Police Powers

Question 1

What happens following an arrest?

Answer 1

• being searched;
• being taken to premises being searched; or
• being taken to a place to check their alibi.

The person can be taken to any police station unless it is anticipated that they will be detained for more than 6 hours, in which case, the person must be taken to a designated police station.

Instead of being taken to a police station, the person arrested can be granted bail to attend a police station at a later date. This is referred to as ‘street bail’. Conditions can be attached to the bail.

Question 2

What happens at the police station?

Answer 2

• The detainee will see the custody officer who must authorise continued detention.
• The detainee will be informed of their rights.
• The detainee will have certain non-intimate samples taken.
• The detainee may see the appropriate healthcare professional if necessary.
• If the detainee requests, they will speak to a solicitor.
• The detainee may be interviewed, often with their solicitor present.
• After the interview, the detainee may be:
• released under investigation or on police bail;
• charged and released on police bail to appear at the magistrates’ court at a later date; or
• charged and remanded in police custody to appear at the magistrates’ court on the following day.

Question 3

What does the custody officer do?

Answer 3

The custody officer:

• is responsible for the handling and welfare of suspects in detention at the police station
• must be a police officer of the rank of at least sergeant.
• must be unrelated to the process of the investigation of the offence.

The procedure that should be followed by the custody officer upon arrival at the police station of the detainee is governed by s. 37 PACE and Code of Practice (COP) C 2, 3 and 4.

The reason for arrest must be explained to the custody officer, who can then authorise detention of the person arrested. The custody officer must order the release of the person detained if the custody officer becomes aware that the grounds for detaining the person have ceased to exist. A person can only be detained at the police station on the authority of the custody officer, and may be released only on the custody officer’s authority.

If the custody officer is not available, their role may performed by another officer, though that officer must not normally be involved in the investigation of an offence for which the person is in detention.

Question 4

What protocol does the custody officer follow?

Answer 4

The custody officer will firstly determine whether or not there is sufficient evidence to proceed to charge the detainee. If not, then the arrested person must be released unless there are reasonable grounds for believing that detention is necessary to:

• secure or preserve evidence; or
• obtain such evidence by questioning.

If there are grounds to detain, the custody officer will then:

• authorise detention of the suspect;
• open a custody record;
• inform the detainee of the reason for their arrest;
• inform the detainee of the reason for their detention; and
• advise the detainee of their rights.

The custody officer is responsible for the welfare of each detainee. Additional duties include:

• Conducting a risk assessment procedure for each detainee.
• Making special arrangements, if necessary, for detainees who may be physically or mentally incapacitated.
• Arranging for interpreters to be present, where appropriate.
• Dealing with a detainee’s property.
• Contacting healthcare professionals, if needed.

The role of the custody officer is a vital one. The custody officer is responsible for ensuring that a detained person is treated in accordance with the provisions of the Codes of Practice. Custody officers are well aware that if there are any procedural flaws in the detention process, the result might be the subsequent exclusion of evidence and that ultimately it is they who can be held accountable.

Question 5

What does the custody record contain?

Answer 5

A separate custody record must be opened as soon as practicable for each detainee whether a person is brought to the police station under arrest, or arrested at the police station, or surrenders voluntarily at the police station, or surrenders to bail at the police station. All information required to be recorded under COP C must be recorded on the custody record.

Basic information to be recorded must include:

• the requirement to inform the person of the reason for their arrest;
• the circumstances of the arrest;
• why the arrest was necessary; and
• any comments made by the arrested person.

It is essential that the solicitor attending the police station view this record as it should contain everything that has happened to, been said to or been said by the detainee. A solicitor has the right to consult their client’s custody record as soon as practicable after arrival at the police station and at any time while their client is still detained.

Question 6

When do reviews of detention take place?

Answer 6

Reviews of detention must be carried out during the detention of a suspect (s.40 PACE). The review officer must be satisfied that the detention is still necessary. They must therefore consider whether the grounds for the detention, as authorised by the custody officer under s.37, still exist. The review officer must be an officer of at least the rank of inspector who is not connected with the investigation of the offence and is not the custody officer.

Section 40 stipulates that the first review of the suspect’s detention will take place not more than six hours after the suspect’s detention was first authorised by the custody officer and then periodically every nine hours thereafter.

At the time of the review, the detained person must be reminded of their right to free legal advice, and be given the right to make representations unless they are unfit to make such representations or asleep at the time of the review.

Question 7

What are the detention time limits?

Answer 7

Under s.41 PACE, the maximum period that a suspect can be kept in custody, before being charged, is 24 hours from the ‘relevant time’.

In most cases, where the arrest has taken place within the particular police area, the relevant time begins at the moment the suspect arrives at the police station. The relevant time is indicated on the custody record.

Do not confuse the relevant time with the time detention is authorised, as they will generally be different.

Before the 24 hour limit on detention has expired the suspect must either be charged or released.

Question 8

When can the police extend detention beyond 24 hours?

Answer 8

Authority

Section 42 PACE allows for detention to be extended for a further 12 hours, taking the maximum period of detention in the police station to 36 hours calculated from the relevant time.

Criteria

Section 42 specifies that for detention to be extended:

• an officer of at least the rank of superintendent must authorise the continued detention;
• the superintendent or above has reasonable grounds for believing detention is necessary to secure or preserve evidence or obtain evidence by questioning;
• the offence must be an indictable offence; and
• the investigation must be being conducted diligently and expeditiously.

Question 9

When can the police extend detention beyond 36 hours?

Answer 9

If the police want to detain beyond 36 hours then they must apply to the magistrates’ court for a warrant of further detention under ss.43 and 44 PACE.

The warrant may authorise continued detention for a further 36 hours on a first application and 36 hours (up to a maximum of 96 hours) on a second application.

The same criteria apply as under s.42 and ss.43 and 44 stipulate that:

• the magistrates’ court is satisfied that there are reasonable grounds for believing further detention is necessary to secure or preserve evidence or obtain evidence by questioning;
• the offence must be an indictable offence; and
• the investigation is being conducted diligently and expeditiously.

Question 10

What rights does a suspect have in detention?

Answer 10

The custody officer must make sure that a person arrested and taken to a police station or attending a police station voluntarily is told clearly about the following continuing rights which may be exercised at any stage during the period in custody:

• the right to consult privately with a solicitor and the availability of free independent legal advice;
• The right to have someone informed of their arrest; and
• The right to consult the Codes of Practice (COP).

There are also circumstances in which there is a right to an appropriate adult and/ or an interpreter.

Question 11

When does the suspect have the right to consult a solicitor?

Answer 11

The right under s.58 PACE is the fundamental right to free and independent legal advice. This includes consulting with a solicitor either in person, on the telephone, or in writing.

The person detained must be told again of the right to free legal advice immediately before:

• the commencement or recommencement of an interview;
• being asked to provide an intimate sample;
• an intimate drug search;
• an identification parade or video identification procedure.
• If legal advice is declined, that should be noted on the custody record.
• Where legal advice is sought, it must be provided as soon as is practicable.
• Police should usually await the arrival of a solicitor/ legal representative before beginning an interview.
• Nothing should be done to dissuade the suspect from obtaining legal advice.
• If a detained person initially declined legal advice but subsequently changes their mind then the interview should cease and can recommence once the detainee has exercised their right to seek legal advice.

Question 12

When can the right to a solicitor be detained?

Answer 12

In order to delay the right in accordance with s.58 (see also COP C Annex B):

• the person must be in detention for an indictable offence; and
• the authority to delay the exercise of the right must be granted in writing by a police officer of at least the rank of superintendent; and
• the superintendent must have reasonable grounds to believe that the exercise of the right will lead to any or all of the following consequences:
• interference with/harm to evidence connected with an indictable offence;
• interference with/harm to others;
• alerting of other people suspected of committing an indictable offence but not yet arrested for it; and /or
• hinder the recovery of property obtained in consequence of the commission of such an offence.

This right can only be delayed up to a maximum of 36 hours.

If the suspect is interviewed before he has been able to consult with a solicitor because this right has been delayed, then there are restrictions on the drawing of adverse inferences at court. Adverse inferences will be dealt with in other elements.

The right might also be delayed if the person has been detained for an indictable offence and has benefited from their criminal conduct i.e. they have obtained property which they might take steps to try to conceal, such as moving the property outside the jurisdiction. This is property that upon conviction might be confiscated by virtue of the Proceeds of Crime Act 2002 (‘POCA’).

Authority to delay may only be given if there are grounds to believe that the solicitor might pass on a message or act in some other way that would lead to the consequences mentioned previously. But although this suggests that, on rare occasions, the police might be justified in delaying access to a named solicitor if the grounds can be made out, this would not usually provide justification to delay the right to legal advice generally and the suspect must be allowed to choose an alternative solicitor.

Question 13

When can the right to have someone informed of the arrest be delayed?

Answer 13

Section 56 PACE provides that an arrested person has the right to have a friend, relative or other person told that they are under arrest.

This right, to have one person known to them or likely to take an interest in their welfare informed of their whereabouts as soon as is practicable, is at public expense.

The right can be exercised every time the suspect is taken to a different police station.

Power to delay the right

Authority - This right can only be delayed if the necessary criteria are met under s.56 PACE.

Criteria - In order to delay the right:

• the person must be in detention for an indictable offence (an offence that may be tried in the Crown Court i.e. indictable only and either way offences); and
• the authority to delay the exercise of the right must be granted in writing by a police officer of at least the rank of inspector; and
• the inspector must have reasonable grounds to believe that the exercise of the right will lead to any or all of the following consequences:
• interference with/harm to evidence connected with an indictable offence;
• interference with/harm to others;
• alerting of other people suspected of committing an indictable offence but not yet arrested for it; and /or
• hinder the recovery of property obtained in consequence of the commission of such an offence.
• The right might also be delayed if the person has been detained for an indictable offence and has benefited from their criminal conduct, i.e. obtained property which the person might take steps to try to conceal, such as moving the property outside the jurisdiction. This is property that upon conviction might be confiscated by virtue of POCA.

Exercise

• It is easier to justify the delay under s.56 than it is under s.58. Often the police may want to search a suspect’s property and will not want anyone ‘tipping off’ so that evidence can be disposed of before they get there.
• However, any delay or denial of the rights in this section should be proportionate and should last no longer than necessary. In any event, the exercise of this right can only be delayed up to a maximum of 36 hours. Therefore, as soon as the search has been conducted or other suspects arrested the appointed person should be notified.

Question 14

Who has the right to an appropriate adult?

Answer 14

If a person is, or appears to be, under 18, they must have an appropriate adult present at the police station.

The right to an appropriate adult also applies to anyone whom a police officer suspects may be:

• mentally disordered or otherwise mentally vulnerable;
• anyone whom an officer has been told in good faith may be mentally disordered or otherwise mentally vulnerable.

Question 15

Who can act as an appropriate adult?

Answer 15

In the case of a young detainee, the appropriate adult is defined as:

• a parent; or
• a guardian; or
• in the case of a young person looked after under the Children Act 1989:
• a representative of the care authority or voluntary organisation; or
• a social worker.

Failing these, any person aged 18 or over who is not a police officer or police employee suffices.

In the case of a detainee who is mentally disordered or otherwise mentally vulnerable, the appropriate adult can be:

• a parent; or
• a guardian; or
• a relative; or
• someone who has experience in dealing with such persons.

The appropriate adult must be 18 or over and must not be a police officer or police employee.

Question 16

Who cannot act as an appropriate adult?

Answer 16

A solicitor/ legal representative attending the police station for the suspect should not act as the appropriate adult.

A person cannot act as an appropriate adult if they are:

a) suspected of involvement in the offence;

b) the victim of, or a witness to, the offence;

c) involved in the investigation;

d) a person who has received admissions from the person detained before acting as appropriate adult;

e) of low IQ and unable to appreciate the gravity of the situation; or

f) an estranged parent whom an arrested juvenile does wish to attend and specifically objects to.

Question 17

The role of the appropriate adult:

Answer 17

a) ensure that the detained person understands what is happening and why;

b) support, advise and assist the detained person;

c) observe whether the police are acting properly and fairly and to intervene if they are not;

d) assist with communication between the detained person and the police; and

e) ensure that the detained person understands their rights and that those rights are protected and respected.

Question 18

Proceeding without an appropriate adult

Answer 18

A young or mentally disordered or vulnerable detainee should not be interviewed or asked to provide a written statement without the presence of an appropriate adult unless delay would be likely to lead to:

• interference with or harm to evidence connected with an offence;
• interference with or physical harm to other people;
• serious loss of or damage to property;
• alerting other suspects not yet arrested; or
• hindering the recovery of property obtained in consequence of commission of the offence.

Question 19

The right to an interpreter

Answer 19

Where the custody officer has determined that a suspect requires an interpreter, that suspect must not be interviewed without an interpreter unless authorisation is given by an officer of the rank of superintendent or above who is satisfied that delaying the interview will lead to:

• interference with, or harm to, evidence; or
• interference with or physical harm to other people; or
• serious loss of, or damage to, property.

Question 20

Treatment of suspects in a police station

Answer 20

COP C 8 gives details on conditions of detention which include:

• so far as practicable, not more than one detainee should be detained in each cell;
• cells must be adequately heated, cleaned and ventilated;
• bedding must be supplied;
• toilet and washing facilities made available;
• if a detainee’s clothes have been removed, replacement clothing of a reasonable standard shall be provided; and
• two light meals and one main meal should be provided every twenty-four hours.

Question 21

What is a caution?

Answer 21

Interviews must be carried out under caution, therefore a person must be cautioned before they are asked any questions about their suspected involvement in the commission of an offence.

The person should be cautioned again at the recommencement of an interview after a break.

The words of the caution are:

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

Question 22

What is the order of police rankings?

Answer 22

Statutory powers often require authority from a particular police rank, so it is important to understand the rankings:

• Constable
• Sergeant
• Inspector
• Chief Inspector
• Superintendent
• Chief Superintendent

There are also detectives in the Criminal Investigation Department (‘CID’) who follow the same ranking system e.g. Detective Chief Superintendent or Detective Sergeant.

Question 23

What is the role of the investigating officer?

Answer 23

• can be a police officer of any rank;
• is usually the officer who is in charge of investigating that particular offence, also referred to as the ‘Officer In the Case’ (‘OIC’);
• is the officer the suspect’s legal representative would speak to at the police station to obtain pre-interview disclosure;
• will most likely lead the interview.

Question 24

Where can an interview take place?

Answer 24

Where an officer has decided to arrest a person, that person should be interviewed at a police station or other authorised place of detention.

The requirement that an interview be conducted at a police station is subject to exceptions, where delay would be likely to:

• Lead to interference with or harm to evidence connected with an offence;
• Lead to interference with or physical harm to other persons; or
• Lead to serious loss of, or damage to, property; or
• Lead to the alerting of other persons suspected of having committed an offence but not yet arrested for it; or
• Hinder the recovery of property obtained in consequence of the commission of an offence.

Question 25

Is there a right to disclosure before / in the interview?

Answer 25

There is no general ‘right to disclosure’ with the exception of:

• a significant statement (see next below); and
• the custody record.

However, PACE COP C 11.1A states that before interview a:

‘… solicitor must be given sufficient information to enable them to understand the nature of any such offence and why they [the client] are suspected of committing it.’

At the beginning of an interview, but after caution, any significant statement made by the person interviewed in the presence of a police officer or member of police staff must be put to them.

A significant statement is one that appears to be capable of being used in evidence, and in particular any direct admission of guilt (i.e. a confession).

Question 26

Are interviews recorded?

Answer 26

The general rule is that all interviews must be contemporaneously recorded.

Interviews under caution for any indictable offence must be audio recorded.

An exception exists to the general rule. The interview can be recorded in writing where:

• it relates to some minor offences;
• the person has not been arrested; and
• it takes place other than at a police station.

Question 27

How is fitness for interview determined?

Answer 27

Generally, no person should be interviewed if they are unable to:

• appreciate the significance of the questions asked and their answers; or
• understand what is happening because of the effects of drink, drugs or any illness, ailment or condition.

However, an officer of the rank of Superintendent can authorise an interview in these circumstances.

Question 28

What should the solicitor do before the interview?

Answer 28

The solicitor should:

• Obtain pre-interview disclosure; and
• Have an opportunity for a private consultation with their client to:
• Discuss the case; and
• Advise the client on their options for the interview.

Question 29

What constitutes a properly conducted interview?

Answer 29

• Takes place in an interview room in a designated police station;
• Is recorded;
• Is in the presence of a lawyer, if the suspect has exercised their right under s 58 Police and Criminal Evidence Act 1984;
• Gives the client the option to suspend the interview and have further consultations with their solicitor.

Question 30

When might a solicitor intervene during an interview?

Answer 30

• information or evidence is referred to or produced that was not disclosed before the interview;
• clarification on any matter is required at any time;
• there is inappropriate questioning (see below);
• there is inappropriate behaviour;
• further advice to the client is needed;
• a break is required; or
• the circumstances require.

Question 31

What kind of questioning can be asked at an interview?

Answer 31

It is important to note that the purpose of an interview is to gather evidence. It is therefore necessary to step in where officers use inappropriate questioning techniques.

Examples of inappropriate questioning include:

• Misrepresenting information, such as upgrading responses, misrepresenting key items of information or inaccurate summarising;
• Hypothetical questions;
• Repetitive questioning; or
• Disruptive listening, such as not listening to your client’s response, or assuming knowledge of your client’s response before your client answers or finishes their answer.

Question 32

What kinds of confessions are there?

Answer 32

The evidential starting point for confessions is that they are admissible. However:

• Section 76(2) PACE 1984 sets out circumstances when a confession can be excluded from evidence as a result of ‘oppression’ or ‘unreliability’.
• Section 78 PACE 1984 gives the court the discretion to exclude evidence that ‘would have such an adverse effect on the fairness of proceedings that the court ought not to admit it’.

Question 33

What is 76(2) PACE 1984?

Answer 33

• Oppression is ‘torture, inhuman or degrading treatment, or the use or threat of violence’ (s 76(8)). The oppression must have caused the confessio
• Unreliability means the confession was obtained as the result of something said or done which renders it unreliable. This might include breaches of PACE including how the interview was conducted. Again, the thing said of done must have caused the confessions unreliability.
• The existence of either oppression or unreliability does not automatically exclude such evidence, instead the court must grant the defence’s application.

Question 34

What is s 78 PACE 1984?

Answer 34

• Section 78 may be used to exclude any evidence upon which the prosecution seeks to rely (in contrast to section 76 which can only be used in relation to confessions).
• Section 78 can also be used to exclude confessions where there is no suggestion that either limb of section 76(2) has been breached.