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Arrest - Voluntary Assistance

The Royal Commission on Criminal Procedure (Phillips Commission) recommended the distinction between being placed under arrest on the one hand, and assisting the police voluntarily and therefore at liberty to go on the other hand should be clarified: “we would begin by emphasising that there must be no half way house between liberty and arrest”.

Section 29 of the PACE 1984 discusses those who volunteer to assist the police stating: for the purpose of assisting with an investigation a person that attends voluntarily at a police station or any other place where a constable is present or accompanies a constable to a police station any such other place without being arrested – a.      Shall be entitled to leave at will unless placed under arrest b.      Shall be informed at once that he is under arrest if a decision is taken by a constable to prevent him from leaving at will 

 The significant point is that, as Code C states “anybody attending a police station or other location voluntarily to assist an investigation may leave at will unless arrested.” The discussion for when voluntary attendees should or should not be arrested can be found in Richardson and Code C also makes it clear that volunteers “enjoy an absolute right to obtain legal advice or communicate with anyone outside the police station”.

It is also a matter of concern if anyone is placed under a pressure to voluntarily assist an investigation, as voluntary attendance is not heavily regulated by PACE. The time constraints of s. 41 do not apply until the suspect is arrested and not from when they attended. 

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Powers of Arrest

Section 24 of PACE provides for the general powers of arrest without warrant. It states that anyone who is about to commit an offence or who is in the act of committing an offence or who is guilty of an offence already committed. The police may also arrest someone who they reasonable suspect to be about to commit an offence, reasonably suspect to be committing an offence or reasonably suspect to be guilty of committing an already committed offence. The police may only arrest if they have reasonable grounds for believing it is necessary to arrest the person.  

The necessity criteria (S 24(5)) is as follows:1.  To enable the name of the person in question to be ascertained 2. b.      Correspondingly as regards the persons address

c.       To prevent the person in question: a.       Causing physical injury to himself or any other person b.      Suffering physical injury c.       Causing loss of or damage to property d.      Committing an offence against public decency e.      Causing an unlawful obstruction of the highway e.      To protect a child or other vulnerable person from the person in question     g.         To allow the prompt and effective  investigation of an offence or the conduct of the person  h.       To prevent any prosecution for the offence from being hindered by the disappearance of the person in question

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Powers of Arrest Analysis

The most significant of these is section e, which will be used in many cases to justify an arrest. Section 24 now provides that an arrest is lawful without reasonable suspicion if the arrested person turns out to be committing an offence, having committed an offence, or about to commit an offence. Which according to Sanders et al is a classic crime control norm.

It is questionable whether these necessity criteria are an effective constraint on the use of arrest powers, and recent case law has suggested that in many cases it can be very difficult to challenge the arresting officer’s decision that it was necessary. The most significant case here is Richardson v Chief Constable of West Midlands Police, where the claimant attended two different police stations voluntarily and was arrested. He claimed false imprisonment and won £1,000. Ed Cape noted “the approach of the court in Richardson does indicate that the courts will be willing to subject the reasons given for the necessity of arrest to close scrutiny.” Later on in Hayes v Chief Constable of Merseyside Police the courts reaffirmed the two stage test for the lawfulness of an arrest: 1. the subjective question of whether the police actually believed the arrest was necessary and 2. The objective question of whether there was reasonable grounds for that belief. 

There is also a power of arrest available at common law, to both the police and members of the public for breach of the peace. The court of appeal in Howell [1981] made it clear the breach must relate to violence in the sense that there could not be a breach unless an act was done, or threatened to be done which either actually harmed a person or in his presence, his property, or was likely to cause harm, or which put someone in fear of such harm being done. A police officer can arrest if a breach if occurring, imminent or likely to reoccur. Other arrest powers also exist, the Terrorism Act 2000, s 41 makes it lawful to arrest anyone reasonably suspected to be a terrorist. 

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Powers of Arrest Analysis

The most significant of these is section e, which will be used in many cases to justify an arrest. Section 24 now provides that an arrest is lawful without reasonable suspicion if the arrested person turns out to be committing an offence, having committed an offence, or about to commit an offence. Which according to Sanders et al is a classic crime control norm.

It is questionable whether these necessity criteria are an effective constraint on the use of arrest powers, and recent case law has suggested that in many cases it can be very difficult to challenge the arresting officer’s decision that it was necessary. The most significant case here is Richardson v Chief Constable of West Midlands Police, where the claimant attended two different police stations voluntarily and was arrested. He claimed false imprisonment and won £1,000. Ed Cape noted “the approach of the court in Richardson does indicate that the courts will be willing to subject the reasons given for the necessity of arrest to close scrutiny.” Later on in Hayes v Chief Constable of Merseyside Police the courts reaffirmed the two stage test for the lawfulness of an arrest: 1. the subjective question of whether the police actually believed the arrest was necessary and 2. The objective question of whether there was reasonable grounds for that belief. 

There is also a power of arrest available at common law, to both the police and members of the public for breach of the peace. The court of appeal in Howell [1981] made it clear the breach must relate to violence in the sense that there could not be a breach unless an act was done, or threatened to be done which either actually harmed a person or in his presence, his property, or was likely to cause harm, or which put someone in fear of such harm being done. A police officer can arrest if a breach if occurring, imminent or likely to reoccur. Other arrest powers also exist, the Terrorism Act 2000, s 41 makes it lawful to arrest anyone reasonably suspected to be a terrorist. 

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Street Bail

s. 30 of PACE allows police officers to bail suspects at any time prior to their arrival at a police station as long as they are satisfied that they have the correct name and address, the suspect will answer bail, not a danger to the public and they understand what is happening.

The benefits of this are obvious: it saves time transporting suspects and processing them but it has a wide discretion, and as bail decisions are complex it has been suggest perhaps an in the street police officer is not the best person to make this decision. Hucklesby believes it will be used as a bargaining tool to get information out of people.

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Elements of Arrest Under S 24 PACE

2.1 A lawful arrest requires two elements: A person’s involvement or suspected involvement or attempted involvement in the commission of a criminal offence; AND Reasonable grounds for believing that the person’s arrest is necessary. • Both elements must be satisfied, and • It can never be necessary to arrest a person unless there are reasonable grounds to suspect them of committing an offence.

2.4 The power of arrest is only exercisable if the constable has reasonable grounds for believing that it is necessary to arrest the person. The statutory criteria for what may constitute necessity are set out in paragraph 2.9 and it remains an operational decision at the discretion of the constable to decide:

• Which one or more of the necessity criteria (if any) applies to the individual; and

• if any of the criteria do apply, whether to arrest, grant street bail after arrest, report for summons or for charging by post, issue a penalty notice or take any other action that is open to the officer.

2.5 In applying the criteria, the arresting officer has to be satisfied that at least one of the reasons supporting the need for arrest is satisfied.

 

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PACE G S4

4 Records of Arrest

4.1 The arresting officer is required to record in his pocket book or by other methods used for recording information:

• The nature and circumstances of the offence leading to the arrest;

• The reason or reasons why arrest was necessary;

• The giving of the caution; and

• Anything said by the person at the time of arrest

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Reviews of Detention

PACE provides for periodic reviews of detained persons by the review officer, the timings are very specific here. The first review must take place not later than six hours after detention was first authorised, and then at intervals not longer than nine hours. Although a review may be postponed in limited circumstances, for example if the time arises during an interview which interruption could prejudice the investigation. Whilst the general rule is that a person should be not detained for longer than 24 hours, it is possible to authorise continued detention which must be given by a rank of superintendent or above who must have reasonable grounds for believing: 

a.       Continued detention without charge is necessary to secure evidence relating to the offence b.      That the offence is indictable c.       That the investigation is being conducted diligently and expeditiously

If that is the case the SI can authorise detention for a period up to 36 hours. Further detention requires a warrant from a magistrate’s court.

Section 39(1) of PACE imposes a duty on the custody officer to ensure that all persons in police detention are treated in accordance with the statute and code C. He also has a duty to inform the detainee about the rights he has whilst in custody. 

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Rights of Person in Custody

PACE s 54 allows the custody officer to carry out non-intimate searches at the police station. Intimate and strip searches can only be conducted in defined circumstances and in accordance with CODE C annex A, they can only be carried out by those of the same sex and often two officers are present. Fingerprints can only be taken without the permission of the detainee when an inspector or above authorises it. 

Where someone has been arrested and is being held in custody, the custody officer must inform the arrested person of his or her rights to have some informed of the arrest, to consult privately with a solicitor and to consult the codes of practice
Pace provides that in the case of persons In police detention for indictable offences, the exercise of these rights can be delayed in certain circumstances.
If the delay is authorised, it must be noted on the custody record and a detainee must be told for the reason of this. Even if the delay is initially authorised, the detainee must be a lot exercises right within 36 hours of the detention clock beginning to run.

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The Right to have Someone Informed upon Arrest

The detainee is entitled to have one person told about the arrest. The detainee must also be informed that letter is on calls may be monitored by the police and can be used as evidence. Brown noted that there are several reasons why the take up rate of this right are not very high:

1. Suspects may not wish anyone to know that they been arrested.

2. Family members often know the rest already.

3. Suspect see no practical benefit in contacting anyone.

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The Right to Legal Advice

PACE tries to ensure that everybody has access to justice. And also so that suspects are not ignorant of the possibility of seeking legal advice whilst in custody. Code C contains various provisions designed to ensure that the detainee is notified of the right to seek legal advice. The code stresses that the right should be explained clearly and that no police officer should do or say anything with the intention of deciding a person and attention from seeking legal advice. Section 58(1) of pace provides that the person arrested and held in custody in a police station are the premises shall be entitled, if you so request, to consult a solicitor privately at any time. Section 58 (8) sets out the circumstances in which the players committed: an officer may only authorise delay when he has reasonable grounds for believing that the exercise if the right at the time when the person detained desires to exercise it:


A. Will lead to interference with or harm to evidence connected with a serious arrest able offence or interference with it physical injury to other persons or
B. will lead to the alerting of other persons suspected of having committed such an offence but not yet arrested for it
C. Will hinder the recovery of any property obtained as a result of such an offence.
In the case of R v Samuel, the Court of Appeal interpretative section 58 strictly, and stated that the right of a person detained by the police to have access to a solicitor was a fundamental right to the citizen.

Once legal advice has been requested provided that no legitimate reasons exist for the delay the custody officer must ensure it is received promptly. 

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Right to Legal Advice Analysis

There are no national data on the rates of requests of legal advice. Thus there is uncertainty about the rate of requests for legal advice on how to change the time.  Skinns for example found Request rates is higher than 68% in one of the sites of research, however Pleasence found request weights somewhat between 40% and 52%, with notable differences between police stations in particular areas. They highlight a range of factors which might explain variations in request a rating including the seriousness of the offence, the gender of the detainee (woman are less likely to make a request), ethnicity (white British detainees are less likely to make a request) and age (Young people are the least likely to request legal advice)


Skinns found That the average time between request and receipt of advice was four hours, but many suspects think that if they refuse advice, they will get out of the police station quicker. Even if suspects do seek advice, it cannot be assumed that the standard of custodial legal advice provided is universally good. Code C makes it clear that the right to legal advice includes the rights to speak on the telephone. Sanders found that many interrogations took place without solicitors being present. This was due in part to the unavailability of solicitors, but it appeared to be far more often to the simple unwillingness of solicitors to attend. Pattenden and Skinns examined the issues of choice and privacy in relation to advice at the police station. They note that PACE does not give detainees a right to a solicitor of their choice. They argue that, looking at the jurisprudence of the European Court of human rights, the absence of toys does not violate the convention. However, in relation to the issue of privacy may argue that there are greater concerns about compliance with the Convention. They note that advice can be provided in three ways, by telephone, by telephone and face-to-face, and face-to-face only. Pace does not give a right to face-to-face advice, it specifies access and not the means. They also noted the lack of privacy may inhibit the conversations and result in advice that is misdirected. They conclude, while the denial of privacy to some suspects may be legal, we do not consider it to be fair".


Many of the employers of CDS direct on not fully qualified solicitors, the service is mainly staffed by paralegals, including former police officers. In reality the standard of custodial legal advice has long been a matter of concern. In response to these concerns a scheme for the assessment and accreditation of a non-legally qualified representatives will introduce and positively evaluated. Sanders observed that the accreditation scheme appears to have been successful in ensuring that suspects are not disadvantage when being advised by non-solicitors.

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Interviews

If the suspect is arrested somewhere other than at a police station, the suspect must not usually be interviewed about the offence until he or she arrives at a police station. The defendant should have the benefit of all the safeguards that pace and a codes of practice provide for detainees being interviewed. Code C defines an interview as the questioning of a person regarding his involvement or suspected involvement in a criminal offence or offence which, under paragraph 10.1, must be carried out under caution.

Relevant cases suggest that an objective test is applied to defining an interview, for example a conversation can count as an interview even if the police officer involved genuinely believed that he is only having an informal chat.

Code C paragraph 12 contains detailed provisions, the objective of which is to ensure that interviews in police stations are conducted in a humane manner. It is the custody officer's responsibility to decide whether the detained person is fit to be interviewed.

In any 24-hour period, detainees must be allowed a continuous period of rest of at least eight hours. Breaks from interviewing should be made at recognised mealtimes and shorter refreshment breaks provided at approximately two hourly intervals.

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Recording Interviews

An accurate record must be made of every interview which takes place. The record can be made in writing, on audio tape, or by visual recording. Audio and visual recording must be made in accordance with the relevant codes of practice. The recording should be carried out openly, to instil confidence in its reliability and impartiality, and a master copy should be sealed in the presence of the suspect. The custody officer may authorise the interviewer not to audio recorded if equipment fails or a suitable interview room is not available and on reasonable grounds of the interview should not be delayed, or if it is clear from the outset that the suspect will not be prosecuted. In these cases, the interview must be recorded in writing and the custody officer must make notes of the specific reasons for not audio recording.  Research shows that despite the availability of recordings what appears to happen instead is that defendants and prosecutors rely on the summary of said recordings, whose quality can vary greatly. Baldwin examined interview summaries from four different police forces and concluded that in less than one third of cases could the summaries be said to form an accurate and succinct record of the interview.

Baldwin also identified a number of principle flaws in the way in which interviews are carried out. Firstly general ineptitude as the police are generally not the professional and skilled interviews which are normally desired. Officers also tend to assume the suspect is guilty and interrogate with an eye to a subsequent trial, so that the main purpose of the interview is to tick the boxes by seeking to limit, close down, or pre-empt the future options available to the suspect, to make it more likely that conviction will be obtained.

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Right to Silence

A right which is allied to 2 fundamental principles of criminal law, the presumption of innocence which requires that the prosecution must prove the guilt of the accused, and the principle that the accused should not be put under pressure to incriminate himself. In the 1970s, it was suggested that the right to silence be modified to allow juries to draw adverse inferences from silence during interrogation. However both the Philips commission and the Runciman Commission opposed this. They saw the right to silence as an essential safeguards of the week, immature, and then inadequate. Despite this the government decided to amend the right of silence in the criminal Justice and Public order act 1994, section 34, of which provides that where, during questioning, either by the police or by other officials who have a duty to investigate offences, before or after being charged, the defendant fails to mention a fact which the defendant wishes to rely on in his or her defence and it is a fact which the defendant could reasonably have been expected to mention, then a court and jury may draw such inferences from the failure as appear proper.

In an early study looking at the impact of these revisions, Bucke, found that the number of suspects exercising their right to silence fell under the new rules. He also found that there was no significant rise in the number of suspects requesting legal advice.

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Right to Silence and the ECtHR

It was speculated that the inferences from silence provisions in the CJPOA 1994 might fall foul of article 6 of the European convention on human rights. Although it is now clear that the provisions will not be declared incompatible with article 6, Strasbourg and domestic case law have restricted the operation of section 34. In Murray v UK, The European Court of human rights has held at inferences from silence provisions do not themselves breach of the Convention, but seeking to find a conviction solely or mainly on such inferences would be a breach. In Condron v UK the Court made a further ruling about the conditions under which an inference can be drawn. The court ruled that inferences could only be drawn if the facts as established by other evidence clearly called for an exclamation from the accused. Furthermore the Jory must be directed that they may draw an inference from the accused silence in interview only if satisfied that the reason for silence was that he accused had no answer to the questions or none that he or she was prepared to give.

 In Howell (2003) the court of appeal said that solicitors might be encouraged to give advice to remain silent other than for good object of reasons. Following this case, it would appear that, if the court thinks that the legal advice to remain silent was not based on good objective reasons, the defendant may be exposed to adverse inferences even where the defendant genuinely relied on that bad advice. In Hoare and Pierce (2005) it was held that reliance on the advice of a solicitor to remain silent was not in itself enough to prevent adverse inference being drawn. This case confirmed that the test is an objective one of whether it was reasonable for the defendant to rely on the solicitor’s advice taking into account all the circumstances of the case.

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Confessions

The main safeguards against pre**ures to falsely confe** are ** 76 and 78 of pace which provide for the exclusion of evidence in certain circumstances. Section 76 deals specifically with confe**ion evidence, and provides face exclusion when it is a dean obtained by oppre**ion of the person who made it, or in consequence of anything said or done which was likely, in the circumstances existing at the time, to render it unreliable. Section 78 is a more general provision, apply not only to confe**ions, but also to other types of evidence. Under section 78, the court has a discretion to exclude evidence where:

Having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admi**ion of the evidence would have such an adverse effect on the fairne** of the proceedings and that the court ought to not admit it.
This safeguard has appeared to be inadequate however according to Choo and Nash (1999). In a number of cases, the admi**ibility of evidence has been in question because of incompetent police station advice. In more than one case the court has found evidence inadmi**ible because of the defence lawyer’s hostility, in another case the overall deficiencies of the defence lawyer were so bad, that the court concluded that effectively had been denied acce** to a lawyer. Although section 78 and 76 can primarily be seen as imperfect safeguards against police malpractice, they can also be used to exclude confe**ions to Due to actions of the defendants own advisors.

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PACE CODE C S 3

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 the following continuing rights which may be exercised at any stage during the period in custody:

(I) the right to have someone informed of their arrest as in section 5;

(ii) The right to consult privately with a solicitor and that free independent legal advice is available as in section 6;

(iii) The right to consult these Codes of Practice.

Note: The detainee shall be asked to sign the custody record to acknowledge receipt of

These notices. Any refusal must be recorded on the custody record.

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.

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PACE CODE C S5.1 & 6.1 & 6.4

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.

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.

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.

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PACE CODE C S 10.1

10.1 A person whom there are grounds to suspect of an offence, see Note 10A, must be cautioned before any questions about an offence, or further questions if the answers provide the grounds for suspicion, are put to them if either the suspect’s answers or silence, (i.e. failure or refusal to answer or answer satisfactorily) may be given in evidence to a court in a prosecution. A person need not be cautioned if questions are for other necessary purposes, e.g.:

(a) Solely to establish their identity or ownership of any vehicle;

(b) To obtain information in accordance with any relevant statutory requirement, see

Paragraph 10.9;

(c) In furtherance of the proper and effective conduct of a search, e.g. to determine the need to search in the exercise of powers of stop and search or to seek co-operation while carrying out a search; or

(d) To seek verification of a written record as in paragraph 11.13.

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