Detention of suspects
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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 |
| United States | 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]
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 |
| ||
| Review Officer[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 |
| 36 hours from the relevant time[14] | |
| Magistrates' Court |
| 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 unlawfully. The right to have one's detention reviewed by a judge is called 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.
The Fifth Amendment to the United States Constitution states in part:
- No person shall be held to answer for any capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; ... nor be deprived of life, liberty, or property, without due process of law;
The Sixth Amendment requires criminal defendants to be "informed of the nature and cause of the accusation".
The Bill of Rights thus grants some protection against being held without criminal charge, subject to the courts' interpretation of what due process means. Federal authorities have also exercised the power to arrest people on the basis of being a material witness. Involuntary commitment of the mentally ill is another category of detention without criminal prosecution, but the right of habeas corpus still applies. The scope of such detentions is also limited by the Bill of Rights, and the practice is controversial, especially when applied to sex offenders.
The executive's military powers have been used to justify holding enemy combatants as prisoners of war, unlawful combatants, and Civilian Internees; the latter two practices have been controversial, especially with regard to the indefinite detention implied by uncertainty as to when the "War on Terror" might be declared to have ended. Administrative detention, a term applied to many of these categories, is also used to imprison illegal immigrants,
Detention after charge
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.
The Eighth Amendment to the United States Constitution prohibits excessive bail.
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
| 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
| 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. |
See also
References
- ^ 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
- ^ http://www.britannica.com/bps/additionalcontent/18/33934054/Certain-Justice-Japans-Detention-System-and-the-Rights-of-the-Accused
- ^ 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
- ^ 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
- ^ Police and Criminal Evidence Act 1984, section 39 (1).
- ^ Code C to the Police and Criminal Evidence Act 1984, para 11.5.
- ^ Police and Criminal Evidence Act 1984, section 39 (7).
- ^ Police and Criminal Evidence Act 1984, section 39 (2).
- ^ Terrorism Act 2000, Schedule 8
- ^ BBC (2007-12-07), Smith plays the numbers game, http://news.bbc.co.uk/1/hi/uk_politics/7132527.stm, retrieved 2007-12-09
- ^ a b c d Police and Criminal Evidence Act 1984, section 41
- ^ Police and Criminal Evidence Act 1984, section 37
- ^ a b Police and Criminal Evidence Act 1984, section 40
- ^ a b c Police and Criminal Evidence Act 1984, section 42
- ^ a b c Police and Criminal Evidence Act 1984, sections 43 and 44
- ^ Police and Criminal Evidence Act 1984, section 46
- ^ SI 1987 No. 299. Prosecution of Offences (Custody Time-limits) Regulations 1987
- ^ 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).
- ^ Crime and Disorder Act 1998, section 51
- ^ Police and Criminal Evidence Act 1984, section 39.
- ^ Police and Criminal Evidence Act 1984, section 56.
- ^ Police and Criminal Evidence Act 1984, section 58.
- ^ Police and Criminal Evidence Act 1984, section 54.
- ^ Police and Criminal Evidence Act 1984, section 54A.
- ^ Police and Criminal Evidence Act 1984, section 55.
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