Advising at the Police Station: Rights and Detention — SQE1 FLK2 Criminal Law and Practice

A man is arrested on suspicion of stealing stock from his employer and arrives at a police station at nine in the evening. He says he wants a solicitor before he answers any questions. The custody officer tells him two things. That a solicitor cannot see him until the first interview is over. And that he will have to pay for the advice himself unless he is on benefits.

Both of those statements are wrong. No officer has authorised any delay, and advice at the police station is free to everyone whatever their means. This is Advising at the Police Station, the first topic in Criminal Law and Practice. It is where knowing the rules cold changes what happens in the next hour. Keep this man in mind.

Here is the route. The framework first, then the right to legal advice and the narrow circumstances in which it can be delayed. Then the detention clock, which turns on a phrase most candidates get wrong. Then reviews, and what happens when one is missed. Then the other entitlements, vulnerability and the appropriate adult. And last, how detention ends.

The framework is short. The Police and Criminal Evidence Act 1984, which everyone calls PACE, plus the Codes of Practice, Codes A to H. Code C is the one you live in: detention, treatment and questioning. Breach PACE or the Codes and the court may refuse to admit the evidence under s.78. The test is whether admitting it would have such an adverse effect on the fairness of the proceedings.

Now the right our man was denied. Under s.58, a person arrested and held in custody at a police station is entitled, if he requests it, to consult a solicitor privately at any time. And he must be permitted to do so as soon as is practicable. Free. Not means-tested. Available to everyone, whatever the offence and whatever their money.

In practice that means four things. The custody officer must tell the detainee that free independent legal advice is available. The consultation is private, so the police cannot listen in. The right includes having the solicitor present during the interview. And it runs throughout the detention, which is precisely when it is most valuable: before the first interview, not after it.

The detainee chooses. He can name his own solicitor or take the duty solicitor, who is available around the clock and is independent of the police. If he names his own and that solicitor cannot be reached, the custody officer must take reasonable steps to contact them. And must then offer the duty solicitor as an alternative. He does not have to accept that offer. What the choice does not give him is a veto on the interview.

Delay is the exam's favourite. Four conditions, and all four must hold. The detainee must be held for an indictable offence. The authorisation must come from an officer of at least the rank of superintendent. There must be reasonable grounds for one of the permitted beliefs. And the delay may never run beyond 36 hours from the relevant time.

The permitted grounds are a short list. That the consultation will lead to interference with evidence. That it will alert other suspects who have not yet been arrested. That it will hinder the recovery of property. Or that delay is necessary to prevent harm or serious loss to some other person. The reasons must be recorded.

Test it. A woman is arrested for burglary at eight in the evening and asks for a solicitor straight away. The duty solicitor arrives at ten. The custody officer says an inspector, not involved in the investigation, has authorised a delay of up to six hours. He has recorded a reasonable belief that a consultation would warn associates and get the stolen goods moved. Lawful?

No. The offence qualifies, the grounds are on the list, the belief is recorded. But an inspector cannot give this authorisation. It has to be a superintendent or above. Reasonable grounds are necessary and not sufficient, because the officer who forms them must hold the rank the statute requires. She must be allowed to see the solicitor who is waiting for her.

And there is a further squeeze. The belief has to be about that particular solicitor, not about solicitors as a class. And the courts have said it can almost never be made out for a duty solicitor. That is R v Samuel, which is also the case that shows what happens next: a confession obtained after an unjustified refusal of access was excluded and the conviction went.

Now the clock, and the phrase everything turns on. Under s.41 a person may not be kept in police detention for more than 24 hours without being charged. The 24 hours run from the relevant time. Not from the arrest. Not from the moment the custody officer authorises detention. From the relevant time.

For someone arrested away from the station and brought in, the relevant time is his arrival at the first police station he is taken to. So an hour spent in the back of a car does not count against the police. Hold on to a woman arrested at a shop. She comes back at the quick check.

But there is a second limb worth knowing. Where a person attends a police station voluntarily and is arrested there, the relevant time is the time of his arrest. So a volunteer interviewed under caution at ten, and arrested at half past twelve when his answers begin to implicate him, starts his clock at half past twelve. Not when he walked through the door.

Extending it. Under s.42 an officer of at least superintendent rank may authorise detention up to 36 hours from the relevant time. Three conditions. Reasonable grounds to believe detention is necessary to secure or preserve evidence, or to obtain it by questioning. The offence is indictable. And the investigation is being conducted diligently and expeditiously.

That last condition has teeth. Take a man interviewed once at eleven in the morning, after which the officer in charge goes off duty and nothing is done all day. A witness who could have been seen is not visited. The property is not examined. The next morning the officer comes back and asks for another twelve hours to make those enquiries at last. The superintendent cannot give it. Almost a full day was wasted.

Beyond 36 hours the police must go to court. Under s.43 they apply to a magistrates' court for a warrant of further detention, which may authorise up to a further 36 hours. Under s.44 the warrant may itself be extended. But there is an absolute ceiling. Detention may never exceed 96 hours from the relevant time.

And underneath all of that sits a condition that applies the whole time. Under s.37, a person may be kept in detention without charge only while the custody officer has reasonable grounds for believing it necessary. Necessary to secure or preserve evidence, or to obtain evidence by questioning.

Which answers a case that comes up constantly. The interview is over and no further questioning is planned. The officer wants the suspect kept in because the closed-circuit television is with an outside company and will not arrive for days. Holding him means he cannot make himself difficult to find. That is not a ground. The footage will arrive or it will not, wherever he is.

Reviews next, and these are the safeguard against quietly forgetting somebody. Under s.40 the first review must be carried out not later than six hours after detention was first authorised. The second not later than nine hours after the first. Then at intervals of no more than nine hours. The review officer must be of at least inspector rank and must not have been involved in the investigation.

One postponement is allowed. Where the review falls due while the detainee is being questioned, and the review officer is satisfied that interrupting would prejudice the investigation, the review may be delayed. Then carried out as soon as practicable. A kidnap suspect finally revealing where the missing man is held is the obvious example.

Miss a review without that excuse and the consequence is serious. Detention during the period after a review has fallen due is unlawful, and it can amount to false imprisonment. That is Roberts v Chief Constable of Cheshire Constabulary, and it is worth knowing because it turns a paperwork failure into a civil claim.

All of this is written down. The custody record logs the time of arrival, the grounds for detention, and whether the detainee was told of his rights. It logs every review, every interview, and whether legal advice was asked for and delayed. And the time of charge or release. Ask to see it before you do anything else.

The second great right sits in s.56. A person arrested and held at a police station is entitled, if he asks, to have someone told that he has been arrested and where he is held. One friend or relative, or another person known to him or likely to take an interest in his welfare. As soon as is practicable.

It can be delayed on similar grounds and on the same rank of authority. But it has the same hard stop, and this one is worth memorising. The detainee must in any event be permitted to exercise it within 36 hours from the relevant time. It does not matter that the outstanding suspects are still at large, or that a court has extended the detention. At 36 hours the delay ends.

The other entitlements are easy marks. Adequate food and drink at proper meal times. Rest and sleep. Exercise where the detention is long. Medical attention. An interpreter. And the right to consult the Codes of Practice at any time during detention, which cannot be postponed until after the interview. Interviews should not be conducted during normal sleeping hours.

Vulnerability is where the most serious mistakes happen. Under Code C a person is vulnerable if, because of a mental health condition or mental disorder, they may have difficulty understanding the procedures connected with their detention. Or communicating effectively about them. And here is the operative part. Where an officer has any reason to suspect that a person may be vulnerable, they must be treated as vulnerable.

Any reason to suspect. Not a diagnosis, not a certainty. So take a custody officer who notes that a man with a diagnosed learning disability seems slow but polite, makes no further enquiry, and calls no appropriate adult. He has got it wrong. An interview in which the man agrees with every suggestion put to him is squarely within s.78. That is the ground on which the interview in R v Aspinall was excluded.

An appropriate adult must be called for a juvenile, which means anyone under 18, and for a vulnerable adult. So who can it be? Try one. A boy of 16 is arrested. Both parents are abroad. His brother of 20 lives with him and is at the station. A family friend who is a serving officer in another force has offered. The duty solicitor has offered to double up. The boy prefers the friend.

The brother. For a juvenile it is a parent or guardian, or a social worker. Failing those, a responsible adult of 18 or over. Not a police officer, not employed by the police, and not under the direction of a chief officer of police. The exclusion of police officers is absolute and does not turn on which force they serve in. And the solicitor cannot double up: the roles are separate.

Which is worth saying plainly, because clients and appropriate adults both get it wrong. You give the legal advice. The appropriate adult is there to see that the detainee understands his rights and the caution, that the interview is conducted fairly, and to help him communicate. They can ask for a break. They cannot advise him on what to say.

Finally, how it ends. Charge, or release. A person must be released once the grounds for detention cease to exist, whether or not the clock has run. Release may be under investigation, which means no charge, no conditions, and an investigation that continues while your client waits without knowing for how long.

Or it may be on pre-charge bail, which must be necessary and proportionate. The Policing and Crime Act 2017 created a presumption against it. The Police, Crime, Sentencing and Courts Act 2022 reversed that, so bail is used where it is necessary and proportionate. The initial period is three months. An inspector may extend it to six months, a superintendent to nine, and beyond nine months it takes an application to the magistrates' court.

A word on how SQE1 tests this. You will not be asked to recall a case name or a paragraph of Code C. You get a scenario, five answers, and one instruction. Pick the best. So learn the ranks, the clocks and the conditions, because that is what the scenarios turn on.

If you keep only three, keep these. R v Samuel, where refusing access to a solicitor on a general suspicion about solicitors cost the prosecution the confession and the conviction. Roberts v Chief Constable of Cheshire Constabulary, where a late review made the detention itself unlawful. And s.58, which is free, private, and available at any time.

Four traps. One: rank. A delay in legal advice or in having someone informed needs a superintendent. A review needs an inspector who is not involved in the investigation. A custody officer authorises detention. Read the rank in the facts before you read anything else.

Two: the relevant time. Arrested elsewhere and brought in, the clock starts on arrival at the first station. Attending voluntarily and arrested there, it starts at the arrest. It never starts when the custody officer signs the log.

Three: 36 hours means two different things. It is the ceiling on delaying legal advice and on delaying the right to have someone informed. It is also the point beyond which a superintendent cannot extend detention without going to court.

Four: vulnerability is triggered by suspicion, not by proof. Any reason to suspect that a person may be vulnerable, and they must be treated as vulnerable. A custody officer who satisfies himself that the client seems fine has applied the wrong test.

Quick check, and here is that woman again. She is arrested at a shop at 2 pm on a Monday on suspicion of theft. She is driven to a police station some distance away and arrives there at 3 pm. The custody officer authorises her detention at 3.30 pm. An inspector reviews the detention at 8.30 pm. No further authorisation is given at any stage. By what time must the police charge her or release her?

Three answers. One: 2 pm on Tuesday, 24 hours after her arrest at the shop. Two: 3.30 pm on Tuesday, 24 hours after the custody officer authorised her detention. Three: 3 pm on Tuesday, 24 hours after she arrived at the station. Pause here if you want a moment.

The answer is three. She may not be kept for more than 24 hours without being charged, and the 24 hours run from the relevant time. For a person arrested elsewhere and taken to a station, that is her arrival at the first station she is taken to. She arrived at 3 pm on Monday, so she must be charged or released by 3 pm on Tuesday.

Why the other two fail. Option one starts the clock at the arrest, so the hour in the car would count against the police. It does not. Option two starts it when the custody officer authorised detention, and that authorisation starts the review timetable, not the 24 hours.

Five things to take away. One: legal advice under s.58 is free, private and available at any time. Delaying it needs an indictable offence, a superintendent, a listed ground, and never more than 36 hours. Two: the clock runs from the relevant time. Arrival for someone brought in, arrest for a volunteer.

Three: 24 hours, then 36 on a superintendent's authority, then a warrant from the magistrates, and never past 96. Four: first review within six hours, then every nine, by an inspector who is not on the investigation, and a late review makes the detention unlawful.

Five: any reason to suspect vulnerability means an appropriate adult, and it can never be a police officer or your client's solicitor. And our man at nine in the evening? He was entitled to free private advice before a word of interview. Next time, Identification Procedures.

Practise this topic with exam-style questions at sqe1prep.co.uk. This episode is for education and exam revision only, not legal advice, and we are not affiliated with or endorsed by the SRA or Kaplan.