Detention and Interrogation
The legal framework for treating suspects at police stations is dealt with in PACE 1984 and the Codes of Practice especially C.
Volunteers- a member of the public can voluntarily assist the police with their investigation. The volunteer must be cautioned, told that they are not under arrest, they are free to leave whenever they wish and that they are free to obtain independent legal advice.
Arrest and arrival at police station- the suspect will be taken to the custody suite and booked in by the custody officer who plays an important role in ensuring that the rights of the suspect are complied with and should remain impartial. He is responsible for compiling the custody record which should be opened as soon as reasonably practicable and should be opened to inspection by the suspect's legal adviser. It is of great evidentiary value as it must record all aspect of the suspect's detention including reason for arrest and detention, reviews, medical advice, meals and refreshments. Also legal advice about detention should also be recorded in the custody record. The custody officer will search the suspect and record what is retained in the custody record.
On arrival at the police station the suspect has a right to have someone informed of his arrest, free and independent legal advice and to consult the Codes of Practice.
Is there sufficient evidence to charge: The custody officer and the CPS lawyer must decide whether there is enough evidence to charge the suspect. The Criminal Justice Act 2003 governs the procedure of charging a suspect at the police station. The options are that they are:
- Released without charge and on bail or kept in police station pending a decision by the director of public prosecutions
- Released without charge and on bail but not to allow for enquiries to continue- bail can be conditional and breach could lead to an arrest. If bail conditions are onerous, then the legal adviser can negotiate them with the police
- Released without charge and without bail
Detention without Charge
This will happen where the custody officer believes that this is necessary to preserve evidence relating to the offence or to obtain evidence by questioning. Where the decision is made to detain without charge then this should be noted on the custody record. Normally the reasons are to interview more witnesses or to undertake searches.
There is an initial detention period without charge of 24 hours which begins from the time the suspect arrives at the police station which must be noted on the custody record. At the end of this 24 hour period the suspect must be charged or released on bail. The 24 hour period can be extended to 36 hours where the provisions of s 42(1) PACE 1984:
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Senior officer of at least rank of superintendent authorises it and has reasonable grounds for believing that it is necessary to detain the suspect to preserve evidence or to obtain evidence by questioning and that the investigation is being carried out diligently. Where the police wish to detain the suspect beyond 36 hours, an application must be made to the magistrate's court for a warrant of further detention under s 43 PACE 1984. This can be further extended by 24 hours making the total detention time 96 hours from arrival at police station. At the end of the 96 hour period the suspect must either be charged or released on bail.
Obligation to review suspect's detention
Periodic reviews of the suspect's detention is mandatory and must be recorded by the police on the custody record. If the suspect has not been charged the officer must be of at least the rank of inspector whose role is to ensure that the detention is lawful. The first review should be conducted 6 hours after detention and nine hours thereafter.
Rights of the suspect whilst in custody
Right to legal advice in private (s 58 PACE 1984)
The Police Station Advice and Assistance Scheme administered by the Legal Services Commission enables the suspect to have Free Legal Advice. Advice may be given on the phone for mainly minor offences although attendance of a legal adviser is required where the suspect is vulnerable due to alleged maltreatment or language requirements.
All suspects must be told that they have access to free legal advice and any request for legal advice must be noted on the custody record. Where the suspect has access to legal advice, the legal adviser must be present during the interview and the interview can be interrupted to confirm legal advice. There are some circumstances in which the circumstances can be delayed in accordance with s58 (8). This is when the suspect has been arrested in relation to an indictable offence and the officer of at least the rank of suprintendant has authorised the delay on the basis that legal advice will lead to interference or harm of evidence, alerting other suspects not yet arrested or hinder the recovery of any property obtained as a result of such an offence. The reason for delay must be noted in the custody record.
The European Court of Human Rights has asserted the suspects right to legal advice in the following cases Murray v UK (1996) 22 EHRR 29 and Condron v UK (2001) 31 EHRR 1
Right to an appropriate adult if you are vulnerable (Code C)
The custody's officer risk assessment when the suspect arrives at the police station should identify those that are vulnerable which include juveniles or those under the age of 18. The main right of the vulnerable suspect is their right to have an appropriate adult present at the police station. The custody officer must inform the appropriate adult as soon as possible and as that they attend the police station. The appropriate adult is likely to be a parent, guardian or social worker and is there to protect the rights of the suspect.
Right to medical advice (Code C)
Detainee must have the appropriate medical attention if they appeared to be injured or are suffering from a physical or mental condition.
Right to basic human rights ( food, sleep, refreshments) (Code C)
The suspect has the right to have an adequately heated and ventilated cell whilst in custody as well as toilet facilities. Their dietary needs must be taken into consideration when they are fed at least two light meals in any 24 hour period. They must also be allowed at least eight hours rest within a 24 hour period free from questioning.
The Police Interview
The police investigation will include interviewing the suspect and other witnesses in order to decide whether they will be charged for the offence. It can be an intimidating process any suspects may feel pressured to admitting to crimes that they have not committed. All interviews must generally be held at the police station and if held elsewhere contemporaneous written notes must be kept. An interview should cease where the investigating officer is satisfied that all relevant questions have been put to the suspect taking into account all available evidence and that there is sufficient evidence to provide realistic prospect of conviction.
At the beginning of the interview the suspect must be cautioned and reminded of the caution after any breaks in interviewing. An alternative caution stating, ‘You do not have to say anything. But anything you do say may be given in evidence', is givenwhere a suspect is denied a solicitor or is interviewed after charge.
A fair interview should not be conducted in an oppressive manner which includes torture, inhumane and degrading treatment or the use of threats or violence. Any significant statement the suspect made e.g. during arrest, must be put to them at the start of the interview. Before the interview, the custody officer must decide whether the suspect is fit to be interviewed especially if drunk or under the influence of drugs. An appropriate health care professional may be consulted to determine fitness. The role of the legal adviser during interview is to advance the legal rights of their client and solicitor may intervene to clarify or challenge improper questioning.
The interview as a result of an indictable or either way offence must be recorded. The recording is normally made on two tapes, one is a working copy and another sealed. A transcript is normally produced from the working copy. The defence has a right to as for a copy of the tape in order to check the accuracy of the transcript.
After the interview the police must decide whether or not to charge the suspect and this is normally made by the CPS. The issuance of a written charge at the police station signals the commencement of criminal prosecution and the accused would be asked to attend the magistrates' court for a first hearing. You may seek to persuade the custody officer to offer your client a caution instead. In exceptional circumstances the suspect may be questioned after charge for instance to prevent harm or loss to some other person or clear up ambiguity in a previous answer. Again the suspect must be cautioned.
After the suspect has been charged the decision has to be made whether to release him on bail pending his appearance in the magistrates' court. Bail can be refused on the following grounds:
- The custody officer believes that the suspect will fail to attend court
- The detention of the suspect is necessary for preventing him from committing another offence
- Detention is necessary to prevent physical injury to another person or damage to property
- Detention is necessary for his own protection
Instead of denying bail, conditions may be attached including conditions of residence reporting to the police station and curfews. You may make appropriate representation to the custody officer as to which condition would best fit your client.