This is the second post in a series of BLOGS to explicate the mysteries of the Police and Criminal Evidence Act 1984. The first post was concerned with the basic legal justification for detention in custody and the timescales of detention without charge. This post covers the various intricacies that apply to those detained —
- Rights and Entitlements
- Searches of People and Property
- Samples and Interviews
- Reviews of Detention
- Charging and Bail
- Belief and Suspicion
- Reasonable Force
RIGHTS AND ENTITLEMENTS
During the booking-in procedure, the custody officer will make the detainee aware of the grounds for their detention and then outline the person’s three main rights whilst detained. These include –
- Right to legal advice under s58 PACE – it is free of charge to exercise this right and the solicitor will usually be from the local duty solicitor scheme, unless detainees know their preferred solicitor.
- The right to intimation under s56 PACE – this is the right not to be held incommunicado.
- Right to consult the Codes of Practice to PACE – a copy of the Codes must be available in every custody suite.
It is myth and (usually US) television that furthers the myth that people have a ‘right’ to a phone call. Whilst it is usually the case that a detainee’s right to intimation is granted by allowing them to make a phone call, the police can deny or delay that right and insist upon intimation through another method. For example, if officers are going to search a person’s house after arrest, they may insist upon delaying the phone call until after the search has taken place or would inform the householder whilst undertaking the search, if the detainee wished them to do so. Likewise, a detainee’s rights under s56 and s58 of PACE may be delayed or denied by an officer not below the rank of inspector where the relevant criteria are met. There are many but they are most usually connected with the police have reasonable grounds to believe that evidence will be interfered with; other suspects alerted or their apprehension prevented; or victims and witnesses intimidated.
SEARCHES OF PEOPLE AND PROPERTY
Section 54 of PACE creates a duty on the custody officer to establish the possessions of those detained at a police station. This means that individuals may be searched but there are various extents to which a search may be authorised. A search involves an officer of the same sex undertaking a physical search of the person who may only be required to remove their outer coat, hat and gloves. If a search goes beyond that extent, it is considered a strip search and further safeguards apply, as outlined in Annex A to Code C of PACE.
A strip search can be authorised by the custody officer and must be conducted by two officers of the same sex as the detainee and involves the removal and search of all clothing. An intimate search under section 55 of PACE may be authorised by an officer not below the rank of inspector where there are reasonable grounds to believe that a person has an item that may be used for causing harm whilst in custody or is in possession of Class A controlled drugs. The search may only be carried out with consent and will usually be done by a registered medical practitioner or custody nurse at a police station or hospital.
I previously wrote a post on police powers of search, if you want more detail on this it covers powers to search premises as well as people, both within custody and without. The case of PD v Chief Constable of Merseyside Polic (2015) is also of note as it was directly concerned with searching of a mentally vulnerable 14yr old girl in police custody without waiting for an appropriate adult to attend. It concluded a legal ambiguity that had existed for some time about what, precisely, constituted a ‘search’ for the purposes of PACE.
Finally, a property owned or controlled by the person detained may be searched under section 18 of PACE on the authority of an inspector where they are under arrest for an indictable offence and where it is reasonably suspected that there is evidence of that or similar offences on the premises.
SAMPLES AND INTERVIEWS
Whilst in police custody, a range of forensic samples may be taken. Some are done as a matter of course for every detainee, such as fingerprints and DNA samples – the latter are taken every time because fingerprints can change and DNA is only taken once, for the opposite reason. Others are done only where it is evidentially relevant to the offence under investigation. Samples are categorised as intimate and non-intimate samples.
- Intimate samples include blood, dental impressions and other bodily fluids – taking of an intimate sample under section 62 of PACE must be authorised by an inspector and have the consent of the person detained.
- Non-intimate samples include hair (other than pubic hair, saliva and fingernail clippings – non-intimate samples may be taken under section 63 of PACE with the consent of the person detained or with the authority of a police inspector using reasonable force.
REVIEWS OF DETENTION
Where officers not below the rank of inspector conduct a review under s40 PACE they are required to ask again the question addressed by the custody officer when a person first arrives in custody: is there sufficient evidence to charge. If so they must direct that the person be charged. If not, they must decide whether that person’s detention remains necessary to secure and preserve evidence or obtain evidence by questioning. They may either authorise a further, nine-hour period of detention without charge or they may direct the custody officer to release the person, either with or without bail.
From time to time, the custody officer and the review officer may not agree on a these legal assessments and it can get interesting as to how they are resolved –
- Where a review officer disagrees with the custody officer about a decision that belongs to the custody officer (decision to initially detain; decision to charge or bail outside any review under s40), the matter must be referred to a superintendent for resolution and the superintendent’s decision is final.
- Where a custody officer disagrees with the review officer (decision to charge or bail in a s40 review), the inspector’s decision is final.
Reviews of detention must also have regard to whether or not people’s rights have been afforded, individuals must be reminded of their rights and afforded further opportunities to exercise them if ongoing detention requires further intimation. The inspector must also review the denial or delay of any rights and deal with any complaints raised.
CHARGING AND BAIL
Where grounds for detention cease to exist but investigations are ongoing into the alleged offence, a person may be released whilst still under investigation. The presumption is that people are just released without restriction on their lives and without use of bail, which is an obligation to return to the police station on a given date in the future. However, and where necessary and authorised, police bail may be imposed and if necessary, conditions may be fixed upon the grant of that bail. These could include requirements around residence, a curfew, a geographical exclusion or provisions relating to contact with others involved in the investigation. Failure to return to the police station at the appointed time is a criminal offence. Breaching conditions imposed on police bail means the police would consider afresh whether the investigation had progressed sufficiently to allow a person to be charged and the person could be re-arrested.
Where someone remains in custody or has returned to custody after bail, and where the custody officer or a review officer believes that there is sufficient evidence to charge and that it is in the public interest to do so, they must ensure that the grounds for detention are changed and the detainee notified of this decision. They may then continue to detain the person under section 37(7) of PACE in order to charge the person OR await a decision from the Director of Public Prosecutions as to whether or not charges will be brought against the person. In practice, the DPP’s decision is delegated to prosecutor from the Crown Prosecution Service and must be taken in accordance with statutory guidance contained in the Code for Crown Prosecutors, issued by the DPP under the Prosecution of Offences Act 1985.
Prosecution normally commences after the police or a CPS prosecutor has applied what they call the ‘Full Code Test’ which is basically, assessing all of the evidence that an investigation will gather, delaying prosecution until we are as near as possible to being ready for a trial. So for example, all the witness statements done, forensic results back, etc., etc.. Where prosecution is required in the public interest before every ‘I’ is dotted and every ‘T’ is crossed, a prosecution may commence on what we call the ‘threshold test’ – in other words, most witness statements are received and the one outstanding statement will not massively alter the view a prosecutor would take; or we are awaiting a forensic result but a prosecution is highly likely regardless of what it tells us.
BELIEF AND SUSPICION
Throughout PACE you will see phrases that involve police officers having to have ‘reasonable grounds’ to either believe or suspect something. This is not just true of police custody issues, but also of stop & search and of the making of arrests at incidents – ‘reasonable grounds to believe’ is a higher threshold than ‘reasonable grounds to suspect’. An old sergeant of mine used to say, “belief is 8 out of 10 certain; suspicion is 3 out of 10.” You can argue all day about the numbers you’d use, but you take the point, I hope?!
Finally, Section 117 of PACE is of particular importance of police officers in undertaking all of these various functions – it outlines how officers’ duties under the Police and Criminal Evidence Act 1984 allows them opportunity to use reasonable force in order to do so, except where consent is expressly required (for example, intimate searches). So whether officers are detaining someone in custody, searching them upon arrival, taking their fingerprints or other non-intimate samples; or removing them from their cell in order to take them to court after charge – all of these things may lawfully involve reasonable force by the police to ensure that they happen and there are offences that would apply to anyone who obstructs an officer from doing so or assaults them in the course of doing so.
A third post in this series of BLOGS attempts to relate all of the material in the first two posts to Mental Health Act processes in custody, with examples – I hope this helps!
Winner of the President’s Medal,
the Royal College of Psychiatrists.
Winner of the Mind Digital Media Award
All opinions expressed are my own – they do not represent the views of any organisation.
(c) Michael Brown, 2019
I try to keep this blog up to date, but inevitably over time, amendments to the law as well as court rulings and other findings from inquests and complaints processes mean it is difficult to ensure all the articles and pages remain current. Please ensure you check all legal issues in particular and take appropriate professional advice where necessary.
Government legislation website – http://www.legislation.gov.uk