Representations at police stations

One of the roles of solicitors at police stations is to make representations on relevant issues that impact on their client's welfare and ability best to put their case.


These representations should be recorded so that they are available, if required at court, as evidence to support two primary applications at trial. These are that it is not fair to admit evidence then improperly obtained by the Crown (section 78 of the Police and Criminal Evidence Act 1984 (PACE)) and representations may also be used to prevent an inference being drawn from silence when questioned. At the conclusion of a criminal investigation, these representations may also provide a basis for a civil action against the police.


On 1 January 2006, the concept of the 'arrestable offence' was abolished by amendments to section 24 of PACE. A constable may now arrest a person for any offence, provided it is necessary to do so to meet one of the statutory criteria. The basis for the exercise of those powers of arrest is explored in the new code G - the code of practice for the statutory power of arrest by police officers.



This provides at paragraph 1.3 that the use of the power of arrest must be 'fully justified and officers exercising the power should consider if the necessary objectives can be met by other, less intrusive means. Arrest must never be used simply because it can be used. Absence of justification for exercising the power of arrest may lead to challenges should the case proceed to court'.


Thus the code would be relevant in determining whether or not the officer was in the execution of his duty should an obstruction or an assault occur. The relevant criteria are set out in paragraph 2.8, which states that 'the constable must take into account the situation of the victim, the nature of the offence, the circumstances of the suspect and the needs of the investigative process'. The last of these is particularly important in relation to samples where, provided a suspect is in detention at the police station, a constable may take photographs, fingerprints, DNA samples and footwear impressions, by force if necessary.


The code then sets out in some detail the relevant considerations in ensuring that arrests are only made when necessary to allow the prompt and effective investigation of the offence or the conduct of a person in question, or to prevent any prosecution for the offence from being hindered by the disappearance of the person in question.


The police are required to keep records of the reasons for arrest, first in the officer's pocket book (4.1) and then in the custody record (4.3).


It is not clear that the police have yet understood the significance of the changes that have been made. It will not now be as easy to keep people in detention for long periods of time if their arrest was justified on the basis that it would ensure prompt and effective investigation. Furthermore, where a person is willing to take part in an interview as a volunteer, there can now be no justification for an arrest. Yet, police culture is that an arrest is necessary for the interview to take place. That should be challenged by solicitors attending at the police station with their clients on every occasion when the client attends voluntarily willing to take part in an interview, whether or not they wish to answer questions.


The abolition of the concept of an arrestable offence has meant that a number of statutory powers have had to be amended. The powers that used to be exercisable when a serious arrestable offence was under investigation are now available when only an indictable offence is involved. Whereas, under section 18 of PACE, a search used to be possible when an arrestable offence was under investigation, an inspector may now only authorise such a search if an indictable offence is involved. Thus, the police have lost the power to carry out a post-arrest search in relation to summary-only matters that do not carry a separate power to search.


The police training organisations have issued additional training material to assist police officers in understanding whether a client is vulnerable and, in particular, is fit for interview. This also makes clear that a healthcare professional should record any clinical findings and directions in the custody record (to which the defence must have access), unless there is information that must remain confidential and is not relevant to the effective ongoing care and wellbeing of the detainee. However, solicitors will wish to point out that such information is not confidential from them once the client has authorised its release to their legal adviser.


The code for Crown prosecutors allows for two tests as to whether a prosecution should be brought. The normal code test requires an application, on the basis of a full file, of the evidential and public interest tests. However, where a suspect must be kept in custody, a lower 'threshold' test may be used.


The Director of Public Prosecutions (DPP) has issued guidance in relation to the use of the lower threshold test. This test is only permitted where a suspect is being detained in custody pending a decision because bail cannot properly be granted. The DPP points out that the amendments to section 37(7) of PACE are intended to ensure that, in any case where a suspect is released on bail, the evidence required to satisfy the full code test is gathered before charging takes place.


Therefore, it follows that they should not be detained in custody where the evidence is not yet sufficient to meet the full code standard and bail is appropriate.


Solicitors may wish to point out these provisions and the need to bail when it is suggested that a client should be kept in detention, often for many hours, while a decision is sought from a Crown prosecutor, on a file where further evidence must be obtained.


By Anthony Edwards, TV Edwards, London