Annex B: Delay in notification of arrest and whereabouts or allowing access to legal advice

1. The exercise of the rights in Section 5 or Section 6, or both, may be delayed if the person is in police detention, as in PACE, section 118(2), in connection with an indictable offence, has not yet been charged with an offence and an officer of superintendent rank or above, or inspector rank or above only for the rights in Section 5, has reasonable grounds for believing their exercise will:

(i) lead to:

interference with, or harm to, evidence connected with an indictable offence; or

interference with, or physical harm to, other people; or

(ii) lead to alerting other people suspected of having committed an indictable offence but not yet arrested for it; or

(iii) hinder the recovery of property obtained in consequence of the commission of such an offence.

2. These rights may also be delayed if the officer has reasonable grounds to believe that:

(i) the person detained for an indictable offence has benefited from their criminal conduct (decided in accordance with Part 2 of the Proceeds of Crime Act 2002); and

(ii) the recovery of the value of the property constituting that benefit will be hindered by the exercise of either right.

3. Authority to delay a detainee’s right to consult privately with a solicitor may be given only if the authorising officer has reasonable grounds to believe the solicitor the detainee wants to consult will, inadvertently or otherwise, pass on a message from the detainee or act in some other way which will have any of the consequences specified under paragraphs 1 or 2. In these circumstances, the detainee must be allowed to choose another solicitor. See Note B3.

4. If the detainee wishes to see a solicitor, access to that solicitor may not be delayed on the grounds they might advise the detainee not to answer questions or the solicitor was initially asked to attend the police station by someone else. In the latter case, the detainee must be told the solicitor has come to the police station at another person’s request, and must be asked to sign the custody record to signify whether they want to see the solicitor.

5. The fact the grounds for delaying notification of arrest may be satisfied does not automatically mean the grounds for delaying access to legal advice will also be satisfied.

6. These rights may be delayed only for as long as grounds exist and in no case beyond 36 hours after the relevant time as in PACE, section 41. If the grounds cease to apply within this time, the detainee must, as soon as practicable, be asked if they want to exercise either right, the custody record must be noted accordingly, and action taken in accordance with the relevant section of the Code.

7. A detained person must be permitted to consult a solicitor for a reasonable time before any court hearing.

13. The grounds for action under this Annex shall be recorded and the detainee informed of them as soon as practicable.

14. Any reply given by a detainee under paragraphs 6 or 11 must be recorded and the detainee asked to endorse the record in relation to whether they want to receive legal advice at this point.

15. When a suspect detained at a police station is interviewed during any period for which access to legal advice has been delayed under this Annex, the court or jury may not draw adverse inferences from their silence.

B1 Even if Annex B applies in the case of a juvenile, or a vulnerable person, action to inform the appropriate adult and the person responsible for a juvenile’s welfare, if that is a different person, must nevertheless be taken as in paragraph 3.13 and 3.15.

B2 In the case of Commonwealth citizens and foreign nationals, see Note 7A.

B3 A decision to delay access to a specific solicitor is likely to be a rare occurrence and only when it can be shown the suspect is capable of misleading that particular solicitor and there is more than a substantial risk that the suspect will succeed in causing information to be conveyed which will lead to one or more of the specified consequences.