The powers library30 of 59 Detention and custody

Reviews of police detention

ss.40–40APolice and Criminal Evidence Act 1984

Requires the detention of every person held in police detention for an offence to be reviewed at set intervals, so it continues only while the legal grounds for it still exist.

Reviews of police detention · Police and Criminal Evidence Act 1984, ss.40–40ACard 30 / 59

When you can use it

s.40(1)The person is in police detention in connection with the investigation of an offence
s.40(1)(b)Not charged – the review officer is an inspector or above not directly involved in the investigation
s.40(1)(a)Charged – the review officer is the custody officer
s.40(3)First review no later than 6 hours after detention was first authorised, the second no later than 9 hours after the first, then at intervals of no more than 9 hours
s.40(8)Before charge, the s.37(1)–(6) test applies – continued detention only if necessary to secure or preserve evidence or obtain it by questioning, or while the charging decision is made
s.40(10)After charge, the s.38(1)–(6B) grounds for keeping a charged person in custody apply
s.40(12)The person (unless asleep) and any available solicitor are first given the chance to make representations

What it allows

Authorise continued detention if the grounds still exist. If not, the person must be released, on bail or without bail.
Postpone a review if not practicable, e.g. interrupting questioning would prejudice the investigation, or no review officer is readily available (s.40(4)). Hold it as soon as practicable; later reviews keep their original timings (s.40(5)–(6)).
A pre-charge review may be done by telephone (s.40A), or by live link (video) where regulations under s.45A allow it. Telephone is not allowed where a live link is available and practicable (s.40A(2); Code C 15.9B).

Key definitions

Live link – s.45A(10): a remote officer can see and hear, and be seen and heard by, the detainee and their legal representative.
Asleep – the detainee need not be woken for a review, but must be told the decision and reasons as soon as practicable after waking (Code C Note 15C, 15.7).

Safeguards

Representations may be oral or written, from the detainee, their solicitor and the appropriate adult if available (s.40(13); Code C 15.3). Oral ones may be refused if the detainee is unfit through condition or behaviour (s.40(14)).
Remind the detainee of free legal advice before the review, unless asleep (Code C 15.4). Do not put questions about the offence (Code C 15.6).
Record postponement reasons (s.40(7)) and every outcome (Code C 15.16). For remote reviews, an officer at the station makes the record, in the detainee’s presence where required (s.40A(3)), including why the review officer did not attend, where they were and how representations were made (Code C 15.14).
Consider an in-person review for juveniles and vulnerable or unwell detainees (Code C 15.3C).
If a more senior officer’s directions conflict with the review officer’s decision, refer it at once to a superintendent or above (s.40(11)).

Good to know

Exam trap: the review clock runs from when detention was first authorised, not the s.41 “relevant time”.
A missed review makes the detention unlawful for that period (Roberts v Chief Constable of Cheshire Constabulary 1999).
Post-charge reviews by the custody officer cannot be done by telephone (Code C Note 15F).
Extending to 36 hours (indictable offences) needs a superintendent under s.42, after the second review.

Legislation: Police and Criminal Evidence Act 1984, ss.40–40A (opens legislation.gov.uk in a new tab)
Who can use it: An inspector or above (before charge) or the custody officer (after charge)
Last checked: 3 November 2026, against the current law on legislation.gov.uk

Reviews of police detention: questions people ask

When can the police use reviews of police detention?

1. The person is in police detention in connection with the investigation of an offence 2. Not charged – the review officer is an inspector or above not directly involved in the investigation 3. Charged – the review officer is the custody officer 4. First review no later than 6 hours after detention was first authorised, the second no later than 9 hours after the first, then at intervals of no more than 9 hours 5. Before charge, the s.37(1)–(6) test applies – continued detention only if necessary to secure or preserve evidence or obtain it by questioning, or while the charging decision is made 6. After charge, the s.38(1)–(6B) grounds for keeping a charged person in custody apply 7. The person (unless asleep) and any available solicitor are first given the chance to make representations

Who can use reviews of police detention?

An inspector or above (before charge) or the custody officer (after charge)

What law gives the power for reviews of police detention?

Police and Criminal Evidence Act 1984, ss.40–40A.

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