17 June 2020
Not reviewed after the date of publication
A person arrested for an assault is refused detention at police station due to immediate medical treatment being required. The custody record was opened and then closed as detention was refused.
Could the suspect remain under arrest for the assault or does a refusal of custody detention effectively mean an immediate de-arrest?
A custody record must be opened for all detainees who arrive at the police station. If the custody officer believes that there are insufficient grounds for detention, they must record the reasons and release the detainee. The person does not remain under arrest if their detention is not authorised and it would be the decision of the custody officer to determine which course of action to take in accordance with section 37 of PACE; either to take 'No Further Action (NFA)' or 'Release Under Investigation (RUI)'.
The decision to take no further action is provided for in subsections 37(2), 37(6A), 37(6B) and 37(6C). It is our interpretation that at the point of deciding to NFA, the custody officer is either satisfied that there are no further lines of enquiry or confident to take the decision that no prosecution is to be taken with regards to the offence.
The decision to release under investigation is provided for in subsections 37(7)(b) or (c), 37(7A) and 37(8) of PACE. Our interpretation of these provisions is that a decision to release the suspect has been made but there are further lines of investigation to pursue in relation to the offence, and therefore the case is not closed. Subsection 37(8) states the suspect should be informed of the decision taken against them and are given a notice of this. 37(8ZA) provides that the custody officer must make a determination (at some point) whether to decide no further action, or take the prosecution forward.
We would advise that where possible, detainees who are sent to hospital for medical treatment are not released under investigation. There are specific procedures in place for dealing with people where detention is authorised and they require medical attention – see link below:
In such situations, the time spent in hospital can be excluded from the custody clock, as per section 41(6) of PACE:
'41(6) When a person who is in police detention is removed to hospital because he is in need of medical treatment, any time during which he is being questioned in hospital or on the way there or back by a police officer for the purpose of obtaining evidence relating to an offence shall be included in any period which falls to be calculated for the purposes of this Part of this Act, but any other time while he is in hospital or on his way there or back shall not be so included.'
Problems can be caused by not dealing with the suspect whilst initially in custody because once released there is no onus for the suspect to attend voluntarily, and re-arresting in order to interview, without fresh evidence, could be challenged.
Although the term is not used in the legislation, it is possible to essentially 'de-arrest' a person. A person should only be de-arrested if the arrest was unlawful and therefore there are no grounds to keep the person under arrest. This process is provided by section 30(7)-(9) of PACE:
'30(7) A person arrested by a constable at any place other than a police station must be released without bail if the condition in subsection (7A) is satisfied.
30(7A) The condition is that, at any time before the person arrested reaches a police station, a constable is satisfied that there are no grounds for keeping him under arrest.
30(8) A constable who releases a person under subsection (7) above shall record the fact that he has done so.
30(9) The constable shall make the record as soon as is practicable after the release.'
This process would not apply as presumably the grounds for arrest were valid.
In order to avoid limiting your options in continuing the investigation, or possibly losing evidence and preventing a prosecution taking place, we would advise that the appropriate procedure as outlined above, should be followed.
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