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police stations should be under constant twenty-four hour a day surveillance
through both audio and video recording. That would include the area around
the custody o¬cer™s desk (the ˜custody suite™) and the corridors leading to the
cells. It would not include the cells themselves. The purpose would be to
reduce the danger of unauthorised and improper exchanges, as well as to
monitor the nature of any physical interaction between suspects and police
o¬cers.139 The Government™s Interim Response to the Royal Commission™s
Report in February 1994 indicated that this recommendation was accepted
and it is now common to have CCTV monitoring of the public space in police
stations and custody suites.


The regime in the police station “ the Codes of Practice and the custody
officer
The Administrative Directions accompanying the Judges™ Rules made some
provision for the way the suspect was to be looked after in the police station.
These dealt with such matters as the way the statement was to be taken and
recorded, the record of the questioning, reasonable comfort and refreshment of
suspects, special rules for questioning children, young persons and mentally
handicapped persons, rules regarding the questioning of foreigners and access
to writing materials.
The PACE Codes of Practice very signi¬cantly added to these rules and laid
on the police a large number of detailed new requirements with regard to the
way that suspects must be handled.
Code C starts with the statement that ˜all persons shall be dealt with
expeditiously and released as soon as the need for detention has ceased to apply™
(para. 1.1).
Most of the Code deals with the situation in the police station. It deals
with the duties in particular of the custody o¬cer “ the person in each police
station designated to be responsible for the well-being of suspects. PACE,
s. 36 stated that there has to be a custody o¬cer on duty in each ˜desig-
nated™ police station and that normally he should be of the rank of sergeant
or above.
However, the requirement that the custody o¬cer be a sergeant was signi¬-
cantly modi¬ed by the Serious Organised Crime and Police Act 2005 which
permits chief constables to appoint civilian custody o¬cers. This would be a
radical departure.140
Appeal rejected his appeal that the confession given at a later formal interview should have
been excluded by the trial judge.
139
Report, pp. 33“4.
140
SOCPA, ss. 120 and 121. Runciman (pp. 30“1) expressly advised against this. It was ¬ercely
opposed by the Police Federation and the Superintendents Association. As at September 2006
no chief constable had yet utilised the new power. However, the Thames Valley force had
published a business case with a view to introducing it experimentally in 2007.
188 Pre-trial criminal proceedings


It is the custody o¬cer™s duty to ensure ˜that all persons in police detention at
that station are treated in accordance with this Act and any Code of Practice
issued under it . . . and that all matters relating to such persons which are
required by this Act or by such Codes of Practice to be recorded are recorded in
the custody records relating to such persons™ (s. 39(1)). Where the suspect is
taken to a police station that is not a ˜designated™ police station, the person acting
as custody o¬cer must, if possible, be someone other than the arresting or inves-
tigating o¬cers. Where the arresting o¬cer is higher in rank than the custody
o¬cer and there is some disagreement between them regarding the handling of
the suspect, the custody o¬cer has to refer the matter to an o¬cer of the rank of
superintendent or above responsible for that police station (s. 39(6)).
The Code requires the custody o¬cer in each police station to maintain a
custody record containing the details of all the relevant events of the detention.
A person is entitled to a copy of any part of the custody record and he must be
told of his right to have a copy.

Information to the person in custody
One of the most important provisions in the Code relates to the information
that must be given to the suspect. The custody o¬cer, before any questioning of
the suspect, must tell him the ground of his detention and tell him both orally
and in writing of his right to have someone informed about his arrest, to have
free legal advice and of his right under s. 5 of the Code to send a message as to
his whereabouts to someone outside the police station.
PACE, s. 56 (the right not to be held incommunicado) permits the suspect at
his own expense to send letters, or telegrams or make telephone calls, provid-
ing Annex B does not apply. (As has been seen, Annex B states that the imple-
mentation of certain rights may be delayed if an o¬cer of the rank of inspector
(formerly it was superintendent) or above has reasonable grounds to believe
that it would lead to ˜interference with or harm to evidence connected with an
indictable o¬ence™, or to the alerting of other persons suspected of having com-
mitted such an o¬ence, or will hinder the recovery of property obtained in the
course of such an o¬ence.) If letters are sent from the police station, the police
are permitted to monitor their contents “ other than in the case of letters to a
solicitor (Code C, para. 5.7).
The custody record must show that the suspect has been told about his rights,
either by his signed acknowledgment or a note that he refused to sign. If
he wishes to waive the right to legal advice, this too must be signed (Code C,
para. 3.2).
The police must warn the suspect that anything he says in a letter, phone call
or message may be used in evidence (Code C, para. 5.7).

Records of interviews
The provisions in Code C regarding the process of keeping proper records
of any interview with the suspect require records to be kept of the place of
189 Safeguards for the suspect


interviews, the time they begin and end and the time of any breaks. The person
interviewed must be given the chance to read the record and to sign it as correct
or to indicate what he thinks is not accurate. Persons making statements must
be allowed to make them in their own words. If the o¬cer writes the statement
he should use the words actually spoken by the suspect (Code C, paras. 2.6,
11.7“11.14 and Annex D).
One important addition to the old rules is that records of interviews should
so far as practicable be made contemporaneously, or failing this as soon as
possible after the interview (para. 11.7(c)). This has caused the police much
concern. Also, even if the interview is tape recorded, a written record of
the interview must be made and the suspect must be given a chance to read it
and to sign it as correct. Where a third person is present at an interview, he has
to be given the opportunity to read the written record of the interview and to
sign it as correct or to indicate the aspects in which he thinks it is inaccurate.
If he refuses to do so, this fact should be recorded (Code C, paras. 11.12
and 11.14).
For de¬nition of an interview see Code C, para. 11.1A, but the de¬nition is
less important since a record must now be made of relevant comments even if
they are made outside the context of an interview (para. 11.13).
For an evaluation of the value of the recording rules see H. Fenwick,
˜Confessions, Recording Rules and Miscarriages of Justice: a Mistaken
Emphasis™, Criminal Law Review, 1993, p. 174.

Conditions of detention
The Judges™ Rules and Administrative Directions made some, but only rather
general, reference to the conditions of detention. The Code puts detailed ¬‚esh
and blood on the existing skeleton (Code C, ss. 8 and 9).
So far as practicable there should be no more than one person per cell. Cells
and bedding should be aired and cleaned daily. There should be reasonable
access to toilet and washing facilities. Replacement clothing should be of rea-
sonable standard and no questioning must take place unless the suspect has
been o¬ered clothing. There should be at least two light and one main meal per
twenty-four hours and any dietary requirements should be met so far as possi-
ble. Brief outdoor exercise should be permitted daily, if possible.
A child or young person should not be placed in police cells unless he is so
unruly as to be a danger to person or property or there is no other secure accom-
modation available. Only an inspector or above can authorise such detention.
No more than reasonable force may be used by a police o¬cer to secure com-
pliance with reasonable instructions, to prevent the suspect™s escape or to
restrain him from causing injury to persons or damage to property or evidence.
If any ill-treatment or unlawful force has been used, any o¬cer who has
notice of it should draw it to the attention of the custody o¬cer who in turn
must inform an o¬cer of at least the rank of inspector not connected with the
investigation. He in turn must summon a police surgeon or other health care
190 Pre-trial criminal proceedings


professional to examine the suspect. A complaint from the suspect to this e¬ect
must be reported to an inspector or above.

Medical treatment
The Code requires that appropriate action be taken by the custody o¬cer to deal
with any medical condition “ whether or not the person in custody asks for it.
This applies not only to obvious medical conditions but where the person is
unable to appreciate the nature of the proceedings, or he is incoherent or som-
nolent and the custody o¬cer is in any doubt as to the circumstances of his con-
dition. The Code speci¬cally warns that a person who appears to be drunk may
in fact be su¬ering from the e¬ects of drugs or some injury. If in doubt the
police should call the appropriate health care professional (Code C, Note 9C).
The advice of an appropriate health professional should equally be obtained
if the suspect says he needs medication for a serious condition such as heart
disease, diabetes or epilepsy (Code C, para. 9.9).

Conduct of interviews
In any period of twenty-four hours the suspect is supposed to be given eight
continuous hours for rest, free from questioning, travel or other interruption
and, if possible, at night. If he goes to the police station voluntarily, the period
is calculated from arrest.
Before a detainee is interviewed, the custody o¬cer, in consultation with the
o¬cer in charge of the case and appropriate health care professionals as neces-
sary, must assess whether the detainee is ¬t to be interviewed (Code C, para.
12.3 and Annex G).
Interview rooms are supposed to be adequately heated, lit and ventilated. The
suspect should not be required to stand. The interviewing o¬cer should iden-
tify his name and rank (or in terrorism cases or if in other cases, revealing his
identity would put him at risk, his number). In addition to meal breaks there
should also be short breaks for refreshment approximately every two hours
unless this would prejudice the investigation.

The questioning of juveniles and mentally disordered or otherwise mentally
vulnerable persons
There are detailed provisions in the Code regulating the questioning of persons
who are mentally disordered, mentally vulnerable or youthful (Code C, s. 3(b)
and Annex E). Broadly, they require that normally questioning should only take
place in the presence of an ˜appropriate adult™ who is either a parent or guardian
or a person in whose care he is. If the adult thinks that legal advice should
be taken, the interview should not commence until such advice has been taken.
However, an interview may take place in the absence of the responsible adult or
lawyer if an o¬cer of the rank of superintendent or above reasonably believes
that the delay in waiting would involve the risk of immediate harm to persons
or serious loss of or damage to property (Code C, para. 11.18).
191 Safeguards for the suspect


The Runciman Royal Commission recommended that an expert working
party be appointed to consider the role of the appropriate adult.141 The Home
O¬ce set up a Review Group which reported in June 1995. It recommended,
inter alia, that local panels of appropriate adults should be set up and that guid-
ance as to the role should be available in the form of lea¬‚ets. Panels of lay people
who volunteer to be on call as appropriate adults now exist in some parts of the
country.
Juveniles make up around one-¬fth of suspects in police stations. Home
O¬ce research has shown that 91 per cent of juvenile suspects had an appro-
priate adult present for all or some of their time in custody. In three-¬fths of
cases (59 per cent) it was a parent, in another 8 per cent it was another relative
and in almost a quarter of cases (23 per cent) it was a social worker.142
Mentally disordered or mentally vulnerable detainees are a smaller group. In
the same Home O¬ce study, 2 per cent of detainees were treated as being in
those categories “ though other research has suggested that the actual propor-
tion is considerably higher. Appropriate adults, usually a social worker, attended
police stations in two-thirds of such cases (66 per cent).143
For a discussion of the various problems raised by the appropriate adult see
J. Hodgson, ˜Vulnerable Suspects and the Appropriate Adult™, Criminal Law
Review, 1997, pp. 785“95.

Interpreters
The Administrative Directions accompanying the Judges™ Rules referred to
statements made by those who could not speak English being translated by an
interpreter, but they did not positively require the interpreter to be called. The
Code remedies this de¬ciency and states categorically that a person who has
di¬culty in understanding English shall not be interviewed save in the presence
of someone who can act as interpreter (para. 13.2).

Questioning of deaf persons
The Code (para. 13.5) also provides that where there is a doubt as to a person™s
hearing, arrangements should be made to have a competent interpreter. If he
wishes, no interview should take place without the interpreter. On the other
hand, if he does not insist on having an interpreter, the person should sign a
waiver to that e¬ect.


Rules preventing improper pressure on suspects
It goes without saying that police o¬cers may not use physical violence or the
threat of violence against suspects. Any such action would of course constitute

141
Runciman, p. 44, para. 86.
142
T. Bucke and D. Brown, In Police Custody: Police Powers and Suspects™ Rights under the Revised
PACE Codes of Practice (Home O¬ce Research Series No. 174, 1997) p. 6.
143
Ibid, pp. 7“8.
192 Pre-trial criminal proceedings


the criminal o¬ence of assault (or worse). It would also be actionable in civil
proceedings for damages, but civil and criminal proceedings are usually di¬cult
to launch because of the problem of proving the allegations. The use or threat
of physical violence could also be the basis of a formal complaint against the
o¬cers concerned.
Apart from the inhibiting e¬ect of these possibilities there is also the long-
established principle that statements to be admissible in evidence must be vol-
untary. The requirement that all confessions or admissions be voluntary is
considered in Ch. 4. It will be seen there that the Philips Royal Commission pro-
posed that the common law rules be modi¬ed and that PACE partly adopted the
Commission™s proposals. Under the scheme of the Act, confessions obtained as
a result of oppression, violence, the threat of violence, or inhuman or degrad-
ing treatment are wholly inadmissible. Likewise inadmissible are statements
obtained in circumstances that make it likely that any confession obtained in
those circumstances would be unreliable. Moreover, if the matter is put in issue,
it is for the prosecution to prove beyond reasonable doubt that the statement
was not obtained as a result of such conduct, but if these conditions are met, the
confession can be admissible even though it was obtained as a result of induce-
ments (see further pp. 476“77).


4. Stop, arrest and detention

Stops in the street
The police can ask anyone any questions “ but can they lawfully stop a citizen
who does not wish to be stopped without arresting him? This question has
arisen in a variety of contexts. In 1967 the Divisional Court gave a clear response
in Kenlin v. Gardiner.144 Two schoolboys were going from house to house to
remind members of their rugby team about a game. Two plainclothes police
o¬cers became suspicious and, producing a warrant card, asked what they were
doing. The boys did not believe they were police o¬cers. One boy made as if to
run away. The police o¬cer took hold of his arm. The boy struggled violently,
punching and kicking the o¬cer. The other boy got involved and struck the
other o¬cer. Both were charged with assaulting a police constable in the exe-
cution of his duty. Giving the judgment of the court, Lord Justice Winn held
that although the boys had assaulted the o¬cers they were acting in justi¬able
self-defence. The o¬cer had not been legally entitled to take hold of the ¬rst boy
by the arm to detain him in order to ask questions.145
A case that seems to be in con¬‚ict with Kenlin v. Gardiner is Donnelly v.
Jackman.146 A uniformed police o¬cer came up to D in the street to inquire

144
[1967] 2 QB 510.
145
See to the same e¬ect Ludlow v. Burgess [1971] Crim LR 238 and Pedro v. Diss [1981] 2 All
146
ER 59. [1970] 1 All ER 987.
193 Stop, arrest and detention


about an o¬ence which he had cause to believe D might have committed. He
asked D if he could have a word with him. D ignored the request and continued
to walk along the pavement away from the o¬cer. The o¬cer followed and
repeatedly asked him to stop and speak to him. At one stage the o¬cer tapped
the appellant on the shoulder, upon which D turned round and tapped the
o¬cer on the chest saying ˜now we are even, copper™. The o¬cer then touched
D on the shoulder with a view to stopping him to ask him some questions at
which point D turned round and hit the o¬cer with some force. He was arrested
and charged with assaulting an o¬cer in the execution of his duty. The magis-
trates convicted D. On appeal, the Divisional Court upheld the conviction. The
court distinguished Kenlin v. Gardiner on the ground that in that case each
o¬cer had taken hold of a boy and had detained them. Asking the question
whether the o¬cers had been acting in the course of their duty, Talbot J for the
court said ˜it is not every trivial interference with a citizen™s liberty that amounts
to a course of conduct su¬cient to take the o¬cer out of the course of his
duties™.
In Bentley v. Brudzinski147 on facts virtually identical with those of Donnelly
v. Jackman, the Divisional Court went the other way. The respondent and his
brother were stopped and questioned by a police o¬cer at 3.30am. They
answered his questions truthfully and identi¬ed themselves. After waiting some
ten minutes while the o¬cer unsuccessfully tried to verify their identities by
radio, they walked away. Another o¬cer who came up at that point stopped the
respondent by putting his hand on his shoulder and was punched in the face.
The Divisional Court held that this was more than a trivial interference with the
respondent™s liberty and amounted to an unlawful attempt to stop and detain
him. Accordingly the respondent was not guilty of assaulting an o¬cer in the
execution of his duty. Lord Justice Donaldson added, however, that the respon-
dent would have had no defence to a charge of common assault if one had been
laid.148
One exception to the general rule is under the Road Tra¬c Acts. RTA 1988,
s. 163 (formerly RTA 1972, s. 159) gives the police the power to stop a vehicle
on any ground whatever. It is an o¬ence to fail to stop. This power of stopping
the vehicle does not, however, give the police any right to search it unless the
driver agrees. As has been seen, the o¬cer can, however, demand to have the
name and address of the driver or the owner. The Divisional Court held in 1972
that the power to demand that a motorist gives his name and address includes
the power to block his passage for the purpose.149

147
[1982] Crim LR 825.
148
For comment see Criminal Law Review, 1982, pp. 481 and 826. See also the contrasting cases
of Collins v. Wilcock [1984] 1 WLR 1172; Weight v. Long [1986] Crim LR 746; Smith v. DPP
[2001] EWHC Admin 55, [2001] Crim LR 735; and R (on the application of Bucher) v. DPP
[2003] EWHC Admin 580. For discussion of the last case see N. Parpworth and K.
Thompson, ˜Physical Contact and a Police O¬cer™s Execution of Duty™, 167 Justice of the
149
Peace, 7 June 2000, p. 426. Squires v. Botwright [1972] RTR 462.
194 Pre-trial criminal proceedings


The courts have held that the police have the right to detain motorists for a
short period while they administer the breathalyser.150
If the police stop someone to ask him questions and he runs away, this can
amount to the o¬ence of wilfully obstructing the police in the execution of their
duty. In Sefkali, Banamira, Ouham,151 acting on information about an alleged
o¬ence of shoplifting, plain clothes o¬cers approached the three appellants in
the street and showed them their warrant cards. The appellants looked at the
cards and then ran away. They were chased and caught. The Divisional Court
upheld their conviction for obstruction. The police wanted to ask them ques-
tions and to see whether they matched the descriptions given to the police by
the sta¬ at the shop. The court said the appellants would have been entitled to
refuse to answer the police questions. Having refused to answer questions they
would have been entitled to say that they were going on their way. But the police
were entitled to investigate a suspected o¬ence by questioning and to impede
that questioning by running away was obstruction.
As has been seen, in Scotland since 1980 (now under the Criminal Procedure
(Scotland) Act 1995), where a constable has reasonable grounds for suspecting
that a person has committed an o¬ence he can ask him for his name and address
and ˜an explanation of the circumstances which have given rise to the consta-
ble™s suspicion™ (s. 13(1)). He can also ask anyone whom he thinks has infor-
mation relating to that o¬ence to give his name and address. Secondly, the
o¬cer can require anyone whose name and address he has asked for to remain
with him while he veri¬es the name and address “ provided it can be done
quickly. It is an o¬ence not to comply (s. 13(7)).
The Philips Royal Commission did not recommend that the police should
have any power short of arrest to detain persons as suspects. It also speci¬cally
rejected the idea that witnesses should be liable to arrest if they refused to give
their name and address (para. 3.90). Citizens should be left to make up their
own minds as to whether to co-operate with the police. Only in one situation
should the rule be otherwise. This was where there had been some grave inci-
dent (such as a murder on a train of football supporters). The police should
then have the right to detain potential witnesses ˜while names and addresses are
obtained or a suspect identi¬ed or the matter is otherwise resolved™ (para. 3.93).
This proposal was not implemented.
Under the Terrorism Act 2000, s. 89 an o¬cer may stop a person ˜for so long
as is necessary to question him to ascertain (a) his identity and movements; (b)

150
Coleman [1974] RTR 359 and Squires v. Botwright above. See also Lodwick v. Sanders [1985] 1
All ER 577. The police stopped a lorry driver who had no excise licence, index plate or brake
lights. Becoming suspicious as to whether the lorry was stolen, the o¬cer took the ignition
keys to prevent the driver leaving. There was a minor fracas. The driver was charged with
assault on the police, but was acquitted on the ground that the o¬cer had not been acting
within his duty. Held, on appeal, that this was incorrect. He was entitled to stop the lorry in
the ¬rst place and, being suspicious, to detain it for a reasonable period while checking out
whether it was stolen. He had therefore been acting in the execution of his duty.
151
[2006] EWHC 894 (Admin) 27 February 2006.
195 Stop, arrest and detention


what he knows about a recent explosion or another recent incident endanger-
ing life; (c) what he knows about a person killed or injured in a recent explo-
sion or incident™.
The Terrorism Act 2000, ss. 32“6 also give the police the right to cordon o¬
an area for the purposes of a terrorist investigation. In DPP v. Morrison152 the
Divisional Court held that the police had a common law power to set up a
cordon in a shopping mall as a crime scene because they were entitled to assume
that the owner of private land over which there was a public right of way would
have consented to the cordon. Hooper J went further in adding obiter that he
doubted whether consent in such a situation could lawfully be withheld.153
The power to stop and search persons arises solely under statute.154 There are
a number of statutes which give the police this power. Pre-PACE the best known
of these was the power under s. 66 of the Metropolitan Police Act 1839 to stop
and search anyone in the metropolitan area reasonably suspected of carrying
stolen goods. This power also existed by virtue of bye-laws in a few other cities.
A similar power exists nationally in relation to drugs under the Misuse of Drugs
Act 1971 and ¬rearms under the Firearms Act 1968. There are also a variety of
archaic powers to stop and search persons suspected, e.g. under the Badgers Act,
the Pedlars Act, the Poaching Prevention Act and the Protection of Birds Act.155
In Daniel v. Morrison156 the Divisional Court held that the power under s. 66
of the Metropolitan Police Act 1839 to stop, search and detain anyone suspected
of having stolen goods included the power to question them as well, if only
brie¬‚y. Similarly, in Geen157 the court held that the power to search someone
suspected of carrying prohibited drugs under the Misuse of Drugs Act 1971
included a power to question him brie¬‚y.

The Philips Royal Commission on stop and search
The Philips Royal Commission proposed that the Metropolitan Police power to
stop and search for stolen goods should apply throughout the country. It also
proposed a new power to stop and search for something possession of which
was prohibited in a public place “ such as o¬ensive weapons (para. 3.20).
The majority of the Royal Commission thought that the danger of abuse of
power could be avoided by the incorporation of proper safeguards, together with
the fact that search would only be possible where there were reasonable grounds
for suspicion. (˜If parliament has made it an o¬ence to be in possession of a

152
[2003] EWHC Admin 683, (2003) Times, 21 April.
153
See further on the case N. Parpworth and K. Thompson, ˜The Lawfulness of a Police Cordon™,
167 Justice of the Peace, 5 July 2003, pp. 507“10.
154
The Supreme Court of Canada in Mann [2004] SCC 52 recognised a common law power of
investigative detention short of arrest and with it an incidental power of questioning and of
search. See P. Healy, ˜Investigative Detention in Canada™, Criminal Law Review, 2005,
pp. 98“107.
155
For a four-page list see Report of the Royal Commission on Criminal Procedure: Law and
156
Procedure, 1981, Cmnd. 8092“1, pp. 75“9. [1980] Crim LR 181.
157
[1982] Crim LR 604.
196 Pre-trial criminal proceedings


particular article in a public place, the police should be able to stop and search
persons suspected on reasonable grounds of committing that o¬ence™ (para.
3.21).) The safeguards proposed were: the o¬cer should have to record every
search and the reason for it; supervising o¬cers should have a duty to collect and
scrutinise ¬gures of searches and their results for evidence that they were being
carried out randomly, arbitrarily or in a discriminatory way; the person stopped
should have a right to get a copy of the record; and numbers of stops and searches
should be given to chief constables™ annual reports (para. 3.26). The Com-
mission also thought that searches on the street should be limited to fairly super-
¬cial examination of a person™s clothing and baggage.
For pre-PACE research on stop and search see D. Smith, Police and People in
London: I.A. Survey of Londoners, 1983; D. Smith and J. Gray, Police and People
in London: IV. The Police in Action, 1983; C. Willis, The Use, E¬ectiveness and
Impact of Police Stop and Search Powers (Home O¬ce Research and Planning
Unit, Paper 15, 1983).

PACE
The Government did not wholly accept the Royal Commission™s proposals on
stop and search powers. It rejected the argument that there should be a new
general power to stop and search anyone reasonably suspected of carrying
something possession of which in a public place was forbidden. The police
therefore have to continue to manage under the various speci¬c statutes which
give them stop and search powers.
PACE, s.1 gives the police the power to search any person or vehicle for stolen
goods or prohibited articles.158

The Code of Practice for stop and search
The Code of Practice on stop and search is Code A. Paragraph 1.1 states: ˜powers
to stop and search must be used fairly, responsibly, with respect for people being
searched and without unlawful discrimination™. The person stopped can be
questioned prior to a search and, if such preliminary exchanges indicate that the
suspicion is ill-founded, no search need take place, but a person cannot be
stopped in order for grounds for a search to be found. Normally, there has to be
prior reasonable suspicion that the person was carrying something possession
of which justi¬es exercise of the power.
Reasonable suspicion requires an objective basis ˜based on facts, information,
and/or intelligence™ (para. 2.2). ˜A person™s race, age, appearance, or the fact that
the person is known to have a previous conviction cannot be used alone or in

158
Prohibited articles include an o¬ensive weapon or an article made or adapted for use in
connection with various listed o¬ences such as burglary, theft, taking a motor vehicle or
criminal damage. An o¬ensive weapon is de¬ned in the same way as under the Prevention of
Crime Act 1953, s. 1 as ˜any article made or adapted for use for causing injury to the person,
or intended by the person having it with him for such use by him or by some other person™
(s. 1(9)).
197 Stop, arrest and detention


combination with each other as the reason for searching that person™ (para. 2.2).
Nor can a search be based on ˜generalisations or stereotypical images™ (para.
2.2).
These provisions are clearly aimed at the problem of the discriminatory use
of the power of stop and search. Having excellent provisions in Code A does not,
however, necessarily translate into compliance on the street. This has for years
been an issue that provokes controversy. The statistics year-on-year show that
people from ethnic minority communities “ especially if they are black “ are
proportionately more likely to be stopped and searched than white people,159
but this is a notoriously di¬cult issue to pin down. One of the key questions is
the ˜availability™ of di¬erent age groups and di¬erent ethnic minorities to be
stopped and searched according to time spent on the street and in other public
places.160 Unfortunately, with regard to this highly sensitive question of dis-
crimination in the use of the power of stop and search it seems to be increas-
ingly clear that for a variety of reasons it is not statistically valid to compare the
ethnic data in the search ¬gures with local population statistics, but no alterna-
tive basis from which to draw valid inferences regarding discrimination has yet
been devised.

Power to stop and search randomly
A number of statutes permit stop and search without a requirement that there be
reasonable grounds to suspect the particular person. The Criminal Justice and
Public Order Act 1994 (CJPOA) provided for this in s. 60 (powers to stop and
search in anticipation of serious violence) and in s. 81 (to prevent acts of terror-
ism). Both sections require a senior o¬cer (under s. 60, an inspector161 and under
s. 81, an assistant chief constable or equivalent) to designate the area in which
such powers can be exercised for a limited period (twenty-four hours under s. 60
and twenty-eight days under s. 81).162 Section 81 only applied to vehicles and
their drivers and passengers. The Prevention of Terrorism (Additional Powers)

159
Comparing numbers of stops and searches with the resident population of an area permits the
calculation of the number of stops and searches per capita. In one set of ¬gures for England
and Wales in 2001“2 the rate for white people was thirteen stops per thousand, compared
with 106 for black people and thirty-¬ve for Asians (Handbook of Policing, ed. T Newburn,
2003, p. 536. For discussion of this issue see pp. 536“8.
160
For two recent studies see P.A.J. Waddington, K. Stenson and D. Don, ˜In Proportion: Race
and Police Stop and Search™, 44 British Journal of Criminology, 2004, pp. 889“914 (a critique
of extant work using research evidence drawn from a study attempting to assess the available
population in the Thames Valley); and M. Shiner, National Implementation of the Recording of
Police Stops (Home O¬ce, 2006) (an assessment of police practice since the new guidelines for
recording were introduced).
161
Under s. 81 of the CJPOA it had to be a superintendent but the Knives Act 1997, s. 8 replaced
this by an inspector.
162
The Crime and Disorder Act 1998, s. 25 permits an o¬cer acting under CJPOA 1994, s. 60 to
require the person to remove any item such as a face mask that is being worn wholly or mainly
to conceal his identity. (Code A, Note 4 advises that ˜where there may be religious sensitivities
about ordering the removal of such an item, the o¬cer should permit the item to be removed
out of public view™.)
198 Pre-trial criminal proceedings


Act 1996 ¬lled the gap by permitting stop and search of pedestrians. The power
is now to be found in the Terrorism Act 2000, s. 44 where the o¬cer authorising
the power ˜considers it expedient for the prevention of acts of terrorism™.163
In Chief Constable of Gwent v. Dash164 the Divisional Court held that random
stopping of motorists to see whether they were driving with excess alcohol was
not unlawful “ though randomly requiring motorists to give a specimen of
breath would be unlawful. The court said that, provided there was ˜no mal-
practice, caprice, or opprobrious behaviour™, there was no legal restriction on
the stopping of motorists by a police o¬cer in the execution of his duty.

Abolition of ˜voluntary™ searches
Originally the rules on stop and search did not apply where the search was vol-
untary. Obviously, if this concept is given a wide interpretation there is a danger
that a ˜coach and four horses™ will be driven through the procedural safeguards
of PACE. The Home O¬ce Circular on PACE issued to police said: ˜voluntary
search must not be used as a way of avoiding the main thrust of the safeguards™.
However, not all forces and all personnel concerned took this message to heart.
In too many situations the concept of the consensual or voluntary search was
used as a way of avoiding the main thrust of the safeguards.165
The 2003 revision of the Code introduced a new, unambiguous provision:
An o¬cer must not search a person, even with his or her consent, where no
power to search is applicable. Even where a person is prepared to submit to a
search voluntarily, the person must not be searched unless the necessary legal
power exists, and the search must be in accordance with the relevant power and
the provisions of this Code [para. 1.5].
This means that the concept of voluntary search is now e¬ectively banned. A
search can only be done if there is the legal power, including reasonable suspi-
cion, and if the Code of Practice is complied with. The only exception, where
an o¬cer does not require a speci¬c power to search, is a search of persons
entering sports grounds or other premises ˜carried out with their consent given
as condition of entry™ (ibid).

Records of stops and searches
Under PACE, s. 2 the police o¬cer who proposes to carry out a stop and search
must state his name and police station and the purpose of the search. A plain

163
In R (Gillan) v. Commissioner of the Metropolitan Police [2006] UKHL 12 the Law Lords held
that this power did not breach the ECHR. (For a critical commentary see Criminal Law
Review, 2006, pp. 753“7.) The absence of a requirement of reasonable suspicion does not
however mean that the police have carte blanche. They must not act arbitrarily. They must not
stop and search persons who are ˜obviously not terrorist suspects™ (Lord Bingham at [35]).
Intuitive stops were permitted but there had to be a connection to reasons connected with the
164
terrorist threat. [1985] Crim LR 674.
165
See D. Dixon, C. Coleman and K. Bottomley, ˜Consent and Legal Regulation of Policing™, 17
Journal of Law and Society, 1990, p. 345.
199 Stop, arrest and detention


clothes o¬cer must in addition produce documentary evidence that he is a
policeman. The o¬cer must give the grounds for the search. A search in the
street must be limited to the outer clothing. The police o¬cer is required to
make a record of the search immediately or, if this is not practicable, as soon as
possible (s. 3). The record is supposed to state the name of the o¬cer, the name
of the person stopped, if known, the object of the search, the ground of the
search and its result (s. 3).

Recording of stops that do not result in a search
The Macpherson Report on the murder of Stephen Lawrence (1999) recom-
mended that the police should be required to make records of all stops includ-
ing voluntary stops (recommendation 61). The recommendation was highly
controversial. Critics argued that it would signi¬cantly increase the burden on
the police and to little purpose since there would be no way of determining
whether a stop was reasonable, but after piloting the concept, the Government
accepted the recommendation and all police forces were required to start imple-
mentation by April 2005. A record must be made ˜when an o¬cer requests a
person in a public place to account for themselves, i.e. their actions, behaviour,
presence in an area or possession of anything™ (Code A, para. 4.12). The record
need not show the name of the person stopped nor the reason for the stop, but
it must show the identity of the o¬cer, the date, time and place, the registration
number of the person™s vehicle, if any, the person™s ethnic background and the
outcome of the encounter.

Statistics
The annual Home O¬ce statistics on stop and search166 show that the two most
common categories are drugs and stolen property. (In 2004“5 they accounted
respectively for 40 per cent and 28 per cent of all recorded stops and searches.)
O¬ensive weapons account for a very small proportion. (In 2004“5 only 9 per
cent.)
The ˜hit rate™ in the sense of arrests following a stop and search, which was 17
per cent in both 1986 and 1987, was 13 per cent in each of the years 1999“2004
and dropped to 11 per cent in 2004“5 (para. 23).
The proportion of all arrests for noti¬able o¬ences resulting from stop and
search is currently around 7 per cent, but in the Metropolitan Police district the
proportion is more or less double that. (In 2004“5 it was 13 per cent (para. 15).)


Can a person be held in the police station if he is not under arrest?
It is common to read in the newspapers that a man is ˜helping the police with their
inquiries™. When asked, the police commonly assert that he is not under arrest.

166
Arrests for Noti¬able O¬ences and the Operation of Certain Police Powers under PACE. The
latest available was that for 2004“5.
200 Pre-trial criminal proceedings


The legal position of such a person is clearly stated in s. 29 of PACE which
provides that where a person attends a police station voluntarily ˜for the
purpose of assisting with an investigation™, he is entitled to leave at will unless
placed under arrest (s. 29(a)). Secondly, he must be informed ˜at once that he is
under arrest if a decision is taken by a constable to prevent him from leaving at
will™ (s. 29(b)). The only gap in the system is that there is no duty on the police
to advise the person in question that he need not accompany the o¬cer to the
police station unless he wishes to do so. This would be the equivalent of the duty
to caution him about his right of silence, but it does not exist and neither the
Philips Royal Commission nor PACE made any reference to the issue.
However, if someone who is voluntarily helping the police with their inquiries,
whether at a police station or elsewhere, is cautioned he must be informed that
he is not under arrest, if that is the case (Code C, paras. 3.21 and 10.2).


Arrest
There are two forms of arrest, lawful and unlawful. In Spicer v. Holt167 Lord
Dilhorne said: ˜whether or not a person has been arrested depends not on the
legality of the arrest, but on whether he has been deprived of his liberty to go
where he pleases™.168 So, if a person is being detained by the police against his
will, he is under arrest, but whether the arrest is lawful will depend on whether
the conditions for a lawful arrest have been ful¬lled.169 If the arrest is not lawful
there is a right to use reasonable force to avoid it, but this is clearly not a right
to be lightly exercised since the legality of the arrest is best tested after the event
when the dust has settled.
A lawful arrest is one authorised by law. There are three basic types of lawful
arrest.

Arrest under warrant
The Magistrates™ Courts Act 1980, s. 1(1) gives a magistrate power to issue a
warrant upon written information being laid before him on oath ˜that any
person has, or is suspected of having, committed an o¬ence™. Under the
Criminal Justice Act 1967, s. 24(1) it is provided that a warrant for the arrest of
someone should not be issued unless the o¬ence in question is indictable or is
punishable with imprisonment. This re¬‚ects the policy that minor o¬ences
should be dealt with by summons rather than arrest.

Arrest without warrant at common law
Until 1967 the law of arrest at common law revolved around the distinction
between felonies and misdemeanours. Felonies and misdemeanours were

167
[1977] AC 987, HL.
168
At 1000. See to same e¬ect, R v. Inwood [1973] 2 All ER 645 and R v. Bass [1953] 1 QB 680.
169
Dawes v. DPP [1995] 1 Cr App Rep 65.
201 Stop, arrest and detention


abolished by the Criminal Law Act 1967 which substituted the concepts of
arrestable and non-arrestable o¬ences.
There is now only one remaining common law power to arrest “ where a
breach of the peace has been committed and there are reasonable grounds for
believing that it will be continued or renewed, or where a breach of the peace is
reasonably apprehended.170

Arrest without a warrant under statute “ new PACE s. 24
The general power of arrest which formerly was set out in the Criminal
Law Act 1967, s. 2, was then to be found in ss. 24, 25 and Sch. 1A of PACE.
Section 24 set out the powers of arrest in respect of arrestable o¬ences and in
respect of certain non-arrestable o¬ence listed in Sch. 1A. Section 25 gave
police o¬cers a power of arrest for non-arrestable o¬ences. (An arrestable
o¬ence basically was one carrying a prison sentence of ¬ve or more years™
imprisonment.)
Under s. 110 of the Serious Organised Crime and Police Act 2005 (SOCPA),
ss. 24, 25 and Sch. 1A of PACE were repealed and replaced by new ss. 24 and 25.
SOCPA, s. 110 also provided for a new PACE Code of Practice “ which is Code
G. The new provisions became e¬ective as from 1 January 2006.
Under the new provisions the distinction between arrestable o¬ences and
non-arrestable o¬ences has gone. All o¬ences are arrestable.

Arrest by a police officer
Section 24 gives a police o¬cer the power to arrest:
• Anyone who is about to commit or who is in the act of committing an o¬ence,
or whom he has reasonable grounds for suspecting to be about to commit or
to be committing an o¬ence (subsection (1)).
• Anyone he has reasonable grounds for suspecting has committed an o¬ence
(subsection (2)).
• Where an o¬ence has been committed, anyone guilty or reasonably suspected
of being guilty (subsection (3)).
However, the power of arrest is only exercisable if the constable has reasonable
grounds for believing that for any of the reasons mentioned in subsection (5) it
is necessary to arrest the person. The test of ˜necessity™ is new. Whether it has
any e¬ect remains to be seen. The reasons listed in subsection (5) are:

170
See Wershof v. Metropolitan Police Commissioner[1978] 3 All ER 540; Hickman v. O™Dwyer
[1979] Crim LR 309; Howell [1981] Crim LR 697. The police were within their power to
thwart an apprehended breach of the peace when they stopped three buses heading for a
demonstration against the Iraq war ¬ve miles from the RAF base where it was due to take
place, but they exceeded their powers when they escorted the coach passengers back to
London. Their detention for the purposes of taking them back to London was a breach of
Article 5(1) of the ECHR entitling the applicant to damages “ R (on the application of Laporte)
v. Chief Constables of Gloucestershire and Thames Valley and the Commissioner of the
Metropolitan Police [2004] EWHC 253 (Admin), [2004] 2 All ER 874.
202 Pre-trial criminal proceedings


(a) to enable the person™s name to be ascertained;
(b) to enable the person™s address to be ascertained;
(c) to prevent the person “
(i) causing physical injury to himself or anyone else;
(ii) su¬ering physical injury;
(iii) causing loss of or damage to property;
(iv) committing an o¬ence against public decency;
(v) causing an unlawful obstruction of the highway;
(d) to protect a child or other vulnerable person from the person in question;
(e) to allow prompt and e¬ective investigation of the o¬ence or of the conduct
of the person in question;
(f) to prevent any prosecution for the o¬ence from being hindered by the dis-
appearance of the person.
Reasons (a)“(d) were previously in s. 25. Reasons (e) and (f) are new.

Citizen™s arrest
The power of persons other than police o¬cers to make an arrest are now to be
found in s. 24A of PACE also inserted by s. 110 of SOCPA. Previously the power
of a citizen™s arrest applied to arrestable o¬ences. It now only applies to
indictable o¬ences “ where the person is committing or is reasonably suspected
of committing such an o¬ence (subsection (1)) or, where such an o¬ence has
been committed, where the person is guilty or is reasonably suspected of being
guilty of it (subsection (2)).
However, the arrest is only lawful if one of the reasons in s. 24A(4) applies
and ˜it appears to the person making the arrest that it is not reasonably practi-
cable for a constable to make it instead™ (subsection (3)). The reasons in sub-
section (4) are not quite the same as those under s. 24(5) that apply to arrests
by police o¬cers. Only four reasons are listed “ to prevent the person causing
physical injury to himself or someone else, or su¬ering physical injury, or
causing loss of or damage to property, or making o¬ before a police o¬cer can
assume responsibility for him.
Reasonable ground to suspect Most statutes granting a power of arrest require
that the arresting person has reasonable grounds to suspect. The House of Lords
considered this well-worn phrase in deciding O™Hara v. Chief Constable of the
Royal Ulster Constabulary.171 O had been arrested for murder committed in the
course of a terrorist act in Northern Ireland. The arresting o¬cer had attended
a brie¬ng given by a superior o¬cer at which he was told to arrest O because he
had been involved in the murder. The o¬cer™s suspicion was based solely on that
brie¬ng. The trial judge and the Court of Appeal of Northern Ireland held that
enough information had been given to the o¬cer to enable him to form the
required state of mind. On appeal to the House of Lords it was argued that rea-
sonable grounds had to exist in fact, that the test was objective and therefore
required proof of more than what was in the o¬cer™s mind. Dismissing the
171
[1997] AC 286, [1997] 1 All ER 129.
203 Stop, arrest and detention


appeal, the House of Lords unanimously rejected this argument. The court need
look no further than what was in the o¬cer™s mind. The o¬cer™s suspicion
could be based on what he had been told “ even by an anonymous informant.
It did not have to be established that the facts were true, but in each case it had
to be considered whether the o¬cer had enough information to form reason-
able grounds for suspicion. Being ordered to make an arrest by a superior o¬cer
was not in itself enough. Here, although the information disclosed to the arrest-
ing o¬cer at the brie¬ng had been scanty, it was su¬cient.

Detention for thirty minutes by a civilian
The Police Reform Act 2002 gives unprecedented powers to civilians acting in
support of the police. The Act creates various categories of support with di¬erent
powers “ ˜community support o¬cers™, ˜detention o¬cers™, ˜escort o¬cers™,
˜investigating o¬cers™ and ˜accredited persons™ under community safety accredi-
tation schemes.172 When the Bill was ¬rst introduced in the House of Lords it
included a power for community support o¬cers to detain people in the street for
up to thirty minutes pending the arrival of a police o¬cer. The Government was
defeated over these powers. When the Bill went to the Commons the Government
successfully moved an amendment to restore the power for community support
o¬cers. It did not attempt to restore the power for ˜accredited persons™. However,
anticipating further defeat in the Lords, it announced on the Third Reading173 that
the power to detain would not be implemented nationally until, ¬rst, it had been
piloted in up to six force areas over a two-year period and, secondly, there had
been a report on the pilot by the Chief Inspector of Constabulary. The pilot and
evaluation were positive and the power was activated as from December 2004.
The powers of the community support o¬cer relate to minor misconduct such
as issuing ¬xed penalty notices for being drunk in a public place, cycling on a pave-
ment, littering etc. A community support o¬cer can detain someone reasonably
believedtohavecommittedsuchano¬enceif herefusestogivehisnameandaddress
or gives what appears to be a false one. Government ministers repeatedly insisted
that detention for up to thirty minutes backed by use of reasonable force did not
amount to arrest, merely ˜a power of enforcement™174 “ whatever that may be.


Procedure on arrest
The law does not lay down any particular procedure to e¬ect a lawful arrest. In
Alderson v. Booth175 Lord Chief Justice Parker said:
172
The powers are set out in Part 4 and Schs. 4 and 5 of the 2002 Act on which see M. Zander,
The Police and Criminal Evidence Act 1984 (5th edn, 2005 and First Supplement 2006) Ch. 12;
L. Jason-Lloyd, Quasi-Policing (Cavendish, 2003).
173
House of Commons, Hansard, 10 July 2002, cols. 980“1.
174
House of Commons, O¬cial Report, Standing Committee B (Police Reform Bill), 20 June
2002, col. 266.
175
[1969] 2 QB 216. See R v. Inwood [1973] 2 All ER 645 and Dawes v. DPP [1995] 1 Cr App Rep
65. See also G. Williams, ˜When is an Arrest not an Arrest™, 54 Modern Law Review, 1991, p. 408.
204 Pre-trial criminal proceedings


Whereas there was a time when it was held that there could be no lawful arrest
unless there was an actual seizing or touching, it is quite clear that that is no
longer the law. There may be an arrest by mere words, by saying ˜I arrest you™
without any touching . . . Equally it is clear . . . that an arrest is constituted when
any form of words is used which in the circumstances of the case were calculated
to bring to the defendant™s notice and did bring to the defendant™s notice that he
was under compulsion.
Giving judgment in a case in 2000, Lord Justice Sedley said:

Although no constable ever admits to saying ˜you™re nicked for handling this
gear™ or ˜I™m having you for nicking this motor™, either will do and, I have no
doubt, frequently does.176
What is required is words (or actions) that make it clear to the person that he
is under arrest.177

The other requisite of a valid arrest at common law was that the o¬cer must
ensure that the suspect knows immediately, failing which, as soon as practica-
ble, that he is under arrest178 and the ground of arrest.179
In the famous case of Christie v. Leachinsky, Viscount Simon in a classic state-
ment said:

(1) If a policeman arrests without warrant upon reasonable suspicion of felony,
or of other crime of a sort which does not require a warrant, he must in ordi-
nary circumstances inform the person arrested of the true ground of arrest. He
is not entitled to keep the reason to himself or to give a reason which is not the
true reason. In other words a citizen is entitled to know on what charge or on
suspicion of what crime he is seized. (2) If the citizen is not so informed but is
nevertheless seized, the policeman, apart from certain exceptions, is liable for
false imprisonment . . . If a policeman who entertained a reasonable suspicion
that X has committed a felony were at liberty to arrest him and march him o¬
to a police station without giving any explanation of why he was doing this, the
prima facie right of personal liberty would be gravely infringed. No one, I think,
would approve a situation in which when the person arrested asked for the
reason, the policeman replied ˜that has nothing to do with you; come along with
me . . .™180

176
Clarke v. Chief Constable of North Wales Police (5 April 2000, unreported) at [36].
177
In Alderson v. Booth, above, after a positive breathalyser test, the o¬cer said: ˜I shall have to
ask you to come to the police station for further tests™. The magistrates accepted the
defendant™s somewhat surprising assertion that he thought he was going voluntarily and
acquitted him because there had therefore been no lawful arrest from which it followed that
the blood sample taken at the station had not been validly taken. The Divisional Court
dismissed the police appeal. See also Fiak [2005] EWCA Crim 2381 and R (on the application
of Faulkner) v. Secretary of State for the Home Department [2005] EWHC 2567 Admin, both
discussed in N. Parpworth, ˜Arrest and Detention: The Necessary Information™, 170 Justice of
the Peace, 7 and 14 January 2006, pp. 7“9.
178
R v. Inwood [1973] 1 WLR 647 and Pedro v. Diss [1981] 2 All ER 59.
179
Christie v. Leachinsky [1947] AC 573, HL; Grant v. Gorman [1980] RTR 119; Waters v. Bigmore
180
[1981] Crim LR 408; Pedro v. Diss [1981] 2 All ER 59. [1947] AC 573 at 589.
205 Stop, arrest and detention


The common law is re¬‚ected in PACE, s. 28 which states that an arrest is not
lawful unless, at the time of or as soon as practicable after the arrest, the person
arrested is informed that he is under arrest and of the ground of the arrest.
Moreover it is speci¬cally stated that this applies even where the fact of the arrest
or its ground is obvious.
The legal consequences of failing to give grounds of arrest were considered
by the Divisional Court in DPP v. Hawkins181 and by the Court of Appeal in
Lewis v. Chief Constable of South Wales Constabulary.182 In Hawkins, the court
held that failure to state the reasons for an arrest at the moment when it became
practicable to do so had the e¬ect of rendering the initially lawful arrest unlaw-
ful as from that moment and not as from the outset. The court therefore refused
to allow the lawful arrest to be invalidated retrospectively. In Lewis, the o¬cers
had told the plainti¬s of the fact of arrest but delayed telling them the grounds
for ten minutes in one case and twenty-three minutes in the other. The Court
of Appeal (without referring to the Hawkins case) said that arrest was not a legal
concept but was a matter of fact arising out of the deprivation of a person™s
liberty. It was also a continuing act and therefore what had been an unlawful
arrest could become a lawful arrest. The remedy for the plainti¬s was merely the
damages they had been awarded by the jury for the ten minutes and twenty-
three minutes of illegality “ £200 each.183
Under s. 30 of PACE, a person who has been arrested must be taken to a police
station ˜as soon as practicable™, unless his presence elsewhere is reasonably nec-
essary for the investigation. (But see p. 275 below for the new concept of ˜street
bail™ given by a police o¬cer under the Criminal Justice Act 2003.)

Summons or arrest?
Accused persons will either have been charged after an arrest or they will have
been summonsed by post.
The proportion arrested for categories of o¬ences varies dramatically. In
2005, of those dealt with for indictable o¬ences, no fewer than 91 per cent were
arrested, compared with 35 per cent of those dealt with for summary o¬ences
other than motoring charges, and 19 per cent of those dealt with for motoring
o¬ences.184
However, there are great variations in the policies of di¬erent police forces.
A study done for the Philips Royal Commission showed that in Cambridgeshire,
Cleveland and the Metropolitan Police district only 1 per cent of adults accused
of indictable o¬ences were summonsed, compared with over 40 per cent in
places such as Thames Valley, West Yorkshire, Wiltshire and North Wales.185

181 182
[1988] 3 All ER 673. [1991] 1 All ER 206.
183
For critical comment see J. Marston, ˜The Reasons for an Arrest™, Justice of the Peace, 2 March
1991, p. 131. See also Kulynycz [1970] 3 All ER 881.
184
Criminal Statistics, Home O¬ce, RDS, 19/06, Table 4.2, p. 76.
185
See R. Gemmill and R.F. Morgan-Giles, ˜Arrest, Charge and Summons™, Philips Royal
Commission, Research Study No. 9, 1981, App. A, p. 42.
206 Pre-trial criminal proceedings


The Philips Royal Commission urged that the less intrusive procedure of
summons be used wherever possible (para. 3.77). For whatever reason, the
trend is moving instead in the opposite direction. In 1984 and 1986 the pro-
portion of suspects summonsed for indictable o¬ences was 22 per cent, but
since then it declined and has been below 10 per cent in each year since 1996.
(In 2005 it was 9 per cent.)186
Lord Justice Auld in his report recommended that the procedure for issuing
a summons on an information laid before magistrates should be abolished and
provisions to implement the recommendation were included in the Criminal
Justice Act 2003. Section 29 of the 2003 Act (in force as from 6 November 2006)
provides for a new system under which a written charge is sent out by the police,
together with a requirement (˜a requisition™) for the defendant to appear before
a magistrates™ court to answer to the charge.

Remedies for unlawful arrest
A victim of an unlawful arrest has three possible remedies. First, in order to
challenge unlawful detention which is still continuing, one can seek to issue a
writ for habeas corpus. The writ can be applied for by the person unlawfully
detained or by someone else on his behalf. There is always a duty judge avail-
able at or through the Royal Courts of Justice to hear applications. In emergen-
cies the initial application to the judge can even be by telephone, but many
lawyers are not familiar with this procedure and legal aid may not be available.
Moreover, the Divisional Court, to whom application must be made, is not
easily persuaded to grant the writ.
On the rare occasions when habeas corpus proceedings are brought on behalf
of someone who is allegedly detained by the police without charges, the normal
response from the police is to charge him before the case comes to be heard.
Since PACE was enacted with its rigid time limit provisions for detention
without charge (see below), habeas corpus applications in respect of persons
held by the police are virtually unknown.
The second remedy is to use the illegality as the basis of an argument that the
subsequent proceedings should be declared null and void. This is unlikely to
succeed because of the rule of English law (see pp. 477“78 below) that evidence
illegally obtained can nevertheless be admissible. Also, as R v. Kulynycz (n. 183
above) shows, the courts may be ready to cure an initial illegality if it was sub-
sequently corrected.
The third remedy is to bring an action for damages for false imprisonment.
In cases like Christie v. Leachinsky or R v. Kulynycz this is of little use since the
amount of damages awarded would be purely nominal, but sometimes damages
are quite signi¬cant. In Wershof v. Metropolitan Police Commissioner187 the
plainti¬, a young solicitor, got £1,000 for being arrested and detained for about
an hour before being released on bail. In Reynolds v. Metropolitan Police

186 187
Op. cit. n. 184 above. [1978] 3 All ER 540.
207 Stop, arrest and detention


Commissioner188the Court of Appeal rejected an appeal against a jury™s award of
£12,000 damages for false imprisonment. The plainti¬ was arrested in the early
hours of the morning in connection with charges of arson for gain. The journey
to the police station took two and a half hours. She was detained until 8pm the
same day, when she was told there was no evidence against her. She got home
by around 11pm. The trial judge in her action for damages against the police
ruled that they had had no reasonable grounds for suspecting her of involve-
ment in the crimes.
In Hsu v. Metropolitan Police Commissioner189 the plainti¬ was physically
assaulted and racially abused when he refused to allow three police o¬cers to
enter his house. He was arrested and detained for about seventy-¬ve minutes
during which time his house was entered. He su¬ered post traumatic stress dis-
order. The jury awarded compensatory damages of £20,000 and exemplary
damages of £200,000. The Court of Appeal reduced the total to £35,000. It held
that £50,000 was the maximum that should be awarded for exemplary damages.
Similarly, in Goswell v. Metropolitan Police Commissioner190 the Court of Appeal
reduced exemplary damages of £170,000 awarded by a jury for false imprison-
ment and assault to £15,000.


Detention for questioning
An arrest has to be based on reasonable suspicion that the person arrested
has committed, is committing or is about to commit the o¬ence in question.
This is, however, not the same as the degree of suspicion necessary to base a
charge. Can the police lawfully hold an arrested person for questioning in
order to decide whether there is enough evidence to charge him? The question
was only properly settled at common law in the same year that PACE was
enacted.
In 1984, in Holgate-Mohammed v. Duke191 the House of Lords held that the
police were entitled to hold a suspect for questioning without charges. The
plainti¬ had been arrested after the theft of jewellery from premises where she
was a lodger. She was detained for six hours but was not charged. She brought
an action for damages against the police and at ¬rst instance won damages of
£1,000. The judge held that detention had not been too long and she had been
allowed to see a solicitor. Also there had been no improper pressure, but the
purpose of detention had been to put her under greater pressure through having
her in custody under arrest than would have existed if she had been interviewed
without being arrested. The House of Lords con¬rmed the Court of Appeal™s
decision allowing the appeal and said that it was legitimate for the police to hold
someone for questioning in order to dispel or con¬rm the o¬cer™s reasonable
suspicion which led to the arrest.

188 189 190
[1982] Crim LR 600. [1997] 2 All ER 762. Legal Action, September 1998, p. 21.
191
[1984] AC 437, [1984] 1 All ER 1054.
208 Pre-trial criminal proceedings


The ¬rst reference to the concept of detention for questioning in any English
statute was in PACE. Section 37(2) states that before an arrested person is
charged the only ground for detaining him is that there are ˜reasonable grounds
for believing that his detention without being charged is necessary to secure or
preserve evidence relating to an o¬ence for which he is under arrest or to obtain
such evidence by questioning him™ (emphasis supplied).


The time limits on detention for questioning
Before PACE the law on time limits for detention without charges was in a state
of muddle.192 There was a widespread belief that the police were required to
bring a suspect before the courts within twenty-four hours of arrest.193 This was
based on a misunderstanding. The only relevant provision that mentioned a
time limit was the Magistrates™ Courts Act 1980, s. 43(1) which stated, in e¬ect,
that a person charged with an o¬ence that was not serious who could not be
brought before a magistrates™ court within twenty-four hours had to be bailed
from the police station to appear before the court. There was no requirement in
the section that he be brought before the court within twenty-four hours “ only
that if he was not, he should be bailed unless the o¬ence was a serious one.
(There was no de¬nition of the concept of ˜serious o¬ence™, which was there-
fore left to the police to de¬ne.)
Prior to 1984, the only other statutory time reference regarding police
detention was the provision in s. 43(4) of the Magistrates™ Court Act 1980 that
˜where a person is taken into custody for an o¬ence without a warrant and
is retained in custody he shall be brought before a magistrates™ court as soon
as practicable™. There was no indication as to what was intended by the
words ˜as soon as practicable™ but it was clear from police practice that this
was interpreted by them to mean as soon as practicable after he had been
charged and not as soon as practicable after being taken into custody. In
his evidence to the Philips Royal Commission, the Commissioner of the
Metropolitan Police suggested that the words ˜as soon as practicable™ were
intended to recognise the need to keep some people in custody while inquiries
were pursued in order to see whether there was enough evidence for a charge.
A person aggrieved by the delay could apply to the Divisional Court for
habeas corpus.

192
For common law decisions on time limits for detention see Houghton and Franciosy (1978) 68
Cr App Rep 197; Hudson (1980) 72 Cr App Rep 163; Re Sherman and Apps (1981) 72 Cr App
Rep 266, sub nom Holmes, ex p Sherman [1981] 2 All ER 612; Nycander (1982) Times, 9
December.
193
Research conducted for the Philips Royal Commission established that most suspects spend a
relatively short time in police custody. About three-quarters of all suspects were dealt with in
six hours or less and about 95 per cent within twenty-four hours. Virtually none was held for
more than forty-eight hours. A study based on nearly 50,000 detainees in the Metropolitan
Police district showed that the proportion held for more than seventy-two hours was 0.4 per
cent. (Philips, para. 3.96, p. 52.)
209 Stop, arrest and detention


The Criminal Justice (Scotland) Act 1980, s. 2 authorised detention for ques-
tioning for up to six hours.

The Philips Royal Commission
In the Royal Commission™s view the proper length of police detention before a
suspect had to be brought before a court was a maximum of twenty-four hours.
It proposed a scheme under which after six hours the custody o¬cer in the
police station would review the need for further detention. Within twenty-four
hours the suspect would either have to be charged or released or an application
would have to be made to a magistrates™ court for permission to hold him for
another twenty-four hours. The suspect would have a right to be present at any
such hearing and he would equally be permitted legal representation on legal
aid. Thereafter, the police would be entitled to go back to the magistrates for
further extensions of twenty-four hours at a time. After forty-eight hours™
detention, there would be a right of appeal to a judge against continued deten-
tion. The Royal Commission did not propose any upper limit of time for such
extensions. In theory the magistrates would be free to grant any number of
twenty-four hour extensions.

PACE
The Government did not wholly accept the Royal Commission™s scheme.
Under PACE, when an arrested person is being held under s. 37(2) for ques-
tioning he can be held in the ¬rst instance for up to twenty-four hours. At that
point the necessity of further detention must be considered by a superinten-
dent. He may give authority for further detention until the thirty-six hour
point (s. 42).
This authority to extend detention beyond twenty-four hours only applied
however to ˜serious arrestable o¬ences™. This was changed by the Criminal
Justice Act 2003 which applied it to all arrestable o¬ences194 and, shortly there-
after, by the Serious Organised Crime and Police Act 2005, which restricted the
power to indictable o¬ences.195
The twenty-four hour period is measured from arrival at the police station.
If the suspect is arrested by another force, it starts from the moment he arrives
in the police station in the area where he is wanted. If he comes from outside
England and Wales, the twenty-four hour period has to start within twenty-four
hours of his ¬rst arrest (s. 41).
After thirty-six hours, there has to be a hearing in the magistrates™ court with
the suspect present and, if he wishes, legally represented (s. 43). The magistrates
can grant a warrant of further detention for up to a further sixty hours “ making
a total of 96 hours (ss. 43 and 44), but the maximum period of time allowable
by magistrates is thirty-six hours at a time. It follows that if the police want to

194
Section 7 “ based on a recommendation by the Home O¬ce/Cabinet O¬ce Joint Review of
195
PACE, 2002. Schedule 7, para. 43(7).
210 Pre-trial criminal proceedings


ask for the full ninety-six hours they have to return to the magistrates for a
second hearing (ss. 43(12) and 44).
The magistrates can only authorise further detention if the o¬ence in ques-
tion is an indictable o¬ence,196 that is being investigated diligently and expedi-
tiously, and if further detention is necessary to secure or preserve evidence
relating to an o¬ence for which the suspect is under arrest or to obtain such evi-
dence by questioning him (s. 43(4)).
PACE, s. 51(d) speci¬cally preserved habeas corpus, but any such applications
will presumably fail if detention has been properly authorised by the magis-
trates and the conditions for further detention still apply. However, if they no
longer apply, further detention will be unlawful and habeas corpus is available.
The time for which a suspect can be held under PACE is a¬ected by the fol-
lowing provisions:
• The custody o¬cer is under a duty to order the immediate release of an
arrested person if the grounds for holding him cease to apply and there are no
other valid grounds for holding him (s. 34).
• When the suspect ¬rst comes to the police station, the custody o¬cer has to
decide whether there is at that stage enough evidence to charge him and, if
so, he should be charged forthwith (s. 37(1) and (7)). Research has shown
that this duty is not performed. Custody o¬cers generally rubber stamp the
arresting o¬cer™s decision to bring the suspect in for questioning.197 As will
be seen, the Criminal Justice Act 2003 introduced a new system under which
responsibility for charging is taken over by the Crown Prosecution Service
(CPS). If under this new system a case is referred to the CPS for a decision
as to charges there will inevitably be a time delay, but no alteration was
made to the provisions in PACE as to the length of detention to allow for
this.
• The necessity of further detention must be reviewed regularly throughout the
period of detention by an o¬cer of the rank of inspector “ initially after the
¬rst six hours and thereafter every nine hours. The suspect and/or his legal
adviser must be given an opportunity to make representations (s. 39).
• After being charged the arrested person must be released, with or without
bail, unless:
“ it is necessary to hold him so that his name or address can be ascer-
tained; or
“ the custody o¬cer reasonably thinks that it is necessary to hold him for his
own protection or to prevent him from causing physical injury to anyone
or from causing loss of or damage to property; or
196
PACE, s. 43(4)(b) as amended by SOCPA, Sch. 7, para. 43(8).
197
See I. McKenzie, R. Morgan and R. Reiner, ˜Helping the Police with their Inquiries: The
Necessity Principle and Voluntary Attendance at the Police Station™, Criminal Law Review,
1990, pp. 23“4 and M. McConville, A. Sanders and R. Leng, The Case for the Prosecution
(Routledge, 1991) pp. 42“4 and 119. See also E. Cape, ˜Detention Without Charge: What
Does “Su¬cient Evidence to Charge” Mean?™, Criminal Law Review, 1999, pp. 875“85.
211 Stop, arrest and detention


“ the custody o¬cer reasonably thinks that he needs to be held because he
would otherwise fail to answer to bail or to prevent him from interfering
with witnesses or otherwise obstructing the course of justice; or
“ if he is a juvenile, he needs to be held ˜in his own interests™ (s. 38(1)).
• Once he has been charged, if he is not released, he must be brought before a
magistrates™ court as soon as practicable and not later than the ¬rst sitting after
being charged (s. 46(2)). If no court is sitting on the same day as he is charged
or the next day (other than a Sunday), the custody o¬cer is under a duty to
inform the clerk to the justices so that a court sitting can be arranged (s. 46(3)).

Charging
When the investigating police o¬cer reasonably believes there is a realistic
prospect of conviction he must without delay inform the custody o¬cer who is
responsible for deciding whether the detainee should be charged.198 This rule is
now subject to the new system under which the CPS advise as to what charges
should be brought (for the new system see p. 248 below), but under the new
system the actual charging is still done by the police.
Where the detainee is someone the police believe should not be released on
bail but the CPS have not yet advised as to what charge(s) to bring and the PACE
time limits create a problem, the police can lay a ˜holding™ charge.199
Where someone is detained in respect of more than one o¬ence it is permis-
sible to delay informing the custody o¬cer until the realistic prospect of con-
viction test is satis¬ed in respect of all the o¬ences (Code C, para. 16.1).
However, if the other charges are more serious the suspect must be made
aware of the fact at an early stage, so that he can consider whether he wants legal
advice and how to respond to questions.200

Statistics on length of detention and charges
The annual Home O¬ce statistics on length of detention give no ¬gures as to
average periods of time. They do however show the total number of cases in which
the police apply to the magistrates for a warrant of further detention authorising
detention beyond thirty-six hours. In the decade from 1994“2004 the annual
number of applications to magistrates for warrants of further detention beyond
thirty-six hours ran from a low of 220 to a high of 343. In 2004“5 it jumped to 423.201
Evidence of post-PACE average periods of detention prior to charge was
given in two Home O¬ce studies by Brown in 1989 and 1992202 and in a study
by Phillips and Brown in 1998. The 1989 report showed that only 1 per cent of
198
Code C, para. 16.1.
199
PACE, s. 37(7)(d) inserted by the Criminal Justice Act 2003, Sch. 2, para. 2(2).
200
See Kirk [1999] 4 All ER 698 “ convictions for manslaughter and robbery quashed.
201
Home O¬ce Statistical Bulletin, Arrests for Noti¬able O¬ences and the Operation of Certain
Police Powers under PACE, December 2005, Table PF, p. 15.
202
Detention at the Police Station under the Police and Criminal Evidence Act 1984 (HMSO, 1989)
and Brown et al, Changing the Code: Police Detention under the Revised PACE Codes of Practice
(HMSO, 1992).
212 Pre-trial criminal proceedings


all suspects in the sample of some 5,500 were held for more than twenty-four
hours. As many as 32 per cent were out of the police station within two hours,
59 per cent in four hours and 76 per cent in six hours. Eleven per cent were held
more than twelve hours. The mean length of detention was ¬ve hours and ten
minutes with a median of three hours and nineteen minutes. The 1992 study
showed that the position had basically not changed. In the 1998 study the mean
time that suspects were held without charge was six hours and forty minutes. In
very serious cases (murder or rape) it was just under twenty-two hours. For
moderately serious o¬ences it was just over seven hours. For less serious
o¬ences the average was just under four hours.203


Terrorism cases
The time limits for detention without charges in terrorism cases are di¬erent.
Under successive Prevention of Terrorism (Temporary Provisions) Acts
1974“1989 a terrorist suspect could be detained for forty-eight hours in the ¬rst
instance on the authority of the police and thereafter, with the written permis-
sion of the Home Secretary, for a further ¬ve days.
In 1989 the Strasbourg Court held that detention for four days and six hours
under this legislation was a breach of Article 5(3) of the ECHR.204 The UK
Government then entered a derogation from the Convention on the ground of
the security situation in Northern Ireland.
The Criminal Justice Act 2003, s. 306 extended the seven-day limit to four-
teen days.
Another change was that authority for detention of terrorist suspects beyond
forty-eight hours is no longer obtained from the Home Secretary. The Terrorism
Act 2000 substituted for the Home Secretary a ˜judicial authority™ “ de¬ned in the
Act to mean either the Senior District Judge (Chief Magistrate) or another District
Judge (Magistrates™ Court) designated for the purpose by the Lord Chancellor.205
The Terrorism Bill 2005“6 originally had a provision extending the maximum
period of detention of terrorist suspects without charges to ninety days. However,
this was a step too far. On 9 November 2005, Tony Blair su¬ered his ¬rst Commons
defeat since he became Prime Minister in 1997. MPs rejected the proposal by 322
to 291. The Commons substituted a new maximum of twenty-eight days and the
Government decided not to try to restore the ninety-day proposal.206 Under the
Act any extension of detention beyond fourteen days requires an application to a
High Court judge and no such extension can be for more than seven days at a time.
After fourteen days the suspect is supposed to be transferred to a prison.207 In the
˜aircraft liquid bomb plot™ case in 2006, the ¬rst case in which the power was used,

203
Note 85, p. 174 above at p. 109. The study was based on a sample of just over 4,000 people
detained at ten police stations in 1993“4.
204 205
Brogan v. United Kingdom (1989) 11 EHRR 117. Schedule 8, para. 29.
206
Terrorism Act 2006, s. 23(7) amending the Terrorism Act 2000, Sch. 8, para. 36.
207
PACE Code H, para. 14.
213 Stop, arrest and detention


twenty-four suspects were arrested, of whom seventeen were eventually charged.
Eleven were charged between seven and fourteen days after arrest, four between
fourteen and twenty-one days, and two between twenty-one and twenty-eight
days. Three of the seven released without charges had been held for more than
twenty-one days.208
The only ¬gures for the length of detention in terrorism cases are derived
from a study when the maximum period of detention was seven days. A study
of 253 persons detained under the Prevention of Terrorism Act 1989, again by
David Brown, found an average period of detention of nearly twenty-nine
hours with a median of sixteen hours and twenty-four minutes, but just under
40 per cent of the terrorist detainees had been released within twelve hours and
nearly two-thirds within twenty-four hours.209

Indefinite detention of terrorist suspects without charges
In the aftermath of the 11 September attack on the Twin Towers in New York the
Government rushed through the Anti-Terrorism, Crime and Security Act 2001
(ATCSA) which gave the Home Secretary exceptional powers to detain some ter-
rorist suspects inde¬nitely without charge. The Act provided that if the Home
Secretary reasonably believed a person to be a suspected international terrorist
whose presence in the UK was a risk to national security he could issue a certi¬-
cate under ATCSA, s. 21. The de¬nition of terrorist under the Act includes being
a member of, belonging to, or having links with an international terrorist
group.210 (Having links with includes supporting or assisting.211) An international
terrorist group is de¬ned as one that is subject to the control or in¬‚uence of
persons outside the UK which the Home Secretary suspects of being concerned in
the commission, preparation or instigation of acts of international terrorism.212
A person who had been certi¬ed under s. 21 could be detained inde¬nitely
without charges.213 Ministers explained that this draconian power was aimed at
a small number of persons who could not be prosecuted for insu¬ciency of
admissible evidence nor deported because they would face death or torture in
the countries in question. However, if they could ¬nd a country prepared to take
them, they had a right to go.214
During the passage of the Bill most of the controversy centred on the
detained suspect™s means of challenging certi¬cation by the Home Secretary.
The Bill provided that appeal would lie to the Special Immigration Appeal

208
Ali Naseem Bajwa and Bernie Duke, ˜Pre-charge Detention in Terrorism Cases™, 156 New Law
Journal, 20 October 2006, pp 1578“79. The authors represented one of the suspects.
209
D. Brown, Detention under the Prevention of Terrorism Act 1989: Legal Advice and Outside
Contact (HMSO, 1993) p. 50. At that time the maximum period of detention in terrorism
210 211
cases was seven days. ATCSA 2001, s. 21(2). Ibid, s. 21(4).
212 213
Ibid, s. 21(3)(b). Ibid, s. 23.
214
For commentary on the Act see H. Fenwick, ˜The Anti-Terrorism, Crime and Security Act
2001: A Proportionate Response to 11 September?™, 65 Modern Law Review, 2002, pp. 724“62.
On the power of inde¬nite detention see J. Sawyer, ˜Detention Appeals™, 152 New Law Journal,
p. 1357; M. Darwyne, ˜The Crumbling Pillars of Justice™, Counsel, April 2003, p. 27.
214 Pre-trial criminal proceedings


Commission (SIAC) established by the 1997 Act of that name, which sits with
a High Court judge, an immigration judge and a security expert. The hearings
are in camera and the Commission can hear evidence that is not shown to the
detainee or his lawyer, though a security vetted lawyer (˜special advocate™)
appointed to represent him would be shown such evidence. An appeal from the
Commission lies to the Court of Appeal and House of Lords on a point of law.
The Bill provided that no court or tribunal other than the SIAC could enter-
tain proceedings for questioning the Home Secretary™s certi¬cate. During the
debates the Government amended the Bill by raising the status of the SIAC to
that of a superior court of record, one of the results of which is that it is not
subject to judicial review, but the Attorney General pointed out that the SIAC
was in some respects more powerful than a court in that it could review the
Home Secretary™s certi¬cate on its merits.215
It was reported in March 2003 that a special self-contained unit would be set
up at Woodhill jail in Milton Keynes to house persons held under the ATCSA.
Thirteen suspects were being held at di¬erent prisons. They would have a choice
as to whether to move to the unit or stay where they were. The self-contained unit
had been recommended by Lord Carlile of Berriew QC in his review of the oper-
ation of the Act. He reported that detainees under the Act complained of being
held together with convicted criminals.216 The authorities had issued no names,
no charges had been brought and no explanations for detention had been given.217
A challenge to the validity of this system was launched by nine foreign
nationals detained under the Act. On 16 December 2004 the House of Lords
held by eight to one that the legislation breached Article 14 of the European
Convention on Human Rights in that it discriminated against foreign nation-
als.218 Section 23 did not rationally address the threat posed by Al-Qa™eda ter-
rorists and their supporters because it did not apply to UK nationals.219 The
House of Lords decision declared that s. 23 was incompatible with the ECHR.

Indefinite detention without charges replaced by control orders
The Government accepted this defeat and quickly introduced new legislation to
deal with the problem. The Prevention of Terrorism Bill, introduced on 23
February 2005, received Royal Assent only just over two weeks later on 11
March. The new Act gave the Home Secretary the power to make ˜control
orders™ if he:

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