The Police and Criminal Evidence (Northern Ireland) Order 1989

Duties of custody officer before charge N.I.

38.—(1) Where—

(a) a person is arrested for an offence—

(i) without a warrant; or

(ii) under a warrant not endorsed for bail,F1 . . .

Sub‐para. (b) rep. by 1995 NI 17

the custody officer at each police station where he is detained after his arrest shall determine whether he has before him sufficient evidence to charge that person with the offence for which he was arrested and may detain him at the police station for such period as is necessary to enable him to do so.

(2) If the custody officer determines that he does not have such evidence before him, the person arrested shall be released either on bail or without bail, unless the custody officer has reasonable grounds for believing that his detention without being charged is necessary to secure or preserve evidence relating to an offence for which he is under arrest or to obtain such evidence by questioning him.

(3) If the custody officer has reasonable grounds for so believing, he may authorise the person arrested to be kept in police detention.

(4) Where a custody officer authorises a person who has not been charged to be kept in police detention, he shall, as soon as is practicable, make a written record of the grounds for the detention.

(5) Subject to paragraph (6), the written record shall be made in the presence of the person arrested who shall at that time be informed by the custody officer of the grounds for his detention.

(6) Paragraph (5) shall not apply where the person arrested is, at the time when the written record is made—

(a) incapable of understanding what is said to him;

(b) violent or likely to become violent; or

(c) in urgent need of medical attention.

(7) Subject to Article 42(5), if the custody officer determines that he has before him sufficient evidence to charge the person arrested with the offence for which he was arrested, the person arrested—

(a) shall be charged; or

(b) shall be released without charge, either on bail or without bail.

(8) Where—

(a) a person is released under paragraph (7)(b); and

(b) at the time of his release a decision whether he should be prosecuted for the offence for which he was arrested has not been taken,

it shall be the duty of the custody officer so to inform him.

(9) If the person arrested is not in a fit state to be dealt with under paragraph (7), he may be kept in police detention until he is.

(10) The duty imposed on the custody officer under paragraph (1) shall be carried out by him as soon as practicable after the person arrested arrives at the police station or, in the case of a person arrested at the police station, as soon as practicable after the arrest.

(11) Where an arrested juvenile who was arrested without a warrant is not released under paragraph (2), it shall be the duty of the custody officer—

(a) to inform the arrested juvenile that he has reasonable grounds for believing that his detention is necessary in connection with an offence and to state the offence;

(b) to take such steps as are practicable to ascertain the identity of a person responsible for the welfare of the arrested juvenile; and

(c) if—

(i) he ascertains the identity of any such person; and

(ii) it is practicable to do so,

to inform that person, as soon as it is practicable to do so, of the arrest and of the offence alleged to have been committed by the juvenile.

(12) For the purposes of paragraph (11) the persons who may be responsible for the welfare of an arrested juvenile are—

(a) his parent or guardian; and

(b) any other person who has for the time being assumed responsibility for his welfare.

(13) If it appears to the custody officer that—

Sub‐para. (a) rep. by 1998 NI 9

(b) a probation order, as defined in section 1 of the Probation Act (Northern Ireland) 1950F2 ;

is in force in respect of an arrested juvenile, the custody officer shall also informF3 . . . his probation officer of the arrest and of the offence alleged to have been committed by the juvenile, as soon as it is practicable to do so.

(14) In this Part—

“arrested juvenile” means a person arrested with or without a warrant who appears to be under the age of [F4 18] and is not excluded from this Part by Article 52;

“endorsed for bail” means endorsed with a direction for bail in accordance with Article 129 of the Magistrates' Courts (Northern Ireland) Order 1981F5 .

F1 1995 NI 17

F2 1950 c. 7 (NI)

F3 1998 NI 9

F4 Art. 38(14): word in definition of "arrested juvenile" substituted (1.11.2009) by Police and Criminal Evidence (Amendment) (Northern Ireland) Order 2007 (S.I. 2007/288 (N.I. 2)), arts. 1(3), 18(2); S.R. 2009/337, art. 2(a)

F5 1981 NI 26

Modifications etc. (not altering text)

C1 Art. 38(1)-(10) applied (with modifications) (1.12.2007) by Police and Criminal Evidence (Application to Revenue and Customs) Order (Northern Ireland) 2007 (S.R. 2007/464), arts. 3-15, Sch. 1, Sch. 2

C2 Art. 38(14) applied (with modifications) (1.12.2007) by Police and Criminal Evidence (Application to Revenue and Customs) Order (Northern Ireland) 2007 (S.R. 2007/464), arts. 3-15, Sch. 1, Sch. 2