15 Reviews and extensions of detention

15.0 The requirement in paragraph 3.4(b) that documents and materials essential to challenging the lawfulness of the detainee’s arrest and detention must be made available to the detainee or their solicitor, applies for the purposes of this section as follows:

(a) The officer reviewing the need for detention without charge (PACE, section 40), or (as the case may be) the officer considering the need to extend detention without charge from 24 to 36 hours (PACE, section 42), is responsible, in consultation with the investigating officer, for deciding which documents and materials are essential and must be made available.

(b) When paragraph 15.7A applies (application for a warrant of further detention or extension of such a warrant), the officer making the application is responsible for deciding which documents and materials are essential and must be made available before the hearing. See Note 3ZA.

15.1 The review officer is responsible under PACE, section 40 for periodically determining if a person’s detention, before or after charge, continues to be necessary. This requirement continues throughout the detention period and, except when a telephone or a live link is used in accordance with paragraphs 15.9 to 15.11C, the review officer must be present at the police station holding the detainee. See Notes 15A and 15B.

15.2 Under PACE, section 42, an officer of superintendent rank or above who is responsible for the station holding the detainee may give authority any time after the second review to extend the maximum period the person may be detained without charge by up to 12 hours. Except when a live link is used as in paragraph 15.11A, the superintendent must be present at the station holding the detainee. Further detention without charge may be authorised only by a magistrates’ court in accordance with PACE, sections 43 and 44 and unless the court has given a live link direction as in paragraph 15.11B, the detainee must be brought before the court for the hearing. See Notes 15C, 15D and 15E.

15.2A An authorisation under section 42(1) of PACE extends the maximum period of detention permitted before charge for indictable offences from 24 hours to 36 hours. Detaining a juvenile or a vulnerable person for longer than 24 hours will be dependent on the circumstances of the case and with regard to the person’s:

(a) special vulnerability;

(b) the legal obligation to provide an opportunity for representations to be made prior to a decision about extending detention;

(c) the need to consult and consider the views of any appropriate adult; and

(d) any alternatives to police custody.

15.3 Before deciding whether to authorise continued detention the officer responsible under paragraph 15.1 or 15.2 shall give an opportunity to make representations about the detention to:

(a) the detainee, unless in the case of a review as in paragraph 15.1, the detainee is asleep;

(b) the detainee’s solicitor if available at the time; and

(c) the appropriate adult if available at the time. See Note 15CA

15.3 A Other people having an interest in the detainee’s welfare may also make representations at the authorising officer’s discretion.

15.3B Subject to paragraph 15.10, the representations may be made orally in person or by telephone or in writing. The authorising officer may, however, refuse to hear oral representations from the detainee if the officer considers them unfit to make representations because of their condition or behaviour. See Note 15C.

15.3C The decision on whether the review takes place in person or by telephone or by live link (see paragraph 1.13(e)(ii)) is a matter for the review officer. In determining the form the review may take, the review officer must always take full account of the needs of the person in custody. The benefits of carrying out a review in person should always be considered, based on the individual circumstances of each case with specific additional consideration if the person is:

(a) a juvenile (and the age of the juvenile); or

(b) a vulnerable person; or

(c) in need of medical attention for other than routine minor ailments; or

(d) subject to presentational or community issues around their detention. See paragraph 1.4(c)

15.4 Before conducting a review or determining whether to extend the maximum period of detention without charge, the officer responsible must make sure the detainee is reminded of their entitlement to free legal advice, see paragraph 6.5, unless in the case of a review the person is asleep. When determining whether to extend the maximum period of detention without charge, it should also be pointed out that for the purposes of paragraph 15.2, the superintendent or (as the case may be) the court, responsible for authorising any such extension, will not be able to use a live link unless the detainee has received legal advice on the use of the live link (see paragraphs 15.11A(ii) and 15.11C(ii)) and given consent to its use (see paragraphs 15.11A(iii) and 15.11C(iii). The detainee must also be given information about how the live link is used.

15.4A Following sections 45ZA and 45ZB of PACE, when the reminder and information concerning legal advice and about the use of the live link is given and the detainee’s consent is sought, the presence of an appropriate adult is required if the detainee in question is a juvenile (see paragraph 1.5) or is a vulnerable adult by virtue of being a person aged 18 or over who, because of a mental disorder established in accordance paragraphs 1.4 and 1.13(d) or for any other reason (see paragraph 15.4B), may have difficulty understanding the purpose of:

(a) an authorisation under section 42 of PACE or anything that occurs in connection with a decision whether to give it (see paragraphs 15.2 and 15.2A); or

(b) a court hearing under section 43 or 44 of PACE or what occurs at the hearing it (see paragraphs 15.2 and 15.7A).

15.4B For the purpose of using a live link in accordance with sections 45ZA and 45ZB of PACE to authorise detention without charge (see paragraphs 15.11A and 15.11C), the reference to ‘any other reason’ would extend to difficulties in understanding the purposes mentioned in paragraph 15.4A that might arise if the person happened to be under the influence of drink or drugs at the time the live link is to be used. This does not however apply for the purposes of paragraphs 1.4 and 1.13(d) (see Note 1GC).

15.5 If, after considering any representations, the review officer under paragraph 15.1 decides to keep the detainee in detention or the superintendent under paragraph 15.2 extends the maximum period for which they may be detained without charge, then any comment made by the detainee shall be recorded. If applicable, the officer shall be informed of the comment as soon as practicable. See also paragraphs 11.4 and 11.13.

15.6 No officer shall put specific questions to the detainee:

regarding their involvement in any offence; or

in respect of any comments they may make:

when given the opportunity to make representations; or

in response to a decision to keep them in detention or extend the maximum period of detention.

Such an exchange could constitute an interview as in paragraph 11.1A and would be subject to the associated safeguards in section 11 and, in respect of a person who has been charged, paragraph 16.5. See also paragraph 11.13.

15.7 A detainee who is asleep at a review, see paragraph 15.1, and whose continued detention is authorised must be informed about the decision and reason as soon as practicable after waking.

15.7 A When an application is made to a magistrates’ court under PACE, section 43 for a warrant of further detention to extend detention without charge of a person arrested for an indictable offence, or under section 44, to extend or further extend that warrant, the detainee:

(a) must, unless the court has given a live link direction as in paragraph 15.11C, be brought to court for the hearing of the application (see Note 15D);

(b) is entitled to be legally represented if they wish, in which case, Annex B cannot apply; and

(c) must be given a copy of the information which supports the application and states:

(i) the nature of the offence for which the person to whom the application relates has been arrested;

(ii) the general nature of the evidence on which the person was arrested;

(iii) what inquiries about the offence have been made and what further inquiries are proposed;

(iv) the reasons for believing continued detention is necessary for the purposes of the further inquiries;

Note:A warrant of further detention can only be issued or extended if the court has reasonable grounds for believing that the person’s further detention is necessary for the purpose of obtaining evidence of an indictable offence for which the person has been arrested and that the investigation is being conducted diligently and expeditiously.

See paragraph 15.0(b).

15.8 Not used.

15.9 PACE, section 40A provides that the officer responsible under section 40 for reviewing the detention of a person who has not been charged, need not attend the police station holding the detainee and may carry out the review by telephone.

15.9A PACE, section 45A(2) provides that the officer responsible under section 40 for reviewing the detention of a person who has not been charged, need not attend the police station holding the detainee and may carry out the review using a live link. See paragraph 1.13(e)(ii).

15.9B A telephone review is not permitted where facilities for review using a live link exist and it is practicable to use them.

15.9C The review officer can decide at any stage that a telephone review or review by live link should be terminated and that the review will be conducted in person. The reasons for doing so should be noted in the custody record. See Note 15F.

15.10 When a review is carried out by telephone or by using a live link, an officer at the station holding the detainee shall be required by the review officer to fulfil that officer’s obligations under PACE, section 40 and this Code by:

(a) making any record connected with the review in the detainee’s custody record;

(b) if applicable, making the record in (a) in the presence of the detainee; and

(c) for a review by telephone, giving the detainee information about the review.

15.11 When a review is carried out by telephone or by using a live link, or the requirement in paragraph 15.3 will be satisfied:

(a) if facilities exist for the immediate transmission of written representations to the review officer, e.g. fax or email message, by allowing those who are given the opportunity to make representations, to make their representations:

(i) orally by telephone or (as the case may be) by means of the live link; or

(ii) in writing using the facilities for the immediate transmission of written representations; and

(b) in all other cases, by allowing those who are given the opportunity to make representations, to make their representations orally by telephone or by means of the live link.

15.11AFor the purpose of paragraphs 15.2 and 15.2A, a superintendent who is not present at the police station where the detainee is being held but who has access to the use of a live link (see paragraph 1.13(e)(iii)) may, using that live link, give authority to extend the maximum period of detention permitted before charge, if, and only if, the following conditions are satisfied:

(i) the custody officer considers that the use of the live link is appropriate (see Note 15H);

(ii) the detainee in question has requested and received legal advice on the use of the live link (see paragraph 15.4).

(iii) the detainee has given their consent to the live link being used (see paragraph 15.11D)

15.11BWhen a live link is used:

(a) the authorising superintendent shall, with regard to any record connected with the authorisation which PACE, section 42 and this Code require to be made by the authorising officer, require an officer at the station holding the detainee to make that record in the detainee’s custody record;

(b) the requirement in paragraph 15.3 (allowing opportunity to make representations) will be satisfied:

(i) if facilities exist for the immediate transmission of written representations to the authorising officer, e.g. fax or email message, by allowing those who are given the opportunity to make representations, to make their representations:

in writing by means of those facilities or

orally by means of the live link; or

(ii) in all other cases, by allowing those who are given the opportunity to make representations, to make their representations orally by means of the live link.

(c) The authorising officer can decide at any stage to terminate the live link and attend the police station where the detainee is held to carry out the procedure in person. The reasons for doing so should be noted in the custody record.

15.11C For the purpose of paragraph 15.7A and the hearing of an application to a magistrates’ court under PACE, section 43 for a warrant of further detention to extend detention without charge of a person arrested for an indictable offence, or under PACE, section 44, to extend or further extend that warrant, the magistrates’ court may give a direction that a live link (see paragraph 1.13(e)(iv)) be used for the purposes of the hearing if, and only if, the following conditions are satisfied:

(i) the custody officer considers that the use of the live link for the purpose of the hearing is appropriate (see Note 15H);

(ii) the detainee in question has requested and received legal advice on the use of the live link (see paragraph 15.4);

(iii) the detainee has given their consent to the live link being used (see paragraph 15.11D); and

(iv) it is not contrary to the interests of justice to give the direction.

15.11D References in paragraphs 15.11A(iii) and 15.11C(iii) to the consent of the detainee mean:

(a) if detainee is aged 18 or over, the consent of that detainee;

(b) if the detainee is aged 14 and under 18, the consent of the detainee and their parent or guardian; and

(c) if the detainee is aged under 14, the consent of their parent or guardian.

15.11E The consent described in paragraph 15.11D will only be valid if:

(i) in the case of a detainee aged 18 or over who is a vulnerable adult as described in paragraph 15.4A), information about how the live link is used and the reminder about their right to legal advice mentioned in paragraph 15.4 and their consent, are given in the presence of the appropriate adult; and

(ii) in the case of a juvenile:

if information about how the live link is used and the reminder about their right to legal advice mentioned in paragraph 15.4 are given in the presence of the appropriate adult (who may or may not be their parent or guardian); and

if the juvenile is aged 14 or over, their consent is given in the presence of the appropriate adult (who may or may not be their parent or guardian).

Note: If the juvenile is aged under 14, the consent of their parent or guardian is sufficient in its own right (see Note 15I).

15.12 It is the officer’s responsibility to make sure all reminders given under paragraph 15.4 are noted in the custody record.

15.13 The grounds for, and extent of, any delay in conducting a review shall be recorded.

15.14 When a review is carried out by telephone or video conferencing facilities, a record shall be made of:

(a) the reason the review officer did not attend the station holding the detainee;

(b) the place the review officer was;

(c) the method representations, oral or written, were made to the review officer, see paragraph 15.11.

15.15 Any written representations shall be retained.

15.16 A record shall be made as soon as practicable of:

(a) the outcome of each review of detention before or after charge, and if paragraph 15.7 applies, of when the person was informed and by whom;

(b) the outcome of any determination under PACE, section 42 by a superintendent whether to extend the maximum period of detention without charge beyond 24 hours from the relevant time. If an authorisation is given, the record shall state the number of hours and minutes by which the detention period is extended or further extended.

(c) the outcome of each application under PACE, section 43, for a warrant of further detention or under section 44, for an extension or further extension of that warrant. If a warrant for further detention is granted under section 43 or extended or further extended under 44, the record shall state the detention period authorised by the warrant and the date and time it was granted or (as the case may be) the period by which the warrant is extended or further extended.

Note: Any period during which a person is released on bail does not count towards the maximum period of detention without charge allowed under PACE, sections 41 to 44.

15A Review officer for the purposes of:

PACE, sections 40, 40A and 45A means, in the case of a person arrested but not charged, an officer of at least inspector rank not directly involved in the investigation and, if a person has been arrested and charged, the custody officer.

15B The detention of persons in police custody not subject to the statutory review requirement in paragraph 15.1 should still be reviewed periodically as a matter of good practice. Such reviews can be carried out by an officer of the rank of sergeant or above. The purpose of such reviews is to check the particular power under which a detainee is held continues to apply, any associated conditions are complied with and to make sure appropriate action is taken to deal with any changes. This includes the detainee’s prompt release when the power no longer applies, or their transfer if the power requires the detainee be taken elsewhere as soon as the necessary arrangements are made. Examples include persons:

(a) arrested on warrant because they failed to answer bail to appear at court;

(b) arrested under the Bail Act 1976, section 7(3) for breaching a condition of bail granted after charge;

(c) in police custody for specific purposes and periods under the Crime (Sentences) Act 1997, Schedule 1;

(d) convicted, or remand prisoners, held in police stations on behalf of the Prison Service under the Imprisonment (Temporary Provisions) Act 1980, section 6;

(e) being detained to prevent them causing a breach of the peace;

(f) detained at police stations on behalf of Immigration Enforcement (formerly the UK Immigration Service);

(g) detained by order of a magistrates’ court under the Criminal Justice Act 1988, section 152 (as amended by the Drugs Act 2005, section 8) to facilitate the recovery of evidence after being charged with drug possession or drug trafficking and suspected of having swallowed drugs.

The detention of persons remanded into police detention by order of a court under the Magistrates’ Courts Act 1980, section 128 is subject to a statutory requirement to review that detention. This is to make sure the detainee is taken back to court no later than the end of the period authorised by the court or when the need for their detention by police ceases, whichever is the sooner.

15C In the case of a review of detention, but not an extension, the detainee need not be woken for the review. However, if the detainee is likely to be asleep, e.g. during a period of rest allowed as in paragraph 12.2, at the latest time a review or authorisation to extend detention may take place, the officer should, if the legal obligations and time constraints permit, bring forward the procedure to allow the detainee to make representations. A detainee not asleep during the review must be present when the grounds for their continued detention are recorded and must at the same time be informed of those grounds unless the review officer considers the person is incapable of understanding what is said, violent or likely to become violent or in urgent need of medical attention.

15CA In paragraph 15.3(b) and (c), ‘available’ includes being contactable in time to enable them to make representations remotely by telephone or other electronic means or in person by attending the station. Reasonable efforts should therefore be made to give the solicitor and appropriate adult sufficient notice of the time the decision is expected to be made so that they can make themselves available.

15D An application to a Magistrates’ Court under PACE, sections 43 or 44 for a warrant of further detention or its extension should be made between 10am and 9pm, and if possible during normal court hours. It will not usually be practicable to arrange for a court to sit specially outside the hours of 10am to 9pm. If it appears a special sitting may be needed outside normal court hours but between 10am and 9pm, the clerk to the justices should be given notice and informed of this possibility, while the court is sitting if possible.

15E In paragraph 15.2, the officer responsible for the station holding the detainee includes a superintendent or above who, in accordance with their force operational policy or police regulations, is given that responsibility on a temporary basis whilst the appointed long-term holder is off duty or otherwise unavailable.

15F The provisions of PACE, section 40A allowing telephone reviews do not apply to reviews of detention after charge by the custody officer. When use of a live link is not required, they allow the use of a telephone to carry out a review of detention before charge.

15G Not used.

15H In considering whether the use of the live link is appropriate in the case of a juvenile or vulnerable person, the custody officer and the superintendent should have regard to the detainee’s ability to understand the purpose of the authorisation or (as the case may be) the court hearing, and be satisfied that the suspect is able to take part effectively in the process (see paragraphs 1.4(c)). The appropriate adult should always be involved.

15I For the purpose of paragraphs 15.11D and 15.11E, the consent required from a parent or guardian may, for a juvenile in the care of a local authority or voluntary organisation, be given by that authority or organisation. In the case of a juvenile, nothing in paragraphs 15.11D and 15.11E require the parent, guardian or representative of a local authority or voluntary organisation to be present with the juvenile to give their consent, unless they are acting as the appropriate adult. However, it is important that the parent, guardian or representative of a local authority or voluntary organisation who is not present is fully informed before being asked to consent. They must be given the same information as that given to the juvenile and the appropriate adult in accordance with paragraph 15.11E. They must also be allowed to speak to the juvenile and the appropriate adult if they wish. Provided the consent is fully informed and is not withdrawn, it may be obtained at any time before the live link is used.