A Critique of the Deficiencies in the Regulation of Contemporary Police Powers of Detention and Questioning in England and Wales
| Author | Emmanouela Mylonaki,Tim Burton |
| Published date | 01 March 2010 |
| Date | 01 March 2010 |
| DOI | http://doi.org/10.1350/pojo.2010.83.1.482 |
| Subject Matter | Article |
EMMANOUELA MYLONAKI
Senior Lecturer in Law, Course Director LLM in Crime and
Litigation, London South Bank University
TIM BURTON
Camden
A CRITIQUE OF THE
DEFICIENCIES IN THE
REGULATION OF
CONTEMPORARY POLICE
POWERS OF DETENTION AND
QUESTIONING IN ENGLAND AND
WALES
The article explores the problems associated with the regula-
tion of police powers of detention and questioning as pre-
scribed by the Police and Criminal Evidence Act 1984
(PACE). The police powers of detention and questioning are
analysed holistically with reference to the role of the custody
officer as gatekeeper, the detention reviews, the treatment and
rights of detainees, and the investigative interviewing process.
Whilst the fundamental purpose of police powers of detention
and questioning is to investigate crime, it is argued that the
deficiency in their regulation is a conceptual failure to realise
that the process of police investigation militates against object-
ive regulation. The authors argue that PACE is too reliant on
self-regulation of police observation and supervision of the
rules and a redefinition of the regulation of investigative
powers is missing.
Keywords: custody officer; deficiencies in the regulation of
police powers; detention reviews; investigative interviewing
process; PACE (Police and Criminal Evidence Act 1984);
police powers; reforms; rights of the detainees
The objective of the present critique is to explore the problems in
the regulation of police powers of detention and questioning by
focusing on the application of the Police and Criminal Evidence
Act 1984 (PACE) as applied to the detention and questioning
process. The police powers of detention and questioning are
analysed holistically in reference to the role of the custody
The Police Journal, Volume 83 (2010) 61
DOI: 10.1358/pojo.2010.83.1.482
officer as gatekeeper, the detention reviews, the treatment and
rights of detainees, and the investigative interviewing process.
Whilst the fundamental purpose of police powers of detention
and questioning is to investigate crime, it is argued that the
deficiency in their regulation is a conceptual failure to realise
that the process of police investigation militates against objective
regulation. The authors argue that PACE is too reliant on self-
regulation of police observation and supervision of the rules and
that a redefinition of the regulation of investigative powers is
missing. Therefore the suggested reforms propose a radical
change of the boundaries of detention and investigation and the
oversight mechanisms.
Regulation under PACE is both internal (self-regulation by
the police) and external (judicial sanction by PACE, ss 76 and
78), for which the regulation processes take different trajectories
according to the power being exercised. The current govern-
mental view of PACE identifies no deficiencies, concentrating
instead on reducing bureaucracy (Home Office, 2007: 9, paras
3.12, 3.13). Likewise, the current proposals seek to preserve
existing PACE powers with emphasis on rationalisation (Home
Office, 2008: 7) and, despite an intention not to dilute safeguards
(6–7 n.1, para 2.8), it is proposed to downgrade the authority for
granting extensions from superintendent to inspector (20 n.2,
para. 10.8). This is to enable superintendents to make review
decisions for continued detention remotely by telephone or
video-conferencing (20 n.2, para. 10.12), and to facilitate ‘Short-
Term Holding Facilities’ for the bulk of low-level crime (21 n.2,
para. 10.19).However, the review is blind to deficiencies in
regulation in its quest for streamlined processing.
Under the PACE test, according to which the custody officer
believes detention without charge is necessary to secure, pre-
serve or obtain evidence by questioning (PACE, s. 37(2)), the
reasonableness of belief is a question of degree in the circum-
stances of what information the arresting officer gives (Al Fayed
v Metropolitan Police Commissioner [2004] EWCA Civ
1579).However, under PACE, s. 37(4) the custody officer does
not have to do more than recite these grounds (Zander, 2005:
140, para. 4-16). Choongh describes an incident in which a
custody officer authorised detention despite the test not being
met (Choongh, 1998: 623 at 230). Such occurring incidents
indicate that the detention decision itself is unregulated. Another
of Choongh’s observations questions how effective the rights of
the detainees are. At the police station detainees are ‘locked into’
a process controlled by the police, where their rights have to be
62 The Police Journal, Volume 83 (2010)
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