Recording PACE breaches in your attendance note: a practical checklist

If a breach of PACE is not in your note, it is very hard to prove later. This is the checklist I work through at the police station.

Since 2001 I have represented clients at police stations as a criminal defence solicitor, and I still do. The breaches that end up mattering in court are rarely dramatic. They are usually ordinary failures: a late review, a delayed call to the solicitor, an appropriate adult who was not there for part of the process. What makes them usable is a note written at the time.

Why contemporaneous notes matter

The custody record is a police document. It is often accurate, but where it is incomplete or wrong, your note is the independent record. A note made at the time carries far more weight than recollection months later. This is a different exercise from the billing audit points in why attendance notes fail LAA audit: here the note is evidence of police conduct.

Checklist: detention clock and reviews

• Time of arrest, arrival at the station and the relevant time
• Whether detention was authorised, by whom, and the grounds recorded
• Whether reviews took place when due, by whom, and whether representations were invited
• Any extension of detention, who authorised it and on what grounds

The PACE detention clock helps me work out when reviews and limits fall due.

Checklist: legal advice delays (Code C 6)

• When the client asked for legal advice, according to the custody record and according to the client
• When the solicitor or representative was contacted, and when they arrived
• Any authorised delay under section 58 of PACE, who authorised it, and the grounds
• Whether the client was interviewed or questioned before advice was received

Checklist: appropriate adult and vulnerability

• Any indication of age, mental health condition, learning disability or other vulnerability
• Whether an appropriate adult was called, when they arrived, and what parts of the process they were present for
• Whether the client was assessed as fit for detention and interview, and by whom
• Interpreter needs and whether they were met

The juvenile client attendance notes post goes into more detail on young clients.

Checklist: welfare

• Meals, drinks, rest and breaks
• Medical needs, medication and any healthcare professional involvement
• Complaints made by the client about treatment

Checklist: interview conduct

• Whether disclosure was given before interview, and anything new put in interview
• The caution and any special warnings, and whether they were properly given
• Oppressive questioning, inducements or anything said off the record
• Breaks requested and refused

Making representations on the custody record

Where I think something has gone wrong, I raise it with the custody officer at the time and ask for my representations to be recorded on the custody record. I note what I said, who I said it to, the time, and the response. That gives two records of the same event, one in the police system and one in my file.

Raising breaches later

Breaches may be relevant to arguments under section 76 (confessions) and section 78 (unfair evidence) of PACE. Not every breach leads to exclusion, and no note guarantees a particular result, but without a record the argument usually cannot be made at all. The custody note template includes prompts for these points.

Frequently asked questions

What counts as a PACE breach?

A failure to comply with the Police and Criminal Evidence Act 1984 or its Codes of Practice: for example late detention reviews, unjustified delay in access to legal advice, interviewing a vulnerable person without an appropriate adult, or failing to give proper cautions.

How do I raise a PACE breach at court?

Usually by applying to exclude evidence under section 76 or section 78 of PACE, or by using the breach in cross-examination. Your contemporaneous note and any representations recorded on the custody record are the key evidence.

Should I raise a breach at the police station?

Where it is appropriate, yes. Make representations to the custody officer, ask for them to be recorded on the custody record, and note what you said and the response.