Authorisation of Continued Detention and Warrants of Further Detention

Whenever a person is arrested the police have 24 hours to either charge them with an offence, release them without charge (possibly on bail) or, in the case of certain offences, seek permission to extend their period of detention.

In this article we explore the key issues surrounding authorisation of continued detention and warrants of further detention.

These two processes, which are separate but closely related, are only applicable in the case of a person arrested on suspicion of an indictable offence (which includes an either way offence, as that can be tried on indictment).

We provide only a brief overview - anyone seeking a deeper or more authoritative account should refer directly to sections 39 to 45 of the Police and Criminal Evidence Act 1984 (PACE).

We should also mention that warrants of further detention, which are where the Magistrates' Court plays a role, are actually quite rare. Generally speaking the police have already charged or released a person long before a warrant is necessary. The granting or refusal of these warrants does attract particular attention in high profile cases reported by the media.

Calculating the Period of Detention (vide subsection 41(2) of PACE):

As viewers of Channel 4 documentary 24 Hours in Police Custody will already be aware, the period of detention, which is referred to as "the relevant time" in the legislation, begins: 

• For a person arrested in England or Wales, the moment the person is arrested or the moment they arrive at the police station, whichever is earlier; or
• For a person arrested outside England or Wales, the moment they arrive at the police station in England or Wales where the offence is being investigated, or the moment they enter England or Wales, whichever is earlier; or
• For a person who initially attends the police station voluntarily, or accompanies a constable to the police station voluntarily, the moment they are arrested at the police station; or
• For a person arrested when they attend the police station to answer bail, the moment they arrive at the police station;

There are a few other less common permutations, but we shan't dwell on those here.

Release Without Charge:

As we mentioned earlier, the police have 24 hours from the relevant time in order to gather sufficient evidence to either charge the detainee, release them without charge (possibly on pre-charge bail) or seek permission to extend their period of detention.

A person released without charge shall not be re-arrested for the same offence unless: 

• New evidence comes to light; or
• An examination or analysis of existing evidence has been made that could not reasonably have been made prior to their release.

The custody officer should give the person being released a written notice that they are not being prosecuted.

Authorisation of Continued Detention (vide section 42 of PACE):

A police officer of at least superintendent rank, who is responsible for the police station at which a person is held, can authorise their continued detention up to a period of 36 hours from the relevant time if they have reasonable grounds to believe that:

• The continued detention of the person is necessary to secure or preserve evidence of the offence for which they were arrested, or to obtain such evidence by questioning them; and
• The offence for which they were arrested was an indictable offence (including an either way offence, as mentioned earlier); and
• The investigation is being conducted diligently and expeditiously.

No such authorisation can take place unless:

• A period of less than 24 hours has elapsed since the relevant time; and
• The person's second review of detention has been carried out (this will be at least 15 hours after their detention was first authorised).

Before the superintendent authorises a person's continued detention they must allow that person or their solicitor the opportunity to make representations about the detention. The superintendent may refuse to hear oral representations from the person if they are deemed to be in an unfit condition or behaving in an unfit manner.

In the event that the superintendent refuses to authorise the person's continued detention they must be released, with or without bail conditions.

Warrants of Further Detention (vide section 43 of PACE):

If the police wish to detain a person beyond 36 hours from the relevant time they need to make an application for a warrant of further detention to the Magistrates' Court.

The application must be made on oath and supported by an information (e.g. a written statement outlining the basis of the application).

The person being detained must have been provided with a copy of the information and they must appear in court in person, so that they have the opportunity to make representations.

The application must be made to the Magistrates' Court within 36 hours of the relevant time. If it is not possible for the court to sit within 36 hours of the relevant time, the application may be heard within a further 6 hours (so within 42 hours of the relevant time). In these circumstances, the person may be detained beyond 36 hours of the relevant time until the application is heard.

The application may be granted if the court is satisfied that:

• The continued detention of the person is necessary to secure or preserve evidence of the offence for which they were arrested, or to obtain such evidence by questioning them; and
• The offence for which they were arrested was an indictable offence (including an either way offence, as mentioned earlier); and
• The investigation is being conducted diligently and expeditiously.

If the court is of the opinion that the criteria above are not satisfied the application should be refused or adjourned until a time not later than 36 hours after the relevant time.

The application should be dismissed if the court is of the opinion that:

• It was made later than 36 hours after the relevant time; and
• The police could have reasonably made the application within 36 hours of the relevant time.

If a warrant of further detention is granted, the Magistrates' Court should indicate the period of detention authorised by the warrant. This should not be more than 36 hours (which would equate to 72 hours from the relevant time assuming a full 24 hours without charge plus 12 hours authorised further detention).

In the event that the Magistrates' Court refuses to grant a warrant of further detention the person must be either charged forthwith or released, with or without bail conditions.

Extension of Warrants of Further Detention (vide section 44 of PACE):

If the police wish to detain a person beyond the period authorised by a warrant of further detention, they can apply to the Magistrates' Court for an extension to the warrant.

The application must be made on oath and supported by an information (e.g. a written statement outlining the basis of the application).

The person being detained must have been provided with a copy of the information and they must appear in court in person, so that they have the opportunity to make representations.

The court can extend the warrant for any period it deems fit, but not beyond 96 hours of the relevant time.

In the event that the Magistrates' Court refuses to extend the warrant the person must be either charged forthwith or released, with or without bail conditions.

That concludes our brief overview of authorisation of continued detention and warrants of further detention.

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