Answers
Thread 9
What were Sergeant Smith’s duties at the police station?
As soon as Dave is brought before Sergeant Smith, the Sergeant as the custody officer, is responsible for ensuring that Dave is treated in accordance with PACE whilst in custody. The custody officer role was introduced by PACE to provide a safeguard for suspects’ rights whilst in custody. The officer must be of at least the rank of sergeant and unconnected with the investigation of the offence for which Dave has been arrested.
As soon as he encountered Dave, Sergeant Smith should have opened a custody record for Dave. This would contain his personal details and list all events during his time in the police station. The custody officer should also ascertain the reasons for Dave’s arrest and decide whether or not his detention at the station is ‘necessary’ within the meaning of s.37(2) PACE. Note that the use of the word necessary ensures compliance with Article 5 European Convention on Human Rights and indicates that detention has to be justified and should not be routine. Had Smith completed these tasks, the issue of Dave being detained in respect of actions on his own property would have been raised. Dave would have been asked his name and address and then the officer would have told the custody officer why he was arrested. At that point the custody officer should have checked Dave was telling the truth and then released him.
Note that had that been done, the officers’ actions would have been judged on their reasonableness not on the facts as subsequently discovered.
In actuality, the custody officer simply acceded to his superior’s order to put Dave straight into a cell, an instruction in direct contravention to PACE. This situation is specifically provided for in s.39(6) PACE which states that in these circumstances the custody officer should refer the case to a higher ranking officer. Whilst it might seem difficult for the custody officer to go against his superior’s orders, he has to. Any irregularities in the custody suite are his responsibility.
A further point to note is that Dave should have been searched before he was put into a cell. This is so that any items which he might use to harm himself or others or any items which might be evidence of the commission of an offence can be removed so that they can be stored.
The failure to open a custody record also means that Dave’s detention
times cannot be calculated accurately and a further tortious action is
possible.