Time Is Ticking.
Using The Custody Clock To Build Tension.
Writers love custody clocks!
In most jurisdictions around the world, there are strict limits on how long a suspect can be detained for questioning before they have to be charged with a crime or released. This is sometimes known as ‘The Custody Clock’.
This article will focus on the UK, specifically England & Wales, so if you are setting your book somewhere different, be sure to do your research. Similarly, the rules have evolved over the years, so again make sure of the facts for your time period.For law enforcement, these limits can be something of a headache. The clock essentially starts from the moment of arrest, meaning that unless the police want to release their suspect (either without charge, or on bail, or more recently ‘under investigation’), they have to amass enough evidence within that time to pass the ‘threshold test’ and receive authorisation to charge from the Crown Prosecution Service (or Procurator Fiscal in Scotland).
But for a crime writer, this same restriction injects a element of dramatic tension into the narrative – will your hard-working detectives manage to reach the threshold in time, or will a suspected serial killer be let back onto the street, to potentially kill again?
PACE yourself – the rules in England & Wales.
Rules concerning detention limits are governed by the Police And Criminal Evidence Act of 1984 (specifically Code C).
When a suspect is brought into the station for questioning under caution, their detention has to be authorised by a custody officer – this is usually a trained constable or sergeant. They are responsible for the welfare of the detainee (not the ‘prisoner’ or the ‘criminal’) when they are in custody, and are independent of the investigation. The custody officer has to be satisfied that that they have been correctly arrested, they have been properly cautioned, and there is reasonable suspicion that they may have committed an ‘indictable offence’.
At this point, they will be risk and medically assessed and a solicitor arranged if requested (a ‘duty’ solicitor will be engaged for free, if they cannot arrange their own representation). Translation services will also be organised and, if necessary, an appropriate adult (for example if the detainee is a minor or a vulnerable adult).
Contrary to what is shown on TV, their phone call can be withheld if there is a a risk that they may use it to communicate to accomplices.
This is the point at which they may be searched and fingerprints and DNA etc taken.
If you want to see this in action, I recommend fly-on-wall documentaries such as 24 Hours In Custody.
Unless you are specifically intending to write about police corruption, avoid the temptation to ‘bend the rules’. Neither the custody officer or the detainee’s solicitor will let this happen. I recommend making a note of what time your character is arrested in the timeline of your book and when they would need to be released to avoid any errors.
Period of initial detention.
Persons can be detained without charge for an initial period of up to 24 hours after their arrest. This time starts typically when they are presented at an appropriate police station and their detention is authorised – this is referred to as the ‘relevant time’. No later than 6 hours after this, their detention must be reviewed by an inspector or above, followed by further reviews every 9 hours. The review officer has to be satisfied that there are still reasonable grounds for them to remain in custody. This cycle of reviews is sometimes referred to as the ‘review clock’.
This is often overlooked by writers of fiction, but could be a source of narrative tension.
Initial extension.
An officer of at least the rank of superintendent, who isn’t directly involved in the investigation, can review the detention and extend it by up to 12 hours, to a maximum of 36 hours from the relevant time. Further 9 hour reviews by an inspector are still required. Again, they have to be satisfied that there are reasonable grounds for their continued custody.
Further extensions.
Further extensions can only be granted by a warrant issued by a magistrates’ court. These can be up to 36 hours in duration to a maximum of 96 hours (There can be multiple extensions of 36 hours or fewer, it is just that the total time must not exceed 96 hours from the relevant time). For practical reasons, these applications can be made before the previous extension has elapsed or up to 6 hours after.
Disposal or charge.
Once the relevant extension has expired, the detained person has to be either released (disposed of) or charged – remember, in serious cases, charging must be authorised by the CPS or Procurator Fiscal.
Upon charging, the suspect will be taken to a Magistrates’ Court (the ‘lower’ of the two UK courts – no jury).
For a lesser offence (less than six months maximum custody or fine) the case may be heard and dealt with there and then. For serious offences that are beyond the remit of the magistrate to deal with, the magistrate will then commit them to a jury trial at the Crown Court. They do not enter a plea at this point. The detainee can either be placed on ‘remand’ (sent to prison) to await their trial or released on bail to return at a later date. Unlike in the US, there is no ‘bail bond’ – in other words, you cannot stump up money to avoid being remanded. The decision to remand into custody is based on flight risk and potential danger to the public. Any time served on remand will be subtracted from any subsequent custodial sentence, so people convicted can in theory be found guilty then released immediately due to time served.
If there is insufficient evidence for them to be charged at that time, then the police have several options.
No Further Action (NFA).
There is insufficient evidence that the offence occurred, or no realistic chance of a conviction. They are released, but this decision can be revisited if further evidence comes to light. They are still recorded as having been arrested.
They can be released on pre-charge (police) bail pending further enquiries.
Bail can have a wide-range of conditions imposed. For example, no conditions set, the requirement to report to a police station at regular intervals, surrendering of passports, restrictions on movements, electronic tagging or who they associate with etc. This would be authorised by an Inspector or above.
The suspect is required to surrender to the police for further questioning etc when asked to do so. Breaking these rules can result in them being remanded in custody. Unlike the US, the requirement for a surety (financial or otherwise) is extremely rare. As a writer, I’d recommend not going there.
Note: The rules surrounding bail changed in April 2017 in England & Wales.
Prior to this, people could and would be placed on bail for months, even years, as the investigation ground on. Given the impact that bail restrictions can place on a person’s life (not to mention the complications and stigma arising from being suspected of a crime – eg suspension from work, or the blocking of child access arrangements, not to mention the stress and affect on relationships), it was decided that it should be restricted to a period of 28 days. An extension of 3 months can be granted by a senior officer (superintendent or above), after which applications need to be made to a magistrates court (the complexity of Fraud cases mean that these can have longer time limits).
Fundamentally, the change was to stop police dragging their heels and keeping potential suspects on bail ‘just in case’. Remember, in the eyes of the law, these people are innocent.
Once this period of bail has expired they must either be charged or disposed of.
To compensate for the fact that in complex cases it may take longer to amass the necessary evidence to charge than the bail rules allow, a new option was created.
Released Under Investigation (RUI).
This differs from bail in that there can be no restrictions placed on them, and they do not have to keep police informed of their whereabouts. They will need to return for further questioning if asked to do so and the police can retain their property.
Note: being ‘de-arrested’.
This is different to being released without charge. It can happen for example in cases of mistaken identity or if a person is able to give a good reason for their actions (eg arrested at the scene of a crime, but they later demonstrate that they had just arrived there by coincidence). The fact of their arrest is not logged, but may be recorded in the police report if relevant and in theory can come up on an enhanced DBS check (a criminal records check that determines if a person should be barred from certain types of work).
The timing here is crucial – the de-arrest should happen before the detainee is processed by the custody officer.
Additional rules, complications and exceptions.
In order to stop police ‘gaming the system’, the custody clock and the review clock are not reset each time a person is released from custody. So police cannot simply release a suspect approaching their detention limit, then detain them again and have another 24 hours.
In simple terms, if a person is detained at midday on Tuesday, reviewed at 6 pm and released from custody after 10 hours, then if they are brought in again for further questioning on the Friday, the police only have 14 hours remaining of their initial detention, before they need to extend, charge or release. They will also need a review within 5 hours (9 hours, minus the 4 hours they were in custody after their first 6 hour review).
A change to PACE in 2006 allowed people suspected of terrorism offences to be held without charge for up to 28 days. The rules are outlined in the Terrorism Act 2006.
Detainees are entitled to 8 hours sleep every 24 hours, 3 meals and drinks ‘on demand’.
The custody officer will enforce these, so no getting your naughty detectives to interview them for 48 hours straight until they break!
The custody clock does not stop during this time.
Suspects are not typically questioned under caution in hospital or outside a police station. But exceptions to the rules do exist and are outlined in PACE Code C.
Forensic delays don’t give you a free pass.
It can takes days or weeks to fully search a property or process samples. Unfortunately (for the police), they can’t simply hold onto a suspect whilst they await what may or may not turn up. The detention limits are inviolable. Unless they have other evidence sufficient for them to be charged, they have to be released.
Running down the clock.
If a suspect believes that the detectives don’t have enough to charge them within the custody time limits, then they may try to ‘run down the clock’. By refusing to comment or cooperate they may gamble that the investigating officers may eventually have to release them without charge.
I stated at the beginning that I love custody clocks. Although the time limits can sometimes cause logistical problems when structuring a novel (eg can I realistically get a DNA match back before the time expires?), the narrative opportunities from the race against time are well worth it. Can the interviewer get the suspect to stop ‘no commenting’ and cooperate before they run the custody clock down?
Where do you stand on custody clocks? Are they an annoyance that get in the way of your story, or are they an opportunity to be exploited?
As always, feel free to comment here or on social media.
Until next time,
Paul.
