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Emergency measures to delay court hearings due to the shortage of prison cells raise the risk that suspects could be detained unlawfully in police custody, experts have told The Independent.
Keeping defendants in cells longer than is allowed could open up police forces to possible legal action.
With prisons struggling to cope with an influx of new inmates remanded over rioting, fuelled by the far right, the government announced on Monday that it was activating Operation Early Dawn across swathes of north England and the Midlands.
Under the contingency measure, previously used in March and May, suspects will appear before a magistrate only once it is confirmed that there is a prison cell available in case they are refused bail.
“They will be held in a police station until they are summoned to court,” the Ministry of Justice said on Monday.
But under the Police and Criminal Evidence Act 1984, a suspect held in police custody after being charged with a crime must be brought before a magistrate no later than the court’s next sitting day.
Failing to release the suspect on police bail beyond that point could amount to unlawful detention, experts say.
The Police Federation has told The Independent it is “closely engaging strategically with policing partners to highlight and identify risks to our members associated with scenarios of unlawful detention in custody”.
When Operation Early Dawn was last enacted, the federation, which represents rank-and-file officers, warned that suspects were being “kept in police custody facilities unlawfully”.
In an open letter, published on 28 June, the federation warned that continuing to detain a suspect who cannot appear before a magistrate under Operation Early Dawn “would straightforwardly be unlawful and amount to false imprisonment” – leaving both the police force and custody officers vulnerable to legal action.
As of Friday afternoon, 1,117 arrests and 677 charges had been brought since the unrest broke out on 30 July. Figures published that morning showed 460 defendants had attended a first magistrate hearing, during which 327 were denied bail.
A federation spokesperson said all officers “should act within the law” and that it had been reassured by the National Police Chiefs’ Council that forces have robust policies in place to significantly reduce instances where someone may be held in custody unlawfully.
It is understood that such procedures include police liaising with courts to prioritise cases to avoid unlawful detentions and conduct video hearings where possible, or to take prisoners to court themselves when they are not collected by the prisoner escort services.
Katy Hanson, vice-chair of the Criminal Law Solicitor Association, told The Independent that the body had raised concerns about the risk of unlawful detentions with the Ministry of Justice in May but had received no response.
Warning that court delays caused by the lack of space in prisons “is causing a backlog and issues throughout the [criminal justice system]”, Ms Hanson said: “The concerns raised in May remain and are exacerbated by the sudden significant increase of cases.”
While the Law Society said it had not yet seen any reports of potentially unlawful detentions, president Nick Emmerson said solicitors are “already alert to this risk” and are monitoring the situation.
“Using police cells for post-hearing detention if the court remands someone in custody could be a better option to reduce the risk of unlawful detention,” Mr Emmerson said.
While it is not clear how Operation Early Dawn is being used in practice, criminal defence solicitor Stephen Davies said it appears that priority is given to the most serious cases, while others are left to wait or suspects are released on police bail.
“The reality is the courts and prisons cannot cope, so the only way to tackle this problem is to prevent the work from entering the courts in the first place,” said Mr Davies, of the firm Edwards Duthie Shamash.
Speaking to BBC Radio 4’s Today show on Tuesday, Labour frontbencher Jo Stevens insisted that “anyone who poses a risk to the public will obviously not be bailed”, adding: “They’ll be held in a police station until they’re summoned to court, and that should be no later than the day after being charged.”
A Ministry of Justice spokesperson said: “The justice system is facing unprecedented pressures but over the last few weeks we have seen what the courts can achieve when running at full throttle. We have been clear that Operation Early Dawn is designed to ensure statutory duties will continue to be met.”
A government scheme to release inmates who have served 40 per cent of their sentences does not begin until early September.
