Detention pending investigation by Police (s103)
- Where an officer has reasonable grounds to believe that a person in a prison (other than a prisoner) is in possession of a controlled drug within the meaning of the Misuse of Drugs Act 1975, the officer may:
- detain that person for a period not exceeding 4 hours; and
- for the purposes of paragraph (a), use any physical force that is reasonably necessary in the circumstances.
- An officer may detain a person under s103 of the Corrections Act 2004 only for the purpose of obtaining the attendance of the Police under the Misuse of Drugs Act 1975 or the Misuse of Drugs Amendment Act 1978.
- Where appropriate, arrangements are made for the care of any dependants of that person while the person is being detained.
- Where appropriate, the person is taken to a suitable place for detention until police arrive.
- An officer who detains a person under this section must:
- promptly contact the police to arrange the attendance of a member of the police; and
- immediately release the person from detention if police advise they cannot attend.
- A person must not be detained under section 103 for a period exceeding 4 hours.
Note: A person who is detained under this section is not a “prisoner” within the meaning of section 3(1) of the Corrections Act 2004.
When a person is detained under any statute; The following advice/caution must be provided:
Adults
- You have been arrested/detained for (give reason) OR I am speaking to you about (give reason);
- You have the right to refrain from making any statement and to remain silent;
- You have the right to consult and instruct a lawyer without delay and in private before deciding whether to answer questions and that such right may be exercised without charge under the Police Detention Legal Assistance Scheme.
- Anything said by you will be recorded and may be given in evidence.
Children and Young Persons
It is particularly important to ensure that any advice provided to a child or young person is in a language and manner that they can easily understand.
Note: A child is a person under the age of 14 years and a young person is a person of, or over, the age of 14 years but under the age of 17 years.
The following must be provided in all cases:
- I am speaking to you about (give reason) OR You have been arrested/detained for (give reason).
The following must be provided for a Child or Young Person Not inder arrest:
- You may be arrested if you refuse to give your name and address (if sufficient evidence to arrest but a refusal to give details means a summons cannot be served);
- You are not obliged to accompany me, and if you consent, you can withdraw that consent at any time.
Provide the following advice if there are reasonable grounds to suspect a Child or Young Person has committed an offence before asking a Child or Young Person any questions intended to obtain an admission of an offence.
- You are not obliged to make a statement and can remain silent. If you consent to make a statement you may withdraw consent at any time;
- Anything said by you wil be recorded and may be given in evidence in any proceedings;
- You are entitled to consult with, and make a statement in the presence of, a lawyer and/or by any person nominated by you;
- Your consultation with a lawyer and/or nominated person will be in private and you can consult a lawyer without delay and/or nominated person, before deciding whether to answer questions. This right to consult a lawyer can be exercised for free under the Police Detention Legal Assistance Scheme.
Note: Any nominated person must also be advised of these rights.
Action once cautioned
- If the advice/caution is given during an interview and the suspect is subsequently arrested/detained for that offence, the advice must be given again.
- Once the caution is given, there is a requirement to permanently record anything said by the person. The preference is video recording, but audio recording or written records are acceptable. It will not be viewed well by Courts if a person is cautioned and no record is kept of what they have said.
- The person making the statement must be given an opportunity to review the tape or written statement or to have the written statement read over. They must also be given an opportunity to correct any errors or add anything further. Where the statement is recorded in writing, the person must be asked if he/she wishes to confirm the written record as correct by signing.
- There will be occasions in a prison where a person being interviewed will not be arrested or detained under any statute. If the intent or the likely outcome of the interview is that evidence obtained will be used against the person, then the advice/caution should be given. The test the Courts will use is whether the person being interviewed was fairly informed of his/her rights.
