Suspect in custody and charging for another offence

16 August 2021

Not reviewed after the date of publication

Question:

If a suspect were arrested for offence A and brought into custody, could they be charged on the threshold test with another offence, offence B, without being under arrest for offence B?

Answer:

A suspect cannot be charged for an offence in person unless they are under arrest and in custody for that offence. Section 37 of PACE makes provisions in relation to the Custody Officer's decision to charge and refers specifically to a person arrested for the offence in question. Without arresting, the options for dealing with offence B would therefore be to:

report the person for summons under Rule 99 of the Magistrates' Courts Rules 1981, or

issue a 'written charge and requisition' or 'written charge and single justice procedure notice' under section 29 of the Criminal Justice Act 2003.

With regards to method two, there does not appear to be any legislative provision that would prevent a 'written charge and requisition' or 'written charge and single justice procedure notice' from being issued in person, whilst the suspect is in custody. For a written charge to be served it must be issued pursuant to the methods of service outlined in rule 4 of the Criminal Procedure Rules, which includes rule 4.3 and allows for service by handing over a document to the relevant individual. Therefore, although section 37 PACE precludes a suspect from being charged for an offence they are not under arrest and in custody for, in our view this does not preclude a written charge (that would otherwise be served by way of postal requisition) being served on the suspect during the period that they are in custody for the secondary offence.

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