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This briefing forms part of a series about police powers. The breifing police powers: an introduction provides an overview of police powers and links to other relevant breifings.

The police have powers, set out in part IV and part V of the Police and Criminal Evidence Act 1984 (PACE), to detain those they have arrested on suspicion of committing a crime. The detention of a suspect is often crucial to a police investigation. It allows officers to question them and collect their biometric details. This information helps the police to determine whether to charge a suspect with a crime.

The police also have powers to detain adults for their own (or other’s) safety under section 136 of the Mental Health Act 1983. However, adults detained under section 136 of the 1983 Act can only be held in a police station in exceptional circumstances.

The police have separate powers to detain those suspected of terrorism offences under Part V and Schedule 8 of the Terrorism Act 2000.

The police detain people in custody suites which are normally situated within large police stations. There are around 200 custody suites across England & Wales. Individual police forces are responsible for how many custody suites they have and where they are situated.

Her Majesty’s Inspectorate of Constabulary, Fire & Rescue Services (HMICFRS) and Her Majesty’s Inspectorate of Prisons (HMIP) jointly inspect police custody. They measure forces against their expectations for police custody. They also monitor compliance with statutory guidance on detention powers (PACE Code C) and College of Policing (the body responsible for professional standards in policing) guidance on detention and custody.

Vulnerable people in custody

There have been longstanding concerns with the delivery of police custody and particularly the treatment of vulnerable people in custody.

In 2015 HMICFRS (then HMIC) published a thematic inspection of the welfare of vulnerable people in police custody, which was followed in 2017 by Dame Elish Angiolini independent review into deaths and serious incidents in police custody. Both Dame Elish and HMICFRS recommended major changes to the police’s approach to vulnerable people and suggested that other public services should play a greater role in caring for vulnerable people who come into contact with the police.

Since Dame Eilish’s Review the Government have legislated to minimise the use of police custody for those with severe mental health needs. They asked the College of Policing to revise its guidance on detention and custody and are working to ensure that every custody suite has access to ‘liaison and diversion services’ for those with mental health needs or substance addiction.

Despite significant political scrutiny on custody since Dame Elish’s Review, concerns have persisted. HMICFRS and HMIP have said that “most forces” have “started to improve their custody services” but they remained concerned with a number of aspects of the delivery of custody including: outcomes for vulnerable detainees, staffing levels and the way in which forces record information about those who enter police custody and their time spent there.

Pre-charge bail

Reforms to pre-charge bail (sometimes known as police bail) implemented in 2017 have come under strong criticism from stakeholders across the criminal justice system.

Pre-charge bail is used to release some suspects who cannot be charged whilst they are detained at a police station. Whilst on pre-charge bail, they must report to the police when asked and may be subject to specific conditions about where they can go and who they can associate with.   

The 2017 reforms were designed to reduce both the number of people on pre-charge bail and the length of time they are subject to it. It was hoped that by reducing the use and length of pre-charge bail police investigations would become more focused and the rights of un-convicted suspects would be better protected.

There are no official statistics on the use of pre-charge bail. However, data released through FOI requests showed a reduction in the use of the power of 84% between 2016/17 and 2017/18 across 30 English and Welsh police forces. 

There have been serious concerns that the substantial reduction in the use of pre-charge bail is putting vulnerable victims and witnesses at risk. There have also been concerns that the preferred alternative to police bail: ‘released under investigation’, is not adequately protecting the rights of un-convicted suspects. The Government has opened a public consultation on several specific legislative and non-legislative proposals designed to further reform police bail and address these concerns. The consultation will closed on 29 May 2020. The Government is expected to respond in early 2021.

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