Arrest and detention: know your rights
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Many people, either rightly or wrongly, will at some point find themselves the focus of police attention. This article summarises the basic rights and duties of the citizen who is arrested and detained by the police in connection with an alleged offence.
The purpose of this article is to provide general information concerning the rights of citizens who have undergone arrest and detention by their law enforcement officials. It makes no claim to being either authoritative or exhaustive. To the extent that the discussion below applies to anything concrete, it is to the basic rights -- in general terms -- of those citizens who have been arrested and detained by their police officials in England and Wales. Because the law on this matter differs somewhat in Scotland and Northern Ireland, the discussion is limited solely to the rights of citizens arrested and detained by the police in England and Wales.
Further restrictions on the scope of discussion are dictated by the following considerations. First, our examination does not even touch on the powers of the police to deal with terrorist offences. The statutory regulations that apply in these instances are altogether different from from those that deal with more traditional infractions. Second, our investigation considers only the rights and duties of adults who: (i) are of full mental capacity; (ii) speak English; (iii) possess no visual or auditory impairment; and (iv) are in generally good health at the time of their arrest. Special considerations apply to the arrest and detention of all other individuals, including, most notably, children, non-English speakers, drug addicts, etc. As each of these categories raises additional, often complex, issues in their own right, any discussion of these is quite simply beyond the scope of this article.
'As a general matter, anyone who believes that he has been the subject of an unlawful detention or arrest, or stands accused of having conducted an unlawful detention or arrest, should seek immediate expert advice from a qualified legal authority.'
In this article, statutory provisions are referred to as follows: [s32 PACE], which means 'Section 32 of the Police and Criminal Evidence Act (1984)'. A list of abbreviations is provided at the end of the article. The term 'constable' here means policeman or policewoman of any rank, as it does in the relevant legislation. The article is organised in roughly sequential order; that is, it considers one's legal rights and obligations as they might arise if one is arrested, detained and charged for an offence.
Most of the powers granted to the police to arrest, search and detain suspected offenders are covered by statute. Of particular importance is the Police and Criminal Evidence Act (1984) ('PACE'). This provides for the creation of various codes of practice that law enforcement officials are required to follow when exercising their policing powers. Most relevant to the present discussion are Code B (search of premises), Code C (detention) and Code E (recording of interviews). In 2003 these codes were revised to take account of the (then) recent developments in human rights law.
Many of the created codes go some measure beyond the basic statutory provisions of PACE and other relevant legislation. For example, PACE states that a suspect held in detention must be treated with decency, while Code C deals with such matters as how often the detainee should receive food and drink, and under what circumstances his sleep may be interrupted.
Generally speaking, if the police fail to comply with the relevant legislation, they act unlawfully. As a result, any person unlawfully arrested or detained will have a claim against the police for damages. In fact, legitimate claims are frequently successful. Furthermore, evidence gathered during a police investigation may sometimes be deemed inadmissible in court if not properly collected. However, don't bet on it, as this result is not nearly as automatic as it sometimes is in other jurisdictions, for instance, the United States.
Bear in mind that violations of practice code requirements by law enforcement officials are not automatically unlawful. By itself, a breach of this sort won't give rise to a claim for damages. For instance, it is unlikely that a detainee would be compensated for having only been provided two meals a day during his detention rather than the requisite three. All the same, the courts tend to take a dim view of such infractions.
One can always be arrested by presenting himself voluntarily at a police station and giving himself up for an alleged offence. In most instances, though, an arrest will follow a police investigation and take place at either one's home, place of work or some other generally public place. The arrest may come after some sort of search. Powers to stop and search are an important topic in their own right and are explored under the heading 'stop and search'.
A constable may ask an individual to go to a police station in order to make a statement, or, rather, to 'help with enquiries'. However, if no arrest has been made, the individual is not obliged to go. Keep in mind that law enforcement officials are not entitled to arrest people simply to compel them to answer questions; there must be justifiable grounds for an arrest. A number of academic commentators have pointed out the danger of allowing the police to question individuals without having arresting them. If one has not been arrested, then as a matter of logic one is not 'in custody' if he decides to accompany a police officer to the station for questioning. It follows that the statutory controls set out in PACE will offer little or no protection to the cooperating citizen in such instances. What this means is that the ensuing interview need not be recorded on tape, for instance, or that the willing interviewee need not be cautioned about the dangers of self-incrimination. The legal risk undertaken by the 'cooperating citizen' in this circumstance must not be underestimated.
Arrests are only lawful when carried out under specific legal authority. Most arrests for serious criminal offences are performed under the authority of PACE, s 24. For any such apprehension to be lawful, the arresting officer must have 'reasonable grounds' for believing that the suspect has either committed, is in the process of committing, or is about to commit, an 'arrestable' offence. Although the list of such offences is quite long, most are 'arrestable' if they carry a theoretical maximum sentence of five years' imprisonment. As a consequence, one may be be lawfully arrested for stealing a single clothes-peg, since theft is defined as carrying a maximum penalty of seven years' imprisonment. Note that 'reasonable grounds' are assessed objectively, with regard to what a 'reasonable person' would consider justification of the arrest.
For less serious offences, the police will usually proceed by way of 'an information' laid before the magistrates' court, as in this instance there is no specific power of arrest. Once an information is laid, the accused will normally receive a politely-worded invitation to appear before the court on a certain date.
However, s 25 of PACE does provide the police with limited powers of arrest even in respect of minor offences. If, for example, an individual has committed such an offence and, when the constable asks for his name and address, he says 'naff off, copper', the individual can then be arrested. Why? Because there is simply no other way in which he might be brought to account. He can't be served with a summons because the court won't know where to send it. Section 25 also provides for a power of arrest if an unruly individual is a danger to other people, or if the arrest is necessary for the person's own protection.
There remains a power of arrest - not governed by legislation - if an individual is threatening a breach of the peace. This is usually appropriate only if there appears to be cause for concern that the person might imminently do violence or damage to other people or property.
A person that is arrested must be informed of this fact and presented with the reason for being taken into custody (PACE, s 24). The lone exception to this rule is if it is not 'practical' to do so, for instance, when the suspect is fleeing from the arresting officer. Even if a suspect requires physically restraint, he must be told, as soon as practicable, that he is under arrest and the reason for his detention must be explained to him in clear terms. Any failure to do so by the police will result in an unlawful arrest. This would be so even if the suspect were caught red-handed carrying the Crown Jewels out from the Tower of London.
Significantly, there is no statutory authority on the level of detail the police must offer the detainee regarding the grounds for his arrest. The traditional view was articulated in Christie v Leachinsky (1947), a case still cited when an unlawful arrest is at issue. Here, the court opined that the arresting authority must provide enough information for the detainee to make a judgment whether his arrest is lawful or not. This means explaining in plain, non-technical language, the complete set of facts constituting the grounds for the arrest.
Similarly, there is no precise form of words that the arresting authority must use to signify the fact of the arrest. Although it must be clear that the detainee is being deprived of his liberty, even the words 'You're nicked!' will do in certain circumstances (Clarke v Chief Constable of North Wales Police (2000)).
After an arrest is made the detainee must always be 'cautioned', unless to do so would in the circumstances be impractical. However, a failure to do this properly (or even at all) does not mean that the arrest is automatically unlawful. Indeed, as long as an equivalent 'sense' of this caution is conveyed to the detainee after being taken into custody, the arrest remains lawful.
In essence, the rule regarding a proper caution is as follows: The detainee is to be cautioned ==before== being questioned by an arresting authority on matters that could reasonably be offered in evidence. The detaine need not be cautioned before being asked his name or address. If the detainee offers any self-incriminating statements before being duly cautioned, he should generally be provided the opportunity to retract these once this requirement has been satisfied.
Those who have seen 'The Bill' should be familiar with the proper form of caution: 'While you need not say anything under questioning by the police, it may harm your defence if you fail to mention something now that you will later attempt to rely on in court. Nonetheless, anything you do say may be given in evidence.'
==What if an arrest is unlawful?==*
You are entitled to use 'reasonable force' to resist an unlawful arrest. However, this is rarely advisable for two reasons. First, even if you yourself know that you have committed no offence, the police only have to have 'reasonable grounds' to believe that you have. They don't have to be certain, or even have compelling evidence (Castorina v Chief Constable of Surrey (1988)). The standard of proof is not really all that high. If the police are able to meet that standard of proof, then your use of force will amount to a number of rather serious offences, for which can be banged up. Second, the police are very well trained in dealing with suspects who resist arrest.
After arrest, you will usually be taken to a police station to be interviewed. However, the police will often search you, the area around where you were arrested, and even your home or place of work first.
Search of your person after arrest
If you are arrested, the police are allowed to search you for three metas of article (s.32 PACE):
- evidence related to an offence; or
- anything you might use to escape; or
- anything that might present a danger to yourself or others. This would obviously include weapons.
These powers are in addition to the powers that may be exercised without arrest; in particular the police can search you if they have reasonable grounds to believe that you have in your possession implements for use in crime, stolen goods (s.1 PACE) or controlled drugs (s.23 MDA).
Search of the immediate area after arrest
If you are arrested, the police are allowed to search the immediate area in which you were arrested, and this includes any buildings you may have had access to immediately before the arrest (s.32 PACE). So if, for example, you are chased through a large public building before being arrested, the police can search any room you passed through on your way. No search warrant is required for this. The purpose of this power is to prevent situations where, for example, an offender runs away from the police and, on the way, throws his ill-gotten gains through the open window of a house. In principle, the power to search buildings can only be exercised if the police have reasonable grounds to think that they will find something related to the offence for which you are arrested. This means, for example, that they can't search on the off-chance that they'll find something. Similarly, if you are arrested in a block of flats, they can't search every flat.
The conduct of searches of property is governed by PACE Code B. In general, the police are allowed to use proportionate force to enter premises to search, and can seize articles related to the offence. They are supposed to exercise consideration for the occupiers of property, and allow an independent person to witness the conduct of the search if it won't hold up the investigation. The police will generally be expected to pay compensation for any damage caused by the search, but they won't normally pay compensation to the offender if convicted.
Search of your premises after arrest
If you are arrested, the police have a right to search your home or any other premises in your charge for evidence related to the offence for which you are arrested or any other arrestable offence (s.18 PACE). They don't need any kind of search warrant for this, but they do need to have reasonable grounds for believing that the search will reveal something related to the offence. In principle, the authority of an inspector is required for this search, but this can be given retrospectively, so you can't use the lack of this authority to prevent a search. The police can legitimately search your premises between arrest and taking you to a police station. The regulations governing searches of this sort are the same as for searches of the area where you are arrested.
Arrival at the police station
When you are taken to the station, the custody officer will make a decision whether there is sufficient evidence to charge you with an offence (s.37 PACE), and whether you should be detained in custody or released.
If there is not sufficient evidence to charge you, then one of three things will happen: you will be released unconditionally, released on bail, or detained. To be detained, the custody officer must either have reasonable grounds to believe that further evidence will come to light if you are interviewed, or reasonable grounds to believe that you will interfere with the investigation if you are released.
If you are released, bail can only be imposed if the police believe that further investigation will reveal information (s.34 PACE) which will lead to a prosecution.
If there is sufficient evidence to charge you, you may be released with or without bail, or detained. After being charged, you can only be detained further if the custody officer has reasonable grounds to believe that you have not given a genuine name and address, or that you will not turn up in court when your case is heard, or that you will commit further offences while on bail, or you will interfere with the investigation, or that you need to be kept locked up for your own protection. If you are charged with an offence, either now or later, you should be cautioned, and given a written record of the offence with which you have been charged (s16.3 Code C). The police should not normally question you further after you have been charged (s16.5 Code C).
If you are detained, the custody officer is required to explain why (s.58 PACE).
The custody officer is under a duty to record anything you have in your possession, and may remove these items from you, by ordering a search if necessary (s.54 PACE). You are entitled to keep your clothes and personal effects unless the custody officer believes they are dangerous, or required as evidence, or can be used to help you escape. The custody officer must prepare a list of your possessions, which you will be asked to sign. You should check the list before signing it: mistakes have been known.
In addition to a general search to identify your possessions, there are two circumstances in which an intimate search - a search of body cavities - may be authorised (s.55 PACE). First, an intimate search is allowed if there are reasonable grounds to believe that you are concealing a weapon. Second, it is allowed if there are reasonable grounds to think that you are concealing a class A drug. Authorisation must be given by an officer of at least the rank of inspector. Either of these searches may be carried out at a medical facility; a search for weapons may also be carried out at a police station. Neither may be carried out anywhere else.
If you have refused to identify yourself, or if it is necessary to identify you as the perpetrator of an offence, the police are entitled to photograph you. Moreover, you may be searched for distinguishing features that may assist in identification (s.54A PACE).
Your rights whilst in custody
The general principle on which the rules of police detention are based is that you must not be detained any longer than is necessary (s.1 Code C). If the reason for your detention has ceased to apply, you must be released (s.34 PACE).
When you are taken to a police station, you have certain rights, and the police are obliged to tell you what they are (s3.1 of Code C).
- You have the right to have someone told that you have been arrested, and where you are being detained. You should be given this opportunity as soon as possible after arriving at a police station, but it may be delayed in certain circumstances for up to 36 hours (s.56 PACE). Delay must be authorised by an inspector, who must have reasonable grounds for thinking that that notification will lead to interference with evidence, harm to other people, alerting of other suspects, or will hinder recovery of property connected to the offence. Delay can only ever be authorised for 'serious arrestable offences'. These are essentially offences of violence, or those involving serious financial loss.
- You have the right to consult a solicitor, in private, at any time (s.58 PACE). The custody officer is required to tell you that you are entitled to free legal advice, or allow you to consult a solicitor at your own expense, whichever you prefer. You will be asked (s3.5 Code C) to sign the custody record to indicate that you have been told of your rights in this respect.
The right to legal advice may be delayed for up to 36 hours if the police believe you have committed a serious arrestable offence, and for the same reasons as those described above. However, the police would need to have extremely strong grounds for thinking it necessary. Delay must be authorised by a superintendent. Your access to a solicitor cannot be delayed under any circumstances if you have been charged with an offence (Annex B, Code C). The courts have largely taken the view that access to a solicitor is a fundamental right of a person in detention, and the Court of Appeal has quashed a number of convictions on the grounds that suspects were unreasonably denied this right (e.g., R v Samuels, 1988). Although it appears that the police sometimes try to persuade suspects not to take legal advice (You'll be out of here much quicker if you don't muck about with a solicitor...==) this is a breach of Code C (s6.4).
- You have the right to telephone one person (s5.6 Code C). The grounds on which this can be denied are essentially the same as for denial of notification of detention (above). You also have the right to send a letter, subject to the same restrictions. The police are allowed to monitor your telephone call and read your letter, and to use any information recorded as evidence. However, the police can't monitor telephone calls to your solicitor.
- You have a right to inspect Code C if you wish. However, you don't have a right to hold up business by doing so. In particular, if you are arrested in connection with being drunk or drugged, the police don't have to wait for two hours while you read Code C from cover to cover before taking blood samples.
- You have the right to be treated decently whilst in custody. You must be provided with food, drink and, where necessary, clothing, allowed access to lavatories and washing facilities, and held in a clean and well-ventilated environment (s.8 Code C). In any 24-hour period of detention you should be allowed 8 hours to sleep.
In general, the police do not have to allow anyone to see you except a solicitor. However, the custody officer does have the discretion to allow other people to see you while you are in custody. Provided it does not hinder the investigation, the police 'should allow' such visits (Note 5B Code C).
Detention without charge
It is generally frowned upon to keep a person locked up when he has not been charged with anything. As a result, the procedure for reviewing your ongoing detention is more onerous for the police if you have not been charged (s.41 PACE). Your detention must be reviewed after 6 hours, then at 9-hourly intervals. If you have been charged, then the review can be conducted by the custody officer. If you have not been charged, then it requires an officer of at least the rank of inspector, and that officer must not be involved in your case. At each review, you or your legal representative have an opportunity to make representations as to why you should be released. At any review, unless there are genuine grounds to continue to detain you, you must be released. Normally you must be released after 24 hours since arrest, or charged. However, if the police want to detain you without charge for longer than 24 hours, this can be authorised by a superintendent between the second and third review (i.e., 15-24 hours in detention). This authorisation may extend your detention by up to 12 hours. The grounds for authorising this extended detention are the same as for authorising your detention in the first place: there must be reasonable grounds to believe that interviewing you will yield relevant evidence, or reasonable grounds to believe that you would otherwise interfere with the investigation. Again, you must be given an opportunity to make representations against your detention.
If the police wish to detain you without charge for more than 36 hours, then they must take you to a magistrates' court to get a warrant. Normally this must be done before the 36 hours has expired, but may be delayed until the court next sits if, for example, it is the middle of the night. A magistrate's warrant may authorise your detention for up to another 36 hours. If this is not long enough the police can drag you in front of the magistrate one more time, and get an extension to the warrant.
In short, you can be held in custody without charge for a maximum of 96 hours (four full days). In this time your detention will have had to be reviewed three times, and you will have had to be taken to the magistrates' court twice. After this time you must either be charged or released.
Detention after charge If you are charged with an offence, you should normally be released, perhaps on bail, unless the police have reasonable grounds to think that you will interfere with the investigation, or will commit further offences, or have given a bogus name or address, or will fail to turn up at court. If you are detained, then the police must bring you before a magistrates' court at the next sitting (s.46).
Apart from routine matters concerning, for example, your identity, any questioning by the police that concerns your alleged involvement in an offence constitutes an 'interview' and is subject to regulation.
In the good old days, suspects were frequently advised simply to say nothing at all when questioned by the police. It is, after all, the job of the prosecution to prove its case, not the job of the defence to rebut it. This is generally no longer a wise strategy, as the Criminal Justice and Public Order Act (1994) now provides (s.35) that 'the court may draw such inferences ... as appear proper' from your refusal to answer. In other words, if you refuse to answer straightforward questions in a police interview (Why are there 200 stolen video recorders in your house?==, No comment==), and then provide an explanation in court (Why are there 200 stolen video recorders in your house?==, Well, it's like this...==), the jury or magistrates are entitled to make of this what they will.
If you have asked for legal advice, you should not be interviewed until you have received it (s6.6 Code C). Exceptions to this rule are essentially the same as for refusing access to legal advice: it will lead to a loss of evidence, expose other people to danger, or allow other suspects to evade arrest. If you have requested legal advice, but the police have been allowed to question you before receiving it, then you can reasonably refuse to answer any question you might be asked. This cannot be used against you in court (s.58 YJCEA).
You should be cautioned before being asked any questions, and any time questioning resumes after a break.
Interviews in police stations are now required to be recorded on tape, in accordance with Code E, for any offence that is serious enough to allow a jury trial. The police may, but are not required to, tape record other interviews as well. The interview is recorded on two tapes simultaneously; after the interview you should be given one of the tapes to take away.
It goes without saying that interviewing should not be oppressive. Any threat of violence is prima facie oppressive. Raised voices are not necessarily oppressive, but might be considered to be oppressive if you are particular timid. In all cases, if you confess to some offence and indicate at trial that the confession was obtained under duress, the onus will be on the police to prove that it was not (s.76 PACE).
If you are released from police custody having been charged with an offence, you will normally be released on bail, with a duty to present yourself at the magistrate's court at the next sitting (s.47 PACE). The bail may be made subject to certain conditions, such as a financial security. If you have not been charged at this stage, your release may still be subject to bail. However, if you have not been charged then conditions cannot be attached to the bail. You are entitled to inspect your custody record for up to a year after release.
PACE Police and Criminal Evidence Act (1984) YJCEA Youth Justice and Criminal Evidence Act (1999) MDA Misuse of Drugs Act (1971)