What happens when you are arrested is governed by PACE (the Police and Criminal Evidence Act 1984). Understanding the rules changes how you respond to them.
An arrest is not a conviction. It is the beginning of a process that may or may not result in charges being brought. What you do in the hours immediately following an arrest can have a significant bearing on how that process develops. This article sets out what you are entitled to under English law, and what you should and should not do.
What the Police Must Tell You
On arrest, the police are required to tell you that you are under arrest, the grounds for arrest, and the caution, which in England and Wales is: 'You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.'
The caution is not merely a formality. It encapsulates a genuine tension in the law: you have the right to silence, but exercising that right may allow adverse inferences to be drawn by a court if you later rely on a defence you failed to mention at interview. Understanding this tension is why having a solicitor present before and during interview is so important.
Your Rights in Custody
- ◆The right to have someone informed of your arrest (a friend, family member, or colleague)
- ◆The right to consult a solicitor privately and free of charge before and during any interview
- ◆The right to inspect the Codes of Practice governing your treatment
- ◆The right to have an appropriate adult present if you are under 18 or mentally vulnerable
- ◆The right to receive medical attention if you are injured or unwell
The right to a solicitor is not contingent on your wealth or the seriousness of the alleged offence. Legal advice at the police station is publicly funded. You will not receive a bill for it. There is absolutely no reason to waive this right.
The Duty Solicitor vs Your Own Solicitor
If you do not have a solicitor, the custody sergeant will offer you the duty solicitor service. For minor matters such as a straightforward drink-drive or a low-value theft, the duty solicitor may be perfectly adequate. For anything more serious, instruct your own solicitor if at all possible.
The difference is preparation and continuity. A duty solicitor attending your station may be dealing with multiple clients across different cases that day. Your own solicitor knows you, can take a full background, and will advise you specifically on the facts of your situation rather than generically.
What to Do When Arrested
State clearly that you want legal advice and do not wish to be interviewed until you have spoken to a solicitor. Then do not speak further about the allegation until your solicitor is present. You will not be penalised for exercising this right.
The Interview Under Caution
Most people arrested for serious offences are interviewed under caution. The interview is recorded. Before any interview, your solicitor will be provided with disclosure: an outline of the allegation and the evidence the police rely on. You are then entitled to a private consultation with your solicitor before the interview begins.
Your solicitor will advise you on whether to answer questions, and if so, which questions. In some cases, providing a prepared statement that addresses the allegations without exposing you to open-ended questioning is the better approach. In others, no comment is appropriate. These decisions must be based on the specific evidence the police have, not on a general principle.
After the Interview
Following interview, the police will either charge you, release you under investigation (RUI), release you on bail pending further investigation, or take no further action (NFA). Release under investigation has no time limit and no conditions, but it means the investigation continues. You should instruct a solicitor to monitor and engage with the investigation during this period. Early intervention can sometimes result in NFA before any charge is brought.