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Police Law 11th Edition

5. Treatment, Charging and Bail of Detained Persons

Chapter 5

RECEPTION OF ARRESTED PERSONS AT POLICE STATIONS p152

In line 10 of the first paragraph and lines 3 and 4 of the second paragraph the references to a staff custody officer are deleted by the Policing and Crime Act 2009, Sch 8.

Conditional cautions: adults p 155

In the 2nd para the condition at (c) is now in force.

In relation to the material which appears in the second sub-para (a) on p156 the Criminal Justice Act 2003 (Conditional Cautions: Financial Penalties) Order 2009, SI 2009/2773, provides that the maximum amount in respect of the following offences is £ 150:

1. theft, TA 1968, s 1;
2. removal of article from a place open to the public, TA 1968, s11;
3. abstracting electricity, TA 1968, s 13;
4. false accounting, TA 1968, s 17(1)(a);
5. handling stolen goods, TA 1868, s 22(1);
6. going equipped for burglary or theft, TA 1968, s 25;
7. destroying or damaging property, CDA 1971, s 1(1);
8. threatening to destroy or damage property, CDA 1971, s 2;
9. possessing articles with intent to destroy or damage property, CDA 1971, s 3;
10. making off without payment, TA 1978, s 3(1);
11. forgery etc of driving licences, motor insurance documents, etc RTA 1988, s 173;
12. forgery or fraudulent use etc of vehicle licence or trade licence etc, VERA 1994, s 44(1);
13. fraud, FA 2006, s 1;
14. possession etc of an article for use in fraud, FA 2006, s 6(1);
15. making, adapting, supplying or offering to supply an article for use in fraud, FA 2006, s 7;
16. obtaining services dishonestly, FA 2006, s 11.

Each of the offences listed above includes an attempt to commit such an offence.

The Order prescribes particular maximum penalties for certain prescribed offences:

Causing harassment, alarm or distress, POA 1986, s 5.	£ 100
Any summary offence except an excluded offence (loitering or soliciting for the purpose of prostitution, SOA 1959, s 1; any offence under the RTA 1988; or any offence under the RTOA 1988) for which a person is liable to a maximum fine at level 5 on the standard scale.	£ 150
Any summary offence except an excluded offence for which a person is liable on conviction to a maximum fine of level 4 on the standard scale.	£ 100
Any summary offence for which a person is liable on conviction to a maximum fine at level 1, 2 or 3 on the standard scale other than an excluded offence or causing harassment, alarm or distress, POA 1986, s 5.	£ 50

These provisions concerning financial penalties currently apply in the police areas of Cambridgeshire, Hampshire, Humberside, Merseyside and Norfolk. A revised Conditional Cautioning Code of Practice, and a revised version of the DPP’s Guidance on Conditional Cautioning came into force in November 2009. [SIs 2009/1679 and 2009/2771]

Youth conditional cautions p 156

The provisions inserted by CJIA 2008, s 48 and Sch 9 were brought into force on 16 November 2009 in the police areas of Cambridgeshire, Hampshire, Humberside, Merseyside and Norfolk. They only apply to those who may receive a youth conditional caution in accordance with the Code of Practice for Youth Conditional Cautions for 16 and 17 year olds prepared by the Secretary of State. [SIs 2009/2780; 2010/127]

The list of prescribed offences in respect of which a financial penalty may be attached to a youth conditional caution is identical to the above list in respect of a conditional caution: adults, but the maximum amounts are half the corresponding amounts for such a caution (eg maximum for adult conditional caution £150; maximum for youth conditional caution £ 75), except that where the adult maximum is £ 50 the maximum for a youth conditional caution is £ 30. [SI 2009/2781].

Authorisation p 169

In the last sentence of the second paragraph delete 'or a designated staff custody officer'. [Policing and Crime Act 2009, Sch 8]

X-rays and ultra sound scans p 170

In line 3 on p 171 delete 'or a designated staff custody officer'. [Policing and Crime Act 2009, Sch 8]

Questioning after charge p 180

The Counter-Terrorism Act 2008, s 22 permits a judge of the Crown Court to authorise questioning of a person in England and Wales concerning an offence with which he has been charged or informed that he may be prosecuted, where that offence was a terrorist offence, or where the judge considers the offence to have a terrorist connection. See further Chapter 33 below.

Conditional bail p 184

The fourth sentence of the third paragraph under this heading is amended as a result of the provisions of the Coroners and Justice Act 2009, s 107. Substitute the following sentence:

'Section 46ZA of PACE provides that an accused person answering live link bail is not to be treated as being in police detention (with the qualification that the accused is to be treated as if he had been arrested for and charged with the offence for which he was given live link bail if he is informed by a constable at any time before the beginning of proceedings under CDA 1998, s 57C (see p 228 of the text) that a live link direction is not available, or the court determines not to give a live link direction.'

Replace the last sentence of the first paragraph on p 185 ('These provisions . . .') with the following text:

By PACE, s 54B (added by C&JA 2009, s 108), a constable may search at any time any person who is at a police station to answer to live link bail; and any article in the possession of such a person. If the constable reasonably believes a thing in the person’s possession ought to be seized on any of the ground or grounds that it:

1. may jeopardise the maintenance of order in the police station;
2. may put the safety of any person in the police station at risk; or
3. may be evidence of, or in relation to, an offence,

the constable may seize and retain it or cause it to be seized and retained.

Anything so seized and retained must be recorded. Such a search may only be conducted by a constable of the same sex as the person concerned. An intimate search may not be carried out under the authority of PACE, s 54B.

PACE, s 54C (also added by C&JA 2009, s 108) empowers a constable to retain a thing seized under s 54B until the person from whom it was seized leaves the police station. However, retention beyond that point of time is permissible:

1. in order to establish the thing’s lawful owner, where there are reasonable grounds for believing that it has been obtained in consequence of the commission of an offence; or
2. if the thing may be evidence of, or in relation to, an offence, a constable may retain it for use as evidence at a trial or for forensic examination or for investigation, and a photograph or copy would be insufficient for that purpose.

PACE, ss 46ZA, 54B and 54C are only in force at the time of writing in the local justice areas of (1) in London: Barking and Dagenham, Barnet, Bexley, Brent, Bromley, Camden and Islington, City of London, City of Westminster, Croydon, Ealing, Enfield, Greenwich and Lewisham, Hackney and Tower Hamlets, Hammersmith and Fulham and Kensington and Chelsea, Haringey, Harrow Gore, Havering, Hillingdon, Hounslow, Kingston-upon-Thames, Lambeth and Southwark, Merton, Newham, Redbridge, Richmond-upon-Thames, Sutton, Waltham Forest and Wandsworth; and (2) in Kent: Central Kent, East Kent and North Kent. [SI 2008/2785]

Arrest of person for failure to answer police bail p186

At the end of third paragraph under this heading delete the last sentence and add to the end of the penultimate sentence:

'or to be searched under PACE, s 54B. At the time of writing, these provisions are only in force in the local justice areas listed above (ie on p 184 [see update to p 184]).'

Exception to right to bail p 187

In para 6 below this heading remove 'prospectively' which appears after 'CJIA 2008, s 52 and Sch 12'.

Special provision in respect of murder p 189

The following provision in the above respect is prospectively added by the Coroners and Justice Act 2009, s 114 and s 115 respectively.

If the accused is charged with murder, the accused may not be granted bail unless the court is of the opinion that there is no significant risk of the accused committing, while on bail, an offence that would be likely to, cause physical or mental injury to any person other than the accused.

A person charged with murder may not be granted bail except by order of a Crown Court judge.