Police and Criminal Evidence Act 1984, section 40

Review of police detention

Part IV Detention

(1)Reviews of the detention of each person in police detention in connection with the investigation of an offence shall be carried out periodically in accordance with the following provisions of this section—

(a)in the case of a person who has been arrested and charged, by the custody officer; and

(b)in the case of a person who has been arrested but not charged, by an officer of at least the rank of inspector who has not been directly involved in the investigation.

(2) The officer to whom it falls to carry out a review is referred to in this section as a “review officer”.

(3)Subject to subsection (4) below—

(a)the first review shall be not later than six hours after the detention was first authorised;

(b)the second review shall be not later than nine hours after the first;

(c)subsequent reviews shall be at intervals of not more than nine hours.

(4)A review may be postponed—

(a)if, having regard to all the circumstances prevailing at the latest time for it specified in subsection (3) above, it is not practicable to carry out the review at that time;

(b)without prejudice to the generality of paragraph (a) above—

(i)if at that time the person in detention is being questioned by a police officer and the review officer is satisfied that an interruption of the questioning for the purpose of carrying out the review would prejudice the investigation in connection with which he is being questioned; or

(ii)if at that time no review officer is readily available.

(5)If a review is postponed under subsection (4) above it shall be carried out as soon as practicable after the latest time specified for it in subsection (3) above.

(6)If a review is carried out after postponement under subsection (4) above, the fact that it was so carried out shall not affect any requirement of this section as to the time at which any subsequent review is to be carried out.

(7)The review officer shall record the reasons for any postponement of a review in the custody record.

(8)Subject to subsection (9) below, where the person whose detention is under review has not been charged before the time of the review, section 37(1) to (6) above shall have effect in relation to him, but with [F254the modifications specified in subsection (8A)F254]

[F255 (8A)The modifications are—

(a)the substitution of references to the person whose detention is under review for references to the person arrested;

(b)the substitution of references to the review officer for references to the custody officer; and

(c)in subsection (6), the insertion of the following paragraph after paragraph (a)—

“(aa) asleep;” F255]

(9)Where a person has been kept in police detention by virtue of section 37(9) [F256or 37D(5)F256] above, section 37(1) to (6) shall not have effect in relation to him but it shall be the duty of the review officer to determine whether he is yet in a fit state.

(10)Where the person whose detention is under review has been charged before the time of the review, section 38(1) to [F257(6B)F257] above shall have effect in relation to him, but with [F258the modifications specified in subsection (10A)F258] .

[F259 (10A)The modifications are—

(a)the substitution of a reference to the person whose detention is under review for any reference to the person arrested or to the person charged; and

(b)in subsection (5), the insertion of the following paragraph after paragraph (a)—

“(aa) asleep;” F259]

(11)Where—

(a)an officer of higher rank than the review officer gives directions relating to a person in police detention; and

(b)the directions are at variance—

(i)with any decision made or action taken by the review officer in the performance of a duty imposed on him under this Part of this Act; or

(ii)with any decision or action which would but for the directions have been made or taken by him in the performance of such a duty,

the review officer shall refer the matter at once to an officer of the rank of superintendent or above who is responsible for the police station for which the review officer is acting as review officer in connection with the detention.

(12)Before determining whether to authorise a person’s continued detention the review officer shall give—

(a)that person (unless he is asleep); or

(b)any solicitor representing him who is available at the time of the review,

an opportunity to make representations to him about the detention.

(13)Subject to subsection (14) below, the person whose detention is under review or his solicitor may make representations under subsection (12) above either orally or in writing.

(14)The review officer may refuse to hear oral representations from the person whose detention is under review if he considers that he is unfit to make such representations by reason of his condition or behaviour.

Cases considering section 40 11

Roberts v Jones

[1999] EWCA Civ 655 · 26 January 1999Limits

Section 40(1) was treated as requiring periodic reviews of detention and as distinguishing the reviewing officer according to whether the detainee had been charged (see [1999] 1 WLR 662, 664-666). Section 40(1)(b) required the first review of an uncharged detainee’s detention within the statutory period. Failure to hold that review made continued detention unlawful (see [1999] 1 WLR 662, 666-668). The provision was cited as requiring an opportunity for representations before continued detention was authorised, subject to the detainee being asleep or represented by an available solicitor (see [1999] 1 WLR 662, 665). The provision was cited to identify the officer responsible for carrying out a statutory detention review (see [1999] 1 WLR 662, 664). Section 40(3)(a) fixed the latest time for the first review. The court held that the missed review caused detention to become unlawful from 5.25am (see [1999] 1 WLR 662, 666-668). The court quoted the provision as part of the timetable for later reviews, but did not need to determine its application conclusively (see [1999] 1 WLR 662, 665). The provision was quoted as part of the statutory timetable for subsequent detention reviews, without a final ruling on its application (see [1999] 1 WLR 662, 665). The court noted the statutory postponement provisions but held that none of the relevant circumstances applied on the facts (see [1999] 1 WLR 662, 665). The court noted that section 40(7), together with section 40(4), provided possible postponements, but found none applicable (see [1999] 1 WLR 662, 665).

Alan Searson & Anor v The Chief Constable of Nottingham Constabulary

[2025] EWHC 1982 (KB) · 25 July 2025Limits

Interprets section 40 as imposing cumulative statutory safeguards for continued detention, including timely review, an independent reviewing officer and consultation with the detainee or solicitor. Breach of any safeguard means that no effective review has occurred and detention thereafter is unlawful. (see paras [18]-[25]) Applies the requirement that a review of an uncharged detainee be conducted by an officer of at least inspector rank who was not directly involved in the investigation. (see para [12]) Interprets the provision as requiring an awake detainee to be given an opportunity to make representations before continued detention is authorised. Failure to provide that opportunity invalidates the review. (see paras [12]; [24]) Interprets the reference to an available solicitor as including a solicitor engaged in interviewing the detainee. The police must postpone the review or arrange a short interruption so that the solicitor can participate. (see paras [12]; [26]-[27]) Confirms that representations may be made orally or in writing. The consultation requirement forms part of the statutory safeguard governing a valid review. (see para [12]) Confirms the defined exception permitting refusal to hear oral representations where the detainee is unfit by reason of condition or behaviour. No such exception applied to the Second Claimant. (see para [12]) Applies the six-hour deadline for the first detention review. The relevant deadlines were 2:51 pm and 3:02 pm, subject to lawful postponement. (see paras [12]; [18]; [30]) Confirms that a review may be postponed where, having regard to the circumstances, it is not practicable to conduct it at the prescribed time. (see para [12]) Interprets the provision as permitting postponement where interrupting questioning to conduct the review would prejudice the investigation. The Inspector could have postponed the review or interrupted the interview to permit consultation. (see paras [25]; [27]) Applies the power to postpone a review where no review officer is readily available. The delay caused by the Inspector’s responsibilities at two police stations was accepted as lawful. (see paras [18]-[19]) Confirms that a postponed review must be carried out as soon as practicable after the prescribed time. (see para [12])

Victoria Clark v The Chief Constable of Merseyside Police

[2023] EWHC 2565 (KB) · 16 October 2023

The judgment sets out the statutory review framework and applies it to the inspector’s decisions at 02.23 and 09.59. The later decision was unlawful because the stated objective of obtaining evidence by questioning was not realistically available on the known facts (see paras [48]; [62]-[64]).

What each judgment says about section 40 is in the case-law panel in the full Act.

Amendments and notes

14 notes from legislation.gov.uk

Amendments

  1. F254Words in s. 40(8) substituted (1.4.2003) by Police Reform Act 2002 (c. 30), ss. {52(1)}, 108(2)-(5); S.I. 2003/808, art. 2(d)
  2. F255S. 40(8A) inserted (1.4.2003) by Police Reform Act 2002 (c. 30), ss. {52(2)}, 108(2)-(5); S.I. 2003/808, art. 2(d)
  3. F256Words in s. 40(9) inserted (29.1.2004) by Criminal Justice Act 2003 (c. 44), ss. 28, 336, Sch. 2 para. 4; S.I. 2004/81, art. 4(1)(2)(c)
  4. F257Word in s. 40(10) substituted (1.4.2003) by Police Reform Act 2002 (c. 30), ss. {52(3)(a)}, 108(2)-(5); S.I. 2003/808, art. 2(d)
  5. F258Words in s. 40(10) substituted (1.4.2003) by Police Reform Act 2002 (c. 30), ss. {52(3)(b)}, 108(2)-(5); S.I. 2003/808, art. 2(d)
  6. F259S. 40(10A) inserted (1.4.2003) by Police Reform Act 2002 (c. 30), ss. {52(4)}, 108(2)-(5); S.I. 2003/808, art. 2(d)

Modifications

  1. C397Ss. 8, 9, 15, 16, 17(1)(b(2) (4), 18–20, 21, 22(1)–(4), 28, 29, 30(1)–(4)(a)(5)–(11), 31, 32(1)–(9), 34(1)–(5), 35, 36, 37, 39, 40–44, 50, 51(d), 52, 54, 55, 64(1)–(4)(5)(6), Sch. 1 applied with modifications by S.I. 1985/1800, arts. 3–11, Schs. 1, 2
  2. C398S. 40 modified (2.8.1993) by S.I. 1993/1813, art. 6, Sch. 3 paras. 3(3), 4(4)(b), 5(7)(b), 6(7)(b); s. 40 modified by the said S.I. 1993/1813, art. 6, Sch. 3 paras. 4, 5, 6 as incorporated (with modifications) (1.12.1997) by S.I. 1994/1405, art. 6, Sch. 3 paras. 5, 6, 7
  3. C399S. 40 applied (with modifications) by Criminal Justice Act 2003 (c. 44), s. 24B(4) (as inserted (29.6.2007) by Police and Justice Act 2006 (c. 48), ss. 18(1), 53 (with s. 18(2)); S.I. 2007/1614, art. 2(e))
  4. C400S. 40 applied (with modifications) (4.11.2015) by The Police and Criminal Evidence Act 1984 (Application to Revenue and Customs) Order 2015 (S.I. 2015/1783), arts. 1, 3(1), Sch. 1 (with art. 3(2), (3), 4-19, Sch. 2)
  5. C401S. 40(1)-(9) applied (with modifications) (25.6.2013) by The Police and Criminal Evidence Act 1984 (Application to immigration officers and designated customs officials in England and Wales) Order 2013 (S.I. 2013/1542), arts. 1, 12(2)-(4), Sch. 2 (with arts. 13-31)
  6. C402S. 40(11)-(14) applied (with modifications) (25.6.2013) by The Police and Criminal Evidence Act 1984 (Application to immigration officers and designated customs officials in England and Wales) Order 2013 (S.I. 2013/1542), arts. 1, 12(2)-(4), Sch. 2 (with arts. 13-31)
  7. C403S. 40(13) amended by S.I. 1991/2684, arts. 1, 2, 4 and Sch.1
  8. C404S. 40(13) applied (with modifications) (23.12.2011) by The Legal Services Act 2007 (Designation as a Licensing Authority) (No. 2) Order 2011 (S.I. 2011/2866), art. 1(2), Sch. 2