Powers of the Police to detain and question

Notes on police powers to detain and question, application unit

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  • Created by: Jem
  • Created on: 06-05-13 10:32

Detention and Question

·         S.30 PACE: Requires police to take arrestee to a police station as soon as is practicable after the arrest and hand over to custody officer
·         S.36 PACE: Created role of Custody officer-has supervisory and decision making role in detention of suspects.
·         S.37 PACE: Contains Procedural safeguards for arrestee, custody officer should decide if suffionce detention cient evidence to charge suspect with offence arrested for
·         S.38 PACE: Allows Custody Officer to make award of bail
·         Code C, S.37: Custody Officer must begin custody record for                      suspect authorised-record must include reasons for detention

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Detention and Question

·         S.54: Allows for general search of arrestee at police station, record must be given
·         S.55: Allows for more intimate search, search of any bodily orifice excluding the mouth (mouth is not intimate).  Intimate search only permitted if authorised by an inspector who has reasonable grounds for believing suspect may be carrying dangerous article/Class A drugs.  Search must be carried out by medical practitioner/nurse of same sex unless it’s not practicable to wait, in which case police officer of the same sex may carry out search
·         Suspect is ‘booked in’ once at police station

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Detention and Questioning

·         Code C para 3.1: Custody officer must inform suspect orally and written notice of 5 rights on arrival at police station; Right to inform someone of their detention, right to consult a solicitor, samples may be used to identify them, right to consult Codes of Practice C and E and right to silence as is embodied in caution
·         Code C: Custody Office must secure detainee’s signature in custody record acknowledging that he understands his rights
·         S.56 PACE: Allows suspect to inform friend/relative/person interested in their welfare of arrest and station being held at.  If offence is indictable, (SOCPA: Triable either way) then right can be delayed for up to 36 hours where there are reasonable grounds for suspicion that the investigation of offence would be interfered with.

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Detention and Questioning

·         S.58 PACE: Allows suspect to consult solicitor at any time, can change mind if they refused at first.  Custody officer must confirm in writing they are aware of this right.  Consultation can take place in person or over phone.  Right can be delayed for up to 36 hours if reasonable grounds to believe it would lead to interference with evidence/accomplices being warned.  Is important right; cannot be ignored-Merrick, SamuelR v Samuel: decision to refuse S.58 right must be based on specific incidents, not general assumption that access to solicitor might lead to alert of accomplices
·         S.27 PACE: Allows fingerprints to be taken from suspect who has been convicted of offence but didn’t have prints taken at time of arrest

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Detention and Questioning

·         S.61 PACE: Allows fingerprints to be taken without consent/authorisation.  Reasons need to be given and recorded in writing.  S.117: Reasonable force can be used.  In all instances suspect should be informed fingerprints will be subject of speculative search.  Fingerprints may be retained under S.82 Criminal Justice and Police Act, CJPA, whether or not person is charged with offence
·         S.63: Allows for non-intimate samples e.g. mouth swabs to be taken without consent in similar situation to fingerprints.  Provision means DNA samples obtained via mouth swabs may be taken without consent.  Can be retained, at present, under S.82 CJPA.
·         S.62 PACE: Allows for intimate samples e.g. blood, to be taken, only with consent.
·         S.65 PACE: Allows for other intimate samples: bodily samples, swabs, impressions.

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Detention and Questioning

·         S.82(1) CJPA: Allows retention of intimate samples
·         S and Marper v the UK: ECtHR held retention of DNA samples, profiles, fingerprints from people not convicted of any offence is breach of Art. 8.  May 2011: Supreme Court held that police policy of retaining DNA of all arrested persons was unlawful.
·         Protection of Freedoms Act 2012: A person who is arrested and charged or charged but later acquitted will have their DNA samples for most offences destroyed.  There’s provisions for some time-limited retention ( 3 years; possibly 5 with approval of court) of DNA samples of those charged but later acquitted of certain ‘qualifying offences’ e.g. serious violent/sexual offences, terrorism, burglary.  If arrested for qualifying offence, but not charged: fingerprints and DNA can be retained for 3 years on application to Biometrics commission + possible 2 year extension.  New regime not law yet; is due to come into operation Oct 2013

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Detention and Questioning

·         There are number of time limits on detention
·         S.40 PACE: Requires reviews of detention take place by person of rank of at least inspector who is known as review officer.  They review the case 6 hours after detention started then every 9 hours.
·         S.41 PACE: Suspect can be detained for up to 24 hours in normal cases
·         S.42 PACE: Detention can be extended for up to 36 hours if certain conditions in place, i.e. reasonable grounds for believing that its necessary to secure/preserve evidence related to offence, to allow additional time for questioning, if authorised by a Superintendent for indictable offences. 
·         S.44: Allows for application to Magistrates’ Court for further detention after 36 hours, extension is 96 hours.  If reviews not carried out, detention is unlawful : Roberts.

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Detention and Questioning

·         Code C: Cells must be clean and ventilated.  Suspect is entitled to at least 8 hours rest in any 24 hour period.  Should be regular breaks in interview for light meals and refreshment.  At all times before and during interview, police must ascertain that suspect realises they are under caution.
·         Code C para 9: If person is physically/mentally ill/injured, police surgeon must be called or in emergency suspect must be sent to hospital
·         Code E: In cases triable on indictment/either way, interviews must be tape recorded.  Tape is crucial for challenging admissibility of confession on grounds of unfairness/unreliability.

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