Below is the Criminal Law Week digest of, and comment on, the recent case relating to police powers and pre-trial detention. This is being made publicly available on a one-off basis as a contribution to the current public discussion of the issues to which the decision gives rise.

Issue 24 June 27, 2011

New Cases

Evidence and procedure

3. Detention without charge - where a warrant of further detention for 36 hours had been granted in respect of a suspect under section 43 of the Police and Criminal Evidence Act 1984 (Archbold, 2011, §§ 3-117 et seq.), where the suspect was released on bail six hours before the expiry of the period of detention authorised by the warrant, and where he was re-detained upon his surrender to bail several weeks later, the police had had no power so to detain him and it was not then open to the police to make an application for an extension of the warrant of further detention under section 44 (ibid., § 3-123);  section 44(3) was conclusive in that it provided that any period of extension granted under that section should not “end later than 96 hours after the relevant time”, and the relevant time was dictated by section 41 (ibid., § 3-111) as the time of the suspect’s arrival at the police station following his initial arrest:  R. (Chief Constable of Greater Manchester Police) v. City of Salford Magistrates’ Court and Hookway, unreported, May 19, 2011, Q.B.D. (commentary by Michael Zander Q.C. at 175 C.L. & J. 365).

Date of Judgment: May 19, 2011

Judges: McCombe J.

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Comment:
    Michael Zander, in his commentary, is highly critical of this decision, asking whether it is “possible that the judge has seen something that has eluded everyone else” for 25 years, and arguing that it “is a very unfortunate decision”, which, if not quickly reversed on appeal “will need to be speedily reversed by legislation.”
    Zander’s argument that the judge was wrong focuses primarily, as did that of counsel for the police, on section 47(6) of the 1984 Act (Archbold, 2011, § 3-131), which provides that where “a person who has been granted bail under this Part and ... has attended at the police station in accordance with the grant of bail ... is detained at a police station, any time during which he was in police detention prior to being granted bail shall be included as part of any period which falls to be calculated under this Part of this Act.”   It is submitted that the judge was indeed wrong, but that section 47(6) is only part of the explanation.   The key provision, not alluded to in the judgment (and presumably not in argument) or in Zander’s commentary is section 34(7) (ibid., 3-93).   This stipulates that “[f]or the purposes of this Part a person who ... returns to a police station to answer bail granted under this Part ... is to be treated as arrested for an offence and that offence is the offence in connection with which he was granted bail.”  
    The effect of section 34(7) is, it is submitted, that the relevant provisions of Part IV of the Act start over again when the suspect answers to his bail.   First, section 37 (duties of custody officer before charge (ibid., § 3-97)) requires the custody officer to make a decision as to whether there is enough evidence to charge the suspect, and, if there is not, he may make a decision as to whether it is necessary to detain him for one of the permitted purposes in subsection (3), including to obtain evidence by questioning him.   If he is detained in accordance with this provision, then section 41 (limits on period of detention without charge) is again engaged, and it is clear that there is a new “relevant time”, which will be the time the suspect is “treated as arrested”.   But for the provision of section 47(6), the suspect would then be liable to be detained for up to 24 hours.   The effect of section 47(6) is to require any previous period of detention to be taken into account in calculating that period.   In a simple case, therefore, where the suspect is arrested initially and detained for 12 hours prior to being bailed for three weeks, upon his answering to his bail, he is treated as being arrested for the original offence and, if detained by the custody officer, he gets an immediate credit towards the 24 hours of 12 hours.
    The position in the instant case was complicated by the fact that by the time the suspect was released on bail, there had already been an extension of his detention by a police superintendent, under section 42, to 36 hours after the relevant time, and a warrant of further detention granted under section 43 when the suspect had been in detention for 29 hours 42 minutes authorising detention for a further 36 hours from that point.   The suspect was bailed 27 hours and 57 minutes after the warrant was granted, when he had been in detention for a total of 57 hours and 39 minutes, and when the warrant authorised detention for a further eight hours and three minutes.   It is submitted that he could (as the police believed) then be held (upon his answering to bail and being re-detained) for that period without any further order.   If, as happened, the police wanted to detain him beyond that period, they would have to apply under section 44.   Section 44(3) (ante) would operate to restrict any extension to a maximum of 36 hours and to prevent it expiring more than 32 hours 21 minutes (96 hours minus 57 hours 39 minutes) after the relevant time, i.e. the time he was treated as being arrested pursuant to section 34(7).
    Whilst this solution, it is submitted, does justice to both the wording and the intent of the legislation, nobody could pretend that unravelling the provisions of Part IV (with the multiplicity of amendments effected over the years) is easy.   His Lordship issued a certificate to the effect that there was a point of law of general public importance involved in his decision, thus opening the way for an application for leave to appeal to the Supreme Court, which, according to Zander, the police are pursuing as a matter of urgency.   It is to be hoped that if the matter comes before the Supreme Court, that court will take the opportunity to condemn the unlawful practice of listing criminal causes in the High Court before a single judge, rather than before a Divisional Court where they belong (as to which, see countless previous commentaries in this publication (most recently that to R. (D.P.P.) v. Lancaster Magistrates’ Court, 174 J.P. 320, Q.B.D. (Foskett J.) (CLW/10/26/2)).   This litigation exemplifies why listing such cases in front of single judges constitutes such a scandal.   Where there is such a limited scope for appeal, it is iniquitous that important decisions relating to criminal law and practice should be decided by a single judge - all the more so when the legislation “permitting” this practice was made by a committee (the Civil Procedure Rule Committee) with no power to make rules relating to criminal practice.
Update:
Not followed (in Northern Ireland), CLW/11/33/1. select to add to clipboard
For the amendment of the Police and Criminal Evidence Act 1984 to reverse the effect of this decision, see CLW/11/27/9. select to add to clipboard

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