ADVICE GUIDE: Around one and a half million people are arrested every year in England and Wales. It can be a frightening experience. If you’ve had the misfortune to be one of them for whatever reason, it could well be the first time you’ve been locked up in a cell. What rights would you have? Would you have the faintest idea? For example, would you know how long the police could keep you there? Would you have any idea how the police are supposed to conduct a proper interview? Did you know, for example, that the ‘right to silence’ was effectively abolished in 1994, (a failure to tell the police all the relevant details about a defence that they may not put forward in court until many months, or even years, later can amount to evidence of guilt). Would you know how accepting a caution could affect your career or limit travel to certain Countries?
You can read the Justice Gap advice guide here. It’s an ongoing project and over the next few weeks I’ll be blogging about the interview procedure, decision-making process with regard to charge, and alternative disposals. So come back.
I work as a police station representative and defence lawyer spending most of my professional life in the cells of various East Sussex police stations advising people accused of crimes ranging from the petty to the most serious, including murder. Last year almost 500 people over the age of 65 were arrested in the Sussex police area, including an 82-year old woman for an offence of violence and a 90-year old woman for dangerous driving. There were almost 4,000 kids aged between 10 and 16 (including seven 10-year olds) arrested as well. A number of my clients are what you might call regulars – repeat offenders who are as familiar with police procedure as many of the officers – but how would you feel if it was an elderly relative who was arrested or one of your kids? Police stations are intimidating places. They can be noisy and terrifying.
At present, there are no alternatives within police stations for young and/ or vulnerable prisoners other than in cells. There are JDRs – Juvenile Detention Rooms – but I struggle to see the difference between those and ordinary cells. Admittedly, very vulnerable people, those threatening to harm themselves for example, may be placed in a cell with the door open under the watchful eye of an officer, but this will nonetheless be a very frightening experience.
Most firms of solicitors will have a regular client base of ‘own clients’, people who are arrested regularly, perhaps weekly, and who are very familiar with the system and its procedures. However, I would hazard an educated guess that of the over 65s arrested last year a very high proportion will never have been arrested before, or since. It may be almost as frightening for the friends and relatives as the person in custody, desperate to know what’s happening and how they are. I often think how I might feel if one of my family were in this situation as I know first hand how difficult and frustrating it can be to get information. Instructing a solicitor in these cases can help to ease these worries, by acting as an intermediary between those inside and outside of custody, and explaining the procedure and timescales. I have outlined in my blog what to expect from an arrest, which I hope will help should you or a relative find yourself in this predicament.
In this week’s blog, I want to outline to you in general terms what happens when a person is arrested and taken to a police station. This is obviously a huge area of law and I don’t intend to bore you with the minutiae of the different bits of legislation. If you want to find out more, check out www.crimeline.info. Plus, there might be some regional variations in procedure, and it would be impossible to cover every eventuality here, so this is intended as a practical guide.
When you can be arrested:
In very broad terms, a constable may:
- Arrest without warrant anyone about to or in the act of committing an offence;
- If he has reasonable grounds for suspecting an offence has been committed can arrest anyone he reasonably suspects to be guilty of it;
- If an offence has been committed he can arrest anyone he reasonably suspects to be guilty of it.
An arrest must be necessary for the following reasons:
- If the suspect’s name or address is not known, cannot be easily verified, or is believed to be false;
- To prevent the suspect causing harm to himself or another, or from suffering injury;
- To prevent loss of or damage to property;
- To prevent the suspect committing an offence against public decency or an obstruction;
- To protect a child or vulnerable person;
- To allow the prompt and effective investigation of the offence;
- To prevent the suspect’s disappearance.
- If none of those conditions are present, for example if you are invited to the police station for an interview and attend by appointment, or if the alleged offence is historic and your name and address are known to the police, you can be dealt with as a volunteer (explained in more depth later on).
How long you might be kept in custody for:
- From the time you arrive at the station under arrest, you may be kept in custody for 24 hours before being released or charged, and your detention will be reviewed after six and then nine hourly intervals. A superintendent can authorise up to a further 12 hours for more serious offences, but in practice this is quite rare. Your solicitor can be present at this discussion and make representations on your behalf.
- Beyond 36 hours and up to 96 hours (14 days in terrorism cases) an application must be made to the Magistrates’ Court for a warrant of further detention.
What happens on arrival:
- On arrival, the arresting officer will present their prisoner to a custody sergeant who has responsibility for that person throughout their detention but takes no part in the investigation. An officer will outline the reasons for your arrest so the custody sergeant can decide whether or not to authorise your detention. This can be done for a person to be charged, or for a charging decision such as when they answer bail, or in order to interview a suspect or gather evidence. If those grounds don’t exist, the detention may be unlawful.
- At this point, however aggrieved you may be at having been arrested, it is very important to stay calm, especially if you have been handcuffed during your arrest. The handcuffs will not be removed until it is considered safe to do so.
The custody sergeant will not debate your arrest at this stage, and is more concerned with ‘booking’ you into custody. You will be asked various questions regarding your identity and general state of health. If you are injured or unwell, you will be seen by a resident medic to assess your fitness to be detained in custody. (Note: If you are arrested from home, and you need regular medication, take it with you in its original packaging. You will not be allowed to take unverified medicines).
Your rights in custody:
Your legal rights will be explained to you, such as the right to free and independent legal advice, the right to have someone informed of your detention, and finally the right to consult the codes of practice, the law outlining how you must be treated whilst in custody.
I am very often present whilst people are being booked in and the most common reason I hear for a solicitor being declined is: ‘I don’t need one, I haven’t done anything wrong’. The custody sergeant is not allowed to influence a detainee either way with regards to the obtaining of legal advice, and so will not give you any advice regarding your decision. My view is that the more innocent you are, the more important it is that you have a solicitor.
You can nominate your own solicitor if you have one, or ask for the duty solicitor. A call will be placed to the solicitor on your behalf, who will ring in and give you initial telephone advice whilst awaiting your interview. They can take up any immediate concerns on your behalf, and are likely to advise you not to talk about the reasons for your arrest until you have received advice. Before being placed in a cell you will be searched (by a female officer if female). This is to ensure you are not in possession of anything which you could use to injure yourself or others. I often hear detainees complaining about having items of clothing or jewellery removed, but it is non-negotiable on grounds of safety. You may be allowed to keep reading glasses (if being arrested from home you should take your glasses). A search can also be carried out to find evidence such as drugs or stolen property. A more intimate search may be authorised if the grounds for doing so exist, but this is relatively rare and usually only occurs with detainees who are known to have hidden drugs in the past. You will also have your fingerprints taken, and if it is your first time in custody, a mouth swab to obtain your DNA. For certain trigger offences, a mouth swab can be taken to detect the presence of drugs in your system. DNA and fingerprints can be taken by force, and it is a criminal offence to refuse the drug test. Even if you disagree, I would advise you to consent to the tests, and argue the toss later. If any officers are injured during the taking of a sample you could be charged with assaulting a police officer in the execution of their duty.
If the matter you have been arrested for is historic, there may only be a short delay before your interview. However, if you have been arrested for something which has just occurred, further investigations will need to be carried out and statements taken. In complicated matters this can take several hours, and if the enquiries carry on into the night your interview may be delayed until the following morning. In some areas no interviews take place during the night and you will automatically be put in the cells until the next day. The Police and Criminal Evidence Act 1984 (known as PACE) states that detained persons should have a period of uninterrupted sleep, unless the custody sergeant believes it would unnecessarily delay that person’s release. I would advise against being interviewed in the middle of the night. A search may be carried out of your home, or another place under your control, in order to find evidence concerned with the offence you are under arrest for, or of similar offences. For example, if you have been arrested for shoplifting, your home could be searched under PACE, s18, with the authority of a police Inspector in case other stolen items from previous offences are present. Similarly, if under arrest for possessing drugs with intent to supply, police will be looking for scales, packaging bags and cash, as evidence of supply as opposed to mere possession. You may have swabs taken from your skin for evidential purposes, or to provide intimate samples, and you should seek legal advice before deciding whether to do so.
If you have recently suffered with a mental health condition, you may require an ‘appropriate adult’, a trained volunteer who attends to ensure you are treated fairly and understand all your rights. They will attend the station just before your interview and have a private chat with you.
Food and drink:
Whilst you are in custody you should be offered meals and drinks at appropriate intervals, and you can ask to speak to someone not connected with the offence on the telephone. You can also ask to speak to your solicitor again if you need to do so.
If you are under the age of 17 years you are designated as a ‘young person’. You will always have either your parent or another appropriate adult with you whilst having their rights explained to them and during any interview or other procedure. See the Justice Gap advice guide to the criminal law for young people here.
If you attend the police station voluntarily, you are still entitled to legal advice. The criteria (at present) for free legal advice is merely that you are to be interviewed, and that a police officer is present. The main difference in attending as a volunteer is that you are not ‘under arrest’, and so are free to leave the police station at will. You will not be searched or placed into a cell. If however you do decide to leave, the officer will have to decide whether to arrest you in order to carry out and interview, and may well have grounds to do so at that stage. It is important to obtain legal advice before attending the station.
Finally, the best advice I can give you is to stay calm whilst in custody so that you can effectively communicate your needs to those that will have responsibility for you over the next few hours. Trust me, shouting, screaming and being angry will not make it happen any faster.
My next blog will cover the interview procedure and explain the wording of the caution to you. It’s not quite like it was on The Bill.