16 Charging detained persons

16.1 When the officer in charge of the investigation reasonably believes there is sufficient evidence to provide a realistic prospect of conviction for the offence (see paragraph 11.6), they shall without delay, and subject to the following qualification, inform the custody officer who will be responsible for considering whether the detainee should be charged. See Notes 11B and 16A. When a person is detained in respect of more than one offence it is permissible to delay informing the custody officer until the above conditions are satisfied in respect of all the offences, but see paragraph 11.6. If the detainee is a juvenile or a vulnerable person, any resulting action shall be taken in the presence of the appropriate adult if they are present at the time.

See Notes 16B and 16C.

16.1 A Where guidance issued by the Director of Public Prosecutions under PACE, section 37A is in force the custody officer must comply with that Guidance in deciding how to act in dealing with the detainee. See Notes 16AA and 16AB.

16.1 B Where in compliance with the DPP’s Guidance the custody officer decides that the case should be immediately referred to the CPS to make the charging decision, consultation should take place with a Crown Prosecutor as soon as is reasonably practicable. Where the Crown Prosecutor is unable to make the charging decision on the information available at that time, the detainee may be released without charge and on bail (with conditions if necessary) under section 37(7)(a). In such circumstances, the detainee should be informed that they are being released to enable the Director of Public Prosecutions to make a decision under section 37B.

16.2 When a detainee is charged with or informed they may be prosecuted for an offence, see Note 16B, they shall, unless the restriction on drawing adverse inferences from silence applies, see Annex C, be cautioned as follows:

‘You do not have to say anything. But it may harm your defence if you do not mention now something which you later rely on in court. Anything you do say may be given in evidence.’

Where the use of the Welsh Language is appropriate, a constable may provide the caution directly in Welsh in the following terms:

‘Does dim rhaid i chi ddweud dim byd. Ond gall niweidio eich amddiffyniad os na fyddwch chi’n sôn, yn awr, am rywbeth y byddwch chi’n dibynnu arno nes ymlaen yn y llys. Gall unrhyw beth yr ydych yn ei ddweud gael ei roi fel tystiolaeth.’

Annex C, paragraph 2 sets out the alternative terms of the caution to be used when the restriction on drawing adverse inferences from silence applies.

16.3 When a detainee is charged they shall be given a written notice showing particulars of the offence and, subject to paragraph 2.6A, the officer’s name and the case reference number. As far as possible the particulars of the charge shall be stated in simple terms, but they shall also show the precise offence in law with which the detainee is charged. The notice shall begin:

‘You are charged with the offence(s) shown below.’ Followed by the caution.

If the detainee is a juvenile, mentally disordered or otherwise mentally vulnerable, a copy of the notice should also be given to the appropriate adult.

16.4 If, after a detainee has been charged with or informed they may be prosecuted for an offence, an officer wants to tell them about any written statement or interview with another person relating to such an offence, the detainee shall either be handed a true copy of the written statement or the content of the interview record brought to their attention. Nothing shall be done to invite any reply or comment except to:

(a) caution the detainee, ‘You do not have to say anything, but anything you do say may be given in evidence.’;

Where the use of the Welsh Language is appropriate, caution the detainee in the following terms:

‘Does dim rhaid i chi ddweud dim byd, ond gall unrhyw beth yr ydych yn ei ddweud gael ei roi fel tystiolaeth.’

and

(b) remind the detainee about their right to legal advice.

16.4 A If the detainee:

cannot read, the document may be read to them;

is a juvenile, mentally disordered or otherwise mentally vulnerable, the appropriate adult shall also be given a copy, or the interview record shall be brought to their attention.

16.5 A detainee may not be interviewed about an offence after they have been charged with, or informed they may be prosecuted for it, unless the interview is necessary:

to prevent or minimise harm or loss to some other person, or the public

to clear up an ambiguity in a previous answer or statement

in the interests of justice for the detainee to have put to them, and have an opportunity to comment on, information concerning the offence which has come to light since they were charged or informed they might be prosecuted

Before any such interview, the interviewer shall:

(a) caution the detainee, ‘You do not have to say anything, but anything you do say may be given in evidence.’

Where the use of the Welsh Language is appropriate, the interviewer shall caution the detainee: ‘Does dim rhaid i chi ddweud dim byd, ond gall unrhyw beth yr ydych yn ei ddweud gael ei roi fel tystiolaeth.’

(b) remind the detainee about their right to legal advice. See Note 16B

16.6 The provisions of paragraphs 16.2 to 16.5 must be complied with in the appropriate adult’s presence if they are already at the police station. If they are not at the police station then these provisions must be complied with again in their presence when they arrive unless the detainee has been released. See Note 16C.

16.7 When a juvenile is charged with an offence and the custody officer authorises their continued detention after charge, the custody officer must make arrangements for the juvenile to be taken into the care of a local authority to be detained pending appearance in court unless the custody officer certifies in accordance with PACE, section 38(6), that:

(a) for any juvenile; it is impracticable to do so and the reasons why it is impracticable must be set out in the certificate that must be produced to the court; or,

(b) in the case of a juvenile of at least 12 years old, no secure accommodation is available and other accommodation would not be adequate to protect the public from serious harm from that juvenile. See Note 16D.

Note:Chief officers should ensure that the operation of these provisions at police stations in their areas is subject to supervision and monitoring by an officer of the rank of inspector or above. See Note 16E.

16.7 A The requirement in paragraph 3.4(b) that documents and materials essential to effectively challenging the lawfulness of the detainee’s arrest and detention must be made available to the detainee and, if they are represented, their solicitor, applies for the purposes of this section and a person’s detention after charge. This means that the custody officer making the bail decision (PACE, section 38) or reviewing the need for detention after charge (PACE, section 40), is responsible for determining what, if any, documents or materials are essential and must be made available to the detainee or their solicitor. See Note 3ZA.

16.8 A record shall be made of anything a detainee says when charged.

16.9 Any questions put in an interview after charge and answers given relating to the offence shall be recorded in full during the interview on forms for that purpose and the record signed by the detainee or, if they refuse, by the interviewer and any third parties present. If the questions are audibly recorded or visually recorded the arrangements in Code E or F apply.

16.10 If arrangements for a juvenile’s transfer into local authority care as in paragraph 16.7 are not made, the custody officer must record the reasons in a certificate which must be produced before the court with the juvenile. See Note 16D.

16A The custody officer must take into account alternatives to prosecution under the Crime and Disorder Act 1998 applicable to persons under 18, and in national guidance on the cautioning of offenders applicable to persons aged 18 and over.

16AA When a person is arrested under the provisions of the Criminal Justice Act 2003 which allow a person to be re-tried after being acquitted of a serious offence which is a qualifying offence specified in Schedule 5 to that Act and not precluded from further prosecution by virtue of section 75(3) of that Act the detention provisions of PACE are modified and make an officer of the rank of superintendent or above who has not been directly involved in the investigation responsible for determining whether the evidence is sufficient to charge.

16AB Where Guidance issued by the Director of Public Prosecutions under section 37B is in force, a custody officer who determines in accordance with that Guidance that there is sufficient evidence to charge the detainee, may detain that person for no longer than is reasonably necessary to decide how that person is to be dealt with under PACE, section 37(7)(a) to (d), including, where appropriate, consultation with the Duty Prosecutor. The period is subject to the maximum period of detention before charge determined by PACE, sections 41 to 44. Where in accordance with the Guidance the case is referred to the CPS for decision, the custody officer should ensure that an officer involved in the investigation sends to the CPS such information as is specified in the Guidance.

16B The giving of a warning or the service of the Notice of Intended Prosecution required by the Road Traffic Offenders Act 1988, section 1 does not amount to informing a detainee they may be prosecuted for an offence and so does not preclude further questioning in relation to that offence.

16C There is no power under PACE to detain a person and delay action under paragraphs 16.2 to 16.5 solely to await the arrival of the appropriate adult. Reasonable efforts should therefore be made to give the appropriate adult sufficient notice of the time the decision (charge etc.) is to be implemented so that they can be present. If the appropriate adult is not, or cannot be, present at that time, the detainee should be released on bail to return for the decision to be implemented when the adult is present, unless the custody officer determines that the absence of the appropriate adult makes the detainee unsuitable for bail for this purpose. After charge, bail cannot be refused, or release on bail delayed, simply because an appropriate adult is not available, unless the absence of that adult provides the custody officer with the necessary grounds to authorise detention after charge under PACE, section 38.

16D Except as in paragraph 16.7, neither a juvenile’s behaviour nor the nature of the offence provides grounds for the custody officer to decide it is impracticable to arrange the juvenile’s transfer to local authority care. Impracticability concerns the transport and travel requirements and the lack of secure accommodation which is provided for the purposes of restricting liberty does not make it impracticable to transfer the juvenile. Rather, ‘impracticable’ should be taken to mean that exceptional circumstances render movement of the child impossible or that the juvenile is due at court in such a short space of time that transfer would deprive them of rest or cause them to miss a court appearance. When the reason for not transferring the juvenile is an imminent court appearance, details of the travelling and court appearance times which justify the decision should be included in the certificate. The availability of secure accommodation is only a factor in relation to a juvenile aged 12 or over when other local authority accommodation would not be adequate to protect the public from serious harm from them. The obligation to transfer a juvenile to local authority accommodation applies as much to a juvenile charged during the daytime as to a juvenile to be held overnight, subject to a requirement to bring the juvenile before a court under PACE, section 46.

16E The Concordat on Children in Custody published by the Home Office in 2017 provides detailed guidance with the aim of preventing the detention of children in police stations following charge. It is available here:

https://www.gov.uk/government/publications/concordat-on-children-in-custody.