Is a delayed charge considered unlawful detention?

02 November 2020

Not reviewed after the date of publication

Question: 

A suspect was arrested and booked into custody, a charging decision was obtained and no further investigation was required or reason to detain existed. At this period, the custody suite was busy and a decision was made to deal with those waiting to be booked in before charge first. The suspect was eventually charged 6 hours later.

Is there a breach of PACE in these circumstances and could this be considered unlawful detention?

Answer:

PACE sets out to strike the right balance between the powers of the police and the rights and freedoms of the public. Its provisions seek to reflect this.

Section 37(7) states:

37(7) Subject to section 41(7) below, if the custody officer determines that he has before him sufficient evidence to charge the person arrested with the offence for which he was arrested, the person arrested -

(a) shall be -

(i) released without charge and on bail or

(ii) kept in police detention,

for the purpose of enabling the Director of Public Prosecutions to make a decision under section 37B below,

(b) shall be released without charge and without bail unless the pre-conditions for bail are satisfied,

(c) shall be released without charge and on bail if those preconditions are satisfied but not for the purpose mentioned in paragraph (a), or

(d) shall be charged.

Paragraph 16 of PACE Code C, gives guidance on the charging of detained persons (D10497 on PNLD). Although this provision and guidance does not stipulate a specific timeframe as to how long a suspect may be detained once the decision to charge has been taken and the actual charging of the suspect takes place, in our opinion, to accord with the spirit of PACE, this should be done expeditiously and without unnecessary delay. Although other factors in the custody suite may cause unavoidable delays, any time delay should be reasonable and justifiable,

In our opinion, detaining a person for 6 hours, once the decision to charge has been taken may not be deemed 'acting expeditiously' or 'acting in fairness' to the suspect, and therefore a claim of unlawful detention / breach potentially could be argued. It would then be a matter for the courts to determine based on the full facts of the case presented to them.

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