The K-Zone: Arrest and detention: know your rights

[Updated March 2007 to incorporate changes introduced by the Serious Organized Crime and Police Act (2005).]

Many people find themselves the focus of police attention, rightly or wrongly. This article summarises the basic rights and duties of the citizen who is arrested and detained by the police in connection with an offence.

Comments, complaints, criticisms, etc., on this article are welcome; send them to the usual place.

Disclaimer

This article is written for general information only. It does not purport to be exhaustive or authoritative. To the extent that it applies at all, it only applies to England and Wales, as the legal position is somewhat different in Scotland and Northern Ireland.

In addition, please be aware that the article has limited scope.

It does not even touch on the powers of the police to deal with terrorist offences. The statutory regulations that apply to these offences are completely different from those that apply to other offences and, some might say, more draconian.
The article only considers the rights and duties of an adult of full mental capacity, who speaks English, has no visual or hearing difficulties, and is in good health at the time of the arrest. Special procedures apply to children, non-English speakers, drug addicts, etc., and they are far too complex to deal with here.

Anyone who believes he or she has been subjected to an unlawful arrest or detention, or is accused of conducting an unlawful arrest or detention, should seek specialist legal advice.

Notes

In this article, statutory provisions are shown like this: [s32 PACE], meaning `Section 32 of the Police and Criminal Evidence Act (1984)'. A list of abbreviations is given at the end of the article. The term `constable' means a sworn policeman or policewoman of any rank, as it does in the relevant legislation. The article is organised in a sort of chronological order; that is, it considers your legal rights and obligations as they might arise if you are arrested, detained, and charged for an offence.

Legal background

Most of the powers granted to the police to arrest, search, and detain suspects are covered by statute. Of particular importance is the Police and Criminal Evidence Act (1984) (`PACE'), as ammended by the Serious Organized Crime and Police Act (2005) (`SOCPA'). PACE also provides for the creation of a set of codes of practice that the police are required to follow when exercising these powers. Most relevant to this discussion are Code B (search of premises), Code C (detention), and Code E (tape recording of interviews). The codes were all recently (March 2003) revised to take account of recent developments in human rights law.
      The codes go some way beyond the basic statutory provisions of PACE and the other relevant legislation. For example, PACE says that a suspect held in detention must be treated decently, while Code C says how often he should receive food and drink, and the circumstances in which his sleep can be interrupted.
      If the police do not comply with legislation, then they are acting unlawfully. A person who is arrested or detained unlawfully will have a claim against the police for damages; genuine claims are frequently successful. In addition, evidence gathered during the investigation may be deemed inadmissible in court -- but don't bet on it: this isn't automatically the case in the UK as it is in some jurisdictions.
      Breaches of the codes of practice are not automatically unlawful. In themselves they won't give rise to a claim for damages. For example, you won't be able to get compensation because you were only provided with two meals in a 24-hour period, rather than the requisite three. All the same, courts tend to take a dim view of such conduct.

Arrest

You can be arrested if you present yourself voluntarily at a police station and give yourself up for some offence. In most cases, however, an arrest will follow some sort of investigation, and may take place at your home, place of work, or in a public place or the street. It may follow some sort of search. Powers to stop and search are dealt with in this article and aren't discussed further here.
A constable may ask you to go to a police station to make a statement or `help with enquiries'. Unless you are arrested, you are not obliged to go. A constable is not entitled to arrest you simply to compel you to answer questions; there must be existing grounds for arrest. A number of academic commentators have pointed out the danger of allowing the police to question people without arresting them. If you aren't arrested, then as a matter of plain logic you aren't `in custody' if you go to a police station. It follows that the statutory controls set out in PACE aren't effective in such cases. That doesn't mean, for example, that if you go voluntarily to a police station, Constable Bruiser can arrange for your interview to involve a fall down a flight of stone steps -- this would still be a crime. However, it does mean that your interview need not be recorded on tape, for example, or that you need not be cautioned, and these things might be to your disadvantage.
An arrest is only lawful if carried out under specific legal authority. Most arrests for specific serious criminal offences will be carried out under the authority of s.24 of PACE (as ammended by SOCPA). For these arrests to be lawful, the arresting constable must have reasonable grounds for believing that you have committed, are committing, or are about to commit, an offence. Prior to the enactment of SOCPA, s.24 was limited to `arrestable' offences, of which there was a long list which nobody could remember. Now any offence will suffice but, to reduce the likelihood of people being arrested for trivial offences without good cause, PACE provides that an arrest is only lawful if

the constable has reasonable grounds for thinking that he could not reliably obtain the identity of the suspect, or
it is necessary to prevent injury, or
it is necessary to prevent loss or damage to property, or
it is necessary to prevent an offence against public decency, or
the suspect is unlawfully obstructing the highway, or
it is to protect a child or other vulnerable person, or
it is necessary to provide for prompt and effective investigation, or
it would hinder investigation or prosecution if the suspect runs off.

For the less serious offences, even where there is a power of arrest, the police will usually proceed by way of an information to the magistrates' court, even where there is now a specific power of arrest for the offence. When an information is laid, you will normally receive a politely-worded invitation to appear at the magistrate's court on a certain date.
      However if, for example, you have committed an offence and, when the constable asks for your name and address, you say `naff off, copper', you can be arrested. Why? Because there is no other way in which you can be brought to account. You couldn't be served with a summons, for example, because the court wouldn't know where to send it.

      There remains a power of arrest - not governed by legislation - if you are threatening a breach of the peace. This usually means that there appears to be cause for concern that you might imminently do violence or damage.
      If you are arrested, you must be told that you are under arrest, and why (s.24 PACE), unless it is not practical to do so (because, for example, you are trying to run away). Even if you have to be physically restrained, you must be told as soon as practicable afterwards. If the police don't do this, then the arrest is unlawful. This is true even if you have been caught red-handed carrying the Crown Jewels out of the Tower. There is no statutory authority on how much detail the police must provide of the grounds for your arrest. The traditional view is that expressed in Christie v Leachinsky (1947), a case which is still widely cited when an unlawful arrest is at issue. In short, the constable is required to give you enough information for you to judge whether your arrest is lawful or not. This means explaining in plain, non-technical language the facts that give rise to the grounds for arrest. Similarly, there is no precise form of words that the constable must use to signify the fact of arrest. It must be absolutely clear that you are being deprived of your liberty, but `You're nicked!' will do in certain circumstances (Clarke v Chief Constable of North Wales Police (2000)).
      After being arrested you must be cautioned, unless you have already been cautioned, or it is impractical. If you aren't cautioned, or not cautioned properly, then this does not automatically make the arrest unlawful, so long as the same sense is carried. If you've ever watched `The Bill', you'll know that the proper form of caution is:

``You do not have to say anything, but it may harm your defence if you do not mention something when questioned that you later rely on in court. Anything you do say may be given in evidence''

What if your arrest is unlawful?
You are entitled to use `reasonable force' to resist an unlawful arrest. However, this is rarely advisable for two reasons. First, even if you yourself know that you have committed no offence, the police only have to have `reasonable grounds' to believe that you have. They don't have to be certain, or even have compelling evidence (Castorina v Chief Constable of Surrey (1988)). The standard of proof is not really all that high. If the police are able to meet that standard of proof, then your use of force will amount to a number of rather serious offences, for which you can be banged up. Second, the police are very well trained in dealing with suspects who resist arrest.
After arrest, you will usually be taken to a police station to be interviewed. However, the police will often search you, the area around where you were arrested, and even your home or place of work first.

Search of your person after arrest

If you are arrested, the police are allowed to search you for three types of article (s.32 PACE):

evidence related to an offence; or
anything you might use to escape; or
anything that might present a danger to yourself or others. This would obviously include weapons.

These powers are in addition to the powers that may be exercised without arrest; in particular the police can search you if they have reasonable grounds to believe that you have in your possession implements for use in crime, stolen goods (s.1 PACE) or controlled drugs (s.23 MDA).

Search of the immediate area after arrest

If you are arrested, the police are allowed to search the immediate area in which you were arrested, and this includes any buildings you may have had access to immediately before the arrest (s.32 PACE). So if, for example, you are chased through a large public building before being arrested, the police can search any room you passed through on your way. No search warrant is required for this. The purpose of this power is to prevent situations where, for example, an offender runs away from the police and, on the way, throws his ill-gotten gains through the open window of a house. In principle, the power to search buildings can only be exercised if the police have reasonable grounds to think that they will find something related to the offence for which you are arrested. This means, for example, that they can't search on the off-chance that they'll find something. Similarly, if you are arrested in a block of flats, they can't search every flat.
The conduct of searches of property is governed by PACE Code B. In general, the police are allowed to use proportionate force to enter premises to search, and can seize articles related to the offence. They are supposed to exercise consideration for the occupiers of property, and allow an independent person to witness the conduct of the search if it won't hold up the investigation. The police will generally be expected to pay compensation for any damage caused by the search, but they won't normally pay compensation to the offender if convicted.

Search of your premises after arrest

If you are arrested, the police have a right to search your home or any other premises in your charge for evidence related to the offence for which you are arrested or any other arrestable offence (s.18 PACE). They don't need any kind of search warrant for this, but they do need to have reasonable grounds for believing that the search will reveal something related to the offence. In principle, the authority of an inspector is required for this search, but this can be given retrospectively, so you can't use the lack of this authority to prevent a search. The police can legitimately search your premises between arrest and taking you to a police station. The regulations governing searches of this sort are the same as for searches of the area where you are arrested.

Arrival at the police station

When you are taken to the station, the custody officer will make a decision whether there is sufficient evidence to charge you with an offence (s.37 PACE), and whether you should be detained in custody or released.
      If there is not sufficient evidence to charge you, then one of three things will happen: you will be released unconditionally, released on bail, or detained. To be detained, the custody officer must either have reasonable grounds to believe that further evidence will come to light if you are interviewed, or reasonable grounds to believe that you will interfere with the investigation if you are released.
      If you are released, bail can only be imposed if the police believe that further investigation will reveal information (s.34 PACE) which will lead to a prosecution.
      If there is sufficient evidence to charge you, you may be released with or without bail, or detained. After being charged, you can only be detained further if the custody officer has reasonable grounds to believe that you have not given a genuine name and address, or that you will not turn up in court when your case is heard, or that you will commit further offences while on bail, or you will interfere with the investigation, or that you need to be kept locked up for your own protection. If you are charged with an offence, either now or later, you should be cautioned, and given a written record of the offence with which you have been charged (s16.3 Code C). The police should not normally question you further after you have been charged (s16.5 Code C).
      If you are detained, the custody officer is required to explain why (s.58 PACE).
      The custody officer is under a duty to record anything you have in your possession, and may remove these items from you, by ordering a search if necessary (s.54 PACE). You are entitled to keep your clothes and personal effects unless the custody officer believes they are dangerous, or required as evidence, or can be used to help you escape. The custody officer must prepare a list of your possessions, which you will be asked to sign. You should check the list before signing it: mistakes have been known.
      In addition to a general search to identify your possessions, there are two circumstances in which an intimate search - a search of body cavities - may be authorised (s.55 PACE). First, an intimate search is allowed if there are reasonable grounds to believe that you are concealing a weapon. Second, it is allowed if there are reasonable grounds to think that you are concealing a class A drug. Authorisation must be given by an officer of at least the rank of inspector. Either of these searches may be carried out at a medical facility; a search for weapons may also be carried out at a police station. Neither may be carried out anywhere else.
      If you have refused to identify yourself, or if it is necessary to identify you as the perpetrator of an offence, the police are entitled to photograph you. Moreover, you may be searched for distinguishing features that may assist in identification (s.54A PACE).

Your rights whilst in custody

The general principle on which the rules of police detention are based is that you must not be detained any longer than is necessary (s.1 Code C). If the reason for your detention has ceased to apply, you must be released (s.34 PACE).
When you are taken to a police station, you have certain rights, and the police are obliged to tell you what they are (s3.1 of Code C).

You have the right to have someone told that you have been arrested, and where you are being detained. You should be given this opportunity as soon as possible after arriving at a police station, but it may be delayed in certain circumstances for up to 36 hours (s.56 PACE). Delay must be authorised by an inspector, who must have reasonable grounds for thinking that that notification will lead to interference with evidence, harm to other people, alerting of other suspects, or will hinder recovery of property connected to the offence. Delay can only ever be authorised for `serious arrestable offences'. These are essentially offences of violence, or those involving serious financial loss.
You have the right to consult a solicitor, in private, at any time (s.58 PACE). The custody officer is required to tell you that you are entitled to free legal advice, or allow you to consult a solicitor at your own expense, whichever you prefer. You will be asked (s3.5 Code C) to sign the custody record to indicate that you have been told of your rights in this respect.
The right to legal advice may be delayed for up to 36 hours if the police believe you have committed a serious arrestable offence, and for the same reasons as those described above. However, the police would need to have extremely strong grounds for thinking it necessary. Delay must be authorised by a superintendent. Your access to a solicitor cannot be delayed under any circumstances if you have been charged with an offence (Annex B, Code C). The courts have largely taken the view that access to a solicitor is a fundamental right of a person in detention, and the Court of Appeal has quashed a number of convictions on the grounds that suspects were unreasonably denied this right (e.g., R v Samuels, 1988). Although it appears that the police sometimes try to persuade suspects not to take legal advice (``You'll be out of here much quicker if you don't muck about with a solicitor...'') this is a breach of Code C (s6.4).
You have the right to telephone one person (s5.6 Code C). The grounds on which this can be denied are essentially the same as for denial of notification of detention (above). You also have the right to send a letter, subject to the same restrictions. The police are allowed to monitor your telephone call and read your letter, and to use any information recorded as evidence. However, the police can't monitor telephone calls to your solicitor.
You have a right to inspect Code C if you wish. However, you don't have a right to hold up business by doing so. In particular, if you are arrested in connection with being drunk or drugged, the police don't have to wait for two hours while you read Code C from cover to cover before taking blood samples.
You have the right to be treated decently whilst in custody. You must be provided with food, drink and, where necessary, clothing, allowed access to lavatories and washing facilities, and held in a clean and well-ventilated environment (s.8 Code C). In any 24-hour period of detention you should be allowed 8 hours to sleep.

In general, the police do not have to allow anyone to see you except a solicitor. However, the custody officer does have the discretion to allow other people to see you while you are in custody. Provided it does not hinder the investigation, the police `should allow' such visits (Note 5B Code C).

Detention without charge

It is generally frowned upon to keep a person locked up when he has not been charged with anything. As a result, the procedure for reviewing your ongoing detention is more onerous for the police if you have not been charged (s.41 PACE). Your detention must be reviewed after 6 hours, then at 9-hourly intervals. If you have been charged, then the review can be conducted by the custody officer. If you have not been charged, then it requires an officer of at least the rank of inspector, and that officer must not be involved in your case. At each review, you or your legal representative have an opportunity to make representations as to why you should be released. At any review, unless there are genuine grounds to continue to detain you, you must be released. Normally you must be released after 24 hours since arrest, or charged. However, if the police want to detain you without charge for longer than 24 hours, this can be authorised by a superintendent between the second and third review (i.e., 15-24 hours in detention). This authorisation may extend your detention by up to 12 hours. The grounds for authorising this extended detention are the same as for authorising your detention in the first place: there must be reasonable grounds to believe that interviewing you will yield relevant evidence, or reasonable grounds to believe that you would otherwise interfere with the investigation. Again, you must be given an opportunity to make representations against your detention.
If the police wish to detain you without charge for more than 36 hours, then they must take you to a magistrates' court to get a warrant. Normally this must be done before the 36 hours has expired, but may be delayed until the court next sits if, for example, it is the middle of the night. A magistrate's warrant may authorise your detention for up to another 36 hours. If this is not long enough the police can drag you in front of the magistrate one more time, and get an extension to the warrant.
In short, you can be held in custody without charge for a maximum of 96 hours (four full days). In this time your detention will have had to be reviewed three times, and you will have had to be taken to the magistrates' court twice. After this time you must either be charged or released.

Detention after charge

If you are charged with an offence, you should normally be released, perhaps on bail, unless the police have reasonable grounds to think that you will interfere with the investigation, or will commit further offences, or have given a bogus name or address, or will fail to turn up at court. If you are detained, then the police must bring you before a magistrates' court at the next sitting (s.46).

Interviews

Apart from routine matters concerning, for example, your identity, any questioning by the police that concerns your alleged involvement in an offence constitutes an `interview' and is subject to regulation.
      In the good old days, suspects were frequently advised simply to say nothing at all when questioned by the police. It is, after all, the job of the prosecution to prove its case, not the job of the defence to rebut it. This is generally no longer a wise strategy, as the Criminal Justice and Public Order Act (1994) now provides (s.35) that `the court may draw such inferences ... as appear proper' from your refusal to answer. In other words, if you refuse to answer straightforward questions in a police interview (``Why are there 200 stolen video recorders in your house?'', ``No comment''), and then provide an explanation in court (``Why are there 200 stolen video recorders in your house?'', ``Well, it's like this...''), the jury or magistrates are entitled to make of this what they will.
      If you have asked for legal advice, you should not be interviewed until you have received it (s6.6 Code C). Exceptions to this rule are essentially the same as for refusing access to legal advice: it will lead to a loss of evidence, expose other people to danger, or allow other suspects to evade arrest. If you have requested legal advice, but the police have been allowed to question you before receiving it, then you can reasonably refuse to answer any question you might be asked. This cannot be used against you in court (s.58 YJCEA).
      You should be cautioned before being asked any questions, and any time questioning resumes after a break.
      Interviews in police stations are now required to be recorded on tape, in accordance with Code E, for any offence that is serious enough to allow a jury trial. The police may, but are not required to, tape record other interviews as well. The interview is recorded on two tapes simultaneously; after the interview you should be given one of the tapes to take away.
      It goes without saying that interviewing should not be oppressive. Any threat of violence is prima facie oppressive. Raised voices are not necessarily oppressive, but might be considered to be oppressive if you are particular timid. In all cases, if you confess to some offence and indicate at trial that the confession was obtained under duress, the onus will be on the police to prove that it was not (s.76 PACE).

After release

If you are released from police custody having been charged with an offence, you will normally be released on bail, with a duty to present yourself at the magistrate's court at the next sitting (s.47 PACE). The bail may be made subject to certain conditions, such as a financial security. If you have not been charged at this stage, your release may still be subject to bail. However, if you have not been charged then conditions cannot be attached to the bail. You are entitled to inspect your custody record for up to a year after release.

Abbreviations

MDA       Misuse of Drugs Act (1971)
PACE      Police and Criminal Evidence Act (1984)
SOCPA     Serious Organized Crime and Police Act (2005)
YJCEA     Youth Justice and Criminal Evidence Act (1999)