Who is a detained person according to pace 1984

Therefore an arrest must be lawful. To be lawful, a police arrest must be necessary by reference to statutory powers set out in PACE PACE Code of Practice G provides additional rules and guidance on the use of these powers and are essential reading for all lawyers advising on this area of law.

The term 'arrest' is not defined in PACE The courts have held that it is an ordinary English word and whether or not a person has been arrested depends not on the legality of the arrest but on whether they have been deprived of liberty of movement. Under PACE , a police officer must inform a person that they are under arrest and the reason why.

A failure to do so will render the arrest unlawful. There also remain common law powers for a police officer or citizen to arrest a person for a breach of the peace. There are a number of statutes that authorise the arrest of a person suspected of committing a criminal offence by use of a warrant. MCA gives the magistrates' court power to issue a warrant after hearing evidence on oath from a police officer that a person has, or is suspected of having, committed an offence.

Such a warrant may be endorsed with or without bail. Practice Note: Is an arrest necessary? It explains the test to be applied, the reasonable belief of the arresting officer and the criteria for determining whether an arrest is necessary or whether an unlawful arrest has occurred. The Practice Note also includes information on the circumstances that a volunteer is arrested. It is common to attend with a client as a volunteer by arrangement for interview only to find they are arrested on arrival at the police station.

This letter should set out the statutory criteria of necessity for an arrest. It should include a reference to Code G and the fact the exercise of the power of arrest must be non-discriminatory and proportionate. A copy of this letter should also be given to the custody sergeant so that there can be no misunderstanding when the client attends for interview.

See: Letter to officer in the case—not to arrest a volunteer which summarises the representations which a defence lawyer should prepare in order to seek to persuade an investigating officer not to arrest a client who is attending an interview under caution on a voluntary basis.

It is in the form of an example letter of representation to the investigating officer. Once a person has been arrested for an offence they will usually be taken to a police station. At the police station a custody officer will determine whether there is sufficient evidence to charge the suspect with the offence. Where a defendant is bailed by the police and fails to surrender at the first hearing, the prosecutor should make an oral application for an information to be laid in relation to both the offence under s.

Where the defendant is brought before the court, having not been charged by the police and with no information having been laid previously, the prosecutor may ask for an information to be laid at this stage, subject to the time limits as set out above. Where a defendant has been bailed by the court and fails to surrender, the court may try him for that offence at any point after he has been brought before the court for that offence, irrespective of the length of time since he failed to surrender - s.

When a defendant fails to appear at Court, the prosecutors should generally apply to the Court for a warrant without bail. In exceptional circumstances, they may use their discretion as to whether a warrant backed for bail may be appropriate. There is no need to call formal evidence unless contesting the defence of reasonable cause.

The Court's record of the grant of bail, or the charge sheet, if Police bail was granted, giving details of the time and date the defendant was due to surrender, will be sufficient. Whether or not the defendant has failed to surrender to court bail will depend on the arrangements in the particular court to which the defendant is to surrender.

The position may differ between the magistrates' court and the Crown Court. The court displayed a notice which required all persons due to appear in court to report to the enquiry counter.

The defendant did report and then complied with the instructions to wait in the concourse before becoming tired of waiting and leaving the building. Following conviction for failing to surrender the defendant appealed to the Crown Court, Glidewell LJ stated:. If having done so the person at the Inquiry office said: 'Go to the cells and surrender to a prison officer' that would have been the surrender.

If the Inquiry officer says: 'Go and sit in the concourse until your case is called,' then the court procedure envisages that being the surrender to the court.

Accordingly, in the magistrates' court, what constitutes surrender may vary according to the arrangements which are made for accepting surrender at any particular court. In this instance, by surrendering to the enquiry desk, the defendant could not be said to have failed to surrender. Even if the circumstances do not amount to a Bail Act offence, the court may still issue a warrant for the defendant's arrest s.

He left before his case was called and was convicted of failing to surrender. Mere arrival at the Crown Court building does not constitute a surrender, neither did reporting to an advocate. Surrender has to be accomplished personally by the defendant. Secondly, if there has been no previous surrender, as ordinarily there will have been it is also accomplished by arraignment. Thirdly, the position in the magistrates' court may be the same, but may easily differ as explained in DPP v Richards.

This guidance clarifies the roles and responsibilities of medical practitioners when issuing medical certificates in criminal proceedings. If a medical certificate is accepted by the court, this will result in cases including contested hearings and trials having to be adjourned rather than the court issuing a warrant for the defendant's arrest without bail.

Medical certificates will also provide the defendant with sufficient evidence to defend a charge of failure to surrender to bail. However, a court is not absolutely bound by a medical certificate. The medical practitioner providing the certificate may be required by the court to give evidence. Alternatively the court may exercise its discretion to disregard a certificate, which it finds unsatisfactory - R v Ealing Magistrates Court Ex p.

Burgess J. Medical practitioners should be aware that when issuing a certificate to a defendant in criminal proceedings they make themselves liable to being summonsed to court to give evidence about the content of the certificate, and may be asked to justify their statements. A prosecution will normally be in the public interest where a defendant has deliberately failed to attend with no reasonable cause unless he or she is able to put forward substantial mitigating circumstances.

Where a defendant has surrendered to bail at court later than the appointed time, consideration ought to be given to the following questions in deciding whether or not it is in the public interest to proceed with an offence of failing to surrender:. Where the court is looking to proceedings for failure to surrender separate to consideration as to whether bail should be revoked or amended , it should consider the content of Criminal Practice Direction Custody and Bail [] 1 W.

R , the main requirements of which are:. The court should give reasons in open court if it decides not deal with the Bail Act offence at the earliest opportunity. If proceedings are sent to the Crown Court, then, the defendant can be committed for sentence to the Crown Court, but only if convicted in the magistrates' court - s. If the defendant is sentenced for the Bail Act offence at the same time as for the substantive offences, then any term of imprisonment for failure to surrender should run consecutively to any other term of custody.

The Official Solicitor to the Supreme Court acts for defendants in custody who wish to apply for bail but are unable to do so through lack of means to instruct a solicitor - RSC, Order 79 r 9.

The procedure is that the defendant completes the appropriate Home Office form and the Prison or Remand Centre should send the form to the Official Solicitor and a copy, for information, to the local Crown Court Centre. At the same time the Prison or Remand Centre sends a request for a report in the form of a standard letter and questionnaire direct to the Police Station dealing with the defendant's case. The questionnaire requests details of any objections to bail. In the light of s. The questionnaire should be properly completed by a Prosecutor and returned to the office of the Official Solicitor.

It is vital that grounds for objecting to bail and the reasons for court decisions are accurately recorded by both the Crown and the Court. Prosecutors, whether reviewing a case or appearing as advocates, should ensure that the following information is recorded:. Given that bail can be re-visited at various stages of a case including appeals by the prosecution against the granting of bail , it is important that the Crown's objections to bail and the Court's decision including which grounds if any it upholds are clearly noted by all parties and the Court.

The Code for Crown Prosecutors is a public document, issued by the Director of Public Prosecutions that sets out the general principles Crown Prosecutors should follow when they make decisions on cases. This guidance assists our prosecutors when they are making decisions about cases. It is regularly updated to reflect changes in law and practice. Help us to improve our website; let us know what you think by taking our short survey. Contrast Switch to colour theme Switch to blue theme Switch to high visibility theme Switch to soft theme.

Search for Search for. Top menu Careers Contact. A benchmark of the quality of CPS case preparation is that we are: "Continually reviewing the remand status of defendants, and ensuring that custody time limit cases are dealt with in accordance with the national standard. A benchmark of the quality of CPS case presentation is that we are: "Opposing bail where it is appropriate to do so, taking account of the risk posed to victims, the public and the course of justice.

Police Bail Pre-Charge This can be imposed: Where there is as yet insufficient evidence to charge a suspect and he is released pending further investigation ss. Where the police consider that there is sufficient evidence to charge, but the matter must be referred to the CPS for a charging decision s. Under the Code for Crown Prosecutors the Threshold Test may only be applied where the prosecutor is satisfied that all of the following five requirements are met: there are reasonable grounds to suspect that the person to be charged has committed the offence.

Breach of pre-charge bail conditions The police have a power of arrest where an officer has reasonable grounds for believing that conditions imposed on pre-charge bail have been breached s. Post Charge Where there is sufficient evidence and the suspect is charged with an offence s. It should be noted that either pre or post charge the police cannot impose conditions on a suspect: to reside at a bail hostel; to attend an interview with a legal adviser; to make him or herself available for enquiries and reports; that contain electronic monitoring requirements.

Breach of post charge bail conditions The procedure for dealing with breach of police imposed bail conditions that are in place prior to the first court appearance matches the procedure for dealing with breaches of court imposed conditions - see below. Variation of police imposed bail conditions Conditions imposed by a custody officer may be varied by: The same custody officer or another custody officer serving at the same police station on receipt of a request from the person to whom bail was granted There is no stated procedure for this process, but the police will normally require that a request is in writing.

More onerous conditions can be imposed. The magistrates' court on application by the suspect s. The magistrates can confirm the same conditions, impose different conditions, or direct that bail shall be unconditional.

It continues to be police bail and the procedure for applying for the variation is set out at: Criminal Procedure Rules , Part 14, bail in the magistrates' court and the Crown Court - specifically Criminal Procedure Rule Crim. The Right to Bail Under s. Prosecutors must keep the issue of bail under review throughout the life of the case. Exclusions to the right to bail The general right to bail does not apply in the following circumstances: Murder The power of magistrates to consider bail in murder cases, whether at first hearing or after a breach of an existing bail condition, is now removed by s.

Manslaughter and Serious Sexual Offences Where a person is charged with an offence of manslaughter, rape or a serious sexual offence, and has previously been convicted in the UK or court of an EU Member State of an offence of murder, attempted murder, rape or a serious sexual offence as listed in s. Class A Drug Users - Designated areas only In certain parts of the country, Paragraphs 6A to 6C of Part I of Schedule I of the Bail Act apply which set out the exception to bail for adult drug users where their offending is drug-related, and where they have been required to undergo drug testing but have failed to comply with that requirement.

Exceptions to the right to bail The grounds for refusing bail are set out in Schedule 1 to the Bail Act Certain exceptions to bail are subject to the "no real prospect" test where a remand should not be sought for an un-convicted defendant who has no real prospect of receiving a custodial sentence. In less serious cases prosecutors should give careful consideration to the surrounding circumstances of the offence, the defendant's antecedents and any relevant sentencing guidelines in deciding whether there is a "real prospect" of a custodial sentence.

Where this is not clear cut, it may be more appropriate to leave it to the court to decide and to make objections to bail in the usual way. It is vital that prosecutors note that this is not a consideration in cases involving domestic violence or any other risk of physical or mental injury to persons associated with the defendant.

Post-conviction applications. It should be noted that the risk of failing to surrender owing to the severity of the likely sentence, if convicted was a matter to be assessed in the light of other relevant factors. The likely sentence could not of itself provide grounds for a remand in custody R Thompson v Central Criminal Court [] A.

Prosecutors should also consider whether the relevant jurisdiction has an extradition agreement with the UK and in particular, those that will not extradite their own nationals to the UK. Care must be taken, however, with mentally disordered offenders to ensure that the risks of the future events are reduced in a way most compatible with their proper care and treatment for example by diversion to a recognised medical treatment scheme or by a remand on bail to an appropriate probation or medical facility ; and The effect that the seriousness of the proceedings and the likely penalty of conviction may have upon the defendant.

Generally speaking, the more serious the offence and the higher the likely penalty, the stronger will be the need to guard against one of the future risks. Victims and Witnesses When dealing with bail hearings in court, prosecutors should ensure that the victim's views are considered, in deciding whether to seek a remand in custody.

Murder Cases - s. Conditions of Bail General Bail conditions should only be imposed in order to address any of the risks that would be inherent in granting unconditional bail. Types of Condition Reporting to a police station: This must be necessary to avert the risk it is designed to meet. For example, care should be taken to ensure that the interval between reporting times is not so long as to be insufficient to prevent a defendant from absconding. Where it is proportionate and necessary to enforce a curfew or a residence condition imposed for one of the statutory purposes, then such a condition may be appropriate.

Murder cases: Under s. The Court need not impose the conditions if it is content that satisfactory reports have already been obtained. Not to drive: The court must be satisfied that such a condition is necessary and, in doing so, ought to consider whether its imposition might have unexpected and unjust results: R v Kwame 60 Cr.

Prosecutors should be prepared to assist the court to explore the status and means of the potential surety, in the interests of justice and the surety.

The prosecutor should be prepared to ask for time to make enquiries as to the sufficiency of the surety. Securities should be lodged with the court or, in exceptional circumstances, with the police, and not with the CPS. Electronic tagging: Where the court is satisfied that there is local provision for electronic tagging, and but for the tagging of the offender, he would not be granted bail, it may order that this condition be imposed s.

Electronic tagging with GPS location monitoring: As above but with the additional facility to impose an element of location monitoring such as exclusion from a particular locality or around a particular address. Credit for period of remand on bail with an electronic tag Section A of the Criminal Justice Act provides that a court must direct that the period for which a defendant was subject to a curfew and an electronic monitoring condition, to count as time served by the offender as part of the sentence.

Note: No credit period is available for monitored curfews which are less than 9 hours. The court must state in open court: the number of days on which the offender was subject to the relevant conditions, and the number of days in relation to which the direction is given. Calculating the credit period The court, which first imposes the electronically monitored curfew, will commence a record which documents the conditions imposed and the date on which they are imposed.

Youths The court may impose conditions that appear to be necessary for the same reasons as adults save that the court may also impose a condition "for his own welfare or in his own interests" s.

Reconsideration of Bail The prosecutor may apply under s. The prosecutor should consider the following when deciding whether to use section 5B: The length of time since the original decision and the bail history since that decision; The length of time before the defendant would next appear in Court if no applications were made; Whether the original decision would have been different if the new information had been available then or if the new circumstances had obtained them ; Whether, even if the original decision would have been different, a different decision is likely to be taken now.

The application must: be in writing; the decision that the applicant wants the court to make; each offence charged; each relevant previous bail decision and the reasons given for each; why the court should withdraw bail or impose or vary any conditions; what material information has become available since the most recent bail decision; propose the terms of any suggested bail condition; if an earlier hearing is required, explain why. Breach of Conditions of Bail Breach of conditions of bail is not a Bail Act offence, nor is it a contempt of court unless there is some additional feature R v Ashley [] 1 Cr.

This may well involve the giving of "hearsay evidence". Where the defendant disputes the ground on which he was arrested, there is no necessity for the giving of evidence on oath or for providing an opportunity to the person arrested, or his legal representatives, to cross-examine witnesses or give evidence.

However, there should be some way in which the defendant can respond to the alleged breach. The magistrates' court has have no power to adjourn the proceedings and must consider, on the material before them, whether they are able to form one of the opinions set out in s. If the court feels unable to form one of the opinions set out in s. Proceedings under s. The issue for the court is whether there has been a breach and, if so, whether the defendant ought to be re-admitted to bail. The words "reasonable excuse" should not be imported into s.

In practice, Prosecutors should not ask courts to deny a defendant bail simply because he or she was arrested in pursuance of s. Where the defendant is arrested for a new offence and for breach of one or more bail conditions, the police must give consideration as to whether the breach of bail as well as the new offence should be placed before the court within 24 hours of the arrest. If this is possible, the suspect should be arrested for breach of bail as well, but must be placed before a magistrates' court within 24 hours, irrespective of the stage at which the investigation for the new offence has reached.

Where the nature of the investigation of the new offence is such that it is not practicable for the defendant to be placed before the court within 24 hours of an arrest for breach of bail, the police should delay the arrest under s.

Remands into Custody Length of Remand into Custody It should be remembered that these provisions should always be viewed as being subject to Custody Time Limits. Appearance by Live Link Preliminary hearings, including those considering bail, may be held via live video link and where live link is used, the defendant is deemed to be present - s. Warrants of further detention - pre charge: s.

Detention in a police station - post charge: s. Detention in police custody for drug offenders: s. Technical Bail Prosecutors are instructed not to consent to technical bail at magistrates' court or Crown Court hearings. The risks inherent in agreeing to technical bail are: If the defendant is released from his sentence or custodial remand before the conclusion of the proceedings for which technical bail is granted, a person who is likely to re-offend, abscond or present a risk to witnesses is released into the community without even the safeguards offered by conditions of bail being in place.

The risks are heightened in cases where the defendant is subject to recall to prison because the recall process can be lengthy, and it may not always be clear whether the defendant has been recalled for his original offence s when technical bail is being considered for the later matters.

Furthermore, a decision to recall may be successfully challenged before the conclusion of the criminal proceedings. In objecting to bail, prosecutors should point out to the court that: A defendant need not be granted bail if he is in custody in pursuance of the sentence of a court or of any authority acting under any of the Services Acts see Schedule 1 Part I paragraph 4, Part IA paragraph 6 and Part II paragraph 4 of the Bail Act ; The use of remands by prisoner to court video link PCVL will avoid the need to transport the defendant; There is no guarantee that defendants who are remanded in custody on other matters or who are serving prisoners would not be released before the conclusion of the instant proceedings.

Youth Remands The question of a remand will only arise where an adjournment is sought and therefore the first point to consider is whether or not the adjournment is necessary. Remands to Local Authority Accommodation If bail is refused to a child the court must remand him or her to local authority accommodation, s.

Local Authority Remand with Conditions The Court may impose any condition on the local authority remand that could be imposed under s. Remands to Youth Detention Accommodation Youths aged 10 and 11 can only be remanded to local authority accommodation.

Secure Accommodation Orders If a youth offender is remanded to local authority accommodation, the authority can separately apply to the Court for a Secure Accommodation Order.

Local Remands A custody officer, after charge, is under a duty to ensure that an arrested youth is moved to local authority accommodation, unless it is certified in the case of: a child who is aged 12 to 17 inclusive, that no secure accommodation is available and that keeping him in other local authority accommodation would not be adequate to protect the public from serious harm from him; or any child that, for the reasons specified on the certificate, it is impracticable to make the transfer s 38 6 PACE.

Prosecutors should contact the MCHS in advance of the first appearance to agree the information needed which will include: Details of the alleged offence, including a case summary and list of antecedents; Reports from at least two registered medical practitioners Details of the hospital where the defendant is being treated so that the MHCS can send the hospital the appropriate form to complete and ensure that they understand the process. Appeals in relation to Grant of Bail By the Prosecutor From the Magistrates Court Where a Prosecutor has applied for a defendant to be remanded in custody and the offence in relation to which the remand was sought was an imprisonable one, the prosecutor has a right of appeal to the Crown Court, under s.

Factors to Consider In considering whether an appeal is appropriate, the key factor to consider is the level of risk posed to a victim, group of victims or the public at large. The risk to the individual victim or victims may be shown to be greater where there is: A record which discloses previous convictions, particularly of a similar kind against the same victim or victims with similar characteristics; Evidence of violence or threats of violence to the victim or his or her family, or; Evidence of undue influence over the victim, for example where there are alleged sexual offences against young people or children.

Procedure Oral notice must be given to the court at the conclusion of the bail hearing and before the defendant is released - s. UK We use some essential cookies to make this website work. Accept additional cookies Reject additional cookies View cookies. Hide this message. Home Policing and crime prevention. Print this page. PACE codes of practice PACE sets out to strike the right balance between the powers of the police and the rights and freedoms of the public.

The PACE codes of practice cover: stop and search arrest detention investigation identification interviewing detainees Current versions of the codes Code Subjects covered Code A Exercise by police officers of statutory powers to search a person or a vehicle without first making an arrest and the need for a police officer to make a record of a stop or encounter Code B Police powers to search premises and to seize and retain property found on premises and persons Code C Requirements for the detention, treatment and questioning of suspects not related to terrorism in police custody by police officers.

Code D Main methods used by the police to identify people in connection with the investigation of offences and the keeping of accurate and reliable criminal records Code E Audio recording of interviews with suspects in the police station Code F Visual recording with sound of interviews with suspects - there is no statutory requirement on police officers to visually record interviews, but the contents of this code should be considered if an interviewing officer decides to make a visual recording with sound of an interview with a suspect Code G Powers of arrest under section 24 the Police and Criminal Evidence Act as amended by section of the Serious Organised Crime and Police Act Code H requirements for the detention, treatment and questioning of suspects related to terrorism in police custody by police officers.

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