Police emergency charging decision overturned by CPS

26 February 2020

Not reviewed after the date of publication


A suspect's detention clock is nearing the 24 hour limit, meaning there is insufficient time to seek a CPS emergency charging decision. On that basis, an Inspector authorises a police emergency charge and the detainee is charged and refused bail, before expiry of the clock. On subsequent review, CPS overturns the decision, as further enquiries are required. As the detainee has now been in custody for over 24 hours, what would be the most appropriate way of dealing with them?


'Charging (The Director's Guidance) 2013' issued under section 37A of PACE sets out the circumstances in which it will be appropriate for the police to charge or otherwise deal with a suspect without reference to the Crown Prosecution Service. Section 20 of this guidance allows for 'emergency charging' and states:

'A Police Inspector may authorise the charging of an offence referable to prosecutors in accordance with this Guidance where the continued detention of the suspect after charge is justified and where it will not be possible to obtain a prosecutor's authority to charge before the expiry of any relevant PACE time limit applicable to the suspect. The police should anticipate the PACE custody time limits and seek a charging decision in good time. The police may apply the Threshold Test when charging under this provision. Any cases charged under this provision must be referred to a prosecutor as soon as possible following charge and not later than the time proposed for the first appearance before a magistrates' court.'

Following such a circumstance, the prosecutor is required to carry out a review of the case, as per section 21:

'The CPS will review all police charged cases prior to the first hearing in accordance with their duty under the Code for Crown Prosecutors. Where it appears that the police have charged a case not permitted by this Guidance, the reviewing prosecutor must consider whether the evidence and material available at that time fully meets the Threshold Test or Full Code Test relevant to the circumstances of the case.

Where it does not meet the appropriate Test, the prosecutor should immediately enquire if there is any other material available which has not been provided which may allow the case to continue.'

Section 24 outlines police compliance with this review and states:

'Where in a case that has been referred to a prosecutor for a charging decision the decision of the prosecutor is to charge, caution, obtain additional evidence, or take no action, the police will proceed in that way unless the case is escalated for management review.'

Therefore once the decision by the CPS has been taken, the police must follow the decision of the prosecutor and rescind the charge. PACE is silent as to the procedure to be taken with regards to the suspect and therefore, it is a matter of applying a logical approach, and if questioned, this ultimately would the matter for a court to decide.

In our view, as the PACE clock stopped when the charge was originally made, and there was still time on the clock, the clock should restart when the charge is rescinded. As such, it will then be the custody officer's decision (based on the circumstances of the case) whether to either:

1. Continue to authorise detention to preserve and secure evidence or obtain evidence by questioning by:

using whatever time remains of the 24 hour clock to complete the necessary enquiries (unlikely in the situation described); or

immediately seeking an extension under section 42, and possibly further extensions under section 43 and 44. Please note however, that section 42 of PACE only provides a power to extend the custody clock, within 24 hours after the relevant time. It cannot be used after the custody clock has expired.


2. Release the person from custody, either by way of bail (with or without conditions) or RUI.

It is our opinion that if the pre-conditions for bail are satisfied this may be the safest option to deal with the person but ultimately this will remain the decision of the custody officer.

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