to remain in the UK or where the offender admits to committing a document or identity fraud offence in order to make a claim for asylum or where the offender may be a trafficked victim. This does not, however, prevent foreign offender conditions from being offered where the asylum or human rights claim has been refused (and any appeal against that refusal has been finally determined), where the relevant foreign offender voluntarily withdraws the claim, or where the relevant foreign offender’s grant of asylum has been revoked or not renewed by virtue of paragraph 339A of the Immigration Rules. The police must consult the UK Border Agency who will confirm the offender’s status and that of any dependents and whether the individual can be removed from the UK. This information must be available to the decision maker at the time the Conditional Caution is offered.

15.2.2 Foreign offender conditions may be offered in a case that would ordinarily result in the imposition of imprisonment following conviction. However it may only be offered where, in all the circumstances of the case, the decision maker assesses that the sentence likely to be imposed for the offence under consideration would be less than two years imprisonment. The decision maker must make a record of the reason for reaching that conclusion.

15.2.3 The purpose of the Conditional Caution will be to bring about the departure of the offender from the UK and to ensure that return does not occur for a specified period of time. Both of these objects should be set as conditions in every case. They should only be used where it will be practicable to remove the person within a reasonable period of time. The offender may be required to:

  • Report regularly to an immigration office, reporting centre, police station or other similar place, pending removal

  • Obtain or assist authorities in obtaining a valid national travel document, or

  • Comply with removal directions and any lawful directions given to effect departure

  • Not to return to the UK within a specified period of time, normally 5 years as set out in the Immigration Rules

15.2.4 Priority should be given to conditions to facilitate the early removal of the offender from the UK; however any other rehabilitative, reparative, or punitive conditions appropriate to the circumstances of the case may also be included provided the circumstances of the offender and any detention under immigration powers permit completion. Other conditions should not be included if they are likely to delay the removal or may not be completed prior to the likely removal date.

15.2.5 The normal period not to return should be 5 years. However there may be indictable only cases involving a foreign offender where a prosecutor considers that exceptional circumstances exist permitting the offer of a Conditional Caution including a condition preventing return for a period of 10 years instead.

15.3 Offering a financial penalty condition

15.3.1 A financial penalty can only be offered in accordance with the scales set out in Annex B to this Guidance but only for those offences contained in an Order made under section 23A of the Act. Ordinarily the standard penalty should be offered. Where, however, there is substantial mitigation for the commission of the offence or the offender is in receipt of state benefit (such as income support or job seeker’s allowance) as their main or only source of income, a penalty within the mitigated range may be offered instead.

15.3.2 When attaching a financial penalty condition, the amount of the penalty, the designated officer for the local justice area to whom the penalty must be paid, and the address of that officer for payment must be set out in the documentation to be handed to the offender at the time of the administration of the Conditional Caution.

16. Practical arrangements for the referral of cases

16.1 Consultation with UK Border Agency

16.1.1 As soon as it appears that a foreign offender has been detained the custody officer should contact UKBA to establish whether the individual is classified as a relevant foreign offender. Once confirmed UKBA will provide any immigration papers required and will liaise over the appropriate conditions to be offered.

16.2 Referral of cases to prosecutors

16.2.1 Where an authorised person considers that, exceptionally, an indictable only offence may be appropriate for a condition caution the case must be referred to a prosecutor. This will be done by submitting the case to the Head of the Crown Court Unit for the relevant CPS Area. The CPS Area will provide a response within 7 days. If, for any reason, it proves not to be possible to administer the caution the offender should be charged with the offence and may not be offered any other out of court disposal.

16.3 Requirements for an MG5

16.3.1 In any case which is to be referred to a Crown Prosecutor the police will prepare an MG5 report and will attach to it the victim or losers witness statement and any other evidential material necessary to establish whether the Full Code Test is met. An MG6 must be provided setting out the views of any victim and (where appropriate) the Inspectors assessment of the exceptional circumstances considered by the police to be present in the case justifying the offer of a Conditional Caution. Confirmation by the UKBA as to the status and ability to remove from the UK of any foreign offender will also be required where the removal and non return conditions are to be considered.

16.4 Contents of the MG5 Report

16.4.1 The MG5 report should set out the circumstances of the offence, summarising any admissions in interview, providing the details of any victims and any previous convictions or cautions applicable to the offender. An MG6 should set out any views of the victim as to any restorative or reparative conditions and details of any compensation to be considered. The report should set out the proposed conditions to be included and confirm that the offender is willing to admit the offence and be cautioned.

16.5 Police decision making—recording the decision

16.5.1 The authorised person must make a brief record of the reasons why a Conditional Caution was or was not considered appropriate in any case and why any particular conditions were selected. The reasons should specify whether reparative, rehabilitative or punitive objectives were sought to be achieved. This may be recorded on an MG6 or a case review document.

16.5.2 As any refusal to be conditionally cautioned or failure to complete conditions may lead to subsequent prosecution authorised persons should ensure that details of the evidential basis for the decision are recorded including sufficient witnesses details to enable an appropriate file to be provided to the prosecutor. This may be done by completion of an MG5 or a case review document.

16.6 Authorising the Conditional Caution

16.6.1 Once satisfied that the Conditional Caution and the proposed conditions are an appropriate and proportionate response to the offending behaviour, the decision maker will complete the Authority to Give a Conditional Caution which will be retained with the MG5 or case review document. A copy of the Authority to Give a Conditional Caution is attached at Annex C.

16.7 Dealing with non-compliance with Conditions

16.7.1 If following administration of the caution it becomes clear that the offender is not complying with any conditions the decision maker must determine whether there is any reasonable excuse for that non-compliance and if not what action is to be taken. In determining what action to take at that stage the decision maker may deem the caution as completed, vary conditions or prosecute for the original offence. An alternative form of out of court disposal may not be offered.

16.7.2 Where the original decision to offer the caution was made by an authorised person the authorised person may make that decision but if it is considered that charging is appropriate and the offence is one that cannot be charged by the police the case must be referred to a prosecutor to decide whether to charge. Where the decision to offer the Conditional Caution was made by a prosecutor the case must be referred back to a prosecutor.

16.7.3 Once a decision is made as to how the non compliance is to be dealt with the police with ensure that PNC is updated to record that.

16.8 Retention of papers to prosecute following non-compliance

16.8.1 Once a Conditional Caution has been authorised in any case, the MG5 (or any other record of the decision), the Inspectors finding as to any exceptional circumstances, the Authority to give a Conditional Caution and confirmed MG14 will be retained by the police pending completion of the conditions. This material will be used in the event of a prosecution resulting from any non-compliance. Any information concerning the personal details of victims and their views must not be included in any information provided to the offender or their legal representative. In the event of a prosecution for non-compliance the police will only be requested to provide witness statements following a not guilty plea and case management hearing where the issues in dispute in the case have been identified.

17. Commencement

17.1 This Guidance will come into effect in England and Wales on 8th April 2013.

2.8.18

17 Testing Persons for the Presence of Specified Class A Drugs

(a) Action

17.1 This section of Code C applies only in selected police stations in police areas where the provisions for drug testing under section 63B of PACE (as amended by section 5 of the Criminal Justice Act 2003 and section 7 of the Drugs Act 2005) are in force and in respect of which the Secretary of State has given a notification to the relevant chief officer of police that arrangements for the taking of samples have been made. Such a notification will cover either a police area as a whole or particular stations within a police area. The notification indicates whether the testing applies to those arrested or charged or under the age of 18 as the case may be and testing can only take place in respect of the persons so indicated in the notification. Testing cannot be carried out unless the relevant notification has been given and has not been withdrawn.

17.2 A sample of urine or a non-intimate sample may be taken from a person in police detention for the purpose of ascertaining whether they have any specified Class A drug in their body only where they have been brought before the custody officer and:

  1. (a) either the arrest condition, see paragraph 17.3, or the charge condition, see paragraph 17.4 is met;

  2. (b) the age condition see paragraph 17.5, is met;

  3. (c) the notification condition is met in relation to the arrest condition, the charge condition, or the age condition, as the case may be. (Testing on charge and/or arrest must be specifically provided for in the notification for the power to apply. In addition, the fact that testing of under 18s is authorised must be expressly provided for in the notification before the power to test such persons applies.). See paragraph 17.1; and

  4. (d) a police officer has requested the person concerned to give the sample (the request condition).

17.3 The arrest condition is met where the detainee:

  1. (a) has been arrested for a trigger offence, but not charged with that offence; or

  2. (b) has been arrested for any other offence but not charged with that offence and a police officer of inspector rank or above, who has reasonable grounds for suspecting that their misuse of any specified Class A drug caused or contributed to the offence, has authorised the sample to be taken.

17.4 The charge condition is met where the detainee:

  1. (a) has been charged with a trigger offence, or

  2. (b) has been charged with any other offence and a police officer of inspector rank or above, who has reasonable grounds for suspecting that the detainee’s misuse of any specified Class A drug caused or contributed to the offence, has authorised the sample to be taken.

17.5 The age condition is met where:

  1. (a) in the case of a detainee who has been arrested but not charged as in paragraph 17.3, they are aged 18 or over;

  2. (b) in the case of a detainee who has been charged as in paragraph 17.4, they are aged 14 or over.

17.6 Before requesting a sample from the person concerned, an officer must:

  1. (a) inform them that the purpose of taking the sample is for drug testing under PACE. This is to ascertain whether they have a specified Class A drug present in their body;

  2. (b) warn them that if, when so requested, they fail without good cause to provide a sample they may be liable to prosecution;

  3. (c) where the taking of the sample has been authorised by an inspector or above in accordance with paragraph 17.3(b) or 17.4(b) above, inform them that the authorisation has been given and the grounds for giving it;

  4. (d) remind them of the following rights, which may be exercised at any stage during the period in custody:

    1. (i) the right to have someone informed of their arrest [see section 5];

    2. (ii) the right to consult privately with a solicitor and that free independent legal advice is available [see section 6]; and

    3. (iii) the right to consult these Codes of Practice [see section 3].

17.7 In the case of a person who has not attained the age specified in section 63B(5A) of PACE—

  1. (a) the making of the request for a sample under paragraph 17.2(d) above;

  2. (b) the giving of the warning and the information under paragraph 17.6 above; and

  3. (c) the taking of the sample, may not take place except in the presence of an appropriate adult.

17.8 Authorisation by an officer of the rank of inspector or above within paragraph 17.3(b) or 17.4(b) may be given orally or in writing but, if it is given orally, it must be confirmed in writing as soon as practicable.

17.9 If a sample is taken from a detainee who has been arrested for an offence but not charged with that offence as in paragraph 17.3, no further sample may be taken during the same continuous period of detention. If during that same period the charge condition is also met in respect of that detainee, the sample which has been taken shall be treated as being taken by virtue of the charge condition, see paragraph 17.4, being met.

17.10 A detainee from whom a sample may be taken may be detained for up to six hours from the time of charge if the custody officer reasonably believes the detention is necessary to enable a sample to be taken. Where the arrest condition is met, a detainee whom the custody officer has decided to release on bail without charge may continue to be detained, but not beyond 24 hours from the relevant time (as defined in section 41(2) of PACE), to enable a sample to be taken.

17.11 A detainee in respect of whom the arrest condition is met, but not the charge condition, see paragraphs 17.3 and 17.4, and whose release would be required before a sample can be taken had they not continued to be detained as a result of being arrested for a further offence which does not satisfy the arrest condition, may have a sample taken at any time within 24 hours after the arrest for the offence that satisfies the arrest condition.

(b) Documentation

17.12 The following must be recorded in the custody record:

  1. (a) if a sample is taken following authorisation by an officer of the rank of inspector or above, the authorisation and the grounds for suspicion;

  2. (b) the giving of a warning of the consequences of failure to provide a sample;

  3. (c) the time at which the sample was given; and

  4. (d) the time of charge or, where the arrest condition is being relied upon, the time of arrest and, where applicable, the fact that a sample taken after arrest but before charge is to be treated as being taken by virtue of the charge condition, where that is met in the same period of continuous detention. See paragraph 17.9.

(c) General

17.13 A sample may only be taken by a prescribed person.

17.14 Force may not be used to take any sample for the purpose of drug testing.

17.15 The terms ‘Class A drug’ and ‘misuse’ have the same meanings as in the Misuse of Drugs Act 1971. ‘Specified’ (in relation to a Class A drug) and ‘trigger offence’ have the same meanings as in Part III of the Criminal Justice and Court Services Act 2000.

17.16 Any sample taken:

  1. (a) may not be used for any purpose other than to ascertain whether the person concerned has a specified Class A drug present in his body; and

  2. (b) can be disposed of as clinical waste unless it is to be sent for further analysis in cases where the test result is disputed at the point when the result is known, including on the basis that medication has been taken, or for quality assurance purposes.

(d) Assessment of misuse of drugs

17.17 Under the provisions of Part 3 of the Drugs Act 2005, where a detainee has tested positive for a specified Class A drug under section 63B of PACE a police officer may, at any time before the person’s release from the police station, impose a requirement on the detainee to attend an initial assessment of their drug misuse by a suitably qualified person and to remain for its duration. Where such a requirement is imposed, the officer must, at the same time, impose a second requirement on the detainee to attend and remain for a follow-up assessment. The officer must inform the detainee that the second requirement will cease to have effect if, at the initial assessment they are informed that a follow-up assessment is not necessary These requirements may only be imposed on a person if:

  1. (a) they have reached the age of 18

  2. (b) notification has been given by the Secretary of State to the relevant chief officer of police that arrangements for conducting initial and follow-up assessments have been made for those from whom samples for testing have been taken at the police station where the detainee is in custody.

17.18 When imposing a requirement to attend an initial assessment and a follow-up assessment the police officer must:

  1. (a) inform the person of the time and place at which the initial assessment is to take place;

  2. (b) explain that this information will be confirmed in writing; and

  3. (c) warn the person that they may be liable to prosecution if they fail without good cause to attend the initial assessment and remain for its duration and if they fail to attend the follow-up assessment and remain for its duration (if so required).

17.19 Where a police officer has imposed a requirement to attend an initial assessment and a follow-up assessment in accordance with paragraph 17.17, he must, before the person is released from detention, give the person notice in writing which:

  1. (a) confirms their requirement to attend and remain for the duration of the assessments; and

  2. (b) confirms the information and repeats the warning referred to in paragraph 17.18.

17.20 The following must be recorded in the custody record:

  1. (a) that the requirement to attend an initial assessment and a follow-up assessment has been imposed; and

  2. (b) the information, explanation, warning and notice given in accordance with paragraphs 17.17 and 17.19.

17.21 Where a notice is given in accordance with paragraph 17.19, a police officer can give the person a further notice in writing which informs the person of any change to the time or place at which the initial assessment is to take place and which repeats the warning referred to in paragraph 17.18(c).

17.22 Part 3 of the Drugs Act 2005 also requires police officers to have regard to any guidance issued by the Secretary of State in respect of the assessment provisions.

2.8.18.1

Keynote

The power to take samples is subject to notification by the Secretary of State that appropriate arrangements for the taking of samples have been made for the police area as a whole or for the particular police station concerned for whichever of the following is specified in the notification: persons in respect of whom the arrest condition is met; persons in respect of whom the charge condition is met; and/or persons who have not attained the age of 18.

A sample has to be sufficient and suitable. A sufficient sample is sufficient in quantity and quality to enable drug-testing analysis to take place. A suitable sample is one which by its nature is suitable for a particular form of drug analysis. It can only be taken by a prescribed person as defined in regulations made by the Secretary of State under s. 63B(6) of the Police and Criminal Evidence Act 1984. The regulations are currently contained in the Police and Criminal Evidence Act 1984 (Drug Testing Persons in Police Detention) (Prescribed Persons) Regulations 2001 (SI 2001/2645). Samples, and the information derived from them, may not subsequently be used in the investigation of any offence or in evidence against the persons from whom they were taken.

When warning a person who is asked to provide a urine or non-intimate sample in accordance with para. 17.6(b), the following form of words may be used:

You do not have to provide a sample, but I must warn you that if you fail or refuse without good cause to do so, you will commit an offence for which you may be imprisoned, or fined, or both.

Where the Welsh language is appropriate, the following form of words may be used:

Does dim rhaid i chi roi sampl, ond mae’n rhaid i mi eich rhybuddio y byddwch chi’n cyflawni trosedd os byddwch chi’n methu neu yn gwrthod gwneud hynny heb reswm da, ac y gellir, oherwydd hynny, eich carcharu, eich dirwyo, neu’r ddau.

The trigger offences referred to in the section are:

  1. 1. Offences under the following provisions of the Theft Act 1968:

section 1

(theft)

section 8

(robbery)

section 9

(burglary)

section 10

(aggravated burglary)

section 12

(taking a motor vehicle or other conveyance without authority)

section 12A

(aggravated vehicle-taking)

section 22

(handling stolen goods)

section 25

(going equipped for stealing, etc.)

  1. 2. Offences under the following provisions of the Misuse of Drugs Act 1971, if committed in respect of a specified Class A drug:

section 4

(restriction on production and supply of controlled drugs)

section 5(2)

(possession of a controlled drug)

section 5(3)

(possession of a controlled drug with intent to supply)

  1. 3. Offences under the following provisions of the Fraud Act 2006:

section 1

(fraud)

section 6

(possession, etc. of articles for use in frauds)

section 7

(making or supplying articles for use in frauds)

  1. 3A. An offence under s. 1(1) of the Criminal Attempts Act 1981 if committed in respect of an offence under:

    1. (a) any of the following provisions of the Theft Act 1968:

section 1

(theft)

section 8

(robbery)

section 9

(burglary)

section 22

(handling stolen goods)

    1. (b) section 1 of the Fraud Act 2006 (fraud)

  1. 4. Offences under the following provisions of the Vagrancy Act 1824:

section 3

(begging)

section 4

(persistent begging)

For the purposes of needing the presence of an appropriate adult for Code C, para. 17.7, an appropriate adult means the person’s:

  1. (a) parent or guardian or, if they are in the care of a local authority or voluntary organisation, a person representing that authority or organisation; or

  2. (b) a social worker of a local authority; or

  3. (c) if no person falling within (a) or (b) above is available, any responsible person aged 18 or over who is not:

    • employed by the police;

    • under the direction or control of the chief officer of police force;

    • or a person who provides services under contractual arrangements (but without being employed by the chief officer of a police force), to assist that force in relation to the discharge of its chief officer’s functions whether or not they are on duty at the time.

If the person wishing to act as appropriate adult appears to be under 17 they should be treated as that age and not be allowed to act as an appropriate adult unless they can show themselves to be over 18.

2.8.19

Annex A—Intimate and Strip Searches

A Intimate search

1. An intimate search consists of the physical examination of a person’s body orifices other than the mouth. The intrusive nature of such searches means the actual and potential risks associated with intimate searches must never be underestimated.

(a) Action

2. Body orifices other than the mouth may be searched only:

  1. (a) if authorised by an officer of inspector rank or above who has reasonable grounds for believing that the person may have concealed on themselves:

    1. (i) anything which they could and might use to cause physical injury to themselves or others at the station; or

    2. (ii) a Class A drug which they intended to supply to another or to export;

      and the officer has reasonable grounds for believing that an intimate search is the only means of removing those items; and

  2. (b) if the search is under paragraph 2(a)(ii) (a drug offence search), the detainee’s appropriate consent has been given in writing.

2A. Before the search begins, a police officer or designated detention officer, must tell the detainee:-

  1. (a) that the authority to carry out the search has been given;

  2. (b) the grounds for giving the authorisation and for believing that the article cannot be removed without an intimate search.

2B. Before a detainee is asked to give appropriate consent to a search under paragraph 2(a)(ii) (a drug offence search) they must be warned that if they refuse without good cause their refusal may harm their case if it comes to trial. This warning may be given by a police officer or member of police staff. In the case of juveniles, mentally vulnerable or mentally disordered suspects, the seeking and giving of consent must take place in the presence of the appropriate adult. A juvenile’s consent is only valid if their parent’s or guardian’s consent is also obtained unless the juvenile is under 14, when their parent’s or guardian’s consent is sufficient in its own right. A detainee who is not legally represented must be reminded of their entitlement to have free legal advice, see Code C, paragraph 6.5, and the reminder noted in the custody record.

3. An intimate search may only be carried out by a registered medical practitioner or registered nurse, unless an officer of at least inspector rank considers this is not practicable and the search is to take place under paragraph 2(a)(i), in which case a police officer may carry out the search.

3A. Any proposal for a search under paragraph 2(a)(i) to be carried out by someone other than a registered medical practitioner or registered nurse must only be considered as a last resort and when the authorising officer is satisfied the risks associated with allowing the item to remain with the detainee outweigh the risks associated with removing it.

4. An intimate search under:

  • paragraph 2(a)(i) may take place only at a hospital, surgery, other medical premises or police station;

  • paragraph 2(a)(ii) may take place only at a hospital, surgery or other medical premises and must be carried out by a registered medical practitioner or a registered nurse.

5. An intimate search at a police station of a juvenile or mentally disordered or otherwise mentally vulnerable person may take place only in the presence of an appropriate adult of the same sex (see Annex L), unless the detainee specifically requests a particular adult of the opposite sex who is readily available. In the case of a juvenile, the search may take place in the absence of the appropriate adult only if the juvenile signifies in the presence of the appropriate adult they do not want the adult present during the search and the adult agrees. A record shall be made of the juvenile’s decision and signed by the appropriate adult.

6. When an intimate search under paragraph 2(a)(i) is carried out by a police officer, the officer must be of the same sex as the detainee (see Annex L). A minimum of two people, other than the detainee, must be present during the search. Subject to paragraph 5, no person of the opposite sex who is not a medical practitioner or nurse shall be present, nor shall anyone whose presence is unnecessary. The search shall be conducted with proper regard to the sensitivity and vulnerability of the detainee.

(b) Documentation

7. In the case of an intimate search, the following shall be recorded as soon as practicable in the detainee’s custody record:

  1. (a) for searches under paragraphs 2(a)(i) and (ii);

    • the authorisation to carry out the search;

    • the grounds for giving the authorisation;

    • the grounds for believing the article could not be removed without an intimate search;

    • which parts of the detainee’s body were searched;

    • who carried out the search;

    • who was present;

    • the result.

  2. (b) for searches under paragraph 2(a)(ii):

    • the giving of the warning required by paragraph 2B;

    • the fact that the appropriate consent was given or (as the case may be) refused, and if refused, the reason given for the refusal (if any).

8. If an intimate search is carried out by a police officer, the reason why it was impracticable for a registered medical practitioner or registered nurse to conduct it must be recorded.

2.8.19.1

Keynote

Before authorising any intimate search, the authorising officer must make every reasonable effort to persuade the detainee to hand the article over without a search. If the detainee agrees, a registered medical practitioner or registered nurse should whenever possible be asked to assess the risks involved and, if necessary, attend to assist the detainee.

If the detainee does not agree to hand the article over without a search, the authorising officer must carefully review all the relevant factors before authorising an intimate search. In particular, the officer must consider whether the grounds for believing that an article may be concealed are reasonable.

If authority is given for a search for anything which the detained person could and might use to cause physical injury to him/herself or others at the station, a registered medical practitioner or registered nurse shall be consulted whenever possible. The presumption should be that the search will be conducted by the registered medical practitioner or registered nurse and the authorising officer must make every reasonable effort to persuade the detainee to allow the medical practitioner or nurse to conduct the search. A constable should only be authorised to carry out a search as a last resort and when all other approaches have failed. In these circumstances, the authorising officer must be satisfied that the detainee might use the article to cause physical injury to him/herself and/or others at the station and the physical injury likely to be caused is sufficiently severe to justify authorising a constable to carry out the search. If an officer has any doubts whether to authorise an intimate search by a constable, the officer should seek advice from an officer of superintendent rank or above. Annex L should be referred to for guidance when establishing the gender of persons for the purpose of searching.

The following form of words should be used when asking a detained person to consent to an intimate drug offence search:

You do not have to allow yourself to be searched, but I must warn you that if you refuse without good cause, your refusal may harm your case if it comes to trial.

Where the use of the Welsh language is appropriate, the following form of words may be used:

Nid oes rhaid i chi roi caniatâd i gael eich archwilio, ond mae’n rhaid i mi eich rhybuddio os gwrthodwch heb reswm da, y gallai eich penderfyniad i wrthod wneud niwed i’ch achos pe bai’n dod gerbron llys.

2.8.19.2

B Strip search

9. A strip search is a search involving the removal of more than outer clothing. In this Code, outer clothing includes shoes and socks.

(a) Action

10. A strip search may take place only if it is considered necessary to remove an article which a detainee would not be allowed to keep and the officer reasonably considers the detainee might have concealed such an article. Strip searches shall not be routinely carried out if there is no reason to consider that articles are concealed. The conduct of strip searches

11. When strip searches are conducted:

  1. (a) a police officer carrying out a strip search must be the same sex as the detainee (see Annex L);

  2. (b) the search shall take place in an area where the detainee cannot be seen by anyone who does not need to be present, nor by a member of the opposite sex (see Annex L) except an appropriate adult who has been specifically requested by the detainee;

  3. (c) except in cases of urgency, where there is risk of serious harm to the detainee or to others, whenever a strip search involves exposure of intimate body parts, there must be at least two people present other than the detainee, and if the search is of a juvenile or mentally disordered or otherwise mentally vulnerable person, one of the people must be the appropriate adult. Except in urgent cases as above, a search of a juvenile may take place in the absence of the appropriate adult only if the juvenile signifies in the presence of the appropriate adult that they do not want the adult to be present during the search and the adult agrees. A record shall be made of the juvenile’s decision and signed by the appropriate adult. The presence of more than two people, other than an appropriate adult, shall be permitted only in the most exceptional circumstances;

  4. (d) the search shall be conducted with proper regard to the sensitivity and vulnerability of the detainee in these circumstances and every reasonable effort shall be made to secure the detainee’s co-operation and minimise embarrassment. Detainees who are searched shall not normally be required to remove all their clothes at the same time, e.g. a person should be allowed to remove clothing above the waist and redress before removing further clothing;

  5. (e) if necessary to assist the search, the detainee may be required to hold their arms in the air or to stand with their legs apart and bend forward so a visual examination may be made of the genital and anal areas provided no physical contact is made with any body orifice;

  6. (f) if articles are found, the detainee shall be asked to hand them over. If articles are found within any body orifice other than the mouth, and the detainee refuses to hand them over, their removal would constitute an intimate search, which must be carried out as in Part A;

  7. (g) a strip search shall be conducted as quickly as possible, and the detainee allowed to dress as soon as the procedure is complete.

(b) Documentation

12. A record shall be made on the custody record of a strip search including the reason it was considered necessary, those present and any result.

2.8.19.3

Keynote

Annex A, para. 11 applies to all the powers given to custody officers under s. 54 of the 1984 Act, including the power to remove and seize clothing under s. 54(4). In Davies v Chief Constable of Merseyside [2015] EWCA Civ 114 the court held that Annex A, para. 11 applied to any strip search, not just those strip searches carried out in compliance with para. 10. For example it would apply where the custody officer determines that a detained person is a suicide risk and orders the removal of their clothing under s. 54 so they can be dressed in a safety gown.

The Codes do not preclude officers of the opposite sex being indirectly involved in the strip search process. In the case of PD (by her mother and litigation friend ZD) v Chief Constable of Merseyside Police [2015] EWCA Civ 114 a 14- year- old, female detainee was flagged as a suicide risk by the custody officer; as a result of this she was ordered to have her clothing removed, as part of a safety procedure to reduce risk factors. Two female officers, and two male officers, took the claimant into a private room. The court found that para 11(b) of Annex A allows a male officer to be involved in the management of the detained person. The essential requirement was that the removal should take place in an area where no one who was not immediately involved, and no male officer, could observe the detainee. In this case the two male officers left the cell and stayed in the corridor outside while the 14-year-old was undressed. The cell door was left ajar for security reasons but a safety blanket was used to protect the detainee’s dignity.

2.8.20

Annex B—Delay in Notifying Arrest or Allowing Access to Legal Advice

A Persons detained under PACE

1. The exercise of the rights in Section 5 or Section 6, or both, may be delayed if the person is in police detention, as in PACE, section 118(2), in connection with an indictable offence, has not yet been charged with an offence and an officer of superintendent rank or above, or inspector rank or above only for the rights in Section 5, has reasonable grounds for believing their exercise will:

  1. (i) lead to:

    • interference with, or harm to, evidence connected with an indictable offence; or

    • interference with, or physical harm to, other people; or

  2. (ii) lead to alerting other people suspected of having committed an indictable offence but not yet arrested for it; or

  3. (iii) hinder the recovery of property obtained in consequence of the commission of such an offence.

2. These rights may also be delayed if the officer has reasonable grounds to believe that:

  1. (i) the person detained for an indictable offence has benefited from their criminal conduct (decided in accordance with Part 2 of the Proceeds of Crime Act 2002); and

  2. (ii) the recovery of the value of the property constituting that benefit will be hindered by the exercise of either right.

3. Authority to delay a detainee’s right to consult privately with a solicitor may be given only if the authorising officer has reasonable grounds to believe the solicitor the detainee wants to consult will, inadvertently or otherwise, pass on a message from the detainee or act in some other way which will have any of the consequences specified under paragraphs 1 or 2. In these circumstances, the detainee must be allowed to choose another solicitor.

4. If the detainee wishes to see a solicitor, access to that solicitor may not be delayed on the grounds they might advise the detainee not to answer questions or the solicitor was initially asked to attend the police station by someone else. In the latter case, the detainee must be told the solicitor has come to the police station at another person’s request, and must be asked to sign the custody record to signify whether they want to see the solicitor.

5. The fact the grounds for delaying notification of arrest may be satisfied does not automatically mean the grounds for delaying access to legal advice will also be satisfied.

6. These rights may be delayed only for as long as grounds exist and in no case beyond 36 hours after the relevant time as in PACE, section 41. If the grounds cease to apply within this time, the detainee must, as soon as practicable, be asked if they want to exercise either right, the custody record must be noted accordingly, and action taken in accordance with the relevant section of the Code.

7. A detained person must be permitted to consult a solicitor for a reasonable time before any court hearing.

B Not used

C Documentation

13. The grounds for action under this Annex shall be recorded and the detainee informed of them as soon as practicable.

14. Any reply given by a detainee under paragraphs 6 or 11 must be recorded and the detainee asked to endorse the record in relation to whether they want to receive legal advice at this point.

D Cautions and special warnings

15. When a suspect detained at a police station is interviewed during any period for which access to legal advice has been delayed under this Annex, the court or jury may not draw adverse inferences from their silence.

2.8.20.1

Keynote

Even if Annex B applies in the case of a juvenile, 17-year-old, or a person who is mentally disordered or otherwise mentally vulnerable, action to inform the appropriate adult and the person responsible for a juvenile’s welfare if that is a different person, must nevertheless be taken as in paras 3.13 and 3.15. Similarly, for detained persons who are citizens of independent Commonwealth countries or foreign nationals the exercise of the rights in Code C, s. 7 may not be interfered with.

In cases where the person is detained under the Terrorism Act 2000 an officer of the rank of superintendent or above may delay the exercise of either right or both if he/she has reasonable grounds for believing that the exercise of the right will lead to any of the consequences of:

  • interference with or harm to evidence of a serious offence;

  • interference with or physical injury to any person;

  • the alerting of persons who are suspected of having committed a serious offence but who have not been arrested for it;

  • the hindering of the recovery of property obtained as a result of a serious offence or in respect of which a forfeiture order could be made under s. 23;

  • interference with the gathering of information about the commission, preparation or instigation of acts of terrorism;

  • the alerting of a person and thereby making it more difficult to prevent an act of terrorism;

  • the alerting of a person and thereby making it more difficult to secure a person’s apprehension, prosecution or conviction in connection with the commission, preparation or instigation of an act of terrorism;

  • the detained person having benefited from his/her criminal conduct, and the recovery of the value of the property constituting the benefit will be hindered by informing the named person of the detained person’s detention or access to legal advice. For these purposes whether a person has benefited from his/her criminal conduct is to be decided in accordance with part 2 of the Proceeds of Crime Act 2002. Briefly, criminal conduct is conduct which constitutes an offence in England and Wales, or would constitute such an offence if it occurred in England and Wales. A person benefits from conduct if he/she obtains property as a result of or in connection with the conduct (Code H, Annex B, paras 1 and 2).

When considering the delay of access to a solicitor the authorising officer must bear in mind that access to a solicitor is ‘a fundamental right of a citizen’ (R v Samuel [1988] QB 615). The authorising officer must actually believe that by allowing access to the solicitor he/she will intentionally or inadvertently alert other suspects.

Occasions where delay will be authorised in such circumstances will be rare and only when it can be shown that the suspect is capable of misleading that particular solicitor and there is more than a substantial risk that the suspect will succeed in causing information to be conveyed which will lead to one or more of the specified consequences. In deciding whether such an interview will be admissible the court will consider how reliable it is and will consider how the refusal to allow that particular detained person access to a solicitor affected his/her decision to make a confession. One such case where the confession was excluded is R v Sanusi [1992] Crim LR 43, where a person from another country was denied access to a solicitor and the court held that his right to advice was particularly significant due to his lack of familiarity with police procedures.

  1. Annex C—Restriction on Drawing Adverse Inferences from Silence and Terms of the Caution when the Restriction Applies [see chapter 2.10]

  2. Annex D—Written Statements Under Caution [see chapter 2.10]

2.8.21

Annex E—Summary of Provisions Relating to Mentally Disordered and Otherwise Mentally Vulnerable People

1. If an officer has any suspicion, or is told in good faith, that a person of any age may be mentally disordered or otherwise mentally vulnerable, or mentally incapable of understanding the significance of questions or their replies that person shall be treated as mentally disordered or otherwise mentally vulnerable for the purposes of this Code. See paragraph 1.4.

2. In the case of a person who is mentally disordered or otherwise mentally vulnerable, ‘the appropriate adult’ means:

  1. (a) a relative, guardian or other person responsible for their care or custody;

  2. (b) someone experienced in dealing with mentally disordered or mentally vulnerable people but who is not a police officer or employed by the police;

  3. (c) failing these, some other responsible adult aged 18 or over who is not a police officer or employed by the police.

See paragraph 1.7(b).

3. If the custody officer authorises the detention of a person who is mentally vulnerable or appears to be suffering from a mental disorder, the custody officer must as soon as practicable inform the appropriate adult of the grounds for detention and the person’s whereabouts, and ask the adult to come to the police station to see them. If the appropriate adult:

  • is already at the station when information is given as in paragraphs 3.1 to 3.5 the information must be given in their presence;

  • is not at the station when the provisions of paragraph 3.1 to 3.5 are complied with these provisions must be complied with again in their presence once they arrive.

See paragraphs 3.15 to 3.17.

4. If the appropriate adult, having been informed of the right to legal advice, considers legal advice should be taken, the provisions of section 6 apply as if the mentally disordered or otherwise mentally vulnerable person had requested access to legal advice. See paragraphs 3.19, 6.5A.

5. The custody officer must make sure a person receives appropriate clinical attention as soon as reasonably practicable if the person appears to be suffering from a mental disorder or in urgent cases immediately call the nearest appropriate healthcare professional or an ambulance. It is not intended these provisions delay the transfer of a detainee to a place of safety under the Mental Health Act 1983, section 136 if that is applicable. If an assessment under that Act is to take place at a police station, the custody officer must consider whether an appropriate healthcare professional should be called to conduct an initial clinical check on the detainee. See paragraph 9.5 and 9.6.

6. It is imperative a mentally disordered or otherwise mentally vulnerable person detained under the Mental Health Act 1983, section 136 be assessed as soon as possible. A police station should only be used as a place of safety as a last resort but if that assessment is to take place at the police station, an approved social worker and registered medical practitioner shall be called to the station as soon as possible to carry it out. Once the detainee has been assessed and suitable arrangements been made for their treatment or care, they can no longer be detained under section 136. A detainee should be immediately discharged from detention if a registered medical practitioner having examined them, concludes they are not mentally disordered within the meaning of the Act. See paragraph 3.16.

7. If a mentally disordered or otherwise mentally vulnerable person is cautioned in the absence of the appropriate adult, the caution must be repeated in the appropriate adult’s presence. See paragraph 10.12.

8. A mentally disordered or otherwise mentally vulnerable person must not be interviewed or asked to provide or sign a written statement in the absence of the appropriate adult unless the provisions of paragraphs 11.1 or 11.18 to 11.20 apply. Questioning in these circumstances may not continue in the absence of the appropriate adult once sufficient information to avert the risk has been obtained. A record shall be made of the grounds for any decision to begin an interview in these circumstances. See paragraphs 11.1, 11.15 and 11.18 to 11.20.

9. If the appropriate adult is present at an interview, they shall be informed they are not expected to act simply as an observer and the purposes of their presence are to:

  • advise the interviewee;

  • observe whether or not the interview is being conducted properly and fairly;

  • facilitate communication with the interviewee.

See paragraph 11.17.

10. If the detention of a mentally disordered or otherwise mentally vulnerable person is reviewed by a review officer or a superintendent, the appropriate adult must, if available at the time, be given an opportunity to make representations to the officer about the need for continuing detention. See paragraph 15.3.

11. If the custody officer charges a mentally disordered or otherwise mentally vulnerable person with an offence or takes such other action as is appropriate when there is sufficient evidence for a prosecution this must be carried out in the presence of the appropriate adult if they are at the police station. A copy of the written notice embodying any charge must also be given to the appropriate adult. See paragraphs 16.1 to 16.4A.

12. An intimate or strip search of a mentally disordered or otherwise mentally vulnerable person may take place only in the presence of the appropriate adult of the same sex, unless the detainee specifically requests the presence of a particular adult of the opposite sex. A strip search may take place in the absence of an appropriate adult only in cases of urgency when there is a risk of serious harm to the detainee or others. See Annex A, paragraphs 5 and 11(c).

13. Particular care must be taken when deciding whether to use any form of approved restraints on a mentally disordered or otherwise mentally vulnerable person in a locked cell. See paragraph 8.2.

2.8.21.1

Keynote

The purpose of allowing the detained person’s appropriate adult on the detainee’s behalf to ask for a solicitor to be called to give legal advice is to protect the rights of a mentally disordered or otherwise mentally vulnerable detained person who does not understand the significance of what is said to him/her. If the detained person wants to exercise the right to legal advice, the appropriate action should be taken and not delayed until the appropriate adult arrives. A mentally disordered or otherwise mentally vulnerable detained person should always be given an opportunity, when an appropriate adult is called to the police station, to consult privately with a solicitor in the absence of the appropriate adult if he/she wants.

Although people who are mentally disordered or otherwise mentally vulnerable are often capable of providing reliable evidence, they may, without knowing or wanting to do so, be particularly prone in certain circumstances to provide information that may be unreliable, misleading or self-incriminating. Special care should always be taken when questioning such a person, and the appropriate adult should be involved if there is any doubt about a person’s mental state or capacity. Because of the risk of unreliable evidence, it is important to obtain corroboration of any facts admitted whenever possible. For these reasons officers of superintendent rank or above should exercise their discretion to authorise the commencement of an interview in the appropriate adult’s absence only in exceptional cases, if it is necessary to avert an immediate risk of serious harm.

There is no requirement for an appropriate adult to be present if a person is detained under s. 136 of the Mental Health Act 1983 for assessment.

2.8.22

Annex F

—No longer in use, see Code C, section 7

2.8.23

Annex G—Fitness to be Interviewed

1. This Annex contains general guidance to help police officers and healthcare professionals assess whether a detainee might be at risk in an interview.

2. A detainee may be at risk in a interview if it is considered that:

  1. (a) conducting the interview could significantly harm the detainee’s physical or mental state;

  2. (b) anything the detainee says in the interview about their involvement or suspected involvement in the offence about which they are being interviewed might be considered unreliable in subsequent court proceedings because of their physical or mental state.

3. In assessing whether the detainee should be interviewed, the following must be considered:

  1. (a) how the detainee’s physical or mental state might affect their ability to understand the nature and purpose of the interview, to comprehend what is being asked and to appreciate the significance of any answers given and make rational decisions about whether they want to say anything;

  2. (b) the extent to which the detainee’s replies may be affected by their physical or mental condition rather than representing a rational and accurate explanation of their involvement in the offence;

  3. (c) how the nature of the interview, which could include particularly probing questions, might affect the detainee.

4. It is essential healthcare professionals who are consulted consider the functional ability of the detainee rather than simply relying on a medical diagnosis, e.g. it is possible for a person with severe mental illness to be fit for interview.

5. Healthcare professionals should advise on the need for an appropriate adult to be present, whether reassessment of the person’s fitness for interview may be necessary if the interview lasts beyond a specified time, and whether a further specialist opinion may be required.

6. When healthcare professionals identify risks they should be asked to quantify the risks. They should inform the custody officer:

  • whether the person’s condition:

    • ~ is likely to improve;

    • ~ will require or be amenable to treatment; and

  • indicate how long it may take for such improvement to take effect.

7. The role of the healthcare professional is to consider the risks and advise the custody officer of the outcome of that consideration. The healthcare professional’s determination and any advice or recommendations should be made in writing and form part of the custody record.

8. Once the healthcare professional has provided that information, it is a matter for the custody officer to decide whether or not to allow the interview to go ahead and if the interview is to proceed, to determine what safeguards are needed. Nothing prevents safeguards being provided in addition to those required under the Code. An example might be to have an appropriate healthcare professional present during the interview, in addition to an appropriate adult, in order constantly to monitor the person’s condition and how it is being affected by the interview.

2.8.24

Annex H—Detained Person: Observation List

1. If any detainee fails to meet any of the following criteria, an appropriate healthcare professional or an ambulance must be called.

2. When assessing the level of rousability, consider:

Rousability—can they be woken?

  • go into the cell

  • call their name

  • shake gently

Response to questions—can they give appropriate answers to questions such as:

  • What’s your name?

  • Where do you live?

  • Where do you think you are?

Response to commands—can they respond appropriately to commands such as:

  • Open your eyes!

  • Lift one arm, now the other arm!

3. Remember to take into account the possibility or presence of other illnesses, injury, or mental condition; a person who is drowsy and smells of alcohol may also have the following:

  • Diabetes

  • Epilepsy

  • Head injury

  • Drug intoxication or overdose

  • Stroke

  1. Annex I—Not used

  2. Annex J—Not used

2.8.25

Annex K—X-rays and Ultrasound Scans

(a) Action

1. PACE, section 55A allows a person who has been arrested and is in police detention to have an X-ray taken of them or an ultrasound scan to be carried out on them (or both) if:

  1. (a) authorised by an officer of inspector rank or above who has reasonable grounds for believing that the detainee:

    1. (i) may have swallowed a Class A drug; and

    2. (ii) was in possession of that Class A drug with the intention of supplying it to another or to export; and

  2. (b) the detainee’s appropriate consent has been given in writing.

2. Before an x-ray is taken or an ultrasound scan carried out, a police officer or designated detention officer must tell the detainee:—

  1. (a) that the authority has been given; and

  2. (b) the grounds for giving the authorisation.

3. Before a detainee is asked to give appropriate consent to an x-ray or an ultrasound scan, they must be warned that if they refuse without good cause their refusal may harm their case if it comes to trial. This warning may be given by a police officer or member of police staff. In the case of juveniles, mentally vulnerable or mentally disordered suspects the seeking and giving of consent must take place in the presence of the appropriate adult. A juvenile’s consent is only valid if their parent’s or guardian’s consent is also obtained unless the juvenile is under 14, when their parent’s or guardian’s consent is sufficient in its own right. A detainee who is not legally represented must be reminded of their entitlement to have free legal advice, see Code C, paragraph 6.5, and the reminder noted in the custody record.

4. An x-ray may be taken, or an ultrasound scan may be carried out, only by a registered medical practitioner or registered nurse, and only at a hospital, surgery or other medical premises.

(b) Documentation

5. The following shall be recorded as soon as practicable in the detainee’s custody record:

  1. (a) the authorisation to take the x-ray or carry out the ultrasound scan (or both);

  2. (b) the grounds for giving the authorisation;

  3. (c) the giving of the warning required by paragraph 3; and

  4. (d) the fact that the appropriate consent was given or (as the case may be) refused, and if refused, the reason given for the refusal (if any); and

  5. (e) if an x-ray is taken or an ultrasound scan carried out:

    • where it was taken or carried out;

    • who took it or carried it out;

    • who was present;

    • the result.

6. Not used.

2.8.25.1

Keynote

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

The following form of words may be used to warn a detainee who is asked to consent to an X-ray being taken or an ultrasound scan being carried out (or both):

You do not have to allow an x-ray of you to be taken or an ultrasound scan to be carried out on you, but I must warn you that if you refuse without good cause, your refusal may harm your case if it comes to trial.

Where the use of the Welsh language is appropriate, the following form of words may be provided in Welsh:

Does dim rhaid i chi ganiatáu cymryd sgan uwchsain neu belydr-x (neu’r ddau) arnoch, ond mae’n rhaid i mi eich rhybuddio os byddwch chi’n gwrthod gwneud hynny heb reswm da, fe allai hynny niweidio eich achos pe bai’n dod gerbron llys.

2.8.26

Annex L—Establishing Gender of Persons for the Purpose of Searching

1. Certain provisions of this and other PACE Codes explicitly state that searches and other procedures may only be carried out by, or in the presence of, persons of the same sex as the person subject to the search or other procedure.

2. All searches and procedures must be carried out with courtesy, consideration and respect for the person concerned. Police officers should show particular sensitivity when dealing with transgender individuals (including transsexual persons) and transvestite persons.

(a) Consideration

3. In law, the gender (and accordingly the sex) of an individual is their gender as registered at birth unless they have been issued with a Gender Recognition Certificate (GRC) under the Gender Recognition Act 2004 (GRA), in which case the person’s gender is their acquired gender. This means that if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman and they must be treated as their acquired gender.

4. When establishing whether the person concerned should be treated as being male or female for the purposes of these searches and procedures, the following approach which is designed to minimise embarrassment and secure the person’s co-operation should be followed:

  1. (a) The person must not be asked whether they have a GRC (see paragraph 8);

  2. (b) If there is no doubt as to as to whether the person concerned should be treated as being male or female, they should be dealt with as being of that sex.

  3. (c) If at any time (including during the search or carrying out the procedure) there is doubt as to whether the person should be treated, or continue to be treated, as being male or female:

    1. (i) the person should be asked what gender they consider themselves to be. If they express a preference to be dealt with as a particular gender, they should be asked to indicate and confirm their preference by signing the custody record or, if a custody record has not been opened, the search record or the officer’s notebook. Subject to (ii) below, the person should be treated according to their preference;

    2. (ii) if there are grounds to doubt that the preference in (i) accurately reflects the person’s predominant lifestyle, for example, if they ask to be treated as a woman but documents and other information make it clear that they live predominantly as a man, or vice versa, they should be treated according to what appears to be their predominant lifestyle and not their stated preference;

    3. (iii) If the person is unwilling to express a preference as in (i) above, efforts should be made to determine their predominant lifestyle and they should be treated as such. For example, if they appear to live predominantly as a woman, they should be treated as being female; or

    4. (iv) if none of the above apply, the person should be dealt with according to what reasonably appears to have been their sex as registered at birth.

5. Once a decision has been made about which gender an individual is to be treated as, each officer responsible for the search or procedure should where possible be advised before the search or procedure starts of any doubts as to the person’s gender and the person informed that the doubts have been disclosed. This is important so as to maintain the dignity of the person and any officers concerned.

(b) Documentation

6. The person’s gender as established under paragraph 4(c)(i) to (iv) above must be recorded in the person’s custody record or, if a custody record has not been opened, on the search record or in the officer’s notebook.

7. Where the person elects which gender they consider themselves to be under paragraph 4(b)(i) but, following 4(b)(ii) is not treated in accordance with their preference, the reason must be recorded in the search record, in the officer’s notebook or, if applicable, in the person’s custody record.

(c) Disclosure of information

8. Section 22 of the GRA defines any information relating to a person’s application for a GRC or to a successful applicant’s gender before it became their acquired gender as ‘protected information’. Nothing in this Annex is to be read as authorising or permitting any police officer or any police staff who has acquired such information when acting in their official capacity to disclose that information to any other person in contravention of the GRA. Disclosure includes making a record of ‘protected information’ which is read by others.

2.8.26.1

Keynote

Provisions to which paragraph 1 applies include:

  • in Code C: para. 4.1 and Annex A, paras 5, 6 and 11 (searches, strip and intimate searches of detainees under ss. 54 and 55 of the 1984 Act);

  • in Code A: paras 2.8 and 3.6 and Note 4;

  • in Code D: para. 5.5 and Note 5F (searches, examinations and photographing of detainees under s. 54A of the 1984 Act) and para. 6.9 (taking samples);

  • in Code H: para. 4.1 and Annex A, paras 6, 7 and 12 (searches, strip and intimate searches under ss. 54 and 55 of the 1984 Act of persons arrested under s. 41 of the Terrorism Act 2000).

While there is no agreed definition of transgender (or trans), it is generally used as an umbrella term to describe people whose gender identity (self-identification as being a woman, man, neither or both) differs from the sex they were registered as at birth. The term includes, but is not limited to, transsexual people. Transsexual means a person who is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of gender reassignment which is a protected characteristic under the Equality Act 2010 by changing physiological or other attributes of their sex. This includes aspects of gender such as dress and title. It would apply to a woman making the transition to being a man and a man making the transition to being a woman, as well as to a person who has only just started out on the process of gender reassignment and to a person who has completed the process. Both would share the characteristic of gender reassignment with each having the characteristics of one sex, but with certain characteristics of the other sex. Transvestite means a person of one gender who dresses in the clothes of a person of the opposite gender. However, transvestites do not live permanently in the gender opposite to their birth sex.

It is important to check the force guidance and instructions for the deployment of transgender officers and staff under their direction and control to duties which involve carrying out, or being present at, any of the searches and procedures described in para. 1. Force guidance which must be provided by each force’s Chief Officer must comply with the Equality Act 2010.

2.8.27

Annex M—Documents and Records to be Translated

1. For the purposes of Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 and this Code, essential documents comprise records required to be made in accordance with this Code which are relevant to decisions to deprive a person of their liberty, to any charge and to any record considered necessary to enable a detainee to defend themselves in criminal proceedings and to safeguard the fairness of the proceedings. Passages of essential documents which are not relevant need not be translated.

2. The table below lists the documents considered essential for the purposes of this Code and when (subject to paragraphs 3 to 7) written translations must be created and provided. See paragraphs 13.12 to 13.14 and Annex N for application to live-link interpretation.

Table of essential documents:

Essential documents for the purposes of this Code

When translation to be created

When translation to be provided.

(i)

The grounds for each of the following authorisations to keep the person in custody as they are described and referred to in the custody record:

(a) Authorisation for detention before and after charge given by the custody officer and by the review officer, see Code C paragraphs 3.4 and 15.16(a).

(b) Authorisation to extend detention without charge beyond 24 hours given by a superintendent, see Code C paragraph 15.16(b).

(c) A warrant of further detention issued by a magistrates’ court and any extension(s) of the warrant, see Code C paragraph 15.16(c).

(d) An authority to detain in accordance with the directions in a warrant of arrest issued in connection with criminal proceedings including the court issuing the warrant.

As soon as practicable after each authorisation has been recorded in the custody record.

As soon as practicable after the translation has been created, whilst the person is detained or after they have been released (see Note M3).

(ii)

Written notice showing particulars of the offence charged required by Code C paragraph 16.3 or the offence for which the suspect has been told they may be prosecuted.

As soon as practicable after the person has been charged or reported.

(iii)

Written interview records:

Code C11.11, 13.3, 13.4 & Code E4.7 Written statement under caution:

Code C Annex D.

To be created contemporaneously by the interpreter for the person to check and sign.

As soon as practicable after the person has been charged or told they may be prosecuted.

3. The custody officer may authorise an oral translation or oral summary of documents (i) to (ii) in the table (but not (iii)) to be provided (through an interpreter) instead of a written translation. Such an oral translation or summary may only be provided if it would not prejudice the fairness of the proceedings by in any way adversely affecting or otherwise undermining or limiting the ability of the suspect in question to understand their position and to communicate effectively with police officers, interviewers, solicitors and appropriate adults with regard to their detention and the investigation of the offence in question and to defend themselves in the event of criminal proceedings. The quantity and complexity of the information in the document should always be considered and specific additional consideration given if the suspect is mentally disordered or otherwise mentally vulnerable or is a juvenile (see Code C paragraph 1.5). The reason for the decision must be recorded (see paragraph 13.11(e)).

4. Subject to paragraphs 5 to 7 below, a suspect may waive their right to a written translation of the essential documents described in the table but only if they do so voluntarily after receiving legal advice or having full knowledge of the consequences and give their unconditional and fully informed consent in writing (see paragraph 9).

5. The suspect may be asked if they wish to waive their right to a written translation and before giving their consent, they must be reminded of their right to legal advice and asked whether they wish to speak to a solicitor.

6. No police officer or police staff should do or say anything with the intention of persuading a suspect who is entitled to a written translation of an essential document to waive that right.

7. For the purpose of the waiver:

  1. (a) the consent of a person who is mentally disordered or otherwise mentally vulnerable person is only valid if the information about the circumstances under which they can waive the right and the reminder about their right to legal advice mentioned in paragraphs 3 to 5 and their consent is given in the presence of the appropriate adult.

  2. (b) the consent of a juvenile is only valid if their parent’s or guardian’s consent is also obtained unless the juvenile is under 14, when their parent’s or guardian’s consent is sufficient in its own right and the information and reminder mentioned in subparagraph (a) above and their consent is also given in the presence of the appropriate adult (who may or may not be a parent or guardian).

8. The detainee, their solicitor or appropriate adult may make representations to the custody officer that a document which is not included in the table is essential and that a translation should be provided. The request may be refused if the officer is satisfied that the translation requested is not essential for the purposes described in paragraph 1 above.

9. If the custody officer has any doubts about

  • providing an oral translation or summary of an essential document instead of a written translation (see paragraph 3);

  • whether the suspect fully understands the consequences of waiving their right to a written translation of an essential document (see paragraph 4), or

  • about refusing to provide a translation of a requested document (see paragraph 7),

  • the officer should seek advice from an inspector or above.

Documentation

10. Action taken in accordance with this Annex shall be recorded in the detainee’s custody record or interview record as appropriate (see Code C paragraph 13.11(e)).

2.8.27.1

Keynote

This Annex lists the essential documents and the requirements to provide translations to reflect the terms of EU Directive 2010/64. It is not necessary to disclose information in any translation which is capable of undermining or otherwise adversely affecting any investigative processes, for example, by enabling the suspect to fabricate an innocent explanation or to conceal lies from the interviewer. No police officer or police staff shall indicate to any suspect, except to answer a direct question, whether the period for which they are liable to be detained or if not detained, the time taken to complete the interview, might be reduced:

  • if they do not ask for legal advice before deciding whether they wish to waive their right to a written translation of an essential document; or

  • if they decide to waive their right to a written translation of an essential document.

There is no power under PACE to detain a person or to delay their release solely to create and provide a written translation of any essential document.

2.8.28

Annex N—Live-link Interpretation (para. 13.12)

Part 1: When the physical presence of the interpreter is not required.

1. EU Directive 2010/64 (see paragraph 13.1), Article 2(6) provides ‘Where appropriate, communication technology such as videoconferencing, telephone or the Internet may be used, unless the physical presence of the interpreter is required in order to safeguard the fairness of the proceedings.’ This Article permits, but does not require the use of a live-link, and the following provisions of this Annex determine whether the use of a live-link is appropriate in any particular case.

2. Decisions in accordance with this Annex that the physical presence of the interpreter is not required and to permit live-link interpretation, must be made on a case by case basis. Each decision must take account of the age, gender and vulnerability of the suspect, the nature and circumstances of the offence and the investigation and the impact on the suspect according to the particular purpose(s) for which the suspect requires the assistance of an interpreter and the time(s) when that assistance is required. For this reason, the custody officer in the case of a detained suspect, or in the case of a suspect who has not been arrested, the interviewer (subject to paragraph 13.1(b)), must consider whether the ability of the particular suspect, to communicate confidently and effectively for the purpose in question (see paragraph 3) is likely to be adversely affected or otherwise undermined or limited if the interpreter is not physically present and live-link interpretation is used. Although a suspect for whom an appropriate adult is required may be more likely to be adversely affected as described, it is important to note that a person who does not require an appropriate adult may also be adversely impacted by the use of live-link interpretation.

3. Examples of purposes referred to in paragraph 2 include:

    1. (a) understanding and appreciating their position having regard to any information given to them, or sought from them, in accordance with this or any other Code of Practice which, in particular, include:

    • the caution (see paragraphs C10.1 and 10.12).

    • the special warning (see paragraphs 10.10 to 10.12).

    • information about the offence (see paragraphs 10.3, 11.1A).

    • the grounds and reasons for detention (see paragraphs 13.10 and 13.10A).

    • the translation of essential documents (see paragraph 13.10B and Annex M).

    • their rights and entitlements (see paragraph 3.12 and C3.21(b)).

    • intimate and non-intimate searches of detained persons at police stations.

    • provisions and procedures to which Code D (Identification) applies concerning, for example, eye-witness identification, taking fingerprints, samples and photographs.

  1. (b) understanding and seeking clarification from the interviewer of questions asked during an interview conducted and recorded in accordance with Code E or Code F and of anything else that is said by the interviewer and answering the questions.

  2. (c)consulting privately with their solicitor and (if applicable) the appropriate adult (see paragraphs 3.18, 13.2A, 13.6 and 13.9):

    1. (i) to help decide whether to answer questions put to them during interview; and

    2. (ii) about any other matter concerning their detention and treatment whilst in custody.

  3. (d) communicating with practitioners and others who have some formal responsibility for, or an interest in, the health and welfare of the suspect. Particular examples include appropriate healthcare professionals (see section 9 of this Code), Independent Custody Visitors and drug arrest referral workers.

4. If the custody officer or the interviewer (subject to paragraph 13.1(b)) is satisfied that for a particular purpose as described in paragraphs 2 and 3 above, the live-link interpretation would not adversely affect or otherwise undermine or limit the suspect’s ability to communicate confidently and effectively for that purpose, they must so inform the suspect, their solicitor and (if applicable) the appropriate adult. At the same time, the operation of live-link interpretation must be explained and demonstrated to them, they must be advised of the chief officer’s obligations concerning the security of live-link communications under paragraph 13.13 and they must be asked if they wish to make representations that live-link interpretation should not be used or if they require more information about the operation of the arrangements. They must also be told that at any time live-link interpretation is in use, they may make representations to the custody officer or the interviewer that its operation should cease and that the physical presence of an interpreter should be arranged.

When the authority of an inspector is required

5. If representations are made that live-link interpretation should not be used, or that at any time live-link interpretation is in use, its operation should cease and the physical presence of an interpreter arranged, and the custody officer or interviewer (subject to paragraph 13.1(b)) is unable to allay the concerns raised, live-link interpretation may not be used, or (as the case may be) continue to be used, unless authorised in writing by an officer of the rank of inspector or above, in accordance with paragraph 6.

6. Authority may be given if the officer is satisfied that for the purpose(s) in question at the time an interpreter is required, live-link interpretation is necessary and justified. In making this decision, the officer must have regard to:

  1. (a) the circumstances of the suspect;

  2. (b) the nature and seriousness of the offence;

  3. (c) the requirements of the investigation, including its likely impact on both the suspect and any victim(s);

  4. (d) the representations made by the suspect, their solicitor and (if applicable) the appropriate adult that live-link interpretation should not be used (see paragraph 5)

  5. (e) the availability of a suitable interpreter to be physically present compared with the availability of a suitable interpreter for live-link interpretation; and

  6. (f) the risk if the interpreter is not physically present, evidence obtained using link interpretation might be excluded in subsequent criminal proceedings; and

  7. (g) the likely impact on the suspect and the investigation of any consequential delay to arrange for the interpreter to be physically present with the suspect.

7. For the purposes of Code E and live-link interpretation, there is no requirement to make a visual recording which shows the interpreter as viewed by the suspect and others present at the interview. The audio recording required by that Code is sufficient. However, the authorising officer, in consultation with the officer in charge of the investigation, may direct that the interview is conducted and recorded in accordance with Code F. This will require the visual record to show the live-link interpretation arrangements and the interpreter as seen and experienced by the suspect during the interview. This should be considered if it appears that the admissibility of interview evidence might be challenged because the interpreter was not physically present or if the suspect, solicitor or appropriate adult make representations that Code F should be applied.

Documentation

8. A record must be made of the actions, decisions, authorisations and outcomes arising from the requirements of this Annex. This includes representations made in accordance with paragraphs 4 and 7.

Part 2: Modifications for live-link interpretation

9. The following modification shall apply for the purposes of live-link interpretation:

  1. (a) Code C paragraph 13.3:

For the third sentence, substitute: ‘A clear legible copy of the complete record shall be sent without delay via the live-link to the interviewer. The interviewer, after confirming with the suspect that the copy is legible and complete, shall allow the suspect to read the record, or have the record read to them by the interpreter and to sign the copy as correct or indicate the respects in which they consider it inaccurate. The interviewer is responsible for ensuring that that the signed copy and the original record made by the interpreter are retained with the case papers for use in evidence if required and must advise the interpreter of their obligation to keep the original record securely for that purpose.’;

  1. (b) Code C paragraph 13.4:

For sub-paragraph (b), substitute: ‘A clear legible copy of the complete statement shall be sent without delay via the live-link to the interviewer. The interviewer, after confirming with the suspect that the copy is legible and complete, shall invite the suspect to sign it. The interviewer is responsible for ensuring that that the signed copy and the original record made by the interpreter are retained with the case papers for use in evidence if required and must advise the interpreter of their obligation to keep the original record securely for that purpose.’;

  1. (c) Code C paragraph 13.7:

After the first sentence, insert: ‘A clear legible copy of the certified record must be sent without delay via the live-link to the interviewer. The interviewer is responsible for ensuring that the original certified record and the copy are retained with the case papers for use as evidence if required and must advise the interpreter of their obligation to keep the original record securely for that purpose.’

  1. (d) Code C paragraph 11.2 and Codes E and F, paragraph 4.4 - interviews

At the beginning of each paragraph, insert: ‘Before the interview commences, the operation of live-link interpretation shall be explained and demonstrated to the suspect, their solicitor and appropriate adult, unless it has been previously explained and demonstrated (see Code C Annex N paragraph 4).’

  1. (e) Codes E and F, paragraph 4.18 (signing master recording label)

After the third sentence, insert, ‘If live-link interpretation has been used, the interviewer should ask the interpreter to observe the removal and sealing of the master recording and to confirm in writing that they have seen it sealed and signed by the interviewer. A clear legible copy of the confirmation signed by the interpreter must be sent via the live-link to the interviewer. The interviewer is responsible for ensuring that the original confirmation and the copy are retained with the case papers for use in evidence if required and must advise the interpreter of their obligation to keep the original confirmation securely for that purpose.’

2.8.28.1

Keynote

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