Police Powers and

Preliminaries to
Prosecution

17
BPTC Criminal Litigation, Evidence & Sentencing

Please ensure that you also read the further material in Blackstone's Criminal Practice and the
syllabus as outlined in paragraph 1 of this chapter.
1 Further required reading for this chapter
2 Introduction
3 Arrest
4 General requirements for any arrest
5 Action following arrest
6 Detention
7 Interviews
8 The rights of a detained person
9 Charging decisions
10 The different forms of commencing criminal proceedings

18
 Police Powers and Preliminaries to Prosecution

Further required reading for this chapter

1 In addition to this chapter, please ensure that you read part 2 (Preliminaries to
prosecution) of the BSB syllabus (see appendix 1) and the chapters of
Blackstone's Criminal Practice identified within.

Introduction
PACE and the Codes of Practice
2 The word 'Constable' is used in the Police and Criminal Evidence (PACE) Act
1984 to mean any police officer.
3 Most of the powers that police exercise in the course of investigations into
criminal offences are contained in the PACE Act 1984 and the Codes of Practice
attached to it. The codes supplement the legislation and give a guide to best
practice. They are intended to safeguard the rights of suspects. Breaches of the
codes do not render evidence obtained as a result of the breach inadmissible
per se, but they may provide the basis for an application to exclude evidence.
The codes are admissible as evidence in criminal or civil proceedings, though
breaches of the codes by an officer do not make that officer liable to either
criminal or civil proceedings.
4 This chapter will be concerned with code C (Detention, treatment and
questioning of persons).

Arrest
5 There is no definition within PACE Act 1984 of what constitutes an arrest. The
effect of an arrest is that it restrains the liberty of the person arrested. The
purpose of an arrest is usually to facilitate the investigation of an offence by the
police. The question of whether a person has been arrested is fact-sensitive.
Taking hold of the arm of a person either to draw his attention to what is being
said to him or to stop him from falling over does not without any intention to
arrest amount to an arrest. Though the case law is not clear, it seems that a
deprivation of liberty is required to constitute an arrest. An arrest is unlawful
where the arresting officer knows that there is no possibility of the arrested
person being charged with an offence.

Arrest without warrant

6 The most important arrest power is that created by s.24 of PACE 1984. It allows
for a constable to arrest a person without a warrant. A warrant is a written order
issued by a court which authorises a judicial officer or authorised person to
undertake an act such as an arrest or entry to premises. Under s.24 such written
authorisation is not required and therefore there has to be a ground for the
arrest as well as a reason why it is necessary to arrest the suspect.

19
BPTC Criminal Litigation, Evidence & Sentencing

7 The grounds and reasons for arrest pursuant to s.24 are:

Grounds Reasons
A constable may arrest without warrant  To enable the name of the person to
anyone: be ascertained
 Who is about to commit an offence  To enable the address of the person
 Who is in the act of committing an to be ascertained
offence  To prevent the person:
 Whom he has reasonable grounds  Causing physical injury to himself or
for suspecting to be about to commit any other person
an offence  Suffering physical injury
 Causing loss of or damage to
 Whom he has reasonable grounds property
for suspecting to be committing an
 Committing an offence against public
offence
decency
 Causing an unlawful obstruction of
If a constable has reasonable grounds the highway
for suspecting that an offence has been  To protect a child or other vulnerable
committed, he may arrest without person from the person in question
warrant anyone:
 To allow prompt and effective
 Whom he has reasonable grounds to investigation of the offence or the
suspect of being guilty of it conduct of the person in question
If an offence has been committed, a  To prevent any prosecution for the
constable may arrest without warrant offence being hindered by the
anyone: disappearance of the person in
 Who is guilty of the offence question
 Whom he has reasonable grounds to
suspect of being guilty of it

8 In addition to the s.24 power of arrest, every constable and civilian has a power
to arrest to prevent a breach of the peace, whether the breach is being
committed at the time or the person arresting has a reasonable belief that a
breach will be committed in the immediate future or has been committed. Under
s.24 a police officer may arrest for any offence, whereas under s.24A a civilian
may arrest only for an indictable offence, but reasonable grounds are still
required for a civilian to exercise a power of arrest.
9 Where reasonable grounds for suspicion are required, there must be an
objective basis for the suspicion based on facts, information and/or intelligence.
It cannot be based on factors personal to the person arrested. The test for
reasonable suspicion is in two parts: (i) the constable carrying out the arrest must
actually suspect (the subjective test); and (ii) a reasonable person in possession
of the same facts as the constable would also suspect (the objective test). In
addition, the arrest must be Wednesbury reasonable.

20
 Police Powers and Preliminaries to Prosecution

10 Reasonable suspicion relates to facts, not law. Therefore a constable who arrests
on the basis of a mistaken view of the law does not have reasonable suspicion
however reasonable his mistake as to the law is.

Arrest with warrant

11 The Magistrates' Courts Act 1980, s.1 gives the magistrates' court the power to
issue an arrest warrant on the basis of an information substantiated on oath that
a person has committed an offence or is suspected of having committed an
offence. The offence must be indictable or imprisonable, or the person's address
must be insufficiently established for a summons to be served on him. The
magistrates' court also has the power to issue a warrant for the arrest of a
person who has failed to appear in answer to a summons or of a person who
has failed to surrender to custody having been bailed.
12 The Crown Court can issue an arrest warrant where a person has failed to
attend court when bailed to do so.
13 An arrest warrant can be "backed for bail", meaning that the person should be
arrested and given a date on which to appear in court and then released on
bail. Most warrants are "not backed for bail", meaning that the person should
be arrested and brought to court in custody. As junior counsel in the magistrates
court the following endorsements will become familiar to you (i) B/W/B/F/B =
bench warrant backed for bail; and (ii) B/W/N/B/F/B = bench warrant NOT
backed for bail

General requirements for any arrest

14 In order for the arrest to be lawful, at the time of the arrest or as soon as is
practicable after arrest a person arrested by a constable must be informed of:
(a) The fact that he is under arrest; and
(b) The ground for the arrest.
15 This information need not be given by the arresting officer, but can be given by
a colleague instead. If the arrest is made by a constable, the information must be
given even if the fact of the arrest and/or the ground for it is obvious. In
addition, the person should be informed of the reason for the arrest. A failure to
inform of the reason does not render the arrest unlawful, though it is a breach of
Code C.
16 The person should be informed of the matters set out in the paragraph above in
non-technical language. 'You're nicked' is sufficient to inform a person that he is
under arrest. A specific offence need not be cited i.e. 'you're under arrest for
public order' would suffice.

21
BPTC Criminal Litigation, Evidence & Sentencing

17 A person arrested should be cautioned as soon as reasonably practicable after

arrest. The words of the caution are:
'You do not have to say anything. But it may harm your defence if you do not
mention when questioned something which you later rely on in court. Anything
you do say may be given in evidence.'
18 Failing to administer the caution does not render the arrest unlawful, though it is
a breach of Code C and may provide grounds for exclusion of evidence under
s.76 and/or s.78 PACE 1984.
19 The nature and circumstances of the offence leading to the arrest, the reason(s)
why the arrest was necessary, the giving of the caution, and anything said by
the arrested person at the time of the arrest must be recorded by the arresting
officer in his pocket notebook (PNB) (or other method used for recording
information). If the person arrested is subsequently detained at the police station,
those details must be attached to, or recorded in, the custody record.

The use of force

20 The PACE Act 1984, s.117 provides that where any provision of the Act confers
a power on a constable and does not provide that the power may only be
exercised with the consent of a person other than a police officer, the officer
may use reasonable force if necessary in the exercise of the power. This includes
the power of arrest. Handcuffs should be used only where they are reasonably
necessary to prevent an escape or to prevent a violent breach of the peace.
21 In determining what force is reasonable, the court may take into account all the
circumstances including the nature and degree of the force used, the gravity of
the offence for which the arrest is to be made, the harm that would flow from the
use of force, and the possibility of effecting the arrest without the use of force.
The fact that the force used results in serious injury does not per se make it
unreasonable. The use of excessive force does not render an arrest unlawful.

Action following arrest

22 Usually a person arrested must be taken to a police station as soon as
practicable. The exception is where his presence at a place other than a police
station is necessary to carry out such investigations as it is reasonable to carry
out immediately. This can include being searched, being taken to premises being
searched, or being taken to a place to check his alibi. The person can be taken
to any police station unless it is anticipated that he will be detained for more
than 6 hours, in which case, he must be taken to a designated police station.
23 Instead of being taken to a police station, the person arrested can be granted
bail to attend a police station at a later date. This is referred to as 'street bail'.
Conditions can be attached to the bail.

22
 Police Powers and Preliminaries to Prosecution

Detention
24 The custody officer, who must be of the rank of sergeant or above, is responsible
for the handling and welfare of suspects in detention at the police station. The
custody officer must be unrelated to the process of the investigation of the
offence. The person arrested must be brought before the custody officer as soon
as possible. The reason for arrest must be explained to the custody officer, who
can then authorise detention of the person arrested. The custody officer must
order the release of the person detained if he becomes aware that the grounds
for detaining the person have ceased to exist. A person can only be detained at
the police station on the authority of the custody officer, and may be released
only on his or her authority. If the custody officer is not available, his or her role
may performed by another officer, though that officer must not normally be
involved in the investigation of an offence for which the person is in detention.
25 The custody officer is responsible for recording events that take place during the
period of detention in the custody record which must be opened as soon as
practicable after either a person being brought to the police station under arrest,
or being arrested at the police station, or surrendering voluntarily at the police
station, or surrendering to bail at the police station. The custody officer is
responsible for ensuring that a detained person is treated in accordance with the
provisions of the Codes of Practice.

Detention time limits

26 The starting point is that the maximum period of detention without charge is 24
hours from "the relevant time". The relevant time is the time that the person
arrested first arrives at the police station and therefore the maximum period of
detention without extension will be 24 hours after that or 24 hours after arrest,
whichever is the sooner. Where the offence being investigated is a summary-only
offence, that time limit cannot be extended.
27 Where the offence being investigated is indictable, the time limit can be
extended up to a maximum of 36 hours after the relevant time by an officer of
the rank of Superintendent or above. Thereafter the maximum period of
detention without charge can be extended by the magistrates' court up to a
maximum of 96 hours after the relevant time. The relevant times to remember are
therefore 24, 36 and 96.

23
BPTC Criminal Litigation, Evidence & Sentencing

Interviews
28 An interview is widely defined by Code C, para 11.1A as
'the questioning of a person regarding their involvement or suspected
involvement in a criminal offence or offences …'.
Interviews must be carried out under caution, therefore a person must be
cautioned before they are asked any questions about their suspected involvement
in the commission of an offence. The person should be cautioned again at the
recommencement of an interview after a break. A caution is not necessary where
questions are asked for other purposes such as:
(a) Solely to establish identity or ownership of a vehicle;
(b) To obtain information in accordance with a statutory requirement, e.g. to
obtain the name and address of the driver of a vehicle;
(c) In furtherance of the proper and effective conduct of a search; or
(d) To seek verification of a written record of comments made by the person
outside of an interview.
Therefore the enquiries listed above do not amount to an interview for the
purposes of Code C.
29 Where an officer has decided to arrest a person, that person should be
interviewed at a police station or other authorised place of detention. The
requirement that an interview be conducted at a police station is subject to
exception where delay would be likely to:
(a) lead to interference with or harm to evidence connected with an offence,
interference with or physical harm to other persons, or serious loss of, or
damage to, property; or
(b) lead to the alerting of other persons suspected of having committed an
offence but not yet arrested for it; or
(c) hinder the recovery of property obtained in consequence of the
commission of an offence.
30 Before the interview, the person to be interviewed (and his solicitor if he is
represented) must be given sufficient information to make it possible to
understand the nature of the suspected offence and why the person is suspected
of having committed it.
31 At the beginning of an interview, but after caution, any significant statement
made by the person interviewed in the presence of a police officer or member of
police staff must be put to him. A significant statement is one that is appears to
be capable of being used in evidence, and in particular any direct admission of
guilt (i.e. a confession which is covered further in chapter 14).

24
 Police Powers and Preliminaries to Prosecution

32 No interviewing officer should indicate, except in answer to a direct question,

what action the police will take if the suspect answers or refuses to answer
questions, or makes a statement or refuses to do so.
33 All interviews must be contemporaneously recorded. Interviews under caution for
any indictable offence must be audio recorded. There is an exception to this rule
where the interview in relation to some minor offences of a person who has not
been arrested takes place other than at a police station, in which case the
interview can be recorded in writing.
34 No person should be interviewed if they are unable to appreciate the
significance of the questions asked and their answers, or to understand what is
happening because of the effects of drink, drugs or any illness ailment or
condition, unless it is authorised by an officer of the rank of Superintendent.

The rights of a detained person

35 The custody officer must make sure that a person arrested and taken to a police
station or attending a police station voluntarily is told clearly about their rights to:
(a) Free and independent legal advice
(b) Consult privately with a solicitor
(c) Have someone informed of their arrest
(d) Consult the Codes of Practice

The right to consult a solicitor

36 The person detained must be told again of his right to free legal advice
immediately before:
 the commencement or recommencement of an interview;
 being asked to provide an intimate sample;
 an intimate drug search;
 an ID parade or video ID procedure.
If legal advice is declined, that should be noted on the custody record. Where
legal advice is sought, it must be provided as soon as is practicable.
37 The start of an interview should usually await the arrival of a solicitor. Nothing
should be done to dissuade the suspect from obtaining legal advice. If a
detained person initially declined legal advice but subsequently changes their
mind then the interview should cease and can recommence once the detainee
has exercised their right to seek legal advice.

25
BPTC Criminal Litigation, Evidence & Sentencing

The right to have someone informed of the arrest

38 The suspect has a right to have one person known to them or likely to take an
interest in their welfare informed at public expense of their whereabouts as soon
as is practicable. The right can be exercised every time the suspect is taken to a
different police station.

The right to an appropriate adult (where required)

39 If a person is, or appears to be, under 18, he must have an appropriate adult
present at the police station. The same is true of anyone whom a police officer
suspects may be mentally disordered or otherwise mentally vulnerable and
anyone whom an officer has been told in good faith may be mentally disordered
or otherwise mentally vulnerable.
40 In the case of a young detainee, the appropriate adult is defined as a parent or
guardian or, in the case of a young person looked after under the Children Act
1989, a representative of the care authority or a voluntary organisation, or a
social worker. Failing these, any person aged 18 or over who is not a police
officer or police employee suffices.
41 In the case of a detainee who is mentally disordered or otherwise mentally
vulnerable, the appropriate adult can be a relative, parent, guardian or
someone who has experience in dealing with such persons. The appropriate
adult must be 18 or over and must not be a police officer or police employee.
42 A solicitor attending the police station for the suspect should not act as the
appropriate adult. A person cannot act as an appropriate adult if they are:
(a) suspected of involvement in the offence;
(b) the victim of, or a witness to, the offence;
(c) involved in the investigation;
(d) a person who has received admissions from the person detained before
acting as appropriate adult;
(e) of low IQ and unable to appreciate the gravity of the situation; or
(f) an estranged parent whom an arrested juvenile does not wish to attend
and specifically objects to

26
 Police Powers and Preliminaries to Prosecution

43 The role of the appropriate adult is to:

(a) ensure that the detained person understands what is happening to him
and why;
(b) support, advise and assist him;
(c) observe whether the police are acting properly and fairly and to intervene
if they are not;
(d) assist with communication between the detained person and the police;
and
(e) ensure that the detained person understands his rights and that those
rights are protected and respected.
44 A young or mentally disordered or vulnerable detainee should not be
interviewed or asked to provide a written statement without the presence of an
appropriate adult unless delay would be likely to lead to interference with or
harm to evidence connected with an offence, to interference with or physical
harm to other people or serious loss of or damage to property, to alerting other
suspects not yet arrested, or to hindering the recovery of property obtained in
consequence of commission of the offence.
45 An appropriate adult can request a solicitor on behalf of the person detained,
though the person detained does not have to see the solicitor if he does not want
to.

The right to an interpreter (where required)

46 Where the custody officer has determined that a suspect requires an interpreter,
that suspect must not be interviewed without an interpreter unless authorisation is
given by an officer of the rank of superintendent or above who is satisfied that
delaying the interview will lead to: interference with, or harm to, evidence; or
interference with or physical harm to other people; or serious loss of, or damage
to, property.

Charging decisions
47 In general the decision to charge is taken by a Crown Prosecutor. Crown
Prosecutors exercise the powers of the Director of Public Prosecutions (DPP), who
is required to take over the conduct of all prosecutions commenced by the
police. The DPP also has a discretion to take over the conduct of prosecutions
commenced privately. All charging decisions for indictable-only offences are
taken by a Crown Prosecutor. The police retain discretion as to whether to
charge for a number of summary offences including various road traffic offences,
offences contrary to s.5 of the Public Order Act 1986, criminal damage where
the value of the damage does not exceed £5,000, and low-value shoplifting.
Where the decision is one for the police, it is made by the custody officer.

27
BPTC Criminal Litigation, Evidence & Sentencing

48 The DPP may delegate her powers to agents who are lawyers with rights of
audience. Agents must act subject to the instructions given by a Crown
Prosecutor. Crown Prosecutors exercise the powers of the DPP. Uniformity in the
approach taken by different Crown Prosecutors in relation to charging decisions
is sought by the issuing by the DPP of a Code for Crown Prosecutors.
49 The DPP may also appoint "associate prosecutors" who are CPS employees who
are not lawyers to represent the CPS on bail applications and other pre-trial
applications. They may conduct trials where the offence charged is a non-
imprisonable summary offence.

The different forms of commencing criminal

proceedings
Arrest and charge
50 This is the most common way of commencing criminal proceedings. The charge
may come at the end of the period of detention at the police station after an
arrest, or after a period of police bail when the suspect re-attends the police
station. The charge may come after a period on police bail while the CPS
decides what the appropriate charge, if any, is. A brief note about police bail
which has been significantly amended by the Policing and Crime Act 2017.
Suspects who are not charged within the relevant detention time limit should now
only be released on police bail if is deemed necessary and proportionate and
then only for up to 28 days unless an extension is sought and authorised. If a
suspect is not released on police bail but the police are still looking into the
matter then they are referred to as having been 'released under investigation'
(RUI). These changes to police bail do not appear to be on 2019-2020 syllabus
but are in force and are therefore included for the sake of completeness.

Written charge and requisition

51 This is a method of commencement created by s.29 of the Criminal Justice Act
2003. A public prosecutor may commence proceedings by issuing a written
charge charging a person with an offence. There is no requirement that the
person charged has been arrested when this method of commencement is used.
At the same time the public prosecutor issues a requisition, which requires the
person charged to attend a magistrates' court. The charge and requisition must
be served on the person charged and on the magistrates' court at which that
person is to attend. This method of commencement is available only to "relevant
prosecutors", broadly speaking, those who prosecute on behalf of the state i.e.
CPS, Health and Safety Executive, DVSA and the Environment Agency.

28
 Police Powers and Preliminaries to Prosecution

Laying an information
52 Another way to commence proceedings is for the prosecutor to serve an
information alleging an offence on a magistrates' court. The court will then issue
a summons or an arrest warrant requiring the accused to attend. Private
prosecutions may only be commenced by summons as they are not brought by
'relevant prosecutors' for the purposes of the written charge and requisition
procedure under s.29 CJA 2003.

Content of the written charge/information or

summons/requisition
53 The written charge or information must contain:
(a) a statement of the offence which describes the offence in ordinary
language;
(b) a reference to the statutory provision that creates the offence (if it is a
statutory offence); and
(c) sufficient particulars of the conduct complained of for the accused to know
what is alleged.
54 A summons or requisition must contain a notice setting out when and where the
accused is required to attend court and must specify each offence in respect of
which it has been issued. A summons must identify the issuing court. A
requisition must identify the person under whose authority it was issued.

Timing of the charge

55 There is no 'Statute of Limitation' requiring that a charge be brought within a
specified period after the commission of the offence. The only exception is that
s.127(1) of the Magistrates' Courts Act 1980 provides that where the alleged
offence is 'summary only', a magistrates' court shall not try an information or
hear a complaint unless the information was laid or the complaint made within
six months of the date of the alleged offence. There is no time limit for charging
the accused with any indictable offence. If there is any dispute as to whether a
charge has been brought within the specified period then the prosecution have
the burden to satisfy the court to the criminal standard that proceedings were
correctly brought in time.

29
BPTC Criminal Litigation, Evidence & Sentencing

30