Study Notes · 62 sections
Advising a client at the police station is one of the most important things a criminal solicitor does. Decisions made at this stage can affect the entire case. Your client may be frightened, confused, and unaware of their rights. You are there to protect those rights and ensure the police act lawfully. Getting this wrong can mean evidence gets excluded, the case collapses, or an innocent person is convicted.
The main source of law governing police powers and detainees' rights is the Police and Criminal Evidence Act 1984 (PACE). PACE is supported by a set of Codes of Practice (Codes A to H) which set out detailed rules the police must follow. Code C deals with the detention, treatment, and questioning of suspects. Breaching PACE or the Codes can lead to evidence being excluded under s.78 PACE.
A person who is being held for questioning at a police station or elsewhere may consult a solicitor at any time, unless the person has been notified by a constable that he is to be charged. This right is fundamental and applies from the moment of arrest.
Under PACE s.6, every person held at a police station has the right to consult a solicitor freely and in private. This is one of the most important safeguards in the criminal justice system. The right applies regardless of the offence and regardless of whether the person has been formally charged. The police must inform the suspect of this right as soon as practicable after arrival at the station (Code C, para 3.1).
The detainee can choose to use the duty solicitor (available 24 hours a day through the police station) or can ask for their own solicitor. If they ask for their own solicitor, the custody officer must take reasonable steps to contact them. If the solicitor cannot be reached, the detainee should be offered the duty solicitor as an alternative. The detainee does not have to accept the duty solicitor if they want to wait for their own.
The duty solicitor scheme provides free legal advice at police stations around the clock. Duty solicitors are solicitors who have signed up to a rota to provide cover. They are independent of the police - they are there to advise the suspect, not to help the police. The scheme ensures that everyone has access to legal advice regardless of their financial situation or whether they already have a solicitor.
As soon as a person is brought to a police station after being arrested, the custody officer must inform them that they may consult a solicitor privately at any time, that free independent legal advice is available from the duty solicitor, and that the station has a notice setting out the rights and entitlements of detainees.
The starting point is that the detainee gets access to a solicitor without delay. The police cannot simply decide to withhold legal advice because it would be convenient for their investigation. Any delay must be justified under specific circumstances set out in Code C, and the officer must record the reasons for the delay.
Access to legal advice may be delayed if an officer of at least the rank of superintendent (or, if none is available, the rank below) has reasonable grounds for believing that delay is necessary. Delay may be justified on grounds including: that the solicitor might interfere with evidence, that the solicitor might warn other suspects, that the solicitor might hinder the recovery of property, or that delay is necessary in the interests of the investigation for the purpose of preventing or minimising harm or loss to some other person.
Even where one of the grounds in para 6.6 applies, the delay must be proportionate to the harm it is intended to prevent. The police cannot delay legal advice indefinitely. If a solicitor has been instructed and arrives at the station, the police should not generally continue to delay access unless there is a genuine risk that would arise from the consultation taking place at that time.
If the police have delayed your client's access to legal advice, you should ask the custody officer for the reasons in writing and note who authorised the delay. An unreasonable delay can be grounds for excluding evidence under s.78 PACE if it makes the proceedings unfair. Always document any delay and the reasons given.
Under PACE s.56, a person who is arrested and held at a police station has the right to have someone informed of their arrest and detention. This could be a friend, relative, or another person nominated by the detainee. The purpose is to ensure that someone outside the police knows where the person is and can arrange help. The police must allow this as soon as practicable after the person arrives at the station.
Where a person is arrested and held at a police station, he shall be entitled, if he so requests, to have one friend or relative or other person who is known to him or who is likely to take an interest in his welfare told, as soon as is practicable, that he has been arrested and is being detained there.
The detainee can choose who to inform. This could be a family member, a friend, an employer, or anyone else they nominate. The person informed does not have to be a relative. The key is that the person is known to the detainee or is likely to take an interest in their welfare. The police cannot dictate who the detainee contacts, though they can refuse to pass on the message to certain people in limited circumstances.
The right to have someone informed can be delayed in similar circumstances to the right to legal advice. An officer of at least superintendent rank can authorise delay if there are reasonable grounds for believing that telling someone would lead to interference with evidence, alerting other suspects, or hindering the recovery of property. The maximum period of delay is 36 hours (Code C, para 5).
The right to have someone informed can NEVER be delayed beyond 36 hours. This is an absolute time limit. Even if the police believe that informing someone would seriously harm their investigation, after 36 hours they must allow the detainee to contact someone. This is a critical safeguard against people simply disappearing into police custody.
No person who is arrested and held at a police station shall be prevented from exercising the right to have someone informed if he has been held for more than 36 hours. This is an absolute limit and cannot be overridden.
Under PACE s.41, the police can detain a person for up to 24 hours without charging them. This 24-hour period begins when the person arrives at the police station (not from the time of arrest). The custody officer is responsible for ensuring that the detention is reviewed regularly and that the person is either charged or released as soon as the grounds for detention cease to exist.
A person shall not be kept in police detention for more than 24 hours without being charged, unless an extension is authorised under s.42 or s.43. The 24-hour period runs from the relevant time (when the person arrives at the police station after being arrested).
A senior officer (superintendent or above) can extend detention by up to 12 hours, making a total of 36 hours. The officer must have reasonable grounds for believing that further detention is necessary to secure or preserve evidence, or to continue questioning to obtain evidence. The officer must also be satisfied that the investigation is being conducted diligently and expeditiously.
For extensions beyond 36 hours (up to a maximum of 96 hours), the police must apply to a magistrates' court. The magistrates can grant extensions in blocks of up to 36 hours at a time. For the court to grant an extension, the police must show that further detention is necessary and that the investigation is being conducted diligently. The application must be supported by written evidence.
| Time Limit | Who Authorises | Conditions |
|---|---|---|
| Up to 24 hours | Custody officer (no special authority needed) | Reasonable grounds for detention; regular reviews |
| Up to 36 hours (+12) | Superintendent or above | Further detention necessary for evidence; diligent investigation |
| Up to 72 hours (+36) | Magistrates' court | Same as above plus court application with written evidence |
| Up to 96 hours (+24) | Magistrates' court (second extension) | Same as above; must be exceptional circumstances |
Detention reviews exist to ensure that the police do not keep someone in custody longer than necessary. The custody officer (or another officer of at least inspector rank) must review the detention at regular intervals to check whether the grounds for detention still exist. If they do not, the person must be released immediately. Reviews are a key safeguard against arbitrary detention.
The first review must take place no later than 6 hours after the initial authorisation of detention. Subsequent reviews must take place at intervals of no more than 9 hours. The review officer must be of at least inspector rank and must not have been directly involved in the investigation. At each review, the officer must consider whether the grounds for detention still exist and whether the investigation is being conducted diligently.
| Review | Timing | Who Conducts It |
|---|---|---|
| First review | Within 6 hours of detention | Inspector or above (not involved in investigation) |
| Second review | Within 15 hours of detention | Inspector or above |
| Subsequent reviews | Every 9 hours thereafter | Inspector or above |
| After 36-hour extension | Review immediately after extension granted | Senior officer |
The custody officer shall review the detention of a person in police detention at intervals of not more than 6 hours for the first review, and thereafter at intervals of not more than 9 hours. At each review, the officer must consider whether the grounds for detention still exist.
At each review, the detainee and their solicitor (if present) should be given the opportunity to make representations. The review officer must consider whether there is still sufficient evidence to justify detention, whether further detention could secure additional evidence, and whether the investigation is being carried out properly. If the grounds for detention no longer exist, the person must be released.
The custody record is a document that the custody officer must maintain for every person who is detained at a police station. It records all the key events during detention, including the time of arrival, the grounds for detention, times of reviews, times of interviews, whether legal advice was requested, whether the detainee was given food and rest, and the time of release or charge. It is a vital document for checking that the police have acted lawfully.
As a solicitor advising at the police station, you should always ask to see the custody record. It will tell you whether your client's rights have been properly respected, whether reviews have been carried out on time, and whether there have been any irregularities. Discrepancies in the custody record can be used to challenge the admissibility of evidence later.
While detained at a police station, a person has a number of important rights. These include the right to legal advice, the right to have someone informed, the right to adequate food and drink at appropriate times, the right to rest and sleep, and the right to reasonable access to toilet and washing facilities. The custody officer is responsible for ensuring these rights are respected.
A person in police detention must be allowed to consult a copy of the Codes of Practice at any time during their detention. The Codes must be readily available at the police station. The custody officer should draw the detainee's attention to the Codes at the outset of detention.
Under Code C, para 11, interviews should not be conducted during normal sleeping hours unless there are exceptional circumstances, the interviewee agrees, or the nature of the investigation requires it. If an interview is conducted at night, the reasons should be recorded on the custody record. This protects the detainee's welfare and the integrity of any evidence obtained.
A vulnerable client is someone who may have difficulty understanding or participating in the process due to their age, mental health, physical condition, or other factors. The police have a duty to identify vulnerable detainees and provide additional safeguards. Under Code C, para 1.4, a vulnerable person includes anyone who may be at a disadvantage compared with other detainees. This is a broad definition that covers many different situations.
A vulnerable person means any person who, because of their mental state or the state of their health (whether or not that state is permanent), or because of the nature of the offence, may be at a disadvantage compared with other people being questioned by the police. This includes juveniles and people who are mentally disordered or otherwise mentally vulnerable.
Vulnerable detainees receive extra protections. They must have an appropriate adult present during interviews and certain other procedures. They should be assessed by a healthcare professional if there are concerns about their mental health. The custody officer must consider whether the person is fit to be detained and interviewed. If the person cannot understand the caution, the interview may not proceed.
Always ask your client about their health and any conditions that might affect them. Ask whether they have ever been diagnosed with a mental health condition, whether they take any medication, and whether they have any difficulties with reading or writing. If you have any concerns about your client's vulnerability, raise them with the custody officer before the interview begins. It is better to be cautious than to allow a vulnerable person to be interviewed without proper safeguards.
If the police fail to identify a vulnerable person and proceed with interview without an appropriate adult, the interview evidence may be excluded under s.78 PACE or s.34 Criminal Justice and Public Order Act 1994. You should always check whether the custody officer has carried out a proper assessment of vulnerability and challenge any failure to do so.
An appropriate adult must be called whenever the police are interviewing a juvenile (under 18) or a mentally vulnerable adult. The appropriate adult is not there to give legal advice - that is your role. Instead, they are there to ensure that the detainee understands what is happening and that the police treat them fairly. They can also intervene if they think the interview is inappropriate or if the detainee needs a break.
The appropriate adult's role includes ensuring the detainee understands their rights and the caution, advising the detainee to get legal advice if they have not already done so, observing the interview and ensuring it is conducted fairly and properly, helping the detainee to communicate with the police, and raising concerns if they think the interview is unfair or the detainee is struggling. They can also ask for a break if they think the detainee is tired or distressed.
As the solicitor, you work alongside the appropriate adult but your roles are different. You give legal advice; the appropriate adult ensures the process is fair. Before the interview, you should speak with the appropriate adult to discuss any concerns about the client's vulnerability. During the interview, you can ask for a private consultation with your client at any time.
A person can be released from police detention at any time if the custody officer decides that there are no longer reasonable grounds for detention, or if the maximum detention period has expired without a charge being brought. Release can be unconditional or conditional (with or without bail). If released without charge, the person may still face investigation and could be re-arrested or summonsed to court later.
Instead of releasing on bail, the police may release a suspect "under investigation" (RUI). This means no charges have been brought and no conditions have been set, but the investigation continues. The person is free to go about their normal life, but they may be re-arrested or summonsed if evidence comes to light. RUI replaced police bail in most cases under the Policing and Crime Act 2017. The downside is that the person does not know when the investigation will conclude.
Pre-charge bail (police bail) is now more restricted. Under the Policing and Crime Act 2017, the police can only impose pre-charge bail if it is necessary and proportionate. There are strict time limits: an initial period of 3 months (which can be extended by a senior officer or the court). If bail is not granted, the suspect is released under investigation instead.