Advising clients at the police station - Rights of a suspect...

Learning Outcomes

This article examines advising clients at the police station and suspects’ rights under PACE 1984 Code C, including:

• Legal and procedural rights of suspects in police detention under PACE 1984 Code C and the roles of custody officers and review officers
• Statutory scheme for initial and extended detention periods, detention reviews, and consequences of non-compliance
• Right to free and independent legal advice: delay, waiver, and implications of wrongful denial
• Requirements for informing a nominated person of the suspect’s detention and the grounds for delay or refusal
• Protections and interview safeguards for juveniles and vulnerable adults, including the appropriate adult scheme and consequences of breaches
• Operation of the right to silence and the statutory framework for adverse inferences, client options, and impacts on subsequent proceedings
• Strategies for inspecting custody records, identifying procedural breaches, and effects on evidential admissibility
• Professional responsibilities in the police station: confidentiality, conflicts of interest, client admissions, and withdrawal of representation

SQE1 Syllabus

For SQE1, you are required to understand the rights of suspects in police detention and the framework for advising clients at the police station under PACE 1984 Code C, with a focus on the following syllabus points:

• the right to legal advice in police detention—nature, exercise, delay, and waiver procedures under PACE s.58 and Code C
• entitlement to have someone informed of arrest—PACE s.56, possible delay/refusal and safeguarding the suspect’s interests
• the maximum lawful periods for police detention without charge, authorisation for extensions, and the detention/review “clock”
• periodic review of the lawfulness of continued detention by independent officers
• the duties, powers, and responsibilities of custody and review officers; construction and content of custody records
• rules, safeguards, and practical implications for young and vulnerable suspects: the appropriate adult scheme, fitness for interview, and Code C (esp. Annex E)
• the right to silence in interview, statutory cautions under PACE and the Criminal Justice and Public Order Act 1994, and the potential for adverse inferences
• professional conduct in the police station (including issues of client admissions, withdrawing from representation, and confidentiality)
• the solicitor’s options for client interview strategy: answering, silence, prepared statements, partial responses
• evidential consequences of breaches: exclusion of evidence, s.76 and s.78 PACE
• distinguishing procedures for voluntary and compulsory attendance at the police station

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. What is the maximum period a suspect can be detained at a police station without charge for an indictable offence, and who can authorise extensions?
2. When can the right to legal advice be delayed, and who must authorise such a delay?
3. Who qualifies as an appropriate adult for a juvenile suspect, and what is their role during police interviews?
4. What are the main options a solicitor should discuss with a client regarding answering police questions in interview?

Introduction

The detention of a suspect at a police station marks an important juncture in a criminal investigation, with significant consequences for due process, evidential validity, and a suspect’s rights. The rules contained in the Police and Criminal Evidence Act 1984 (“PACE”) and especially Code C, together with related Codes of Practice and human rights considerations, structure what the police are permitted to do, the manner in which evidence must be obtained, and the level of protection afforded to those suspected of criminal wrongdoing. Breaches of these safeguards may lead to the exclusion of evidence, inadmissible confessions, and, in some circumstances, abuse of process arguments. In this section, we examine the practical application of PACE 1984 Code C, focusing on the rights of the suspect, the legal mechanisms for custody and interview, periods and review of detention, and the special protections for juveniles and vulnerable adults.

Key Term: actus reus
The physical element of a criminal offence, which includes positive acts, omissions, or a state of affairs, required by a particular offence.

Key Term: mens rea
The mental element or “guilty mind” required by the offence, such as intention or recklessness.

Rights of a Suspect in Police Detention

The Role of the Custody Officer

Upon arrival at the police station, a suspect must be brought before a custody officer without delay. The custody officer (usually of at least sergeant rank and not involved in the investigation) is responsible for authorising and reviewing the lawfulness of detention, informing the suspect of their legal rights and entitlements, carrying out risk assessments, arranging for interpreters or appropriate adults if needed, and supervising the welfare of detainees. The custody officer must open and maintain a custody record, document every key event during the detention, and ensure all statutory and Code C requirements are followed.

Key Term: custody officer
A police officer (minimum rank: sergeant), independent of the investigation, responsible for the authorisation and supervision of detention and welfare of suspects held at a police station.

The Custody Record

A custody record is essential for documenting the circumstances of a suspect’s arrest and detention. It will include: the time of arrest and arrival; the reasons for detention and its authorisation; the suspect’s personal details; rights given and whether they were exercised; details of risk assessment and health issues; information on significant statements or silences; the timing of reviews; property taken from the suspect; complaints made; and any involvement of solicitors, interpreters or appropriate adults. This acts as a contemporaneous document providing evidence of compliance with legal requirements and is critical in subsequent assessment of the lawfulness of detention.

Suspects (or their solicitors/appropriate adults) can inspect their custody record at any time during detention and may request a copy on release.

Key Term: custody record
The running and contemporaneous official record of a detainee’s treatment from entry to release, containing essential details, rights exercised, decisions taken, reviews, and any significant event affecting the suspect.

The Right to Legal Advice

A detainee has a statutory right to consult a solicitor privately at any stage while being held by the police (PACE s.58, Code C). This right is fundamental and must be clearly explained on arrival, before any interview, and at further key stages (such as after an arrest on voluntary attendance). Legal advice can be provided by telephone or in person, and is offered free of charge under the Legal Aid Agency’s Police Station Advice and Assistance Scheme, regardless of means or the seriousness of the offence.

A suspect cannot be lawfully interviewed unless they have been given the opportunity to exercise this right, unless an exception applies (see below).

Key Term: right to legal advice
The statutory right of a person in police detention to consult privately with a solicitor of their choice at any time, typically without payment, for the purpose of receiving legal advice and representation.

Delaying Access to Legal Advice

Delay of access to legal advice is allowed only in rare and exceptional circumstances, and only if authorised by an officer of superintendent rank or above (for interviews, the threshold is “inspector” level, but for general delay of the right, it is baseline superintendent). The suspect must have been arrested for an indictable offence, and there must be reasonable grounds to believe that allowing access would:

• lead to interference with, or harm to, evidence or others,
• allow other suspects not yet arrested to be alerted,
• hinder recovery of property or proceeds of crime,

and there is no viable alternative to achieve the aims of the investigation in a fair and proportionate manner. The maximum period for which access to legal advice can be delayed is strictly 36 hours from the ‘relevant time’ (as defined by PACE). The reasons for the delay, the officer authorising it, and the circumstances must be clearly recorded and explained to the detainee. When the basis for delay no longer exists, access must be granted without further delay.

The right to legal advice cannot be denied or delayed simply because a solicitor might advise their client to remain silent. If legal advice is improperly delayed or refused, any confession or evidence obtained is potentially inadmissible due to unreliability or unfairness.

Waiver of the Right and Change of Mind

A suspect may choose to waive their right to legal advice, but strict procedures must apply. The decision to proceed with a police interview without legal advice, particularly after a request for advice has been made, must be confirmed in writing by the suspect and authorised by an officer of inspector or above. The suspect’s reasons must be documented in the custody record, and the right to legal advice may be exercised at any point subsequently.

Key Term: waiver of legal advice
The voluntary decision by a detainee, properly informed of their rights, to waive the statutory right to legal advice, documented in the custody record and subject to heightened procedural safeguards.

The Right to Have Someone Informed of Arrest

PACE s.56 entitles a suspect to have a friend, relative, or other person (who is likely to take an interest in their welfare) informed as soon as practicable after arrest and before interview. This is commonly referred to as the “right of intimation.” The chosen person is notified of the arrest, the reason, and the location of detention. The suspect may nominate up to two alternatives if the initial nominee is unavailable.

This right is also subject to delay, but the threshold is lower: an inspector (or above) may authorise delay for up to 36 hours only (in respect of those arrested for indictable offences) and only on the same strict criteria as above—risk of interference with evidence, harm to others, alerting associates or suspects, or hindering recovery of property.

If this right is exercised improperly, or delay is wrongly authorised or not justified, evidence obtained may be ruled unfair and excluded at trial.

Key Term: right to have someone informed of arrest
The right of a detained person to have a nominated person notified of their arrest and location of detention as soon as practicable.

Detention Time Limits and Reviews

PACE provides for strict limits on the total time police can lawfully detain a suspect before charging them. The “detention clock” normally begins at the time of arrival at the police station (or at the time of a post-arrest “street bail” appearance, or a post-voluntary attendance arrest).

• For summary-only offences, the maximum period is 24 hours.
• For indictable offences (indictable-only or either-way), initial detention is up to 24 hours from arrival. This period can be extended by a superintendent or above to 36 hours if necessary to secure/preserve evidence and if the investigation is being conducted diligently and expeditiously.
• Further detention beyond 36 hours (and up to a maximum of 96 hours total) is only possible with a magistrates’ court warrant, and only in relation to indictable offences. The application must be made in open court, with opportunity for the suspect’s legal representative to make submissions, and the court must be satisfied the extension is justified.

At each extension or review, the grounds and lawfulness of detention must be carefully scrutinised.

Key Term: relevant time
The point at which the detention clock starts, usually on arrival at the police station following arrest.

Key Term: detention review
The process by which an officer of at least inspector rank (not involved in the investigation) must periodically review whether continued detention is justified—even before the initial 24 hours expires.

• The first review must occur no later than six hours after detention is authorised.
• Subsequent reviews must occur no later than nine hours after the preceding review.
• If reviews are missed, detention beyond the last valid review is unlawful, and the detainee must be released.

These requirements are mandatory, and any failure can result in evidence being ruled inadmissible and exposes the force to civil liability (tort of false imprisonment).

Protections for Vulnerable Suspects

Particular care must be taken where the suspect is a juvenile (under 18) or a vulnerable adult: Code C requires additional safeguards.

Key Term: juvenile
Any person who, in the absence of clear evidence of age to the contrary, appears to be under the age of 18.

Key Term: vulnerable person
Someone who, due to a mental health condition, learning disability, communication difficulty, or similar impairment, may not understand the implications of police procedures or communicate effectively.

Key Term: appropriate adult
A parent, guardian, social worker, carer, or another responsible adult over 18 (not involved in the investigation), whose role is to protect the rights and interests of the child or vulnerable adult during detention and interview.

The appropriate adult is required to:

• support, advise, and assist the suspect when rights are explained and during interview;
• ensure the suspect understands the position, the allegations, and the consequences;
• observe and intervene where necessary to make sure procedure is fair and the suspect is not at risk of unreliable/false confession;
• facilitate communication;
• prepare or review written statements if necessary.

No interview or statement should be taken from a juvenile or vulnerable person unless the appropriate adult is present, except in cases of urgency where delay would risk harm or serious prejudice to the investigation.

If a suspect is assessed as vulnerable and the police fail to arrange for an appropriate adult, or if one is not present during key procedures, evidence obtained from interview may be excluded as unreliable.

If a suspect’s parent or guardian does not wish to act or is inappropriate, a local authority or another suitable adult must be provided. In rare circumstances, if the suspect objects to a given adult, their wishes must be considered.

Advising Clients on Police Interviews

The solicitor’s core responsibility is to advise the client on their rights and options ahead of police interview. This is a strategic exercise informed by the available information, the nature of the allegation, evidence disclosed, and the client’s personal circumstances (such as vulnerability or fitness for interview). Three principal options are presented:

• Answer all police questions;
• Make no comment (remain silent except, if desired, to give identification details);
• Provide a prepared written statement (setting out the client’s position and then giving “no comment” to further questions).

The correct approach depends on:

• The strength and nature of the evidence disclosed (if minimal, a “no comment” interview may be safest);
• Whether the police have given the solicitor adequate disclosure to fairly advise the client—if not, silence is justified for the purposes of adverse inference rules;
• The client’s ability to perform in interview (vulnerable, inarticulate or emotional clients may benefit from a prepared statement to mitigate risk of self-incrimination);
• Consistency with facts/future defence—the risk that silence at interview may cause the court to draw an adverse inference if a fact is raised for the first time at trial, which could reasonably have been mentioned to the police.

Key Term: right to silence
The principle that a suspect cannot lawfully be compelled to answer police questions or incriminate themselves; rooted in common law, now subject to some statutory consequences (adverse inferences) for silence.

Adverse Inferences

The Criminal Justice and Public Order Act 1994 (ss.34–37) permits a court or jury to draw adverse inferences where a suspect, upon being questioned under caution or on charge, fails to mention a fact later relied upon as part of their defence. However, adverse inferences cannot be the sole basis for a conviction; there must be other evidence of guilt. Before such inferences can be drawn, conditions must be satisfied: the caution must have been administered; an opportunity to obtain legal advice must have been given; the failure to mention a fact must be significant; and the suspect must reasonably have been expected to mention that fact.

Reliance on legal advice as the reason for silence is not an absolute bar to drawing inferences. The court must assess whether the advice was genuinely followed and objectively reasonable in all the circumstances.

Key Term: adverse inference
A possible negative conclusion drawn by a court or jury when a suspect exercises their right to silence and later advances a fact not mentioned earlier, affecting the assessment of credibility in court.

Prepared Written Statements

A prepared written statement may be useful where the police have made minimal disclosure or the client is likely to perform poorly in an open-ended interview. Providing such a statement and maintaining silence on further questioning cannot prevent all adverse inferences, especially if further significant facts are omitted or if cross-examination at trial reveals inconsistencies.

Fitness for Police Interview

Before an interview, the solicitor should assess whether the client is fit for interview. Where there is doubt, for instance due to intoxication, ill-health, fatigue or mental disorder, the solicitor must make representations and seek postponement until the suspect is fit. This is especially important for clients with vulnerabilities or when medical professionals recommend postponement.

The Role and Conduct of the Defence Solicitor

The solicitor should:

• Explain interview procedures (recording, role of caution, presence of others, breaks);
• Ensure disclosure is requested and made;
• Intervene during interview where necessary (e.g., improper questioning, need for clarification, seeking further legal advice, protecting the client's interests, or challenging oppressive police tactics);
• Provide a clear opening statement, explaining the solicitor’s role is not to obstruct the interview but to protect the client's rights;
• Refrain from answering questions or providing written replies for the client (unless in the context of a prepared statement);
• Withdraw from representing the client if asked to facilitate a false account or otherwise mislead the police/court, complying at all times with professional conduct rules and SRA requirements.

Worked Example 1.1

A suspect is arrested for burglary and requests legal advice. The police believe that contacting a solicitor will alert other suspects who have not yet been arrested. Can the police delay access to legal advice?

Answer:
Yes, but only if a superintendent or above authorises the delay and there are reasonable grounds to believe that contacting a solicitor would alert other suspects, risk interference with evidence, or hinder the recovery of property. The delay is strictly limited to 36 hours maximum from the relevant time. All reasons and authorisations must be clearly documented and explained to the suspect.

Worked Example 1.2

A 16-year-old is arrested and interviewed at the police station without an appropriate adult present. The suspect confesses to the offence. Is the confession admissible at trial?

Answer:
The confession is likely to be excluded by the court. Code C requires that juveniles and vulnerable adults have an appropriate adult present during interviews. Failure to comply raises a strong presumption of unreliability under PACE s.76 and s.78, and the court may exclude the evidence unless satisfied of its reliability and fairness.

Worked Example 1.3

A solicitor attends the police station and finds that the client is extremely tired and confused after many hours in custody. The police want to proceed with an interview. What should the solicitor advise?

Answer:
The solicitor should object to the interview proceeding, explaining to the police (with reference to the custody record) that the client is unfit for interview. Safeguards require that the interview should be postponed until the client is rested and capable of understanding and answering questions, in order to prevent the gathering of unreliable evidence.

Worked Example 1.4

A solicitor is representing two suspects arrested together. After interviewing the first, the solicitor discovers a conflict of interest—both suspects blame each other for the alleged offence. What should the solicitor do?

Answer:
The solicitor should immediately cease acting for both clients to avoid breaching duties of confidentiality and to comply with Solicitors Regulation Authority (SRA) rules on conflicts of interest. They should notify both clients and the custody officer that representation is being withdrawn for professional reasons, without specifying confidential details.

Worked Example 1.5

A suspect is interviewed under caution. Prior to the interview, the solicitor asks the police for full disclosure but is provided only with vague information. The solicitor advises the client to remain silent. Will this justify the client’s silence, and can an adverse inference be drawn at trial?

Answer:
Where the police have provided inadequate disclosure and a solicitor advises silence on this basis, a court is unlikely to draw an adverse inference, provided it finds the reliance on legal advice in the circumstances was genuine and reasonable. However, it remains a factual issue for the court, which will examine all the circumstances to determine whether the silence is justified.

Key Term: conflict of interest
A situation in which the duties owed to one client by a solicitor would be in conflict with duties owed to another client or to the court.

Exam Warning

A failure to provide access to legal advice, ensure an appropriate adult is present for a vulnerable suspect or juvenile, or conduct required detention reviews within the specified time frames will almost always result in any related confession or evidence being challenged as unreliable or unfair and may lead to its exclusion at trial under PACE ss.76–78. Any breach of Code C must be properly documented and the nature of any justification carefully scrutinised.

Revision Tip

Whenever advising at the police station, always review the custody record in detail for compliance with these statutory and Code C requirements, and ensure that any concerns or breaches are formally noted. This creates a contemporaneous record for later challenge and can be determinative in admitting or excluding evidence.

Key Point Checklist

This article has covered the following key knowledge points:

• The custody officer (sergeant or above) must promptly authorise and record all detentions, maintain an accurate custody record, and ensure all rights are explained to the suspect.
• The right to free and independent legal advice is absolute and ongoing, and may only be delayed in very limited circumstances on the authority of a superintendent or above, with strict documentation.
• The right to have someone informed of arrest may be delayed, but only on similar grounds and with authorisation from an inspector or higher officer.
• The initial period of detention without charge is limited to 24 hours, extendable to 36 hours by a superintendent for indictable offences, and thereafter only by magistrates’ warrant up to a maximum of 96 hours.
• Review of detention (by an independent inspector) must be conducted within six hours of first authorisation, and at further intervals of not more than nine hours; failure to comply makes further detention unlawful.
• Vulnerable adults and juveniles (under 18) require an appropriate adult present during all interviews, explanations of rights, and procedures; statements or confessions obtained without an appropriate adult may be considered inadmissible.
• A solicitor's conduct in the police station is governed by professional rules: solicitors must withdraw if asked to mislead, and must avoid conflicts of interest or breaching confidentiality.
• In advising on interviews, the solicitor may advise answering, remaining silent, or giving a prepared written statement, informed by the adequacy of disclosure, strength of the evidence, fitness for interview, and client’s vulnerabilities.
• Remaining silent may lead to adverse inferences at trial unless justified. Courts consider all circumstances, including whether legal advice given was genuinely relied upon.
• Any breach of suspect rights or procedural safeguards under PACE 1984 or Code C can result in the exclusion of evidence at trial.

Key Terms and Concepts

• actus reus
• mens rea
• custody officer
• custody record
• right to legal advice
• waiver of legal advice
• right to have someone informed of arrest
• relevant time
• detention review
• adverse inference
• conflict of interest
• appropriate adult
• right to silence
• vulnerable person
• juvenile