Arrest and Police Custody (England & Wales): 12 questions answered
Police can arrest you if they reasonably suspect you of an offence and arrest is necessary. In custody you have the right to free legal advice, to have someone told where you are, and to read the rules police must follow. Most people can be held for up to 24 hours before being charged or released.
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When can the police arrest me?
Under section 24 of the Police and Criminal Evidence Act 1984 (PACE), a police officer can arrest you if they have reasonable grounds to suspect you have committed, are committing or are about to commit an offence, and they reasonably believe arrest is necessary. Reasons for necessity include finding out your name or address, preventing injury, damage or loss, protecting a child or vulnerable person, allowing a prompt and effective investigation, or stopping you disappearing. If an interview could be done voluntarily instead, arrest may not be necessary.
What does the police caution mean?
The caution is: "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." It means you have the right to stay silent, but if you later rely in court on a fact you could reasonably have mentioned in interview, the court may draw an adverse inference under section 34 of the Criminal Justice and Public Order Act 1994. Anything you say can be used as evidence.
What happens when I arrive at the police station after arrest?
You are taken to a custody officer, usually a sergeant who is not involved in the investigation. They decide whether there are grounds to detain you, open a custody record, tell you why you were arrested and explain your rights, giving you a written notice. They will ask about your health and any risks, may search you and will list your property. You will be asked if you want free legal advice and whether you want someone told you are there. You can ask for a copy of your custody record later.
What are my rights in police custody?
You have three main rights: to consult a solicitor privately and free of charge, to have someone told that you have been arrested and where you are, and to read the PACE Codes of Practice, which set the rules police must follow. You should also be given information about your rights, access to toilets, food, drink and rest, and medical help if needed. You can usually ask for writing materials and a phone call. Some rights can be delayed in serious cases, but only with senior authorisation.
How long can the police keep me in a cell?
Police can normally hold you for up to 24 hours from arriving at the police station before they must charge or release you. For an indictable offence (one that can be tried in the Crown Court), a superintendent can extend this to 36 hours. After that, police must apply to a magistrates' court, which can authorise further detention up to a maximum of 96 hours in total. Different rules apply under terrorism legislation, which allows detention for up to 14 days with court approval. Being released does not always mean the case is over.
What is a detention review?
While you are held without charge, an inspector not involved in the investigation must review whether your detention is still justified. Under section 40 of PACE, the first review must be no later than 6 hours after detention was first authorised, then at intervals of no more than 9 hours. You, or your solicitor, can make representations at a review, for example that the police already have enough to decide or that you should be released. The review officer must record the decision and the reasons for it.
What if I need medical help or medication in police custody?
Tell the custody officer about any illness, injury, medication, mental health condition or other needs as soon as possible. Under PACE Code C, the custody officer must make sure you get appropriate clinical attention, usually from a healthcare professional working in custody, and in an emergency you should be taken to hospital. Medication can be given in custody, though police may need to check it first. A healthcare professional can also advise whether you are fit to be detained or interviewed. Your needs should be written on your custody record.
Can police take my fingerprints, DNA and photo?
Yes. If you are arrested for a recordable offence (most offences that can lead to prison, and some others), police can take your fingerprints, a non-intimate DNA sample such as a mouth swab, and your photograph without your consent under sections 61, 63 and 64A of PACE. They can use reasonable force if needed. Intimate samples, such as blood, need your written consent and senior authorisation, although refusing without good cause can be used against you in court. Police may also take footwear impressions.
How long do police keep my DNA and fingerprints if I'm not charged?
Under the Protection of Freedoms Act 2012, if you are not charged, or you are charged and acquitted, your DNA profile and fingerprints are usually deleted. Exceptions include some serious sexual or violent offences, where they can be kept for three years (sometimes extended) in certain circumstances. If you are convicted as an adult of a recordable offence, they are normally kept indefinitely. Custody photographs are handled differently and may be kept for longer, but you can ask for deletion. ACRO runs a process for applying for early deletion of records.
Can the police search my home after arresting me?
Yes, in some circumstances, without a warrant. Under section 18 of PACE, after arrest for an indictable offence, police can search premises you occupy or control if they have reasonable grounds to suspect there is evidence of that or a similar offence. This usually needs written authorisation from an inspector. Under section 32, they can also search premises where you were when arrested, or immediately before, for evidence of the offence. Police can also search with a warrant or your consent. Searches must follow PACE Code B.
Is going to the police station voluntarily different from being arrested?
Yes. A voluntary interview, sometimes called voluntary attendance, means you are not under arrest and are free to leave at any time, unless police then decide to arrest you. You must be told this, cautioned before questioning and told you can get free legal advice. You are not held in a cell or processed by a custody officer in the same way. However, the interview is just as serious as one after arrest and can be used as evidence. Police may arrest you if they believe arrest has become necessary.
What is an appropriate adult and who needs one?
An appropriate adult is someone who helps a child (under 18) or a vulnerable adult understand what is happening in custody, supports their welfare and helps them communicate. Under PACE Code C, they must usually be present for important steps, such as being told of rights, interview and strip searches. It can be a parent, guardian, social worker or trained volunteer, but not a police officer or someone involved in the case. An appropriate adult is not a lawyer, and conversations with them are not legally privileged, so a solicitor is still important.
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