Correct on the date of publication - 4 July 2025
Question:
Is there a duty to conduct reviews of detention, where the person is in custody for matters other than being suspected of committing an offence, e.g. breach of bail, breach of the peace? Likewise, what is the situation in respect of a person remanded to the police cells for three days (also known as a three day lie or lay down) under the provisions of the Magistrates Courts Act 1980?
Answer:
As per section 40(1) PACE, reviews of the detention of each person held in 'police detention' shall be carried out periodically in accordance with the provisions of that section.
A person is in police detention for the purposes of the Act if -
(a) he has been taken to a police station after being arrested for an offence or after being arrested under section 41 of the Terrorism Act 2000; or
(b) he is arrested at a police station after attending voluntarily at the station or accompanying a constable to it,
and is detained there or is detained elsewhere in charge of a constable, except that a person who is at court after being charged is not in police detention for these purposes (section 118(2) PACE).
Applying section 118(2), a person who is in custody in pursuance of arrest on warrant for non-payment of fine, for breach of a bail condition, or for a common law breach of the peace is not in police detention for the purposes of the Act. Similarly, a person in police custody in consequence of being produced under the Crime (Sentences) Act 1999 is not in police detention.
However, Code of Practice C (in particular note 15B) offers the advice that the detention of persons in police custody, not subject to statutory reviews, should still be reviewed periodically as a matter of good practice.
A person remanded to police cells under the provisions of section 128(7) Magistrates' Courts Act 1980 (remand to a police cell) is subject to reviews of detention. This arises because of section 128(8), which provides that where a person is committed to detention at a police station under section 128(7) -
(a) he shall not be kept in such detention unless there is need for him to be so detained for the purposes of enquiries into other offences;
(b) if kept in police detention, he shall be brought back before the magistrates' court which committed him as soon as the need ceases;
(c) he shall be treated as a person in police detention to whom the duties under section 39 of PACE apply (responsibilities to persons detained); and
(d) his detention shall be subject to periodic review at the times set out in section 40 of PACE.
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