26.1 Advising at the Police Station

This OpenExamPrep section is independent study material for SQE1 FLK2 Criminal Law and Practice. It is not an SRA publication and it is not a Home Office code. Use it to practise the decisions a newly qualified solicitor makes at the police station: rights, clocks, identification, interview strategy, and the extra care that juveniles and mentally vulnerable clients require at every step rather than in a separate silo.

Rights of a detained suspect

Once the custody officer (a sergeant independent of the investigation) authorises detention, Code C requires the detainee to be told why they are detained and of their rights, with those rights recorded on the custody record. Two statutory rights sit at the centre of every attendance.

Legal advice (PACE 1984 s.58). A person arrested and held in custody is entitled, if they ask, to consult a solicitor privately at any time. Police-station advice and assistance is publicly funded without a means test. Consultation may be in person, by telephone, or by live link. The right is to consult a solicitor, not merely to be shown a poster. If the client is under 18, or appears mentally disordered or otherwise mentally vulnerable, you still take instructions from the client, but an appropriate adult must also be brought into the rights process and into any interview. Intoxication, a learning disability, or acute distress can make a client vulnerable even when they are an adult with no psychiatric diagnosis; if in doubt, treat them as vulnerable and say so on the custody record.

Someone informed (PACE 1984 s.56). The detainee may have a friend, relative, or other person known to them, or likely to take an interest in their welfare, told of the arrest and of where they are. For a juvenile, the person responsible for their welfare should be notified as soon as practicable in any event. That notification is not a substitute for an appropriate adult at interview, and it is not a substitute for legal advice.

Delay. An officer of superintendent rank or above may delay s.56 or s.58 only if the offence is indictable (including either-way) and there are reasonable grounds to believe that exercising the right would lead to interference with evidence, interference with or injury to others, alerting other suspects not yet arrested, or hindering recovery of property. The detainee must be told that the right exists and that it is being delayed, and the grounds must be recorded. Delay cannot run past 36 hours from the relevant time. A delayed right is not a cancelled right. Interviewing before advice, except in the tightly limited situations Code C still permits during a lawful delay, is a classic route to later exclusion under PACE ss.76 and 78.

Reviews and the detention clock

The relevant time is usually arrival at the first police station after arrest. If the person is arrested at the station (for example a voluntary attender who is then arrested), the clock starts at arrest, not at the moment they walked in.

Reviews are not a paperwork ritual. The reviewing officer must consider whether the grounds remain, whether the investigation is moving, and whether release on bail or without charge is now realistic. Diary the next review, ask for the documents and materials essential to challenging the lawfulness of arrest and detention, and put welfare issues — medication, mental health, intoxication, a missing appropriate adult — on the record. Detaining a juvenile or mentally vulnerable person beyond 24 hours is especially hard to justify: Code C requires their vulnerability, the chance to make representations, the appropriate adult's views, and alternatives to custody to be considered before any extension.

Identification procedures (PACE Code D)

Code D protects eye-witness identification. A formal procedure must be held as soon as practicable when the suspect is known and available, identity is disputed, and an eye-witness has identified them, purports to have done so, or there is a witness who may be able to identify them — unless holding a procedure is not practicable or would serve no useful purpose (for example the witness has known the suspect well for years as a neighbour). Volume crime is not an exemption.

Showing photographs is an investigative tool used when the suspect is not yet known. Once a known suspect is available and identity is disputed, a Code D procedure should still be considered. The identification officer is an inspector who is not the investigating officer. You may inspect the video set before it is shown, object to foils who do not resemble the client, and note clothing, injuries, or distinctive features that make the set unfair. An appropriate adult should attend for a juvenile or mentally vulnerable suspect. Refusal to take part can be given in evidence, and a covert video procedure may still use a custody image. Street identification and viewing of crime-scene footage raise separate fairness issues; they do not licence a sloppy later procedure.

Advising whether to answer questions

The right to silence still exists. What changed with the Criminal Justice and Public Order Act 1994 is the cost of silence at trial.

Section 34 — if, on being questioned under caution, the client fails to mention a fact later relied on in their defence which they could reasonably have been expected to mention at the time, the court or jury may draw such inferences as appear proper.

Section 36 — failure to account for objects, substances, or marks after a special warning.

Section 37 — failure to account for presence at a particular place after a special warning.

Section 35 concerns silence at trial, not at the station.

Inferences are not automatic. s.34(2A) blocks a s.34 inference if the client was at an authorised place of detention and was not allowed an opportunity to consult a solicitor before questioning. s.38 prevents a case being sent, or a conviction being based, solely on an inference. Special warnings must be given in ordinary language, with time to respond, and with you (and any appropriate adult) in a position to advise.

Advice is case-specific:

• Answer questions where disclosure is adequate, the account is clear, and the client can give it consistently. A 17-year-old who has not slept, or an adult with a learning difficulty who agrees with whatever the last speaker said, is a poor candidate for a free-flowing interview even if they "just want to tell their side".
• No comment where disclosure is thin, the client is unfit, you have not had a private consultation, or the risk of damaging admissions outweighs inference risk.
• Prepared statement then no comment — the statement should contain the facts the defence will later rely on, so s.34 has nothing to bite on, while avoiding a cross-examination by officers.

Always press for the information Code C 11.1A requires: enough about the suspected offence for the client to understand it and for you to take instructions. If officers refuse, record the refusal and let that fact drive the interview strategy.

Lawful interviews, the solicitor, and the appropriate adult

September 2026 FLK2 expressly tests the requirements of a lawful interview under PACE 1984 Code C. Treat lawfulness as a checklist.

1. The custody officer decides whether to deliver the detainee to the interviewer. Fitness to be interviewed has been assessed (drink, drugs, mental health, medical care). An unfit client is not made fit by the officer's listing pressure.
2. The suspect is cautioned in the current terms: they do not have to say anything; it may harm their defence if they do not mention when questioned something they later rely on in court; anything they do say may be given in evidence. Re-caution after breaks.
3. Sufficient information about the suspected offence has been given (Code C 11.1A).
4. Legal advice has been provided if requested, unless a lawful delay is still in force.
5. An appropriate adult is present for anyone who is, or appears to be, under 18 or mentally vulnerable. The AA is a parent, guardian, social worker, or other responsible adult aged 18 or over who is not employed by the police and is not involved in the offence. You are never the appropriate adult. The AA's role is to advise the detainee, observe fairness, and help communication — not to answer the questions and not to replace you.
6. In any 24-hour period the detainee must be allowed a continuous 8-hour rest, normally at night, free from questioning, travel, or investigation. Interviews of juveniles at night require particular justification.
7. The interview is audio-recorded under Code E (and visually recorded under Code F where that code applies).
8. Significant statements or silences made before the interview are put to the suspect at the start.
9. Special warnings, if used, are given properly, with time to consult.
10. Questioning is not oppressive. You may intervene to prevent improper or irrelevant questions, to protect a client who is becoming distressed, suggestible, or compliant, to seek clarification, or to take further instructions. You do not answer for the client and you do not disrupt a lawful interview.

Keep a contemporaneous note: times, disclosure given and refused, fitness, who was present, cautions, special warnings, interventions, and the client's instructions. That note is how you later support a s.78 application or explain why a prepared statement was the least-worst option.

Worked path: Amina, 17, is arrested for s.47 ABH after a fight outside a college. The custody officer cannot reach her father. Officers propose a "quick chat" so she can go home. You refuse the interview until an appropriate adult attends, take private instructions, test disclosure, and, if she is still tearful and contradictory, advise a short prepared statement and no comment rather than a narrative she cannot sustain. That is competent police-station representation.