Is a charge for an offence invalid where a person was kept in police detention for over 24 hours?

29 June 2020

Not reviewed after the date of publication

Question:

A person was arrested for failing to attend on police bail and incorrectly a fresh custody record was opened on their arrival at the custody suite. The suspect had a few hours left on his PACE clock for the original offence, which expired a couple of hours before he was interviewed and subsequently charged.

What are the implications of this error?

Answer: 

Section 34(7) of PACE stipulates that an individual being arrested for breach of bail under section 46A, is to be treated as arrested for the original offence, meaning the original record should be re-opened and time remaining on the original clock used.

Without extensions, the maximum time a person can be kept in police detention without being charged is 24 hours, as provided by section 41(1) of PACE. The time taken to charge and remand/bail the person would be included in this 24 hour detention limit. Where it is considered necessary to detain a person for longer than 24 hours, an authorisation must be granted in accordance with section 42 - superintendents extension for further 12 hours, then section 43 - warrant for further extension.

Leeds University gave their opinion on this and it is as follows:

'The practical response to the problem of running out of time is to emphasise to officers that the time limits are enforced rigorously and the Courts rightly put a very high value on personal liberty. Even the final processing of prisoners should be completed within the time limits.'

Where the detention provisions of section 41 have been breached by running over the 24 hour period, the detainee will have cause for complaint. However, please see the case of DPP v Park 2002 where it was held that unlawful detention does not necessarily invalidate criminal proceedings, but the suspect could pursue an application to stop the criminal proceedings for abuse of process.

Should a challenge be made it would ultimately be for the court to decide.

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