Hamish (aged 25) has been arrested and taken to the police station on suspicion of taking part in a bank robbery. He has been given the usual rights during interviews and searches. - discuss whether these rights are adequate to protect hamish.

The Police and Criminal Evidence Act 1984 and the Codes of Practice are in place to protect the detainee whilst in custody.

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Once Hamish is at the police station and he has been informed of the reason for his detention there are three very specific rights he is entitled to, getting help from a solicitor, being allowed to let someone know where he is and being able to look at the Codes of Practice. On release from custody Hamish will also be entitled to request a copy of the Custody Record which will detail events which took place whilst he has been detained. We will look at these rights in more detail.


We have all heard these words, albeit usually in films or on the television, ….......' you do not have to say anything. However, 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.' Hamish has the right to remain silent when questioned at the police station and anything that he does say must be recorded.


In fact while he is at the police station everything that occurs will be recorded in the Custody record and Hamish can request this when he leaves the station, it must then be made available to Hamish as quickly as possible.


Prior to the Criminal Justice and Public Order Act 1994 defendants could refuse to answer questions without any adverse conclusion being taken about their silence in the event that the case came to trial. The present caution still contains the words 'you do not have to say anything' and this is a result of the work of the  Royal Commission on Criminal Justice (Runciman Commission) 1993, which was in favour of retaining a limited version of the principle of a right to silence.


Many will feel under an obligation to answer questions once they arrive at the police station, perhaps with the view that the more open they seem and the more co-operative they are the better it will look for them. In Hamish's case, although any interviews may be recorded, he may be wary of answering questions without speaking to a solicitor. This right to silence may indeed be interpreted later in the court as an inference, in that the trial judge can draw this aspect of behaviour to the attention of the jury and they may come to the conclusion that the defendant was trying to buy themselves time to speak to someone who could provide an alibi for example.


As regards the matter of protection of the individual, it could be argued that the 1994 Act, in limiting the right to silence, is striving to strike the right balance between the individual and society as a whole. It recognises that an individual's rights are being affected in that the wording of the caution now refers to the inference that may harm the defendant's defence.

Hamish must be asked if he wants legal advice. This is free and, rather than looking like an admission of guilt, is important to Hamish and any detained person, so that they can be made aware of the law and given legal help and advice. Regardless of the time of day or night Hamish was taken to the station he would usually be allowed to speak to a solicitor and once he has asked to speak to a solicitor the police would not normally be expected to continue to question him. However, for Hamish, who has been arrested on suspicion of taking part in a bank robbery the police can delay his right to speak to a solicitor and can also delay notifying someone of his detention. This is because he has been accused of a serious indictable offence and outside contact could mean that other people who may have taken part in the crime could be alerted or evidence destroyed.


On the face of it this ability to delay the rights of a suspect to see a solicitor appears to severely limit his rights with regard to access to a legal adviser. However, it must be borne in mind that the police only delay these rights provided it is authorised by a by a senior police officer and provided the case is sufficiently serious. The guidelines that must be followed are clearly set out in ANNEX B of PACE Code C 2013. Since the case of R v Samuel (1988) the Court of Appeal have pointed out that this limitation should only be used in exceptional cases. Any delay and the reasons for the delay must be noted and the detainee must be informed of the delay.


The maximum amount of time that an officer, who must have the rank of Superintendent or above, can delay these rights is 36 hours. After this time Hamish must be made aware that he can request a solicitor to attend the station and can request that the solicitor is present at all questioning. If at this stage Hamish refuses the support of the duty solicitor he must be reminded that he has access to telephone advice if appropriate and, if he still refuses, his reasons for refusal should be included in the Custody report. Hamish is entitled to change his mind about requiring a solicitor, and can request that the custody officer contacts a solicitor for him at any stage.


The duty solicitor is independent and has nothing to do with the police. The detainee is able to choose his own solicitor and if they have a contract with the Criminal Defence Service there will be no fee to pay. At the current time the Criminal Defence Service guarantees that people who have been accused of crimes are given access to legal advice and are represented in the magistrates' courts. Reforms and cut backs to Legal Aid may mean changes to the current system.


The duty solicitor helps the police and the courts provide a better and fairer system and to this extent it is seen as an important part of the assistance provided for people who may be in trouble and find themselves in detention at a police station. There may be variations in the quality of the advice service provided under the duty solicitor scheme but, having said that, training is available and duty solicitors can acquire considerable expertise is this area of assistance. However, advice is often required at unsociable hours and it is not every solicitor that is willing to take on this work, in view of such factors it may be that this type work is undertaken by relatively newly qualified staff. It is also considered that the giving of telephone advise is not always appropriate as an individual may have particular needs and these may not be appreciated as a result of contact over the telephone.


On arrest and arrival at the station you are entitled to ask the police to inform someone you nominate, usually a family member, of your whereabouts. Again for Hamish, due to the seriousness of his offence, this right can be withheld for up to 36 hours to prevent alerting other gang members or evidence being tampered with or destroyed.


There are cases when an appropriate adult should be required to attend the police station to be with the accused. In the case of a young person under, or who appears under the age of 17, it would normally be a parent or guardian or someone who is responsible for caring for that person as long as it not a police officer or someone employed by the police. The same applies if the accused is mentally disordered or appears to be mentally vulnerable. As we are told that Hamish is 25 years old and we are not aware of any mental disorders the provision regarding an appropriate adult will not apply.


This should be regarded as an important form of protection for any young or vulnerable person. The appropriate adult will be there to assist with regard to any communication problems and has a role which is set out in a notice covering the function of an appropriate adult but there are concerns as to whether this form of protection is given in all cases. The attendance of an appropriate adult probably affords greater protection than if no other person were present but any inconsistency in provision of this protection is regrettable and raises the question of whether the procedures for the identification of the need for an appropriate adult are adequate. The courts have taken the view that where a need exists but no provision was made when the police interview took place, the interview may be deemed to be inadmissible as evidence (R v Aspinall (1999)).


The Custody officer is normally a police sergeant and his role is to make sure that the provisions of PACE Code C 2013 regarding the accused's conditions of detention are adhered to and to ensure that a record of his presence is available. The custody officer has to decide initially if there is enough evidence to charge the person who has been arrested so it would have been his decision which led to Hamish being held in custody.


The custody officer may not be willing to release the arrested person if he believes that there are reasonable grounds to believe that the detention of the arrested person is absolutely necessary. Such reasonable grounds are for instance, the need to secure the evidence, or the need to obtain the evidence by the questioning of the arrested person. In case such grounds are found, the custody officer must then authorise the detention of the suspected person. Following the authorisation, the custody record must be open for the suspect, the suspect must also be informed of the reasons for his detention, and the suspect must also be advised of his rights.


The custody officer is also closely involved in any arrangements for the suspect to be searched and must follow the guidelines for the manner in which any search is to be conducted. This is an additional form of protection as the officer is likely to be experienced and knowledgeable about how such searches are to be conducted. The matter of searches is specifically covered in the Codes of Practice and the safeguards provide clear rules as to what is acceptable.


If Hamish is searched strict rules are in place for his protection. The custody officer can authorise a search to the extent to which he thinks is necessary. A strip search could be authorised and involves the removal of more than just the outer clothing. It can only take place if it is deemed necessary to remove an item which the detainee should not keep and which he is believed to have hidden about his person.

Strip searches are not routine and must be carried out by a police officer of the same sex as the detainee and must be carried out in an area where it can not be observed by anyone not involved in the search. The search should be conducted with two other people present and should be done as quickly and sensitively as possible with regard to the detainees dignity. At the time of the search, in accordance with the Police and Criminal Evidence Act, the items which can be seized include clothing or anything which could help the detainee damage himself, others, or the police property, or which could help him escape or interfere with evidence which relates to the offence.


A search of intimate parts of the body or involving more that just the removal of outer clothing can only be performed in specific circumstances. An intimate search refers to an examination of body orifices other than the mouth. An intimate search can only be carried out when authorised by an officer of inspector rank or above and then only for specific reasons and must be carried out by a registered medical practitioner or registered nurse wherever possible and very strict guidelines exist to protect the vulnerability of the detainee.


Whilst at the station fingerprints, footwear impressions and other non-intimate samples can be taken to be used as evidence and the detainee's permission is not required for this to be done. This means that the police will hold DNA evidence for the person in detention. An intimate sample may be taken from a person in police detention only on the authority of a police inspector or above when he suspects the detainee is involved in a serious arrestable offence which could be proved or disproved with the use of the sample. The appropriate consent must be given by the detainee and unless it is a saliva or urine sample it must be taken by a registered medical practitioner. 


As we have seen, the custody officer plays a key role when it comes to informing the suspect of their rights including having someone informed of the detention and advising the suspect of their right to legal advise. Under the Human Rights Act 1998 the role of the custody officer is to ensure that the rights of the individual are protected. The custody officer has a distinct role quite separate from any arresting officer who may be seen as having an interest in acquiring evidence to justify the arrest and any subsequent charge.


The custody officer is not so closely involved in the investigation as the arresting officer or any any interviewing officer. This said, it may not be possible to see the custody officer as completely independent as they are still a police officer themselves and work with the other officers at the station.


However, the role of the custody officer is clear and any custody officer will be aware of their responsibilities and that they are likely to be investigated in the event of there being a complaint. It is vital for the police and for the detainee, in this case Hamish, that the Codes of Practice are followed as any deviation or breach may result in the evidence collected whilst the accused is detained, not being used. The role of the custody officer is pivotal to the accused's time in detention being dealt with correctly to ensure that justice is done.


Whilst in custody Hamish, along with all detained persons, will expect to be treated with consideration, professionalism and dignity and should expect to receive medical help if required, adequate rest and refreshment and exercise.


It should not be overlooked that there is an independent custody visitor scheme which is in place to check out whether the forms of protection required are provided, or whether there are any shortcomings. Whilst it cannot be the case that an independent visitor will be in attendance at each interview such visits will show up if there are any suggestions of malpractice.


Should there be any changes to the Codes of Practice to protect a detainees rights? Whilst there are still deaths in custody there must be a need for procedures to be reviewed to ensure appropriate steps are taken to prevent this from happening.


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Use the links below and on the right hand side to help you form your own thoughts regarding whether or not the rights of the detained person are sufficient to protect them.


The rights of a detained person.

Confessions, Unfairly Obtained Evidence and Breaches of PACE

MoJ unveils tendering plans for criminal defence

Your rights - Representation and funding

Appropriate Adult Services

Guide for Appropriate Adults – Gov.uk

Legal aid: is this the cut that kills the system?


This essay looks at the rights that Hamish and other detainees have whilst in custody.  It looks at these rights in detail and the protection it affords the suspect and if they are adequate or if they should be changed.

The role of the custody officer is examined in detail and the rules regarding intimate and non intimate searches are explored.

It points out the importance of adhering to the Codes of Practice to ensure that evidence collected whilst the suspect is in custody will be able to be used should a case go to court.

Reference is made to The Police and Criminal Evidence Act (1984), The Human rights Act 1998 and The Codes of Practice.

As always the links available may be explored to add to your knowledge and understanding of this subject.

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