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Detention of suspects is the process of keeping a person who has been arrested in a police-cell, prison or other detention centre before trial or sentencing.

Detention before charge

Pre-charge detention refers to the period of time that an individual can be held and questioned by police, prior to being charged with an offence.² Not all countries have such a concept, and in those that do, the period for which a person may be detained without trial varies from jurisdiction to jurisdiction.³

England and Wales

Where a person is arrested for an offence, they will be taken to a police station. The Custody Officer at that police station must determine whether he has sufficient evidence to charge the detainee for the offence and may keep the detainee in custody until he can make this decision.⁴ The Custody Officer has sufficient evidence if he has sufficient evidence to provide a reasonable prospect of conviction.⁵ If the Custody Officer determines that he does have sufficient evidence, he must charge the person or release him.⁶ If he determines he does not have enough evidence to charge him he must release him unless he has reasonable grounds for believing that his detention without being charged is necessary to secure or preserve evidence relating to an offence for which he is under arrest or to obtain such evidence by questioning him.⁷

Time limits

In terrorism cases, a person may be detained for up to a maximum of 28 days.⁸ The United Kingdom's Home Secretary, Jacqui Smith has proposed that the period of for which detention without charge is lawful should be extended from 28 to 42 days.⁹ The initial passing of this legislation on 11 June 2008 in the House of Commons prompted the then Shadow Home Secretary, David Davis, to resign as an MP and conduct a by-election campaign on the issue. The legislation now passes to the House of Lords for a final vote on whether it will become law. If it passes this stage, then it will be given to the Queen (Elizabeth II) for Royal Assent.

Otherwise (and subject to exceptions), a person may be detained for a maximum of 96 hours from the relevant time (normally the time an arrested person arrives at the first police station that he is taken to)¹⁰, in line with the following restrictions:

On expiry of the time limit, the arrested person must be released, either on or without police bail¹³ and may not be rearrested without warrant for the same offence unless new evidence has come to light since the original arrest.¹³¹⁴¹⁵

Detention after charge

England and Wales

Time limits

Following charge, a person may be detained in custody pending their trial or during their trial before sentencing.

Immediately after charge, if the detainee is not released (either on police bail or without bail), he must be brought before a Magistrates' Court as soon as is practicable (first appearance).¹⁶. From this point, the following time limits apply¹⁷, unless extended by the court¹⁸:

Treatment in detention

England and Wales

The treatment of suspects held in detention is governed by Code H to the Police and Criminal Evidence Act 1984 in the case of suspects related to terrorism and by Code C in other cases. It is generally the responsibility of a designated Custody Officer to ensure that the provisions of the relevant Code and of the Police and Criminal Evidence Act 1984 are not breached.²⁰

In particular, a person detained has the following rights; and must be informed of these rights at the earliest opportunity:

• to have one friend or relative or other person who is known to him or who is likely to take an interest in his welfare told that he has been arrested and where he is being detained²¹; and
• to consult a solicitor²²;

Searches in detention

England and Wales

Non-intimate searches

The Custody Officer must record everything which an arrested person has with him at the police station and may search a person to the extent that he considers it necessary to do so. The Custody Officer may seize anything, but may only seize clothes or personal effects if the Custody Officer:

• believes that the person from whom they are seized may use them—
  • to cause physical injury to himself or any other person;
  • to damage property;
  • to interfere with evidence; or
  • to assist him to escape; or
• has reasonable grounds for believing that they may be evidence relating to an offence.²³

An Inspector also has a limited power to order a search of an arrested person in order to facilitate establishing the identity of a person, particularly by discovering tattoos or other marks.²⁴

Where such a search requires more than the removal of the arrested person's outer clothing, the provisions of Code C to the Police and Criminal Evidence Act 1984 relating to strip searches apply.

Intimate searches

An intimate search is a search of the bodily orifices (other than the mouth). It should be conducted by a suitably qualified person unless this is impracticable and done in the presence of two other people. An intimate search requires the authorisation of an inspector and may only be made in one of the following circumstances:²⁵

Bail

Main article: bail

The term remand may be used to describe the process of keeping a person in detention rather than granting bail. A prisoner who is denied, refused or unable to meet the conditions of bail, or who is unable to post bail, may be held in a prison on remand. Reasons for being held in custody on remand vary depending on the local legal system, but may include:

• the suspect has been accused of carrying out a particularly serious offence
• the suspect having previous convictions for similar offences
• reasons to believe the suspect could leave the court's jurisdiction to avoid its trial and possible punishment
• reasons to believe the suspect may destroy evidence or interfere with witnesses
• the suspect is likely to commit further offences before the trial
• the suspect is believed to be in danger from accomplices, victims, or vigilantes

In most countries, remand prisoners are considered innocent until proven guilty by a court and may be granted greater privileges than sentenced prisoners, such as:

• wearing own clothes rather than prison uniform
• voting in elections
• being entitled to additional visiting hours per week
• not being required to complete prison-related work or education

Although remanded prisoners are usually detained separately from sentenced prisoners, due to prison overcrowding they are sometimes held in a shared accommodation with sentenced prisoners.

See also

• Powers of a Law Enforcement Agency
• Nightwalker Statute

References