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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.

Contents

Detention before charge

Jurisdiction Maximum period
a person may be
detained without charge[1]
Australia 12 days
Canada 1 day
Denmark 3 days
France 6 days
Germany 2 days
Italy 4 days
Japan 23 days[2]
Malaysia 2 years
New Zealand 2 days
Norway 3 days
Philippines 1.5 days
Ireland 7 days
Russia 5 days
South Africa 2 days
Spain 5 days
Turkey 7.5 days
United Kingdom 28 days, see below
USA 2 days
Ukraine 3 days (72 hours)

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.[3] 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.[4]

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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.[5] The Custody Officer has sufficient evidence if he has sufficient evidence to provide a reasonable prospect of conviction.[6] If the Custody Officer determines that he does have sufficient evidence, he must charge the person or release him.[7] 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.[8]

Time limits

In terrorism cases, a person may be detained for a maximum of 28 days.[9] The United Kingdom's Home Secretary, Jacqui Smith proposed that the period of for which detention without charge is lawful should be extended from 28 to 42 days (see Counter-Terrorism Bill 2008).[10] 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 was defeated in the House of Lords.

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)[11], in line with the following restrictions:

Authorising person Test to be applied Requirement for review Maximum limit
Custody Officer
  • insufficient evidence to charge the arrested person and
  • 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[12]
Review Officer[13]
  • insufficient evidence to charge the arrested person and
  • 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[13]
6 hours after the decision to detain or 9 hours after the last review 24 hours from the relevant time[11]
Superintendent or above
  • the Review Officer has made two reviews
  • 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
    • offence for which he is under arrest is an indictable offence
    • investigation is being conducted diligently and expeditiously[14]
36 hours from the relevant time[14]
Magistrates' Court
  • application made on oath by a constable
  • satisfied that there are reasonable grounds for believing that
    • his detention without charge 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;
    • an offence for which he is under arrest is an indictable offence; and
    • the investigation is being conducted diligently and expeditiously.[15]
The Magistrates' Court can only grant or extend a warrant for up to 36 hours. 96 hours from the relevant time[15]

On expiry of the time limit, the arrested person must be released, either on or without police bail[11] and may not be rearrested without warrant for the same offence unless new evidence has come to light since the original arrest.[11][14][15]

United States

In the United States, a person is protected by the Constitution from being held in prison without being charged for a crime, referred to as the right to habeas corpus. The Constitution states the following: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it". A declaration of a state of emergency can suspend the right to habeas corpus.

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 apply[17], unless extended by the court[18]:

Offence type Mode of trial Limit in Magistrates' Court Limit in Crown Court
Summary only Summary trial First appearance to trial: 56 days
Either way Summary trial First appearance to trial: 56 days
Either way Trial on indictment First appearance to committal: 70 days Committal to trial: 112 days
Indictable only Trial on indictment Sent to Crown Court forthwith[19] Sent from Magistrates' Court to trial: 182 days

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 detained[21]; and
  • to consult a solicitor[22];

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]

Condition Consent Place
The inspector reasonably believes
  • that the detainee has concealed on him anything he could use and might use in police detention or custody of the court to cause physical injury to himself or others; and
  • that the article in question cannot be found unless the detainee is intimately searched.
Consent is not necessary for the search to take place and reasonable force may be used to conduct the search. Police station, hospital, surgery or other medical premises.
The inspector reasonably believes
  • that the detainee may have a Class A drug concealed on him;
  • that the detainee was in possession of the drug before his arrest with intention to illegally supply or export it; and
  • that it cannot be found unless the detainee is intimately searched.
Consent for the search is necessary. If the detainee refuses to give consent, proper inferences may be drawn but force may not be used. Hospital, surgery or other medical premises.

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

References

  1. ^ Liberty Human Rights (PDF), Pre-charge Detention Comparative Law Study, http://www.liberty-human-rights.org.uk/issues/pdfs/pre-charge-detention-comparative-law-study.pdf, retrieved 2008-07-22  
  2. ^ http://www.britannica.com/bps/additionalcontent/18/33934054/Certain-Justice-Japans-Detention-System-and-the-Rights-of-the-Accused
  3. ^ Liberty Human Rights, Extension of Pre-Trial Detention, http://www.liberty-human-rights.org.uk/issues/2-terrorism/extension-of-pre-charge-detention/index.shtml, retrieved 2007-12-09  
  4. ^ Liberty Human Rights (PDF), Terrorism Pre-Trial Detention: Comparative Law Study Executive Summary, http://www.liberty-human-rights.org.uk/issues/pdfs/comparative-law-exec-summary.pdf, retrieved 2007-12-09  
  5. ^ Police and Criminal Evidence Act 1984, section 39 (1).
  6. ^ Code C to the Police and Criminal Evidence Act 1984, para 11.5.
  7. ^ Police and Criminal Evidence Act 1984, section 39 (7).
  8. ^ Police and Criminal Evidence Act 1984, section 39 (2).
  9. ^ Terrorism Act 2000, Schedule 8
  10. ^ BBC (2007-12-07), Smith plays the numbers game, http://news.bbc.co.uk/1/hi/uk_politics/7132527.stm, retrieved 2007-12-09  
  11. ^ a b c d Police and Criminal Evidence Act 1984, section 41
  12. ^ Police and Criminal Evidence Act 1984, section 37
  13. ^ a b Police and Criminal Evidence Act 1984, section 40
  14. ^ a b c Police and Criminal Evidence Act 1984, section 42
  15. ^ a b c Police and Criminal Evidence Act 1984, sections 43 and 44
  16. ^ Police and Criminal Evidence Act 1984, section 46
  17. ^ SI 1987 No. 299. Prosecution of Offences (Custody Time-limits) Regulations 1987
  18. ^ On the basis that the prosecution has acted with all due diligence and expedition and there is good and sufficient cause for doing so: Prosecution of Offences Act 1985, section 22 (3).
  19. ^ Crime and Disorder Act 1998, section 51
  20. ^ Police and Criminal Evidence Act 1984, section 39.
  21. ^ Police and Criminal Evidence Act 1984, section 56.
  22. ^ Police and Criminal Evidence Act 1984, section 58.
  23. ^ Police and Criminal Evidence Act 1984, section 54.
  24. ^ Police and Criminal Evidence Act 1984, section 54A.
  25. ^ Police and Criminal Evidence Act 1984, section 55.

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