Correct on the date of publication - 9 June 2025
Question:
Can a custody sergeant refuse to allow a detained person's representative to be present while their client is charged and bail conditions imposed without the representative being given the opportunity to make representations in respect of these matters?
Answer:
The manner in which a custody sergeant exercises the duties conferred upon him by section 38 of PACE (duties of a custody officer after charge) is not a matter for discussion, negotiation or legal representation. The decisions made and actions taken within the terms of section 38 by the custody officer are matters to be addressed and determined solely by the custody officer.
When the procedures contained in section 38 of PACE are conducted -
(i) the accused has no right to legal advice; and
(ii) neither he nor his representative has any legal right to make representations.
This does not prevent the custody officer from seeking the views of others, listening to people, or giving interested parties the opportunity to make representations, but whether he does so is at his discretion.
The right of a detained person or any solicitor representing him, who is available at the time to make representations, only applies before the determination of the review of a person's continued detention, (section 40(12)). Conducting charging procedures in the terms of section 38 of the Act does not amount to a review of detention for the purposes of section 40 of the Act. The consideration that, in conducting section 38 procedures, the custody officer considers the question of the detainee's detention does not make this element of the procedure 'a review of detention' for the purposes of section 40 of the Act.
View the full Legal Q&A document here, with links to related and similar legal questions.
For quick and easy access in the future, click the pin icon from the top right of any document to save it to 'My Documents'.
