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Police Law - Ninth Edition

Chapter 5 - Treatment, Charging amd Bail of Detained Persons

Chapter 5 - Treatment, Charging amd Bail of Detained Persons

[Added September 2006]
Throughout this chapter references to any procedures (as opposed to law) dealt with under Code C which involve action to be taken by police officers in respect of terrorism no longer apply. People detained under the Terrorism Act 2000, Sch 8 and s 41 and other provisions of that Act are no longer subject to any part of Code C. Such persons are subject to the Code of Practice for detention, treatment and questioning of persons by police officers detained under that Act, a new Code H.

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Conditions of detention p 130

Text at (10) on p 131 should be replaced by -

Detainees should be visited at least every hour. If no reasonably foreseeable risk was identified in a risk assessment, a sleeping detainee need not be awakened. A person suspected of being intoxicated through drink or drugs, or to have swallowed drugs or whose level of consciousness causes concern, must, subject to any clinical directions given by the appropriate health care professional, be visited and roused at least every half hour, have his condition assessed and clinical treatment arranged if appropriate. His condition must be assessed by entering the cell, calling his name and shaking him gently, before asking his name and where he lives as well as where he thinks he is. (Some strange replies may be received.) He should be asked to open his eyes and to lift his arms successively. These provisions apply to a person in police custody by order of a magistrates' court under the CJA 1988, s 152 (as amended by the Drugs Act 2005, s 8) to facilitate the recovery of evidence after being charged with drug possession or drug trafficking and suspected of having swallowed drugs. In the case of the healthcare needs of a person who has swallowed drugs, the custody officer, subject to any clinical direction, should consider the necessity for rousing every half hour. This does not negate the need for regular visiting of the suspect in the cell [Detention Code, guidance note 9CA]

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Independent custody visitors for places of detention p 134

The notice of rights and entitlements given to detainees explains that 'visitors' are members of the community who are allowed access to police stations unannounced to ensure that detainees have access to their rights. It explains that detainees do not have a right to see an independent custody visitor and that they cannot request to see one; that they act independently of the police to check that welfare rights are protected; and that they do not have to speak to them if they do not wish to do so. [Code C revision]

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Reception of Arrested Persons at Police Stations pp 134 & 135

Amendments effected by the SOCPA 2005 authorise the appointment of designated staff custody officers. Where an arrested person is taken to a non-designated police station any individual not concerned in the investigation of the offence may, by PACE, s 36, assume the responsibilities of a custody officer or a staff custody officer. If no such officer or staff custody officer is available, it may be the arresting officer.

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Duties of a custody officer before charge p 136

Replace the first sentence of the material below this heading with -

PACE, s 37 states that the decision as to whether or not there is sufficient evidence to charge a detained person, arrested without warrant or on a warrant which is not endorsed for bail, with the offence for which he was arrested, is that of the custody officer. The person may be detained at a police station for such period as is necessary for him to make that decision.

Add the following text at the end of this section before the heading 'Conditional caution' -

PACE, s 37A provides that the DPP may issue guidance in relation to decisions as to how persons should be dealt with under s 37(3) (under which a custody officer decides whether there is sufficient evidence to charge a person) and also concerning the information to be sent to him in accordance with s 37B(1) (information to be sent to DPP so that he may make a decision). The Director must publish such guidance and any revisions which he may make.

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Drug testing p 138

The Drugs Act 2005 made substantial changes to this section. It provides for, following an analysis of a sample taken from a person who is still in custody, which reveals the presence of a Class A drug, a requirement to be made for an "initial assessment' to be carried out by a qualified assessor which will be for the purpose of establishing dependency or a tendency to misuse specified Class A drugs. Follow-up assessments may also be made in specified circumstances. Failure to attend such assessments may constitute an offence. The text under the heading of 'Drug Testing' which appears before the paragraph beginning 'Any sample so taken' is replaced with the following:

Experimental work in relation to drug testing is currently being undertaken in the police areas of Staffordshire, Nottinghamshire, the Metropolitan Police District, Bedfordshire, Devon and Cornwall, Lancashire, Merseyside, South Yorkshire, North Wales, Avon and Somerset, Greater Manchester, Thames Valley, West Yorkshire, Cleveland, Humberside, Cambridgeshire, Leicestershire, Northumbria, Gwent, Northamptonshire, South Wales and West Midlands. Within those areas, the Police and Criminal Evidence Act 1984 (Codes of Practice) (Modifications to Codes C and D) Order 2003, as amended, has brought into force PACE, s 63B, which permits the taking of urine or non-intimate samples from someone for the purpose of ascertaining whether he has any specified Class A drug in his body where that person has been arrested for a 'trigger offence' or one in relation to which (b) below applies but he has not been charged with that offence, or

1. that the person has been charged with a "trigger offence' (theft, attempted theft, robbery, attempted robbery, burglary, attempted burglary, aggravated burglary, attempted burglary, taking a motor vehicle or other conveyance without authority, aggravated vehicle-taking, obtaining property by deception, attempted obtaining property by deception, handling stolen goods or attempted handling, going equipped for stealing etc, and an offence under the Misuse of Drugs Act 1971 if committed in respect of a specified Class A drug associated with producing and supplying a controlled drug, possessing a controlled drug, or possessing a controlled drug with intent to supply, and begging or persistent begging contrary to the Vagrancy Act 1824, s 3 or 4 respectively), or
2. with an offence and an inspector(or above), who has reasonable grounds for suspecting that the misuse by that .person of any specified Class A drug caused or contributed to the offence, has authorised such a sample to be taken.

In the case of an 'arrest condition' the circumstances at (a) and (b) above must apply to a person of 18 or over; in the case of a 'charge condition', those circumstances must apply to a person who has attained the age of 14 who has been charged with a trigger offence or one described at (b) above.

Where a sample is taken from a person who satisfies the arrest condition, no other sample may be taken during the same continuous period of detention, but if the charge condition is met during that period, the sample already taken must be treated as one taken after charge. This must be recorded in the custody record.

In circumstances in which a person is arrested for a first offence which satisfies the arrest conditions but not the charge conditions and he would normally be liable to be released from custody before a sample is taken but he remains in custody by reason of arrest for another offence (not one described at (a) and (b) above) a sample may be taken before the end of a period of 24 hours following his initial arrest.

Samples must not be taken from a person in custody unless he is brought before the custody officer.

Initial assessment

Where an analysis of a sample reveals the presence of a Class A drug a police officer may, at any time before the person's release, require a person of 18 or over to attend an 'initial assessment' and to remain for its duration. A qualified 'initial assessor' will seek to establish dependency or a tendency to misuse any specified Class A drug and whether the person will benefit from further assessment or advice. If an initial assessor finds that a follow-up assessment is appropriate, he must inform the person of the time and place at which it is to take place, confirm this in writing and warn the person of he consequence of failing to attend.

Follow-up assessment

The police officer may, at the same time as he imposes a requirement to attend an initial assessment, require the person to attend a follow-up assessment and to remain for its duration. This requirement ceases to have effect if cancelled at the initial assessment. A follow-up interview will be concerned with a 'care plan'. If, at initial assessment, the assessor considers that a follow-up assessment is not appropriate, it may be cancelled.

Attendance at assessments

A constable must inform the detained person (to be confirmed in writing) that failure to attend either or both forms of assessment without good cause, may result in prosecution. This must be done prior to release from custody and a record must be made in the custody record.

The DA 2005, s 12 provides that a person who is required to attend an initial assessment commits an offence if he fails, without good cause, to attend at the specified time and place, or attends but fails to remain for the duration of the assessment. Where such a failure occurs, any requirement imposed in relation to a follow-on assessment ceases to have effect. It is an offence against s 14 to fail, without good cause, to attend a follow-on assessment. These offences are not committed if a subsequent analysis of a sample reveals that a specified Class A drug was not present in the person's body. This is because any requirement imposed ceases to have effect.

Section 3 of the Act makes changes to the provisions of PACE in relation to intimate searches carried out in respect of drugs.

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Communication by detained persons with others p 140

Replace the existing (a) and (b) on p 141 relating to the 'second type of case' with -

The second type of case is that an officer may also authorise delay where the indictable offence is where the officer has reasonable grounds for believing that the person detained for an indictable offence has benefited from his criminal activity (decided in accordance with Part 2 of the Proceeds of Crime Act 2002) and the recovery of the value of the property constituting that benefit will be hindered by the exercise of either right. [Code C, Annex B, para 2]

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Intimate searches p 146

At the end of the text which appears under the heading 'Authorisation' insert:

In relation to (b), an intimate drug search must not be carried out without appropriate consent in writing. Authorisation must be given by an appropriate officer who must inform the person of the authorisation and the grounds for giving it. These matters must be recorded. Where appropriate consent to a drug offence search is refused without good cause, a court or jury in any proceedings which follow, may draw such inferences from that refusal as appear proper. An 'appropriate officer' is a constable, detention officer or staff custody officer. [DA 2005, s 3]

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Documentation p 147

Replace existing material with -

After an intimate search has been carried out, a record must be made as soon as practicable on the custody record, stating the authorisation to carry out the search; the grounds for giving the authorisation; the grounds for believing that the article could not be removed without an intimate search; which parts of the detainee's body were searched; who carried out the search; who was present and the result. Where the intimate search is a drug offence search, a record must be made of the necessary warning; the fact that appropriate consent was given or refused (and if refused, the reason given for the refusal). The following form of words may be used to give such a warning, 'You do not have to allow yourself to be searched but I must warn you that if you refuse without good cause, your refusal may harm your case if it comes to trial.' The powers of seizure in respect of articles found are the same as those which apply to other searches. If an intimate search is carried out by a police officer, the reason why it was impracticable for a registered medical practitioner or a registered nurse to conduct it must be recorded. [Detention Code Annex A paras 7, 8 and guidance note 6]

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X-Rays and ultrasound scans Insert on p 147 before REVIEWS AND MAXIMUM PERIODS OF POLICE DETENTION

PACE, s 55A [not yet in force] provides that where an officer of at least the rank of inspector has reasonable grounds for believing that a person arrested for an offence and who is in police detention may have swallowed, and was in possession of a Class A drug with the appropriate criminal intent before his arrest, may authorise an X-ray or an ultrasound scan to be taken with that person's written consent. Such authorisations are subject to the same conditions. An x-ray or ultrasound scan may only be carried out a hospital, the surgery of a registered medical practitioner, or at some place used for medical purposes. An appropriate record must be made in the custody record. The provisions of the previous paragraph in relation to the inferences which may be drawn, also apply to refusals to permit x-rays and ultrasound scans to be carried out.

Before an X-ray or scan is carried out, the detainee must be told that the authority has been given and the grounds for the authorisation. Before being asked for his consent he must be warned that an unjustified refusal may harm his case if it comes to trial.

If authority is given for an X-ray to be taken or an ultrasound scan to be carried out, or both, consideration should be given to asking a registered medical practitioner or registered nurse to explain to the detainee what is involved and to allay any concerns the detainee might have about the effect which such examinations may have upon them. If appropriate consent is not given, evidence of the explanation may, if the case comes to trial, be relevant to determining whether the detainee had good cause for refusing. [Detention Code, Annex K]

Revisions consequent upon 2005 Codes of Practice, Code A

Community support officers were empowered by SOCPA 2005 to search detained persons for dangerous items which could be used to assist escape. [Code A, New Annex C]

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Charging Detained Persons p 154-155

Procedures

Where guidance exists under PACE, s 37A a custody officer who determines in accordance with that guidance that there is sufficient evidence to charge the detainee, may detain that person for no longer than is reasonably necessary to decide how that person is to be dealt with under PACE, s 37(7)(a) to (d), including, where appropriate, consultation with the duty prosecutor. The period is subject to the maximum period determined by PACE, ss 41 to 44. Where a reference is made to the Crown Prosecution Service a custody officer is responsible for ensuring that all specified information is sent with that reference. Where a person is arrested under the provisions of the CJA 2003 which allow a person to be re-tried after being acquitted of a serious offence which is a qualifying offence specified in Sch 5 to that Act and not precluded from further prosecution by virtue of s 15(3) of that Act the detention provisions of PACE are modified and make an officer of the rank of superintendent or above who has not been directly involved in the investigation, responsible for determining whether the evidence is sufficient to charge. [Code C 11AA and AB]