Section 52: Detention review for detained persons who are asleep
288.The section makes technical amendments to PACE to resolve a conflict between section 37(4) and (5) (duties of custody officer before charge) and section 40(12) (review of detention) of that Act, and a similar conflict between section 38(4) and (5) (duties of custody officer after charge) and section 40(12) (review of detention).
289.Section 40 of PACE sets out provisions for periodic reviews of detention of each person held in police custody in connection with the investigation of an offence. The officer who carries out a review is known as the ‘review officer’. Section 40(12) of PACE allows a detainee who is asleep not to be woken to make representations about his continued detention and there is no requirement for the review officer to offer him the opportunity to make representations in such circumstances. But sections 37(1) to (6) (duties of custody officer before charge) which apply by virtue of section 40(8), and specifically sections 37(4) and (5), mean that the detainee must be present when the grounds for continued detention are recorded by the review officer who must at the same time inform him of those grounds. Section 37(6) sets out exceptions to cover situations where a person is: (a) incapable of understanding what is said to him; (b) violent or likely to become violent; or (c) in urgent need of medical attention. The same conflict is also present in sections 38(1) to (6) (duties of custody officer after charge) which apply by virtue of section 40(10). Sections 38(3) and (4) require the detainee to be present when the grounds for continued detention are recorded by the review officer who must at the same time inform him of those grounds. Section 38(5) sets out exceptions to cover situations where a person is: (a) incapable of understanding what is said to him; (b) violent or likely to become violent; or (c) in urgent need of medical attention.
290.The conflicts are resolved in this Act by amendments to PACE making an exception similar to those contained in sections 37(6) and 38(5) to cover a situation where a person is asleep at the time when review and representations should take place.
291.Subsection (1) of this section amends section 40(8) of PACE to make reference to a new subsection (8A) containing specific modifications. Subsection (2) inserts after 40(8) the new subsection (8A). Subsections (8A)(a) and (b) replicate existing provisions. However, new subsection (8A)(c) inserts after section 37(6)(a) of PACE a new paragraph (aa) containing the word “asleep”, thus adding situations in which the person whose detention is under review is asleep to the list of exceptions to the requirement for that person to be present when the written record as to reasons for his detention is made, and to have those reasons explained to him at that time.
292.Subsection (3)(a) simply amends section 40(10) to ensure that section 38(1) to (6B) of PACE and not just 38(1) to (6) will have effect where a person whose detention is under review has been charged before the review. Subsection (3)(b) of this section amends section 40(10) of PACE to make reference to a new subsection (10A) containing specific modifications. Subsection (4) inserts after section 40(10) the new subsection (10A). Subsection (10A)(a) is a slight modification of existing provision: it provides for references to the person arrested or charged (rather than simply the person arrested) to be substituted by a reference to the person whose detention is under review. New section (10A)(b) inserts after section 38(5)(a) of PACE a new paragraph (aa) containing the word “asleep”, thus adding situations in which the person whose detention is under review is asleep to the list of exceptions to the requirement for that person to be present when the written record as to reasons for his detention is made, and to have those reasons explained to him at that time.
