G, R (on the application of) v Director of Public Prosecutions

This is an appeal by G against the decision of the Divisional Court dated 21^st December 2006, dismissing his claim for judicial review of the decision made by a custody officer at Chapletown Police Station in Leeds that he should be detained between 10.42 and 13.47 on 22^nd December 2005 pending a decision from the Crown Prosecution Service whether he should be charged. The Divisional Court concluded that in view of the provisions of the Police and Criminal Evidence Act 1984 (PACE), as amended by the Criminal Justice Act 2003 (the 2003 Act) his detention was lawful. Accordingly the application for judicial review was dismissed (see [2006] EWHC 3485 (Admin)). The question in this appeal is whether the Divisional Court was right.

On 3^rd October 2005 a number of youths attacked passengers on a bus in Leeds. One man was attacked and injured by a group of three young men. The appellant was arrested at 8.25 on 23^rd November 2005 on suspicion of committing assault occasioning actual bodily harm. He was admitted to bail. Positive identifications were later made by the complainant and another witness, and there was further independent evidence to support them. When the appellant answered his bail at Chapletown Police Station on 22^nd December 2005, he was briefly interviewed between 10.39 and 10.42. He made no comment. In view of his age, and no less than eight previous convictions, which included three convictions for offences of violence, the appellant was a persistent young offender for whom possible alternatives to prosecution would have been inappropriate under current practice. Advice was sought from the Crown Prosecutor. On the basis of that advice, at 13.47, he was charged with common assault and affray. On 3^rd March 2006 he pleaded guilty to common assault and was sentenced to a supervision order for 12 months and appropriate orders for curfew, compensation, and costs were made.

The issues canvassed in the Divisional Court, and again in the appeal, were raised on 22nd December 2005 itself. When the appellant answered his bail at Chapletown Police Station he was accompanied by his mother and a representative of his solicitors. The arresting officer indicated to the custody officer at the police station that he intended to interview the appellant in order to put the positive identifications to him. Thereafter the case would be referred to the duty lawyer for a charging decision. The solicitor’s representative suggested to the custody officer that as there was already sufficient evidence to justify charging the appellant with the offence for which he was arrested, he should “move directly to take a decision as to which of the four alternative steps” specified in section 37(7) of PACE should be taken.

The custody officer rejected the argument, and said that the appellant would be detained for a further interview. According to the solicitor’s representative, he agreed that it was inevitable that the appellant would be charged with an offence or offences. However he believed that he had power further to detain him for the purpose of referring the case to the Crown Prosecution Service for a charging decision because section 37A(3) of PACE required custody officers to have regard to guidance issued by the Director of Public Prosecutions. An argument about the power of the officer to grant bail to the appellant in the meantime followed, but the officer argued that it would be fairer for the appellant to be detained in custody to have the matter sorted out quickly rather than require him to return later in the day or on the following day to discover the outcome. The solicitor’s representative said that the appellant did not want to be detained. He told the officer that any continuing further detention would be unlawful and would contravene section 37 (7).

The custody officer was handed a standard letter, asserting that if he wished the Crown Prosecution Service to be involved in the charging decision, he was “obliged to release” the appellant “on bail to enable the decision to be taken”. His “ordinary pre-charge powers of detention…clearly” did not apply once he had made his “decision under sub-section 37(7) of the 1984 Act”. The officer rejected these representations. After interview, the appellant was detained and the case was referred to the duty lawyer.

In view of some disagreement about the facts as described on behalf of the appellant, and indeed the Divisional Court’s approach to the evidence, some narrative of the evidence is needed. The officer explained his reasons for believing that he was entitled to authorise the appellant’s continued detention pending the charging decision by the Crown Prosecution Service in unequivocal terms.

“1.

As the custody officer it was my duty to decide how to deal with the claimant under s37 (7) PACE

2.

In making my decision I was required to follow the DPP’s Guidance issued under s 37(B) PACE

3.

The claimant was a Persistent Youth Offender and consequently given the nature of the offence for which he had been arrested, the decision on charging would have to be made by the CPS

4.

I had the power to authorise continued detention under s37(1) PACE for so long as necessary, in order to obtain a charging decision from a Duty Prosecutor. ”

In support of this view he relied on PACE Code C, note 16, together with posters displayed in the custody suite dated 6^th June 2005 which refer to the “Director’s guidance on charging” and “Summary of the Director’s guidance on charging”, and a flow chart entitled, “Do you need mandatory CPS advice?”.

It is nowhere suggested that there were any evidential or legal features of the incident on 3^rd October 2005 which gave rise to any difficulty in the mind of the officer, or that he lacked sufficient evidence to justify charging the appellant with the offence for which he had been arrested. The significant feature of this specific case was that the appellant was a persistent young offender, and that the Director of Public Prosecutions had issued guidance under section 37A which applied to the charging decision involving such offenders. This guidance provides that in the case of a persistent young offender, early consultation should be undertaken by the custody officer with the duty prosecutor “to confirm the likely charges and the evidential requirements”.

The detailed grounds for contesting the appellant’s claim, advanced on behalf of the Chief Constable, confirm this analysis. In answer to the claimant’s case it is contended that he “was a persistent youth offender who had been arrested for a s47 OAP offence. Consequently the charging decision had to be made by the CPS (see para 4.3 of the DPP’s Guidance). S37 (1) (a) of PACE provided the custody officer with the power to detain the claimant in order to take the advice of the CPS before he made his decision under s37 (7)”.

Taking this material as a whole I am unable to adopt the approach taken by the Divisional Court, to the effect that the custody officer had merely reached the limited determination necessary to start the process by which a decision would be made as to the charge after advice was received from the duty lawyer. He had undoubtedly reached that stage, but in my view he had plainly gone much further, and untrammelled by considerations relating to the appellant’s status as a persistent young offender, and the guidance from the Director of Public Prosecutions which applied to him, he would have charged him with the offence for which he was arrested. When all is said and done this was an entirely straightforward case, amply supported by clear evidence in which, unless required to seek it, a custody officer needed no advice from the duty lawyer.

The contentions advanced by the solicitor’s representative and the custody officer at the police station represented genuine states of mind. The differences between them are irreconcilable. What therefore was the source of the custody officer’s power, if any, to detain the appellant pending charging advice from the duty prosecution lawyer? In essence the lawfulness of his decision depends on sections 37 and 37A and 37B of PACE, which are found in Part IV (sections 34-52) of PACE, entitled “Detention”, and in particular the terms of section 37 and consequent guidance issued by the Director of Public Prosecutions, together with the obligation imposed on the custody officer to “have regard” to any such guidance and to comply with the relevant Code of Practice. In the Divisional Court this resulted in an elaborate analysis of both the charging guidance issued by the Director of Public Prosecutions, and the Code of Practice. Notwithstanding some justifiable criticism of the structure and contents of the guidance, the application failed on two grounds. First, the custody officer had not made his own determination for the purposes of section 37(7) before he sought advice on the charging decision from the duty lawyer, and second, even if he had, he was in any event entitled to detain the appellant pending that advice. The first ground is fact specific and for the reasons outlined earlier in this judgment is not sustained. The second ground raises an issue of principle of general application relating not to the charging decision, but to the power to detain pending that decision.

Section 34(1) of PACE provides in unequivocal terms:

“A person arrested for an office shall not be kept in police detention except in accordance with the provisions of this Part of the Act.”

Indeed, section 34 (2) underlines that:

“…If at any time a custody officer –

(a)

becomes aware, in relation to any person in police detention that the grounds for the detention of that person have ceased to apply;

(b)

is not aware of any other grounds on which the continued detention of that person could be justified under the provisions of this Part of this Act, it shall be the duty of the custody officer … to order his immediate release from custody.”

In short, the PACE regime prohibits any extra statutory justification for police detention after arrest.

Section 37 of PACE provides, so far as material:

“(1)

Where …a person is arrested for an offence… the custody officer at each police station where he is detained after his arrest shall determine whether he has before him sufficient evidence to charge that person with the offence for which he was arrested and may detain him at the police station for such a period as is necessary to enable him to do so.”

In the case of an individual arrested at the police station, this duty was to be carried out, “as soon as practicable after the arrest”. (section 37(10)). If the custody officer does not consider there is sufficient evidence for charging purposes, the person arrested is to be “released either on bail or without bail”, unless the custody officer

“has reasonable grounds for believing that his detention without being charged is necessary to secure or preserve evidence relating to an offence for which he is under arrest or to obtain such evidence by questioning him”. (section 37(2))

The statutory framework seems clear enough. The person under arrest may be detained at the police station for as long as necessary for the custody officer to “determine” whether there is sufficient evidence to charge him, or to secure or preserve evidence relating to the offence for which he was arrested, or to obtain such evidence in the course of an interview or interviews. Taken together, sections 37(1) and 37(2) suggest that once the custody officer has sufficient evidence to charge, he is not entitled to continue the detention without charge.

Section 37(7), as originally enacted, provided:

“…if a custody officer determines that he has before him sufficient evidence to charge the person arrested with the offence for which he was arrested, the person arrested –

(a)

shall be charged; or

(b)

shall be released without charge, either on bail or without bail. ”

Section 37 had already been the subject of a variety of repeals and insertions by the Criminal Justice Act 1991, the Criminal Justice and Public Order Act 1994, and the Prison Reform Act 2002, when some of the recommendations made by Sir Robin Auld in his Review of Criminal Courts of England and Wales, were implemented in the 2003 Act. Sir Robin expressed concern about delays in the criminal justice process arising from overcharging by the police and recommended that the Crown Prosecution Service should take control of cases at the charge or pre-charge stage in order to ensure that only appropriate charges were brought. For this purpose, the Crown Prosecution Service should be more influentially involved “to the point where, in all but minor, routine cases, or where there is a need for a holding charge, it should determine the charge and initiate the prosecution”.

As a result of these recommendations a new charging system was introduced by the 2003 Act. The Director of Public Prosecutions, through the Crown Prosecution Service, was to be much more closely involved in the charging decision. Section 37(7) of PACE, as substituted by schedule 2, para (2) of the 2003 Act, provides:

“…if the custody officer determines that he has before him sufficient evidence to charge the person arrested with the offence for which he was arrested, the person arrested –

(a)

shall be released without charge and on bail for the purpose of enabling the Director of Public Prosecutions to make a decision under section 37 B below

(b)

shall be released without charge and on bail but not for that purpose;

(c)

shall be released without charge and without bail, or

(d)

shall be charged. ”

Henceforward I shall refer to the person arrested in these circumstances as the suspect.

Paragraphs (c) and (d) of section 37 (7) simply repeated the provisions formerly found in section 37(7) (b) and (a). They moved down the statutory structure, so that new paragraphs (a) and (b) could be inserted. Express provision was made in section 37(7)(a) to enable the Director of Public Prosecutions to make a decision under section 37B. Nevertheless, by section 37(7A), the decision under section 37(7)(a)-(d) was vested with the custody officer. Section 37(7B) required the officer, when acting in accordance with section 37(7) (a), to inform the suspect that he was being released on bail to enable the Director of Public Prosecutions to make a decision under section 37B. None of paragraphs (a) to (d) of section 37(7) refers to guidance issued by the Director of Public Prosecutions under section 37A. References to him in section 37(7) (a)-(d) are confined to section 37B.

Schedule 2, paragraph 3, of the Criminal Justice Act 2003, inserted four additional statutory provision, sections 37A, 37B, 37C and 37D. Section 37A deals with Guidance from the Director of Public Prosecutions. It enables him to issue and revise guidance to which custody officers were required “to have regard…” in deciding how suspects should be dealt with under section 37(7), and to identify the information to be sent to the Director of Public Prosecutions when exercising his responsibilities under 37B. Importantly, it does not add anything to the alternatives available to the custody officer under section 37(7)(a)-(d).

Section 37B addresses consultation with the Director of Public Prosecutions after the custody officer has decided, under section 37(7)(a), that the person arrested shall be released without charge and on bail. It is not concerned with guidance from the Director of Public Prosecutions. It is predicated on the basis that the suspect has been released on bail, and indeed bail is a pre-condition to its application. The Director of Public Prosecutions must decide “whether there is sufficient evidence to charge the person with an offence.” If so a written notice of his decision to the officer involved in the investigation must be given, and if an offence should be charged, or a caution issued, the suspect is to be charged or cautioned accordingly.

Section 37C is concerned with a failure to answer to bail following release under section 37(7) (a). Section 37D(4) provides:

“Where a person released on bail under section 37(7)(a)…returned to a police station to answer bail or is otherwise in police detention at a police station, he may be kept in police detention to enable him to be dealt with in accordance with section 37B or 37C above or to enable the power under sub-section (1) above to be exercised. ”

It is perhaps axiomatic that where the sub-section refers to a person in police detention, the detention in question must be lawful. In other words, this subsection does not provide a justification for what would otherwise be unjustified detention. Moreover it confirms the link between a reference to the Director of Public Prosecutions before charge under section 37(7) (a) and the grant of bail.

None of the remaining provisions in Part IV of PACE bear on the proper construction of section 37(7) and the authority of the custody officer in relation to the detention of suspects before charge.

The Divisional Court examined the statutory framework in the context of Sir Robin Auld’s Review, and noted the recommendation in chapter 10 that the Crown Prosecution Service should normally determine the appropriate charge in all but routine minor offences. However, these recommendations proceeded on the basis of a corresponding increase in the use of police bail. The explanatory notes to the amendment to section 37 of PACE contained in the 2003 Act indeed confirmed that where, “pursuant to the guidance, a case is referred to the Crown Prosecution Service to determine whether proceedings should be instituted (and if so on what charge), the defendant will be released on police bail with or without conditions”.

The Divisional Court was also influenced by the fact that before PACE was amended by the 2003 Act custody officers were entitled to and frequently did seek advice, whether from senior colleagues, or lawyers, or from studying legal texts, so as properly to inform their decisions, a state of affairs reinforced by the obligation on the custody officer to have regard to guidance issued under section 37A. Again however, the appellant’s submission does not imply that the officer has now been deprived of a proper opportunity to seek legal advice before making the charging decision or that those responsible for it may not better inform themselves of any legal principles of which they are ignorant or in doubt. In the present context, the problem is whether there is power to detain the suspect after the custody officer made his determination under section 37(7A).

After meeting the relevant statutory provisions, Collins J, with whom Owen J agreed, observed:

“Since the purpose behind the amendments was to give the Crown Prosecution Service, rather than the custody officer, the responsibility of deciding whether a defendant should be charged and with what offences in all but minor matters, it is unfortunate that Parliament sought to achieve this by amendments which retain the functions of the custody officer set out in the Police and Criminal Evidence Act as originally enacted. Furthermore, the language used is, as this claim makes clear, hardly satisfactory.”

The Divisional Court thereafter rejected as “too narrow an approach” the submission on the appellant’s behalf that section 37A did not address the exercise of the custody officer’s responsibility under section 37(7). The detail of the guidance itself was addressed, and the obligation on officers to comply with it, “confirmed” by Code of Practice C issued under section 67 of the 1984 Act was noted. Collins J’s judgment set out the Threshold Test in paragraph 3.10 of the Guidance and continued:

“Application of the Threshold Test will require an overall assessment of whether in all the circumstances of the case there is at least a reasonable suspicion against the suspect of having committed an offence… and that…it is in the public interest to proceed. The evidential decision in each case will require consideration of a number of factors including: the evidence available at the time and the likelihood and nature of further evidence being obtained; the reasonableness for believing that evidence will become available; the time that will take and the steps being taken to gather it; the impact of the expected evidence on the case and the charges the totality of the evidence will support. The public interest means the same as the Full Code test, but will be based on the information available at the time of charge, which will often be limited. The Full Code test, otherwise described as the Full Test directs attention to sufficient evidence to provide a realistic prospect of conviction, with the added consideration that it is in the public interest to proceed.”

Collins J also noted paragraph 3.11 of the Code that:

“Where, in accordance with this Guidance, custody officers make the charging decision without referral to Crown Prosecutors, they will apply the Full Code Test. Where the case is one in which it is not proposed to release the person on bail after charge and the evidential material required to apply the Full Code Test is not available, the custody officer will proceed to apply the Threshold Test ….”

The Full Code Test involves sufficient evidence “to provide a realistic prospect of conviction and that it is in the public interest to proceed”.

The Threshold Test was regarded by Collins J as inappropriate for deciding whether there was sufficient evidence to charge. However notwithstanding these perceived defects in the context of the charging decision, it remained relevant to the question whether the custody officer should seek the advice of the duty prosecutor. It was therefore “insufficient to trigger section 37(7)”. The guidance issued under section 37A directly informed the proper approach of the custody officer when seeking to form his own determination whether there was sufficient evidence to charge, and the exercise of the alternatives available under section 37(7). This carried with it a power to detain the appellant pending receipt of the advice. The application for judicial review failed on the basis that the custody officer’s decision was to be treated as if he were seeking advice whether there was sufficient evidence to charge.

Collins J noted a subsequent amendment to PACE enacted by section 11 of the Police and Justice Act 2006, which came into force on 15 January 2007, after the argument in the appeal was concluded. Section 37(7)(a) of PACE, as amended by the 2003 Act, is yet again amended and provides that the defendant:

“…shall be –

(i)

released without charge and on bail, or

(ii)

kept in police detention, for the purpose of enabling the Director of Public Prosecutions to make a decision under section 37B below.”

Collins J concluded that this amendment was not necessary for the purposes of justifying the detention of a suspect in circumstances like the present.

This reasoning was supported on behalf of the respondent and the Director of Public Prosecutions. Again close attention was focused on the effect of section 37A and the relevant Code of Practice and the Guidance. It was further argued on behalf of the respondent that section 37(1) provides a power to detain which extends to the completion of the process required for the custody officer to reach a concluded determination on the charging issue. Both Mr Watson QC and Mr David Perry QC drew attention to the requirements, among others, that the custody officer should seek the advice of the duty lawyer before charging, because it was for Crown Prosecutors to decide whether a person was to be charged. The custody officers were required to comply with that guidance, and entitled to take a reasonable time to apply it. It was emphasised that the guidance asserts that “continued detention may be authorised under s37 (1), for so long as it is necessary to obtain a charging decision from a Prosecutor”, and the PACE Code of Practice, Code C, repeats that the custody officer “must comply” with that guidance. The Code itself therefore contemplates a short period of detention pending receipt of the advice of the duty lawyer. Indeed it was argued that the effect of section 37(7) and 37A (3) meant that it would have been unlawful for the custody officer to have charged the appellant without having first obtained the advice of the duty lawyer. If the power to detain pending receipt of the advice was not derived expressly from section 37(1) then the power was derived by necessary implication to enable proper exercise of the power to charge an individual in accordance with section 37B.

These persuasive considerations lead me to express my sympathy with the custody officer. He was put in a virtually impossible position, stuck between the rock of the legislation as urged by the solicitor’s representative, and the hard place of the guidance issued by the Director of Public Prosecutions with which he was required to comply.

The starting point is the hallowed principle that each and every detention must be justified by clear, unequivocal, legal authority. This case is not concerned with detention at the police station while the officer determines that there is sufficient evidence to charge, nor with the detention for the purpose of securing or preserving evidence, nor indeed, except in the context that he was required to do so by guidance issued by the Director of Public Prosecutions under section 37A, with the custody officer needing or seeking advice to enable him to make the necessary charging determination. Ignoring the recent amendment to PACE made by the Police and Justice Act 2006, neither a cursory glance at nor a close analysis of Part IV reveals any express provision which authorises a custody officer in the circumstances presently under consideration to postpone the charging decision for the purpose of obtaining advice under section 37B without admitting the suspect to bail. Section 37(7)(a)-(d) is a carefully structured statutory framework which deals comprehensively with the alternatives available to the officer. Express reference is made in this framework to section 37B, but none is made to section 37A. Section 37B requires that the suspect will have been released without charge and on bail. Therefore the choice of this alternative could not found a lawful period of detention while the duty lawyer, on behalf of the Director of Public Prosecutions, was consulted. Stripped to essentials, we are being asked to infer the existence of a power to authorise detention by reference to guidance used by the Director of Public Prosecutions under section 37A, to which no reference can be found in the alternatives countenanced by the statutory framework. In my judgment the section is not susceptible to this construction, and the guidance issued by the Director of Public Prosecutions, whatever its terms, was not adequate to create the power which the custody officer believed he was exercising. Section 37A did not invest the Director some kind of delegated but unspecific authority, through the issue of guidance, to extend the powers of police officers to keep a suspect in detention. Any such guidance could not extend beyond and was required to be consistent with and limited by the express statutory alternatives found in section 37(7)(a)-(d). These alternatives did not include the power which now exists to keep the suspect in detention for the purpose of consultation with the Director of Public Prosecutions or his representative.

In reaching my conclusion I have been greatly assisted by the illuminating analysis of the statutory structure of section 37, the guidance issued by the Director of Public Prosecutions and the relevant Code of Practice by paragraphs 4-13 to 4-36 inclusive in Professor Michael Zander’s commentary on the Police and Criminal Evidence Act (5^th edition). At paragraph 4-33 he points out that once the custody officer has reached his decision that there is sufficient evidence to charge the suspect

“There is no longer any legal basis for detaining the suspect without charging him. Yet under the new charging system a suspect is in effect “on hold” whilst the custody officer seeks the decision of the CPS as to whether any, and if so what, charge should be preferred. If it can sensibly be argued that the custody officer was subjectively in doubt, time in custody waiting to be informed by the CPS about the charging decision could be said to be within a broad interpretation of s37(1). There was always some latitude in that regard. But what if it is obvious that there is sufficient evidence to charge the suspect in regard to the offence for which he was arrested and the question for the CPS is whether additional charges are indicated or whether, in the light of the public interest test, he should be charged at all? Can the suspect legitimately be held at all waiting for the CPS’s response? If the case is one in which bail is a realistic possibility, and the CPS decision is not forthcoming, the suspect’s solicitor would be entitled to pressure the custody officer to cut the Gordian knot and make decision without delay on the basis that s.37(1) requires it. ”

After reconsidering the revision to the code of practice and the guidance of the Director of Public Prosecutions he points out that the difficulty

“is that there is no statutory basis for setting aside s.37 (1) in this way, nor for introducing the new concept of a reasonable time to allow for the making of a charging decision. The concept of a “reasonable time” in this context is anyway completely uncertain. Reasonable as measured from whose standpoint?…Quite apart from the question of to what here is a reasonable time, the Code cannot amend the statute…It would be surprising if this issue were not soon brought to the attention of the courts. Almost certainly it will require statutory amendment.”

I cannot discern any difference of approach between Professor Zander’s reasoning and my own. I agree with him. His prophecy was correct. The statutory amendment has been made, and is now in force.

The amendments to PACE, as amended by the 2003 Act in the form which it took in December 2005, were inadequate to justify the detention of the appellant on 22 December 2005. He could have been invited to volunteer to wait for the advice of the duty prosecutor, but it was not lawful to compel him to do so by refusing to admit him to bail. Notwithstanding that the appellant was a persistent young offender, it was obvious and the custody officer plainly determined that he had sufficient evidence to charge him with assault occasioning actual bodily harm. Unencumbered by the guidance under section 37A he would have done so, and very likely the appellant would then have been admitted to bail. The argument in the Divisional Court appears to have focussed on the charging problems, and an analysis of the Threshold and the Full Custody test. The issue in the case, however, was the lawfulness of the appellant’s continued detention. In my judgment there was no power in the custody officer to detain the appellant without charge. Accordingly this appeal must be allowed.

It appears to be common ground that we should decide this case as a matter of pure principle, without regard either to the merits or to the nature of any substantive remedy. We should disregard accordingly the fact that the applicant was involved in a serious assault to which he later pleaded guilty; that the problem only arose because he was a persistent offender, so that the charging decision had to be made by the Crown Prosecutor; that, had the case against him not been so clear, there would have been little doubt over the power of the officer to detain to seek advice; and, finally, that the legal issue is likely to be of historical significance only, following changes made by the Police and Justice Act 2006.

Left to myself, I would have doubted the appropriateness of granting a declaratory remedy against such an artificial background. However, we have not been invited by either of the respondents to refuse relief as a matter of discretion. Although this case lacks merit, I must assume that other more meritorious cases have justified the issue being pursued to this level.

On that basis, I see no answer to the analysis made by the President. Although I have sympathy with the “broader” approach adopted by the Divisional Court, I do not believe it is open to us on the material before us. The officer’s statement of reasons makes clear that he regarded himself as exercising his discretion under section 37(7). This necessarily implies that he had by then determined that he had “sufficient evidence” to charge the applicant with the offence for which he had been arrested. That being so, the discussion about the test to be applied in making that judgment (for example the “threshold test” or the “full code test”) is not in point. Having arrived at that stage, the language of sub-section (7) leaves no room for flexibility. Sub-section 7(a) makes clear that, if the purpose is (as it was here) to obtain a decision of the Director of Public Prosecutions under section 37B, then the subject must be released on bail. That is also the pre-condition for the exercise of the DPP’s powers under section 37B itself.

In those circumstances I agree with some reluctance that the appeal must be allowed.

I agree with the judgment of the President. I add my own words because we are disagreeing with the judgment of the Divisional Court on the construction of legislation dealing with the detention of suspects.

I share the sympathy expressed by the President for the custody officer, who was faced with a case which was factually simple but was made difficult for him by a thicket of statutory provisions and guidance from the Director of Public Prosecutions.

I have no particular sympathy for the appellant, who had committed a nasty offence, but the provisions of Part IV of the Police and Criminal Evidence Act 1984 govern police detention of persons arrested for an offence whether they are innocent or guilty. Where Parliament has enacted rules governing the power to detain an arrested person, the court should not interpret the power more widely than is provided by the words of the statute, applying their ordinary meaning, whether because it would be convenient to do so or because of lack of sympathy for the suspect.

Section 34 prohibits an arrested person from being kept in police detention except in accordance with the provisions of Part IV. To secure compliance with that provision, s 34(2) places certain general responsibilities on the custody officer. More specific responsibilities are placed on the custody officer by s 37.

Section 37(1) requires the custody officer at a police station where a person is detained after his arrest to “determine whether he has before him sufficient evidence to charge that person with the offence for which he was arrested”, and it permits him to detain that person at the police station for such period as is necessary to enable him to do so. Section 37(10) requires the custody officer to carry out his duty under s 37(1) as soon as practicable.

It may take some time for the custody officer to be able to determine whether he has sufficient evidence to charge the person with the offence for which he was arrested. The investigating officers may wish to question him or make other enquiries and the custody officer may wish to obtain advice. In the present case the facts were particularly simple and the appellant gave a “no comment” interview. I agree with the President that it was obvious at that stage that there was enough evidence to charge him with the offence for which he had been arrested.

Once the custody officer gave that answer to the question which s 37(1) required him to ask himself, his four options were set out in s 37(7). One option was to charge the appellant; the others all involved releasing him. Significantly, s 37(7) did not permit the appellant to continue to be detained without charge, which is what happened.

The respondents sought to escape the conclusion that the appellant’s continued detention was unlawful by arguing that (a) the custody officer had not reached the stage of determining that he had sufficient evidence to charge the appellant with the offence for which he had been arrested, and therefore had not reached the stage at which the provisions of s 37(7) cut in; and (b) in detaining the appellant pending a charging decision by the Crown Prosecution Service he was following the guidance issued by the Director of Public Prosecutions under s 37A.

The flaw in part (b) of that submission is that s 37A authorised the Director of Public Prosecutions to issue guidance for the purposes of enabling custody officers to decide how a person should be dealt with under section 37(7). Any guidance issued by the Director of Public Prosecutions only has statutory force under the Act in relation to a situation in which s 37(7) has arisen – contrary to the position taken by the respondents under part (a) of their submission. Put another way, s 37A gives no power to the Director of Public Prosecutions to issue guidance to the custody officer in determining for the purposes of s 37(1) whether there is sufficient evidence to charge the suspect with the offence for which he has been arrested. The Act does not, of course, prohibit the Director of Public Prosecutions from issuing extra-statutory guidance, but any such guidance must necessarily be subordinate to the custody officer’s statutory responsibilities under s 37(1) and (10).

The difficulty about part (a) of the respondents’ submission is that it is unsustainable on the facts for the reasons given by the President, with which I agree. Moreover if extra-statutory guidance caused the custody officer to postpone determining whether there was sufficient evidence to charge the appellant with the offence for which he had been arrested, when the police inquiries were complete and there was obviously sufficient evidence to charge him, the custody officer would be failing in his responsibilities under s 37(1) and (10).

As the President has observed, the problem in this case was anticipated by Professor Zander in the passage quoted in paragraph 30. The example given by him in the second half of the first quoted passage is the present case. I agree with his reasoning and with the analysis of the President, which are at one.