Detention and Questioning

The detention and questioning of persons by police officers is governed mainly by Code C issued under the Police and Criminal Evidence Act 1984; any suspect detained at a police station is entitled to consult this Code and must be informed of this right.

The Code does not take away a citizen's civic duty to help the police in the prevention of crime and the discovery and capture of offenders, and a police officer is still in principle entitled to question any person from whom he thinks useful information may be obtained, even where the person indicates unwillingness to reply (Note 1B).

However, the police have no power to detain a person without formally arresting him; a person voluntarily "helping the police with their enquiries" is free to leave the police station at any time, and must be made aware of this.

The Police and Criminal Evidence Act 1984 provides for the appointment of a custody officer (normally a sergeant) at each police station, whose responsibility it is to ensure that all the correct procedures are observed and the proper records made. The custody officer must also ensure that suspects in custody are made fully aware of their rights, and it is the custody officer who decides from time to time whether or not the suspect's detention can still be justified.

Section 54 requires an arrested person to be searched on arrival or arrest at a police station, and allows his property to be seized and retained (though in the case of clothes and personal effects, only if the custody officer believes they may be evidence or may be used to cause injury or damage or to assist in an escape). Section 55 allows a senior officer to authorise an intimate search if he has reasonable grounds for believing the prisoner to be in possession of drugs or articles which might be used by the prisoner to injure himself or others, but this is very rare.

Before a suspect has been charged, a senior officer must review his detention within six hours of his initial detention, and then (if he is still in custody) within a further nine hours and again a further nine hours. He must normally be released or charged within 24 hours altogether, but if the offence is a serious one a senior police officer can authorise a further 12 hours and a Magistrates' Court can extend the period to 96 hours altogether.

Roberts v Chief Constable of Cheshire [1999] 2 All ER 326, CA

A man suspected of conspiracy to burgle was arrested at 10.50pm and taken to the police station, where he was detained until eventually being released without charge at 6.55pm the next day. He subsequently sued for damages for false imprisonment, arguing that the lack of any review by a senior officer at 5.25am (i.e. six hours after the custody officer first authorised his detention, as required by s.40 of PACE) rendered his further detention unlawful under s.34 until the first review took place at 7.45am. The judges agreed, saying the relevant provisions of the Act were mandatory, and awarded Roberts £500 in damages.

Once a person has been charged with an offence, he must either be brought before the Magistrates' Court by the next working day, or be released on police bail (with or without conditions) and required to return to the police station (or to appear at the Magistrates' Court) at such time as the custody officer may specify.

Police and Criminal Evidence Act 1984 s.56

(1) Where a person has been arrested and is being held in custody ... he shall be entitled, if he so requests, to have one friend or relative ... told that he has been arrested and is being detained there.

(2) Delay is only permitted in the case of a person who is in police detention for a serious arrestable offence, and if an officer of at least the rank of superintendent authorises it.

(3) In any case, the person in custody must be permitted to exercise this right within 36 hours.

(5) An officer may only authorise delay where he has reasonable grounds for believing that telling the named person of the arrest will lead to interference with evidence, interference with other persons, or the alerting of other suspects, or hinder the recovery of stolen property.

Under Code C, a detainee is normally allowed to make a telephone call himself (paragraph 5.6), and a foreign detainee is entitled to contact his country's Embassy or Consulate (paragraph 7.1).

Prisoners in custody are entitled to decent conditions of detention. Cells must be adequately heated, cleaned and ventilated, and access to toilet and washing facilities must be provided. At least two light meals and one main meal must be offered in any 24-hour period, and the prisoner's special dietary or religious needs must be met as far as practicable, but alcoholic drinks must not be provided except on medical advice. Brief outdoor exercise should be offered daily if practicable, medical treatment must be provided if necessary, and at least 8 hours' continuous rest (preferably at night) must be allowed in any 24 hours. A person being questioned should be allowed meal breaks at the usual times, refreshment breaks approximately every two hours, and toilet breaks as necessary.

As soon as a constable suspects that a person may have committed an offence - often before he is actually arrested - he must caution him before carrying out an interview (that is, any questioning intended to obtain evidence.) The suspect must then be cautioned again at the beginning of each subsequent interview, on being arrested, and on being charged.

The recommended caution (Paragraph 10.4) is "You do not have to say anything, but it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence." The exact wording is not important so long as the clear sense is there, but suspects must be warned of the possible consequences of their remaining silent. Once a suspect has asked to see a solicitor, however, their silence cannot be held against them and until the solicitor arrives they should be told that "You do not have to say anything, but anything you do say may be given in evidence."

Criminal Justice and Public Order Act 1994 s.34

Where the defendant on being questioned under caution by a constable failed to mention any fact relied on in his defence, being a fact which in the circumstances he could reasonably have been expected to mention, the court or jury may draw such inferences from the failure as appear proper.

In the same way, ss.36 and 37 allow the magistrates or jury to draw inferences from a defendant's failure to account for objects in his possession, marks on his clothing, or his presence at a particular place, where a constable believing them to be indicative of participation in an offence has asked about these at the time of his arrest and has explained the consequences of failing to answer.

Research evidence indicates that about 20 per cent of suspects overall refuse to answer some or all questions in police interviews, the proportion being highest among those with previous convictions and those charged with serious offences. In contrast, about 60 per cent make a complete or partial confession.

No police officer may use any sort of oppression to obtain answers to his questions, nor should he say (except in reply to a direct question from the suspect) what action the police propose to take if the prisoner does (or does not) answer questions or make a statement. Any breach of these rules may lead to the exclusion of the evidence obtained, and the officer responsible could be subject to civil action, disciplinary proceedings or even prosecution.

R v Fulling [1987] 2 All ER 65, CA

A woman charged with obtaining property by deception had been in custody for two days, and confessed after being told that her lover had been having an affair with another woman. The trial judge admitted this confession in evidence and the woman was convicted. The Court of Appeal upheld the conviction: "oppression" was an ordinary word, they said, meaning the exercise of authority or power in a burdensome, harsh or wrongful manner, or unjust or cruel treatment, or the imposition of unreasonable or unjust burdens, in circumstances which would almost always entail some impropriety on the part of the interrogator.

R v Miller (1992) 97 Cr App R 99, CA

A man was charged with murder, and the evidence against him included his confession. When interviewed by the police he had denied his involvement more than three hundred times, but in the face of "questioning" that took the form of officers' repeatedly shouting at him what they wanted him to say, he eventually gave way and admitted that he might have been there but could not remember. The Court of Appeal quashed his conviction on the grounds that the confession had been obtained by undoubted oppression: short of physical violence it was hard to imagine a more hostile and intimidating approach. There was evidence that the defendant had a mental age of only 11, but the tenor and length of the interviews was such that they would have been oppressive even with a person of normal mental capacity.

R v Howden-Simpson [1991] Crim LR 49, CA

A choirmaster was charged with theft of money received at weddings to be given to the choristers. The police said that if he confessed they would proceed on just two specimen counts; if not, they would interview each chorister individually and make a separate charge for each one. The choirmaster made a confession which was subsequently admitted in evidence, and he was convicted. The Court of Appeal said the confession should not have been admitted: improper pressure had been put on the defendant and the judge should have exercised his discretion to exclude the evidence.

In order to ensure that these rules are properly applied, and to reduce the number of cases in which defendants subsequently challenge the police account of what was said, Code C requires that an accurate record of every interview (whether in the police station or not) should be made during the interview or (if this is not practicable) as soon as possible afterwards (paragraph 11.7). This record should be signed as an accurate account by the officer concerned and by the suspect; if the suspect refuses to sign, that fact should be recorded. Failure to keep a proper record may lead the judge to exclude evidence of the interview as potentially unreliable.

If a person is being questioned at the police station about an indictable offence, the interview should mormally be tape recorded in accordance with Code E.

A person in custody at the police station, or being questioned as a suspect, has the right to legal advice. Such advice is available free of charge under the duty solicitor scheme, and the suspect must be reminded from time to time that it is available.

R v Absolam (1989) 88 Cr App R 332, CA

A man was arrested for threatening behaviour while out on bail for possessing cannabis. When he arrived at the police station, the custody officer (who knew his history) told him to hand over any drugs he was carrying; the man did so and was questioned about them before being cautioned or told of his right to legal advice. On the strength of his answers, he was subsequently convicted of possession with intent to supply, but the Court of Appeal quashed his conviction and substituted simple possession: the statements relied on had been improperly obtained and should not have been admitted in evidence.

Police and Criminal Evidence Act 1984 s.58

(1) A person arrested and held in custody ... shall be entitled, if he so requests, to consult a solicitor privately at any time.

(6) Delay in compliance with a request is only permitted in the case of a person who is in police detention for a serious arrestable offence, and if an officer of at least the rank of superintendent authorises it.

(5) In any case, the person in custody must be permitted to consult a solicitor within 36 hours.

(8) An officer may only authorise delay where he has reasonable grounds for believing that exercise of the right at the time the person desires to exercise it will lead to interference with evidence, interference with other persons, or the alerting of other suspects, or hinder the recovery of stolen property.

Home Office data show that only about one-third of arrested people do in fact ask to see a solicitor, even though the Code emphasises the need to remind suspects of their right to free legal advice, and insists that they must not be discouraged in any way from exercising that right by suggestions (for example) that it might delay their release. Once the suspect has asked to see a solicitor, and assuming no delay has been authorised under s.58(8) above, no further questioning should take place until

- the chosen solicitor is present, or

- a senior officer decides that delay will involve in immediate risk of harm to persons or property, or

- the chosen solicitor is unavailable and the suspect declines any alternative, or

- the suspect changes his mind.

R v Samuel [1988] 2 All ER 135, CA

A man was arrested on suspicion of robbery, and asked to see a solicitor. The police refused, claiming such access might lead to the suppression of evidence or the warning of accomplices, and at a subsequent interview the suspect made admissions later given in evidence. The Court of Appeal said this was not good enough - s.58(8) allowed the right to legal advice to be delayed only where the police have reason to believe that allowing access to a particular solicitor (not just any solicitor) will (not might) have the undesirable consequences listed. Since this was not the case, and since the defendant's solicitor testified that he would have advised the defendant not to make any admission, the conviction was quashed.

R v Vernon [1988] Crim LR 445, Judge Andrew QC

A woman was arrested for assaulting a neighbour late one night, and arrived at the police station after midnight. She asked to see a particular solicitor, but on being told this solicitor was not available she agreed to be interviewed without legal advice rather than wait until morning. The police did not tell her there was a duty solicitor already on his way to the police station to see another prisoner. At her trial, the judge said it was clear she would have waited had she known the duty solicitor would be present soon, and the police had had a duty to tell her this. In the circumstances, her statement would be excluded.

The Code of Practice allows the solicitor to be present at any interview unless by his misconduct he prevents the proper putting of questions to his client. The solicitor can quite legitimately object to the manner in which questions are put, or advise his client not to reply to particular questions, or ask for a short break in questioning so that he can consult with his client privately. Misconduct that would justify excluding the solicitor might be answering questions on the client's behalf, or providing written answers for the client to read. Any decision to exclude a solicitor must not be taken lightly and must be reported to a senior officer as soon as practicable.

R v Chief Constable of South Wales ex p Merrick [1994] NLJ 423, QBD

A man was charged with arson and was remanded in custody. When his solicitor went to see him, he was told that the Chief Constable's standing orders limited solicitors' visits to the period from 8.30 am to 10.00 am, because officers were engaged in other escort duties after that time. The High Court allowed an application for judicial review and granted a declaration that the suspect was entitled to see his solicitor "as soon as reasonably practicable" after making a request.

A study by McConville & Bridges (1994) shows that throughout the defence process, and particularly at the interrogation stage, many firms routinely delegate work to non-solicitors, including clerks and even secretaries. Legal aid regulations pay more for appearance at court than for preparatory work, and as a result many solicitors take little part in the preparation. The Code allows a solicitor to send a clerk in his place, and such a clerk should normally be admitted, but a senior police officer may refuse to admit a particular unqualified clerk if he believes the clerk's background and experience make him unsuitable.

R v Chief Constable of Avon & Somerset ex p Robinsons [1989] 2 All ER 15, QBD

Robinsons were solicitors specialising in criminal legal aid work among the black community in Bristol, and employed a number of unqualified clerks to visit clients held in custody. The Chief Constable believed the character and antecedents of several of those clerks made their admission undesirable, and issued instructions to custody officers that in his opinion there would be very few occasions on which four named clerks should be allowed access to persons in custody. Robinsons sought judicial review, and the High Court said the Chief Constable was justified. A clerk competent to give advice cannot be refused access on the ground that his advice is likely to be bad, but a person who is not a genuine clerk, or whose criminal record or associations suggest he will be likely to hinder the investigation of crime, or who the police believe is not capable of providing advice on behalf of the solicitor, can be refused.

R v Mason [1987] 3 All ER 481, CA

A man confessed to burglary after the police had told him and his solicitor that his fingerprints had been found at the scene of the crime. This was not in fact true, but the judge admitted the confession to evidence and Mason was convicted. The Court of Appeal quashed the conviction: deceiving the solicitor was a serious matter, they said, making it impossible for him to give his client the best advice, and the judge should have exercised his discretion to exclude the evidence.

R v Alladice (1988) 87 Cr App R 380, CA

A man was arrested for armed robbery at a post office, and asked to see a solicitor. He was well aware of his legal rights on arrest, and wanted a solicitor only as an independent witness. The police refused a solicitor, and Alladice was subsequently convicted on evidence including his own admissions. Dismissing his appeal, the Court of Appeal said there had been a breach of s.58 in that the proper grounds for refusal had not been established, but the presence of a solicitor would have added nothing to the defendant's knowledge of his rights and there was no reason for his admissions to have been excluded.

R v Grant [2005] EWCA Crim 1089

A man was charged with conspiracy to murder, but applied for the proceedings to be stayed on the grounds that the police had deliberately eavesdropped on and tape-recorded conversations between himself and his solicitor at the police station.The trial judge dismissed the application and the defendant was convicted, but the Court of Appeal quashed the conviction. Laws LJ said there was no doubt that the acts done by the police were unlawful and tainted the trial even though they had not in fact learned anything useful. Unlawful acts of this kind are so great an affront to the integrity of the justice system, and therefore the rule of law, that the associated prosecution ought not to be countenanced by the court.

The law tries to give special protection to people belonging to particularly vulnerable groups, and their confessions are treated with more than the usual suspicion since they may have been made without full understanding. The categories recognised as particularly vulnerable are:

- mentally disordered and mentally handicapped persons;

- children and young persons under the age of 17;

- blind and partially sighted persons;

- deaf and partially hearing persons; and

- persons who do not understand English.

Anyone who appears to fall into any of these groups is treated as if they do until the contrary is shown.

R v Brine [1992] Crim LR 122, CA

A man was charged with indecent assault, and the evidence against him included a confession made after several hours' questioning. He called a psychiatrist to give evidence that he was suffering a mild form of paranoid psychosis, the effect of which was that under the stress of questioning he would have felt very threatened and would have been likely to tell lies and make untrue admissions. The Court of Appeal agreed that the police had not acted improperly, but said the defendant's mental state made his confession unreliable.

In the case of a mentally disordered or mentally handicapped person, an "appropriate adult" should be present at all interviews, in addition to a solicitor if one is requested, and the suspect should be allowed to consult privately with the appropriate adult at any time. The appropriate adult should be:

- a relative, guardian or other person responsible for the suspects's care; or

- a social worker experienced in dealing with mentally disordered or mentally handicapped people; or

- some other responsible adult not in or employed by the police.

Similarly, a juvenile should be accompanied at all interviews by an "appropriate adult", who should be:

- a parent or guardian, unless he is involved or suspected of involvement in the offence, or has received admissions by the child, or is estranged and the child objects to his presence; or

- a social worker, unless he has received admissions by the child; or

- some other responsible adult not in or employed by the police.

R v Blake [1989] 1 WLR 432, QBD

A 16-year-old girl suspected of arson asked for her social worker to be present rather than her estranged father: the social worker refused to attend as a matter of policy, and the girl's statement was taken down with her father present after all. The High Court criticised the Social Services' policy of non-cooperation, but said the confession must nevertheless be excluded; the appropriate adult must be someone in whom the client has confidence.

R v Morse [1991] Crim LR 195, Judge Beezley

A 16-year-old boy was arrested for arson, and his father attended the police station as the appropriate adult; they declined legal advice and the boy made various admissions. At trial, the judge accepted an application by the defence that these admissions be excluded. Both the boy and his father were of low intelligence, and it seemed that the father had not understood the seriousness of his son's position. The police had behaved impeccably, but the test for an appropriate adult was an objective one, and the prosecution could not show that the boy's confession was reliable.

In the case of a suspect who is blind or seriously visually handicapped, or is unable to read, a relative or other appropriate adult should be available to help in checking any documents. The appropriate adult need not fit any particular description, but should not be in or employed by the police and should be someone the suspect trusts to sign police documents on his behalf.

If a suspect appears to be deaf or partially hearing, or there is doubt as to his ability to understand spoken English, the custody officer must summon an interpreter who should explain the suspect's rights to him and be present at all interviews unless the interrogating officer is fluent in the suspect's language.

Perhaps unsurprisingly, the law shows no special consideration for drug addicts, who may also be particularly vulnerable if they are questioned while under the influence of drugs or while in a state of withdrawal.

DPP v Ping Lin [1975] 3 All ER 175, HL

A man was accused of dealing in drugs and sought his release in exchange for the name of his supplier. The police refused, but said cooperation would probably be taken into account by the judge, and the man then made a statement identifying his supplier. Dismissing his appeal against his subsequent conviction, the House of Lords said any statement made after this conversation would have been inadmissible because of the improper inducement, even though the officer's motives had been entirely honourable, but the admissions on which the prosecution relied were those the man had made before this point in the conversation, and were not the result of the inducement.

R v Goldenberg (1988) 88 Cr App R 285, CA

A heroin addict was arrested and charged with conspiracy to supply. Five days later he asked for an interview with the police, and made admissions that were later offered in evidence. The Court of Appeal upheld the judge's decision to allow the evidence to be given. It may be, as the defence claimed, that the suspect had made the admissions in the hope of being given bail, but that was something in his own mind rather than anything said or done by anyone else that would justify excluding the confession as unreliable.