17 February 2021
Not reviewed after the date of publication
We have been told where a review is conducted when the detainee is unavailable (i.e. asleep), we should only bring that review to their attention when an AA is present.
I am aware of the requirement to have Appropriate Adult present for extensions but cannot find any legal requirement in relation to Inspector reviews of detention. Please can you clarify?
Paragraph 3.15 of PACE Code C outlines that where a detainee is a juvenile, the custody officer must ensure that an appropriate adult is provided. This is confirmed by College of Policing guidance, which makes it clear that custody officers / staff should be calling an appropriate adult as soon as they have ascertained that they are dealing with a juvenile.
Paragraph 1.7A of Pace Code of Practice C outlines that the role of the appropriate adult is to safeguard the rights and welfare of juveniles in the following ways:
support, advise and assist them when, in accordance with this Code or any other Code of Practice, they are given or asked to provide information or participate in any procedure;
observe whether the police are acting properly and fairly to respect their rights and entitlements, and inform an officer of the rank of inspector or above if they consider that they are not;
help them to understand their rights and ensure that those rights are protected and respected.
An Inspectors review of detention involves consideration of the necessity of continued detention of the detainee, and whether bail / release would instead be a more appropriate and proportionate course of action. Whilst the extracts of the code cited above, in our opinion, make it clear that a review of detention is a matter that requires the presence of an appropriate adult, there are also further specific provisions, also contained in PACE Code C, that confirm that is the case.
Paragraph 15.3 of PACE Code C requires an Appropriate Adult and Solicitor to be given the opportunity to make representations about the continued detention, where they are available. The exact wording of the paragraph states:
'15.3 Before deciding whether to authorise continued detention the officer responsible under paragraph 15.1 or 15.2 shall give an opportunity to make representations about the detention to:
(a) the detainee, unless in the case of a review as in paragraph 15.1, the detainee is asleep;
(b) the detainee's solicitor if available at the time; and
(c) the appropriate adult if available at the time.
See Note 15CA'
Paragraph 15.3 makes it clear that the requirements contained within the paragraph, apply to those duties outlined in paragraph 15.1 and 2, including an Inspectors review. As stated in your email, a detainee being a juvenile may also be a consideration as to the form that a review must take, with this being referenced in paragraph 15.3B of Code C.
Consideration to a detainee being woken, is further referenced in Note 15C which highlights that whilst a detainee does not necessarily have to be woken for a review, where it is known that a review will fall at a time of rest then consideration may be given to conducting the review earlier, so as to allow for representations to be made:
'15C In the case of a review of detention, but not an extension, the detainee need not be woken for the review. However, If the detainee is likely to be asleep, e.g. during a period of rest allowed as in paragraph 12.2, at the latest time a review or authorisation to detention may take place, the officer should, if the legal obligations and time constraints permit, bring forward the procedure to allow the detainee to make representations. A detainee not asleep during the review must be present when the grounds for their continued detention are recorded and must at the same time be informed of those grounds unless the review officer considers the person is incapable of understanding what is said, violent or likely to become violent or in urgent need of medical attention.'
It would be our opinion that taking into account the above provisions and when dealing with a juvenile in custody, every effort should be made to conduct a review in the presence of an appropriate adult to avoid any risk of accusations regarding a breach of PACE arising. Should that mean that a review is to be conducted earlier than necessary, then it would be our opinion that would be advisable.
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