![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales Court of Appeal (Civil Division) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> G, R (on the application of) v Director of Public Prosecutions [2008] EWCA Civ 28 (05 February 2008) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2008/28.html Cite as: [2008] 4 All ER 594, [2008] 2 Cr App Rep 5, [2008] Crim LR 558, [2008] 2 Cr App R 5, [2008] 1 WLR 550, [2008] WLR 550, [2008] EWCA Civ 28 |
[New search] [View without highlighting] [Printable RTF version] [Buy ICLR report: [2008] 1 WLR 550] [Help]
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE DIVISIONAL COURT
THE HONOURABLE MR JUSTICE COLLINS
THE HONOURABLE MR JUSTICE OWEN
Strand, London, WC2A 2LL |
||
B e f o r e :
LORD JUSTICE CARNWATH
and
LORD JUSTICE TOULSON
____________________
The Queen (on the Application of G) |
Appellant |
|
- and - |
||
Chief Constable of West Yorkshire |
Respondent |
|
Director of Public Prosecutions |
Interested Party |
____________________
Mr James Watson QC and Mr Mark Ley Morgan (instructed by the office of the force solicitor) for the Respondent
Mr David Perry QC and Mr Duncan Atkinson on behalf of the First Interested Party
Hearing dates : 30th October
____________________
Crown Copyright ©
President of the Queen's Bench Division :
"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 6th 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?".
The Statutory Framework
"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.
"(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.
"…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. "
"…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.
"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.
Discussion
"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."
"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".
"…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.
Conclusion
"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.
Lord Justice Carnwath :
Lord Justice Toulson :