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(i)
Guide to the 2019 revisions to
the Police and Criminal Evidence Act 1984 (PACE)
Codes of Practice C (Detention) and H (Detention- Terrorism)
What’s in this booklet for me?
1. This booklet contains extracts from the 2019 Revised Codes of Practice C and H which come into effect on 2 1 st^ August 2019. It is provided as a note-up reference to be read alongside the 2018 revisions. 2. The extracts comprise the full text and Notes for Guidance of the sections and Annexes in which the changes shown in grey highlighted text have been made. These are cross- referenced to the corresponding pages of the 2018 versions as shown in the “Summary tables”.
Background to the changes
3. The changes set out in these extracts represent the final stage of the joint response by the Home Office and the National Police Chiefs’ Council to a report from the Independent Custody Visiting Association (ICVA) which identified shortcomings in the treatment of menstruating females whilst detained at some police stations in England and Wales. The previous stage was to update College of Policing Authorised Professional Practice (APP) on Detention and Custody. The changes published on 6 August 2018 appear in the APP as follows: ~ https://www.app.college.police.uk/app-content/detention-and-custody-2/control-restraint-and- searches/#conduct-of-searches ~ https://www.app.college.police.uk/app-content/detention-and-custody-2/control-restraint-and- searches/#property-removal-and-storage ~ https://www.app.college.police.uk/app-content/detention-and-custody-2/detainee-care/#toilet-and- sanitary-facilities- ~ https://www.app.college.police.uk/app-content/detention-and-custody-2/detainee-care/equality-and- individual-needs/#female-detainees ~ https://www.app.college.police.uk/app-content/detention-and-custody-2/detainee-care/equality-and- individual-needs/#trans-individual-detainees
~ https://www.app.college.police.uk/app-content/detention-and-custody-2/buildings-and-
facilities/cctv/#pixelation
Code of Practice C (Detention)
4. The changes highlighted in the extracts comprise new and amended provisions which introduce a range of new requirements and safeguards to address the issues identified by ICVA in their September 2017 blog, Sanitary Custody, and related matters. In particular, the issues identified which the revisions address, are: ~ sufficient sanitary protection was not always available to female detainees; ~ female detainees were frequently left without the assistance of female officers or staff; ~ access to facilities for washing and changing were not adequate; and ~ the requirement for sufficient pixilation of CCTV to allow females to change sanitary protection was always observed.
(ii)
5. The main revisions concern safeguards for menstruating female detainees. Revisions have also been made concerning detainee dignity, health, hygiene and welfare more broadly. The changes comprise the following: (a) Each female detainee shall be asked if they require or are likely to require any menstrual products whilst they are in custody. They must be told that they will be provided free of charge and that replacement products are available. (b) Custody officers must ask whether each detainee wishes to speak in private with a member of custody staff about any matter concerning their personal needs relating to health, hygiene and welfare; if the detainee wishes, this member of staff may be of the same sex. These changes provide an opportunity for female detainees to raise issues about their menstrual needs and also for all detainees to raise issues relating to other health and hygiene needs such as products that may be required for incontinence and colostomy. If detainees wish to take this opportunity to raise health and hygiene needs, necessary arrangements should be provided/made as soon as practicable. (c) The notice given to detainees when they arrive at the police station that lists their entitlements is extended to include their entitlement to speak in private to a member of the custody staff about their personal needs relating to health, hygiene and welfare. (d) The changes make explicit that the clothing and personal effects that detainees may retain, subject to a risk assessment, include menstrual and other health, hygiene and welfare products needed by the detainee. A decision to withhold any such products must be subject to a further specific risk assessment. (e) Access to toilet and washing facilities must take account of the detainee’s dignity. For example, in cells subject to CCTV monitoring, privacy in the toilet area should be ensured by any appropriate means and detainees should be made aware of this when they are placed in the cell. (f) Strip searches and intimate searches of detainees must be conducted with proper regard to their dignity. This includes, in particular, the detainee’s health, hygiene and welfare needs including menstruation. (g) Annex L in Code C and Annex I in Code H are amended to take account of the changes concerning menstrual and any other health, hygiene and welfare products to ensure that the possible needs of transgender individuals in respect of these matters are not overlooked.
Code of Practice H (Detention- terrorism)
6. The changes to Code H mirror those in Code C.
15 August 2019
(iv) Table Code H [n] = page number of 2018 revised Code H. Click here for the full Table of Contents for the extracts from Code H. Note: for sections and Annexes that have not changed, headings only are shown. No. Paragraph Summary of changes, reason/purpose
- Commencement The revised Code will come into force as specified in the Order.
- H1.17(c) [7] Extends the title and scope of Annex I (Establishing Gender Of Persons For The Purpose of Searching) to include the new paragraphs H9.4A and H9.4B.
- H3.2(b)(ii) [13] Extends the entitlements in the Code that must be briefly set out in the Notice of Rights and Entitlements (and translations thereof) given to detainees and appropriate adults in accordance with H3.2, H3.1 4 (c) and C3.1 7 to include the new requirements in H9.4A and H9.4B.
- H3.5(c)(iia) and (ca) [14] H3.5(d) [14] New sub-paras (c)(iia) and (ca) extend the matters to be determined by the custody officer (or other staff as directed by the custody officer) when a detainee arrives at the police station to include the new requirements in H9.4A and H9.4B. The recording requirement in sub-paragraph (d) is extended to include decisions and actions relating to the above new matters.
- H3.21A [14] For a detained girl under 18, makes the woman in whose care the girl is in accordance with section 31 CYPA 1933 responsible for implementing the requirement in H9.4A and H9.4B.
- H4.2 & H4.3A [19] Applies the statutory restrictions in s.54 of PACE on removing clothing and personal effects to menstrual and sanitary products and makes withholding subject to an additional specific risk assessment.
- H8.4 [29] & Note 8F [30] Extended to include a requirement for toilet and washing facilities to take account of the dignity of the detainee.
- H8.5 [29] Extended to include a requirement to have proper regard to the dignity, sensitivity and vulnerability of detainees when their clothing needs to be removed.
- H9.4A [31] & Note 9CB [ 33 ] Introduces a new requirement to give all detainees an opportunity to speak in private to custody staff about personal needs. Supported by new Note 9CB
- H9.4B [31] & Note 9CC [ 33 ] Introduces a new requirement for female detainees to be asked if they require or are likely to require any menstrual products while they are in custody. Supported by new Note 9CC referring to College of Policing APP.
- Annex A 7 [ 52 ] Extended to include a requirement to have regard to the ‘dignity’ of the detainee when an intimate search is carried out.
- Annex A 12(d) [ 53 ] Extended to include requirements to have regard to, and to maintain the detainee’s dignity when a strip search is carried out.
- Annex I 4 [ 66 ] & Note I3A [ 67 ] Extended to include: (a) a reference to maintaining the detainee’s dignity when determining their gender for the purposes of searching; and (b) an exception to modify the search powers approach which acknowledges the needs of transgender individuals. Supported by new Note I3A
POLICE AND CRIMINAL EVIDENCE ACT 1984 (PACE)
CODE C
EXTRACT
CODE OF PRACTICE FOR THE DETENTION, TREATMENT AND QUESTIONING
OF PERSONS BY POLICE OFFICERS
Commencement - Transitional Arrangements This Code applies to people in police detention after 00:00 on 21 August 2019, notwithstanding that their period of detention may have commenced before that time.
ANNEX B - DELAY IN NOTIFICATION OF ARREST AND WHEREABOUTS OR ALLOWING
ACCESS TO LEGAL ADVICE omitted for the purpose of this extract ........................... 30 ANNEX C- RESTRICTION ON DRAWING ADVERSE INFERENCES FROM SILENCE AND TERMS OF THE CAUTION WHEN THE RESTRICTION APPLIES omitted for the purpose of this extract ..................................................................................................... 30 ANNEX D- WRITTEN STATEMENTS UNDER CAUTION omitted for the purpose of this extract ................................................................................................................................ 30 ANNEX E - SUMMARY OF PROVISIONS RELATING TO VULNERABLE PERSONS omitted for the purpose of this extract ............................................................................ 30 ANNEX G - FITNESS TO BE INTERVIEWED omitted for the purpose of this extract ......... 30 ANNEX H - DETAINED PERSON: OBSERVATION LIST omitted for the purpose of this extract ................................................................................................................................ 30 ANNEX K- X-RAYS AND ULTRASOUND SCANS omitted for the purpose of this extract .. 30 ANNEX L ESTABLISHING GENDER OF PERSONS FOR THE PURPOSE OF SEARCHING AND CERTAIN OTHER PROCEDURES ...................................................... 30 (a) Consideration ................................................................................................................ 30 (b) Documentation .............................................................................................................. 31 (c) Disclosure of information ............................................................................................... 31 Notes for Guidance ............................................................................................................. 31 ANNEX M - DOCUMENTS AND RECORDS TO BE TRANSLATED omitted for the purpose of this extract .................................................................................................................... 32 ANNEX N - LIVE-LINK INTERPRETATION (PARA. 13.12) omitted for the purpose of this extract .......................................................................................................................... 32
1 General 1.0 The powers and procedures in this Code must be used fairly, responsibly, with respect for the people to whom they apply and without unlawful discrimination. Under the Equality Act 2010, section 149 (Public sector Equality Duty), police forces must, in carrying out their functions, have due regard to the need to eliminate unlawful discrimination, harassment, victimisation and any other conduct which is prohibited by that Act, to advance equality of opportunity between people who share a relevant protected characteristic and people who do not share it, and to foster good relations between those persons. The Equality Act also makes it unlawful for police officers to discriminate against, harass or victimise any person on the grounds of the ‘protected characteristics’ of age, disability, gender reassignment, race, religion or belief, sex and sexual orientation, marriage and civil partnership, pregnancy and maternity, when using their powers. See Notes 1A and 1AA. 1.1 All persons in custody must be dealt with expeditiously, and released as soon as the need for detention no longer applies. 1.1A A custody officer must perform the functions in this Code as soon as practicable. A custody officer will not be in breach of this Code if delay is justifiable and reasonable steps are taken to prevent unnecessary delay. The custody record shall show when a delay has occurred and the reason. See Note 1H. 1.2 This Code of Practice must be readily available at all police stations for consultation by:
- police officers;
- police staff;
- detained persons;
- members of the public. 1.3 The provisions of this Code:
- include the Annexes
- do not include the Notes for Guidance which form guidance to police officers and others about its application and interpretation_._ 1.4 If at any time an officer has any reason to suspect that a person of any age may be vulnerable (see paragraph 1.13(d) ), in the absence of clear evidence to dispel that suspicion, that person shall be treated as such for the purposes of this Code and to establish whether any such reason may exist in relation to a person suspected of committing an offence (see paragraph 10.1 and Note 10A ), the custody officer in the case of a detained person, or the officer investigating the offence in the case of a person who has not been arrested or detained, shall take, or cause to be taken, (see paragraph 3.5 and Note 3F ) the following action: (a) reasonable enquiries shall be made to ascertain what information is available that is relevant to any of the factors described in paragraph 1.13(d) as indicating that the person may be vulnerable might apply; (b) a record shall be made describing whether any of those factors appear to apply and provide any reason to suspect that the person may be vulnerable or (as the case may be) may not be vulnerable; and (c) the record mentioned in sub-paragraph (b) shall be made available to be taken into account by police officers, police staff and any others who, in accordance with the provisions of this or any other Code, are required or entitled to communicate with the person in question. This would include any solicitor, appropriate adult and health care professional and is particularly relevant to communication by telephone or by means of a live link (see paragraphs 12.9A (interviews), 13.12 (interpretation), and 15.3C , 15.11A , 15.11B, 15.11C and 15.11D (reviews and extension of detention)). See Notes 1G , 1GA , 1GB and 1GC. 1.5 Anyone who appears to be under 18, shall, in the absence of clear evidence that they are older, be treated as a juvenile for the purposes of this Code and any other Code. See Note 1L. 1.5A Not used.
to perform the functions of the higher rank under the Police and Criminal Evidence Act 1984 (PACE), section 107. 1.10 Subject to paragraph 1.12 , this Code applies to people in custody at police stations in England and Wales, whether or not they have been arrested, and to those removed to a police station as a place of safety under the Mental Health Act 1983, sections 135 and 136, as amended by the Policing and Crime Act 2017 (see paragraph 3.16 ). Section 15 applies solely to people in police detention, e.g. those brought to a police station under arrest or arrested at a police station for an offence after going there voluntarily. 1.11 No part of this Code applies to a detained person: (a) to whom PACE Code H applies because:
- they are detained following arrest under section 41 of the Terrorism Act 2000 (TACT) and not charged; or
- an authorisation has been given under section 22 of the Counter-Terrorism Act 2008 (CTACT) (post-charge questioning of terrorist suspects) to interview them. (b) to whom the Code of Practice issued under paragraph 6 of Schedule 14 to TACT applies because they are detained for examination under Schedule 7 to TACT. 1.12 This Code does not apply to people in custody: (i) arrested by officers under the Criminal Justice and Public Order Act 1994, section 136(2) on warrants issued in Scotland, or arrested or detained without warrant under section 137(2) by officers from a police force in Scotland. In these cases, police powers and duties and the person's rights and entitlements whilst at a police station in England or Wales are the same as those in Scotland; (ii) arrested under the Immigration and Asylum Act 1999, section 142(3) in order to have their fingerprints taken; (iii) whose detention has been authorised under Schedules 2 or 3 to the Immigration Act 1971 or section 62 of the Nationality, Immigration and Asylum Act 2002; (iv) who are convicted or remanded prisoners held in police cells on behalf of the Prison Service under the Imprisonment (Temporary Provisions) Act 1980; (v) Not used. (vi) detained for searches under stop and search powers except as required by Code A. The provisions on conditions of detention and treatment in sections 8 and 9 must be considered as the minimum standards of treatment for such detainees. 1.13 In this Code: (a) ‘designated person’ means a person other than a police officer, who has specified powers and duties conferred or imposed on them by designation under section 38 or 39 of the Police Reform Act 2002; (b) reference to a police officer includes a designated person acting in the exercise or performance of the powers and duties conferred or imposed on them by their designation; (c) if there is doubt as to whether the person should be treated, or continue to be treated, as being male or female in the case of: (i) a search or other procedure to which this Code applies which may only be carried out or observed by a person of the same sex as the detainee; or (ii) any other procedure which requires action to be taken or information to be given that depends on whether the person is to be treated as being male or female; then the gender of the detainee and other parties concerned should be established and recorded in line with Annex L of this Code. (d) ‘vulnerable’ applies to any person who, because of a mental health condition or mental disorder (see Notes 1G and 1GB) : (i) may have difficulty understanding or communicating effectively about the full implications for them of any procedures and processes connected with:
- their arrest and detention; or (as the case may be)
- their voluntary attendance at a police station or their presence elsewhere (see paragraph 3.21 ), for the purpose of a voluntary interview; and
- the exercise of their rights and entitlements. (ii) does not appear to understand the significance of what they are told, of questions they are asked or of their replies: (iii) appears to be particularly prone to:
- becoming confused and unclear about their position;
- providing unreliable, misleading or incriminating information without knowing or wishing to do so;
- accepting or acting on suggestions from others without consciously knowing or wishing to do so; or
- readily agreeing to suggestions or proposals without any protest or question. (e) ‘Live link’ means: (i) for the purpose of paragraph 12.9A; an arrangement by means of which the interviewing officer who is not present at the police station where the detainee is held, is able to see and hear, and to be seen and heard by, the detainee concerned, the detainee’s solicitor, appropriate adult and interpreter (as applicable) and the officer who has custody of that detainee (see Note 1N). (ii) for the purpose of paragraph 15.9A; an arrangement by means of which the review officer who is not present at the police station where the detainee is held, is able to see and hear, and to be seen and heard by, the detainee concerned and the detainee’s solicitor, appropriate adult and interpreter (as applicable) (see Note 1N). The use of live link for decisions about detention under section 45A of PACE is subject to regulations made by the Secretary of State being in force. (iii) for the purpose of paragraph 15.11A ; an arrangement by means of which the authorising officer who is not present at the police station where the detainee is held, is able to see and hear, and to be seen and heard by, the detainee concerned and the detainee’s solicitor, appropriate adult and interpreter (as applicable) (see Note 1N). (iv) for the purpose of paragraph 15.11C; an arrangement by means of which the detainee when not present in the court where the hearing is being held, is able to see and hear, and to be seen and heard by, the court during the hearing (see Note 1N). Note: Chief officers must be satisfied that live link used in their force area for the above purposes provides for accurate and secure communication between the detainee, the detainee’s solicitor, appropriate adult and interpreter (as applicable). This includes ensuring that at any time during which the live link is being used: a person cannot see, hear or otherwise obtain access to any such communications unless so authorised or allowed by the custody officer or, in the case of an interview, the interviewer and that as applicable, the confidentiality of any private consultation between a suspect and their solicitor and appropriate adult is maintained. 1.14 Designated persons are entitled to use reasonable force as follows: (a) when exercising a power conferred on them which allows a police officer exercising that power to use reasonable force, a designated person has the same entitlement to use force; and (b) at other times when carrying out duties conferred or imposed on them that also entitle them to use reasonable force, for example:
- when at a police station carrying out the duty to keep detainees for whom they are responsible under control and to assist any police officer or designated person to keep any detainee under control and to prevent their escape;
- when securing, or assisting any police officer or designated person in securing, the detention of a person at a police station;
1D In the case of someone who is vulnerable, it may be more satisfactory if the appropriate adult is someone experienced or trained in their care rather than a relative lacking such qualifications. But if the person prefers a relative to a better qualified stranger or objects to a particular person their wishes should, if practicable, be respected. 1E A detainee should always be given an opportunity, when an appropriate adult is called to the police station, to consult privately with a solicitor in the appropriate adult’s absence if they want. An appropriate adult is not subject to legal privilege. 1F An appropriate adult who is not a parent or guardian in the case of a juvenile, or a relative, guardian or carer in the case of a vulnerable person, must be independent of the police as their role is to safeguard the person’s rights and entitlements. Additionally, a solicitor or independent custody visitor who is present at the police station and acting in that capacity, may not be the appropriate adult. 1G A person may be vulnerable as a result of a having a mental health condition or mental disorder. Similarly, simply because an individual does not have, or is not known to have, any such condition or disorder, does not mean that they are not vulnerable for the purposes of this Code. It is therefore important that the custody officer in the case of a detained person or the officer investigating the offence in the case of a person who has not been arrested or detained, as appropriate, considers on a case by case basis, whether any of the factors described in paragraph 1.13(d) might apply to the person in question. In doing so, the officer must take into account the particular circumstances of the individual and how the nature of the investigation might affect them and bear in mind that juveniles, by virtue of their age will always require an appropriate adult. 1GA For the purposes of paragraph 1.4(a), examples of relevant information that may be available include:
- the behaviour of the adult or juvenile;
- the mental health and capacity of the adult or juvenile;
- what the adult or juvenile says about themselves;
- information from relatives and friends of the adult or juvenile;
- information from police officers and staff and from police records;
- information from health and social care (including liaison and diversion services) and other professionals who know, or have had previous contact with, the individual and may be able to contribute to assessing their need for help and support from an appropriate adult. This includes contacts and assessments arranged by the police or at the request of the individual or (as applicable) their appropriate adult or solicitor. 1GB The Mental Health Act 1983 Code of Practice at page 26 describes the range of clinically recognised conditions which can fall with the meaning of mental disorder for the purpose of paragraph 1.13(d). The Code is published here: https://www.gov.uk/government/publications/code-of-practice-mental-health-act- 1983. 1GC When a person is under the influence of drink and/or drugs, it is not intended that they are to be treated as vulnerable and requiring an appropriate adult for the purpose of paragraph 1. unless other information indicates that any of the factors described in paragraph 1.13(d) may apply to that person. When the person has recovered from the effects of drink and/or drugs, they should be re-assessed in accordance with paragraph 1.4. See paragraph 15.4A for application to live link. 1H Paragraph 1.1A is intended to cover delays which may occur in processing detainees e.g. if:
- a large number of suspects are brought into the station simultaneously to be placed in custody;
- interview rooms are all being used;
- there are difficulties contacting an appropriate adult, solicitor or interpreter. 1I The custody officer must remind the appropriate adult and detainee about the right to legal advice and record any reasons for waiving it in accordance with section 6. 1J Not used.
1K This Code does not affect the principle that all citizens have a duty to help police officers to prevent crime and discover offenders. This is a civic rather than a legal duty; but when police officers are trying to discover whether, or by whom, offences have been committed they are entitled to question any person from whom they think useful information can be obtained, subject to the restrictions imposed by this Code. A person’s declaration that they are unwilling to reply does not alter this entitlement. 1L Paragraph 1.5 reflects the statutory definition of ‘arrested juvenile’ in section 37(15) of PACE. This section was amended by section 42 of the Criminal Justice and Courts Act 2015 with effect from 26 October 2015, and includes anyone who appears to be under the age of 18. This definition applies for the purposes of the detention and bail provisions in sections 34 to 51 of PACE. With effect from 3 April 2017, amendments made by the Policing and Crime Act 2017 require persons under the age of 18 to be treated as juveniles for the purposes of all other provisions of PACE and the Codes. 1M Not used. 1N For the purpose of the provisions of PACE that allow a live link to be used, any impairment of the detainee’s eyesight or hearing is to be disregarded. This means that if a detainee’s eyesight or hearing is impaired, the arrangements which would be needed to ensure effective communication if all parties were physically present in the same location, for example, using sign language, would apply to the live link arrangements. Section 2 – Custody records omitted for the purpose of this extract 3 Initial action (A) Detained persons - normal procedure 3.1 When a person is brought to a police station under arrest or arrested at the station having gone there voluntarily, the custody officer must make sure the person is told clearly about: (a) the following continuing rights, which may be exercised at any stage during the period in custody: (i) their right to consult privately with a solicitor and that free independent legal advice is available as in section 6 ; (ii) their right to have someone informed of their arrest as in section 5 ; (iii) their right to consult the Codes of Practice (see Note 3D) ; and (iv) if applicable, their right to interpretation and translation (see paragraph 3.12 ) and their right to communicate with their High Commission, Embassy or Consulate (see paragraph 3.12A ). (b) their right to be informed about the offence and (as the case may be) any further offences for which they are arrested whilst in custody and why they have been arrested and detained in accordance with paragraphs 2. 4 , 3.4(a) and 11.1A of this Code and paragraph 3.3 of Code G. 3.2 The detainee must also be given a written notice, which contains information: (a) to allow them to exercise their rights by setting out: (i) their rights under paragraph 3.1, paragraph 3.12 and 3.12A ; (ii) the arrangements for obtaining legal advice, see section 6 ; (iii) their right to a copy of the custody record as in paragraph 2.4A ; (iv) their right to remain silent as set out in the caution in the terms prescribed in section 10 ; (v) their right to have access to materials and documents which are essential to effectively challenging the lawfulness of their arrest and detention for any offence and (as the case may be) any further offences for which they are arrested whilst in custody, in accordance with paragraphs 3.4(b), 15.0, 15.7A(c) and 16.7A of this Code; (vi) the maximum period for which they may be kept in police detention without being charged, when detention must be reviewed and when release is required; (vii) their right to medical assistance in accordance with section 9 of this Code;
and detention necessary. The decision about whether particular documents or materials must be made available for the purpose of this requirement therefore rests with the custody officer who determines whether detention is necessary, in consultation with the investigating officer who has the knowledge of the documents and materials in a particular case necessary to inform that decision. A note should be made in the detainee’s custody record of the fact that documents or materials have been made available under this sub-paragraph and when. The investigating officer should make a separate note of what is made available and how it is made available in a particular case. This sub-paragraph also applies (with modifications) for the purposes of sections 15 (Reviews and extensions of detention) and 16 (Charging detained persons). See Note 3ZA and paragraphs 15.0 and 16.7A. 3.5 The custody officer or other custody staff as directed by the custody officer shall: (a) ask the detainee whether at this time, they: (i) would like legal advice, see paragraph 6.5 ; (ii) want someone informed of their detention, see section 5 ; (b) ask the detainee to sign the custody record to confirm their decisions in respect of ( a ); (c) determine whether the detainee: (i) is, or might be, in need of medical treatment or attention, see section 9 ; (ii) is a juvenile and/or vulnerable and therefore requires an appropriate adult (see paragraphs 1.4, 1.5, and 3.15) ; (iia) wishes to speak in private with a member of the custody staff who may be of the same sex about any matter concerning their personal needs relating to health, hygiene and welfare (see paragraph 9.3A ); (iii) requires:
- help to check documentation (see paragraph 3.20 );
- an interpreter (see paragraph 3. 12 and Note 13B). (ca) if the detainee is a female aged 18 or over, ask if they require or are likely to require any menstrual products whilst they are in custody (see paragraph 9.3B ). For girls under 18 , see paragraph 3.20A ; (d) record the decision and actions taken as applicable in respect of ( c ) and (ca). Where any duties under this paragraph have been carried out by custody staff at the direction of the custody officer, the outcomes shall, as soon as practicable, be reported to the custody officer who retains overall responsibility for the detainee’s care and treatment and ensuring that it complies with this Code. See Note 3F. 3.6 When the needs mentioned in paragraph 3.5(c) are being determined, the custody officer is responsible for initiating an assessment to consider whether the detainee is likely to present specific risks to custody staff, any individual who may have contact with detainee (e.g. legal advisers, medical staff) or themselves. This risk assessment must include the taking of reasonable steps to establish the detainee’s identity and to obtain information about the detainee that is relevant to their safe custody, security and welfare and risks to others. Such assessments should therefore always include a check on the Police National Computer (PNC), to be carried out as soon as practicable, to identify any risks that have been highlighted in relation to the detainee. Although such assessments are primarily the custody officer’s responsibility, it may be necessary for them to consult and involve others, e.g. the arresting officer or an appropriate healthcare professional, see paragraph 9.13. Other records held by or on behalf of the police and other UK law enforcement authorities that might provide information relevant to the detainee’s safe custody, security and welfare and risk to others and to confirming their identity should also be checked. Reasons for delaying the initiation or completion of the assessment must be recorded. 3.7 Chief officers should ensure that arrangements for proper and effective risk assessments required by paragraph 3.6 are implemented in respect of all detainees at police stations in their area.
3.8 Risk assessments must follow a structured process which clearly defines the categories of risk to be considered and the results must be incorporated in the detainee’s custody record. The custody officer is responsible for making sure those responsible for the detainee’s custody are appropriately briefed about the risks. If no specific risks are identified by the assessment, that should be noted in the custody record. See Note 3E and paragraph 9.14. 3.8A The content of any risk assessment and any analysis of the level of risk relating to the person's detention is not required to be shown or provided to the detainee or any person acting on behalf of the detainee. But information should not be withheld from any person acting on the detainee’s behalf, for example, an appropriate adult, solicitor or interpreter, if to do so might put that person at risk. 3.9 The custody officer is responsible for implementing the response to any specific risk assessment, e.g.:
- reducing opportunities for self harm;
- calling an appropriate healthcare professional;
- increasing levels of monitoring or observation;
- reducing the risk to those who come into contact with the detainee. See Note 3E. 3.10 Risk assessment is an ongoing process and assessments must always be subject to review if circumstances change. 3.11 If video cameras are installed in the custody area, notices shall be prominently displayed showing cameras are in use. Any request to have video cameras switched off shall be refused. (B) Detained persons - special groups 3.12 If the detainee appears to be someone who does not speak or understand English or who has a hearing or speech impediment, the custody officer must ensure: (a) that without delay, arrangements (see paragraph 13.1ZA ) are made for the detainee to have the assistance of an interpreter in the action under paragraphs 3.1 to 3.5. If the person appears to have a hearing or speech impediment, the reference to ‘interpreter’ includes appropriate assistance necessary to comply with paragraphs 3.1 to 3.5. See paragraph 13.1C if the detainee is in Wales. See section 13 and Note 13B; (b) that in addition to the continuing rights set out in paragraph 3.1(a)(i) to (iv) , the detainee is told clearly about their right to interpretation and translation; (c) that the written notice given to the detainee in accordance with paragraph 3.2 is in a language the detainee understands and includes the right to interpretation and translation together with information about the provisions in section 13 and Annex M , which explain how the right applies (see Note 3A ); and (d) that if the translation of the notice is not available, the information in the notice is given through an interpreter and a written translation provided without undue delay. 3.12A If the detainee is a citizen of an independent Commonwealth country or a national of a foreign country, including the Republic of Ireland, the custody officer must ensure that in addition to the continuing rights set out in paragraph 3.1(a)(i) to (iv) , they are informed as soon as practicable about their rights of communication with their High Commission, Embassy or Consulate set out in section 7. This right must be included in the written notice given to the detainee in accordance with paragraph 3.. 3.13 If the detainee is a juvenile, the custody officer must, if it is practicable, ascertain the identity of a person responsible for their welfare. That person:
- may be: the parent or guardian; if the juvenile is in local authority or voluntary organisation care, or is otherwise being looked after under the Children Act 1989, a person appointed by that authority or organisation to have responsibility for the juvenile’s welfare;
may be asked to sign instead, if the detainee prefers. This paragraph does not require an appropriate adult to be called solely to assist in checking and signing documentation for a person who is not a juvenile, or is not vulnerable (see paragraph 3.15 and Note 13C ). 3.20A The Children and Young Persons Act 1933, section 31, requires that arrangements must be made for ensuring that a girl under the age of 18, while detained in a police station, is under the care of a woman. The custody officer must ensure that the woman under whose care the girl is , makes the enquiries and provides the information concerning personal needs relating to their health, hygiene and welfare described in paragraph 9.3A and menstrual products described in paragraph 9.3B. See Note 3G. The section also requires that arrangements must be made for preventing any person under 18, while being detained in a police station, from associating with an adult charged with any offence, unless that adult is a relative or the adult is jointly charged with the same offence as the person under 18. (C) Detained persons - Documentation 3.20B The grounds for a person’s detention shall be recorded, in the person’s presence if practicable. See paragraph 1.8. 3.20C Action taken under paragraphs 3.12 to 3.20A shall be recorded. (D) Persons attending a police station or elsewhere voluntarily 3.21 Anybody attending a police station or other location (see paragraph 3.22 and Note 3I ) voluntarily to assist police with the investigation of an offence may leave at will unless arrested. See Notes 1A and 1K. The person may only be prevented from leaving at will if their arrest on suspicion of committing the offence is necessary in accordance with Code G. See Code G Note 2G. Action if arrest becomes necessary (a) If during a person’s voluntary attendance at a police station or other location it is decided for any reason that their arrest is necessary, they must:
- be informed at once that they are under arrest and of the grounds and reasons as required by Code G , and
- be brought before the custody officer at the police station where they are arrested or (as the case may be) at the police station to which they are taken after being arrested elsewhere. The custody officer is then responsible for making sure that a custody record is opened and that they are notified of their rights in the same way as other detainees as required by this Code. Information to be given when arranging a voluntary interview: (b) If the suspect’s arrest is not necessary but they are cautioned as required in section 10 , the person who, after describing the nature and circumstances of the suspected offence, gives the caution must at the same time, inform them that they are not under arrest and that they are not obliged to remain at the station or other location (see paragraph 3.22 and Note 3I ). The rights, entitlements and safeguards that apply to the conduct and recording of interviews with suspects are not diminished simply because the interview is arranged on a voluntary basis. For the purpose of arranging a voluntary interview (see Code G Note 2F ), the duty of the interviewer reflects that of the custody officer with regard to detained suspects. As a result: (i) the requirement in paragraph 3.5(c)(ii) to determine whether a detained suspect requires an appropriate adult, help to check documentation or an interpreter shall apply equally to a suspect who has not been arrested; and (ii) the suspect must not be asked to give their informed consent to be interviewed until after they have been informed of the rights, entitlements and safeguards that apply to voluntary interviews. These are set out in paragraph 3.21A and the interviewer is responsible for ensuring that the suspect is so informed and for explaining these rights, entitlements and safeguards. 3.21A The interviewer must inform the suspect that the purpose of the voluntary interview is to question them to obtain evidence about their involvement or suspected involvement in the offence(s) described when they were cautioned and told that they were not under arrest. The
interviewer shall then inform the suspect that the following matters will apply if they agree to the voluntary interview proceeding: (a) Their right to information about the offence(s) in question by providing sufficient information to enable them to understand the nature of any such offence(s) and why they are suspected of committing it. This is in order to allow for the effective exercise of the rights of the defence as required by paragraph 11.1A. It applies whether or not they ask for legal advice and includes any further offences that come to light and are pointed out during the voluntary interview and for which they are cautioned. (b) Their right to free (see Note 3J) legal advice by: (i) explaining that they may obtain free and independent legal advice if they want it, and that this includes the right to speak with a solicitor on the telephone and to have the solicitor present during the interview; (ii) asking if they want legal advice and recording their reply; and (iii) if the person requests advice, securing its provision before the interview by contacting the Defence Solicitor Call Centre and explaining that the time and place of the interview will be arranged to enable them to obtain advice and that the interview will be delayed until they have received the advice unless, in accordance with paragraph 6.6(c) (Nominated solicitor not available and duty solicitor declined) or paragraph 6.6(d) (Change of mind), an officer of the rank of inspector or above agrees to the interview proceeding; or (iv) if the person declines to exercise the right, asking them why and recording any reasons given (see Note 6K ). Note: When explaining the right to legal advice and the arrangements, the interviewer must take care not to indicate, except to answer a direct question, that the time taken to arrange and complete the voluntary interview might be reduced if:
- the suspect does not ask for legal advice or does not want a solicitor present when they are interviewed; or
- the suspect asks for legal advice or (as the case may be) asks for a solicitor to be present when they are interviewed, but changes their mind and agrees to be interviewed without waiting for a solicitor. (c) Their right, if in accordance with paragraph 3.5(c)(ii) the interviewer determines: (i) that they are a juvenile or are vulnerable; or (ii) that they need help to check documentation (see paragraph 3.20 ), to have the appropriate adult present or (as the case may be) to have the necessary help to check documentation; and that the interview will be delayed until the presence of the appropriate adult or the necessary help, is secured. (d) If they are a juvenile or vulnerable and do not want legal advice, their appropriate adult has the right to ask for a solicitor to attend if this would be in their best interests and the appropriate adult must be so informed. In this case, action to secure the provision of advice if so requested by their appropriate adult will be taken without delay in the same way as if requested by the person (see sub-paragraph (b)(iii)). However, they cannot be forced to see the solicitor if they are adamant that they do not wish to do so (see paragraphs 3.19 and 6.5A ). (e) Their right to an interpreter, if in accordance with , paragraphs 3.5(c)(ii) and 3.12 , the interviewer determines that they require an interpreter and that if they require an interpreter, making the necessary arrangements in accordance with paragraph 13.1ZA and that the interview will be delayed to make the arrangements. (f) That interview will be arranged for a time and location (see paragraph 3.22 and Note 3I ) that enables: (i) the suspect’s rights described above to be fully respected; and (ii) the whole of the interview to be recorded using an authorised recording device in accordance with Code E (Code of Practice on Audio recording of interviews with suspects) or (as the case may be) Code F (Code of Practice on visual recording with sound of interviews with suspects); and
