Upon Police Search, Arrest and Detention
This guide is produced solely for the purposes of advising you of your rights if you are arrested, or your premises searched, in connection with an alleged offence under the CJIA 2008 (extreme pornography) legislation.
It is up to date at the time of publication. However, the law may change and your rights may also be different for other alleged offences. Therefore:
If you are arrested seek professional legal advice immediately
Police searching your home for evidence
The police can either search your premises with your consent, with a warrant, or after you have been arrested.
The police can only search the section of the premises that you occupy and any communal areas of the premises.
A warrant can be obtained by the police from Magistrates to search your premises for evidence of certain crimes. In these circumstances:
- The police can use reasonable force to gain entry.
- You are entitled to see a copy of any search warrant.
- The police should give you information about their powers to search.
- A record of the search must be kept by the police.
- You or a friend should be allowed to be present during the search but this right can be refused if it is thought that this might hinder investigations.
However the police may enter without a search warrant if you have already been arrested (and under certain other circumstances).
The police may require computer information to be produced in a form that allows them to remove it. The police have limited rights to photograph or copy any document or other article they have the power to seize.
This includes seizing or copying computers, internal hard-drives, portable-drives, CDs, DVDs or other storage devices.
Your rights at the Police Station
If you are arrested you will be taken to a Custody Suite at a Police Station. Your rights in Police Custody include:
MOST IMPORTANTLY – the right to free, independent and confidential legal advice.
You are strongly advised NOT to talk to the Police about the alleged offence until your solicitor advises you to.
You are strongly advised to exercise this right and ask for a solicitor immediately upon arrival in the Custody Suite. Asking for a Solicitor is not an admission of guilt and cannot be held against you by the Police.
If you do not know the name of an individual solicitor, you can ask the Custody Sargeant for the Duty Solicitor, who is completely independent of the police; and will be able to represent you for free.
You may consult with your Solicitor on the phone at any time whilst you are in Custody; and your Solicitor must be able attend the Police Station to advise and represent you in person within 45 minutes of the Police being ready to interview you.
Therefore, do not sign a police officer’s pocket book or any other document regarding the alleged offence until your Solicitor arrives and advises you to.
You may sign the Custody Record to confirm your state of well being and to confirm any property that has been taken from you.
You also have the right:
- To be treated humanely and with respect.
- To see a copy of PACE and the Codes of Practice which govern your rights and how must be treated (your Solicitor should know these rights).
- To speak to the Custody Sargeant at any time (the officer responsible for your welfare).
- To know why you have been arrested.
- To have someone outside the Police Station notified that you have been arrested (you may not be able to make this phone call yourself).
- To have an Appropriate Adult with you in Custody and when you are in interview if you are vulnerable (this includes having learning difficulties such as reading difficulties or certain Mental Health issues). The appropriate adult’s role is to ensure your welfare and assist with communication; not to give you legal advice.
- To request the police medical examiner (doctor) to attend you if you feel unwell or need prescribed medication. You should inform the Custody Sargaent at the earliest opportunity if you are on prescribed medication. You may be permitted to take, or negotiate for the collection and administration of your medication.
Practical Procedure in Custody
Once you have had time to consult with your solicitor, you should be formally interviewed by the police. This interview should be tape-recorded. Your Solicitor (and appropriate adult, or interpreter if you need one) should be present throughout your interview.
You are entitled to ask for the interview to be terminated at any time if you require further legal advice from your solicitor. This means that the tapes must be turned off and that you be given as much time as you need to consult with your solicitor in private, so that you are fully advised; and then the taped interview with the Practical Procedure in Custody
Stay calm. You may have to wait in your cell for some time before you see your solicitor in person. You can be kept in custody for up to 24 hours (which can be extended by 12 more hours by an officer of the rank of Superintendent or above).
Anything you say to the police whilst in Police Custody may be recorded and read back to you in tape-recorded interview.
There is no such thing as an “off the record chat” beforehand.
Therefore talking “informally” to the Police at this stage may harm your case significantly. Wait for your Solicitor to arrive and advise you before you discuss the alleged offence with the Police.
Ensure all your details that have been entered on the custody record are correct. Read it before signing. Especially important are the reasons for your arrest; and your times of: arrest; arrival at the Police Station; and detention.
If you request something whilst in Custody (book, blanket, phone call etc) and it is refused, ensure that you see the reasons for the refusal are is recorded on your custody record.
Do not be dissuaded from seeing a solicitor because the police tell you that it will take longer for a solicitor to arrive; that it will make things more complicated; or it will be held against you. It is your fundamental Right, it is Free and cannot be held against you by the police or, at a later date, by a Court.
Before you are interviewed, your Solicitor must be given “Disclosure” by the Police. This disclosure should contain the reasons for your arrest; the offence(s) you are suspected of committing; any evidence the police are prepared to admit to having against you and; therefore, that you are to be formally interviewed to obtain further evidence. This disclosure may vary in detail depending on the circumstances. It is often basic information that the police wish to “flesh out” by asking you further questions in interview.
You have a right to consult with you solicitor in private without a member of the police being present. Your solicitor should advise you as to your rights and entitlements at the Police Station, check your welfare concerns (health, childcare, appropriate adult, treatment whilst in custody etc); advise you regarding the law, disclosure and the strength of the evidence against you, before then taking your instructions – which are your version of events.
Remember – it is essential that you listen to your solicitor. You do not have to follow their advice, but remember that they are trained and experienced professionals whose role is to advise and represent your interests.
Despite the nature of CJIA Extreme Pornography offences, do not be embarrassed to talk to your Solicitor in detail about the allegations. Failure to do so may significantly harm your defence.
Once your solicitor has taken all necessary instructions from you, he should be in a position to advise you regarding your best legal interests in interview. Essentially your options are:
1. To answer all the police’s questions.
2. To answer “No Comment” to all questions.
3. To give a written statement and then answer “No Comment” to all questions.
Your solicitor should advise you as to which of these options appears to be in your best legal interests, given the information that both you and the police have provided.
Do not assume you know what your best option is before you discuss it fully with your solicitor. Therefore, do not assume that a “No Comment” interview is in your best legal interests, as you may have a defence at law, or vice versa.
In Interview, once you have had time to consult with your solicitor, you should be formally interviewed by the police. This interview should be tape-recorded. Your Solicitor (and appropriate adult, or interpreter if you need one) should be present throughout your interview.
You are entitled to ask for the interview to be terminated at any time if you require further legal advice from your solicitor. This means that the tapes must be turned off and that you be given as much time as you need to consult with your solicitor in private, so that you are fully advised; and then the taped interview with the police may resume.e police may resume.
Charge, or Bail for Further Enquiries
Once the interview process has concluded the police must make a decision. If they have enough evidence against you they must charge (formally accuse you) you with the offence and bail you to attend a Court to answer those charges.
An immediate charge is unlikely in CJIA Extreme Pornography cases as the Police will have to examine your computer and electronic storage equipment forensically. This may take 6 months or more. Therefore you are more likely to be released from custody on bail. This means you will have to return to the Police Station at a later date (eg in 6 months time), either to be charged, interviewed again based on any further (computer or other) evidence the police have against you, or bailed yet again for the Police to make more enquiries.
During this period it is essential that you stay in contact with your Solicitor for updates and further advice regarding the procedures you face.
For further advice consult a legal professional.
For further detailed advice regarding your rights visit the Liberty site