G v Chief Constable of West Yorkshire Police & Anor [2006] EWHC 3485 (Admin)

Case No CO/2673/2006[2006] EWHC 3485 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Thursday, 21st December 2006
Strand
London WC2
B E F O R E:
MR JUSTICE COLLINS
MR JUSTICE OWEN
Between
GClaimant-v-
Between
CHIEF CONSTABLE OF WEST YORKSHIRE POLICEDefendantDIRECTOR OF PUBLIC PROSECUTIONSInterested PartySECRETARY OF STATE FOR THE HOME DEPARTMENTInterested Party
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR S CRAGG (instructed by Messrs Harrison Bundey) appeared for CLAIMANTMR J WATSON QC AND MR M LEY MORGAN (instructed by Office of the Force Solicitor) appeared for DEFENDANTMR D PERRY QC appeared for 1ST INTERESTED PARTY
J U D G M E N T
[1]MR JUSTICE COLLINS: The claimant in this case, who will be known as G, is now 17, having been born in May 1989. He claims that his detention for some three hours in a police station was unlawful. This is because, he submits, on its proper construction section 37 of the Police and Criminal Evidence Act 1984, as amended by the Criminal Justice Act 2003, produces that result.[2]On 3rd October 2005 there was an unpleasant incident on a bus in Leeds in which a number of youths attacked passengers. On 23rd November 2005, G was arrested on suspicion of having committed assault occasioning actual bodily harm. He was released on police bail to await identification by witnesses on a video. That identification was positive and, on 22nd December 2005, he attended the police station together with a representative of his solicitors, a legal executive, a Mr Conaghan. He was what is described as a persistent young offender, having eight previous convictions, including three for violence, and so he would not, although then only 16, have been referred to an alternative to prosecution because he was a young person. Mr Conaghan informed the custody officer that in his view there was no proper basis for detaining the claimant since there was sufficient evidence to charge him and section 37 of the Police and Criminal Evidence Act required that he be released on bail or charged. Mr Conaghan produced a standard letter to that effect and it seems that that is a letter which he customarily carries with him and produces at police stations when a situation such as that which existed in this case arises. The custody sergeant, following guidance from the Director of Public Prosecutions, refused to accept that that was the position in law and decided to detain the claimant while he sought advice from a Crown Prosecutor as to the appropriate charges. This meant detention for some three hours. The advice in due course was that the claimant should be charged but not for assault occasioning actual bodily harm. He was in fact charged with offences of affray and common assault.[3]Part 4 of the Police and Criminal Evidence Act deals with the powers of the police to detain suspects. Section 34(1) and (2) underlines the principle that detention must always be justified. It provides for the supervision of custody by an officer appointed for that purpose who has to be at least a sergeant. One of his duties is to decide whether to charge and section 37 provides that detention can only continue so long as the custody officer has reasonable grounds for believing that detention is necessary to secure or preserve evidence relating to an offence for which the suspect is under arrest or to obtain such evidence by questioning him; see section 37(2).[4]Section 37(1) provides as follows, the section itself being headed "Duties of custody officer before charge":
"37(1) Where (a) a person is arrested for an offence-- (i) without a warrant; or (ii) under a warrant not endorsed for bail... 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 period as is necessary to enable him to do so."
[5]The changes effected by Part 4 and section 37 in particular, when the Act was originally enacted in 1984, were to impose upon an independent officer the obligation to consider whether an arrest could properly lead to a charge. This was intended at the time to stop defendants being taken to court following an arresting officer's decision and was an important safeguard against inappropriate charges. However, this system was considered inadequate to prevent improper charging and so Auld LJ was asked to report on the whole process. In Chapter 10 of his report, he dealt with preparation for trial. In paragraph 4, he said this:
"First, the key to a just and efficient criminal process -- good case preparation -- is identification at the earliest possible moment of the likely plea and, if it is to be one of not guilty, the issues. There is a culture of last-minute decisions, which must be attacked if there is to be any significant improvement. Too often cases are warehoused between hearings, so that little is done until the next hearing is imminent. There should be active preparation for trial without constant recourse to the court. This depends in large part on the prosecution charging correctly at the outset, its timely and adequate disclosure of its proposed evidence and of all material otherwise relevant to the issues as it knows or believes them to be, and on the defence's early indication in response to such material of the issues it intends to take..."
Then in paragraph 11 he set out the four essentials, which include a "strong, independent and adequately resourced prosecutor in control of the case at least from the point of charge" and he recommended as follows:
"I recommend that the Crown Prosecution Service should be given greater legal powers, in particular the power to determine the initial charge, and sufficient resources to enable it to take full and effective control of cases from the charge or pre-charge stage, as appropriate."
And finally, in paragraphs 44 and 45, he returned to this theme. He suggested that the precise offences that could be left to the police without advance intervention by the Crown Prosecution Service could be identified by national guidelines contained within the Criminal Procedure Code that he had proposed and he recognised that the changes, including correlation of the higher evidential and public interest test at the stage of charge by the Crown Prosecution Service, or in minor routine cases by the police, would possibly require greater use of police bail to complete the investigation before charge. So he recommended, among other things, that the Crown Prosecution Service should determine the charge in all but minor routine offences or where, because of the circumstances, there was a need for a holding charge before seeking the advice of the Service.[6]Those recommendations were accepted by the Government and it was this acceptance that led to the amendments to section 37 in the 2003 Act. The explanatory notes, so far as relevant, state in paragraph 21 as follows:
"This Part amends the Police and Criminal Evidence Act 1984 to provide that, where a custody officer decides that there is sufficient evidence to charge a suspect who is in police detention, he is to have regard to guidance issued by the DPP in determining whether the suspect should be released without charge but on bail, released without charge and without bail, or charged. Where, pursuant to that guidance, a case is referred to the Crown Prosecution Service to determine whether proceedings should be instituted (and if so on which charge), the defendant will be released on police bail with or without conditions."
In paragraphs 167 and 68, the explanatory notes deal specifically with the amendments to section 37 and the insertion of new sections 37A to 37D, and stated:
"167. New section 37A enables the Director of Public Prosecutions to issue guidance to which custody officers are to have regard in deciding whether, in cases where they consider that there is sufficient evidence to charge a suspect, they should release the suspect without charge but on bail, release him or her without charge and without bail, or charge him. 168. It is envisaged that the DPP's guidance will set out the circumstances in which it will be appropriate for the police to charge or otherwise deal with a suspect without reference to the Crown Prosecution Service; this is likely to include minor cases (such as the majority of road traffic offences), cases where there is an admission by the suspect and which could be disposed of by the magistrates' court, and cases where there is a need to bring the suspect before a court with a view to seeking a remand in custody. In other cases it will be appropriate for the police to release the suspect without charge but on bail while (as required by section 37B) the case is referred to the CPS."
[7]I should now cite the Act as amended by the 2003 Act, so far as it is material for the purposes of this judgment. Section 37(7) now provides, so far as material:
"... 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 37B 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." "(7A) The decision as to how a person is to be dealt with under subsection (7) above shall be that of the custody officer. (7B) Where a person is released under subsection (7)(a) above, it shall be the duty of the custody officer to inform him that he is being released to enable the Director of Public Prosecutions to make a decision under section 37B below."
Section 37A, which is headed "Guidance", provides:
"(1) The Director of Public Prosecutions may issue guidance -- (a) for the purpose of enabling custody officers to decide how persons should be dealt with under section 37(7) above ... and (b) as to the information to be sent to the Director of Public Prosecutions under section 37B(1) below. (2) The Director of Public Prosecutions may from time to time revise guidance issued under this section. (3) Custody officers are to have regard to guidance under this section in deciding how persons should be dealt with under section 37(7) above..."
Section 37B provides, by subsection (1):
"Where a person is released on bail under section 37(7)(a) above, an officer involved in the investigation of the offence shall, as soon as is practicable, send to the Director of Public Prosecutions such information as may be specified in guidance under section 37A above."
[8]Since the purpose behind the amendments was to give to 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. It is to be noted that a further amendment, no doubt driven by the knowledge that the arguments raised by the claimant have been repeated in relation to many other suspects detained in police stations, has been enacted in section 11 of the Police and Justice Act 2006. This is due to come into force on 15th January next year. It amends subsection (7)(a) of the Police and Criminal Evidence Act as amended by the 2003 Act so that it will, from 15th January, read, so far as material:
"... 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 above."
This gives an explicit power to keep a suspect in detention while the views of the Director of Public Prosecutions, of course given through a Crown Prosecutor, are obtained.[9]However, the trigger for the exercise of the powers in subsection (7) remains and requires the custody officer to determine that he has before him sufficient evidence to charge the person arrested with the offence for which he was arrested. Mr Cragg makes the point that detention is only permitted by section 37(1) for so long as it is necessary to enable the custody officer to determine that he has sufficient evidence to charge for the offence for which the suspect was arrested. Once he has that sufficient evidence, he must take one or other of the steps authorised by section 37(7). In essence he must decide to release, whether on bail or absolutely, or to charge. He cannot, it is submitted, detain while he seeks advice on whether to charge or what charge to prefer. Mr Cragg draws attention to observations by Professor Zander in his book on the Police and Criminal Evidence Act, citing from the 5th edition of that book. He says that the words in section 37(1), "may detain him at the police station for such period as it is necessary to enable him to do so", that is to say to ascertain whether there is sufficient evidence to charge:
"... are critical because, once the custody officer has reached that decision, there is no longer any legal basis for detaining the suspect without charging him. Yet under the new charging system the suspect is in effect put 'on hold' whilst the custody officer seeks the decision of the CPS..."
[10]In acting as he did, the custody officer was following guidance issued by the DPP. That guidance was issued pursuant to section 37A of the 1984 Act. Mr Cragg submits that it could only lawfully deal with how the various options available under section 37(7) should be exercised. It cannot deal with how the custody officer should decide whether sufficient evidence exists. That submission relies on the words of section 37A(1) "should be dealt with under section 37(7)".[11]In my view, that is altogether too narrow an approach. The intention behind the amendments was to bring the CPS into the decision on charging at the earliest opportunity and so it was entirely appropriate that the guidance should be directed to all the elements of section 37(7), including the approach to be taken by the custody officer in determining whether there was sufficient evidence to charge.[12]I turn now to the guidance. I should before doing so note that it states that custody officers must comply with it. That obligation is confirmed by Code of Practice C, issued under section 67 of the 1984 Act. That provides, in paragraph 16.1A:
"Where guidance issued by the Director of Public Prosecutions under section 37A is in force the custody officer must comply with that Guidance in deciding how to act in dealing with the detainee."
[13]Mr Cragg criticises that on the basis that section 37A(3) requires only that the custody officer has regard to the guidance. However, it is clearly not only reasonable but desirable that there should be consistency in dealing with the detention of suspects, if only to ensure that it is in accordance with the law and so compliant with Article 5 of the European Convention on Human Rights. It is difficult to think of any circumstances which would make it reasonable to fail to follow the guidance, which, as one would expect, contains provisions to cover exceptional circumstances and the code itself is of course mandatory. Thus in my judgment Mr Cragg's criticisms in that respect have no substance.[14]The relevant paragraphs of the Code are to be found particularly under heading number 8. 8.1, which provides:
"Where it appears likely that a charge will be determined by Crown Prosecutors, Custody Officers must direct investigating officers to consult a Duty Prosecutor as soon as is practicable after a person is taken into custody. This will enable early agreement to be reached as to the Report and evidential requirements and, where appropriate, for any period of bail to be determined to permit submission of the Report to the Crown Prosecutor for a Charging Decision. 8.2 Early consultation with a Duty Prosecutor will allow the early identification of weak cases and those where the charging decision may be made upon consideration of limited information."
Paragraph 8.4 is headed "The standard to be applied in determining whether the case is to be referred to a Crown Prosector or the person released on bail". It reads:
"In determining whether there is sufficient evidence to charge in accordance with section 37(7) PACE, Custody Officers will apply the Threshold Test set out in paragraph 3.10 above. Where, in any case, it appears that there is manifestly no evidence and the Threshold Test is not met in respect of a detained person, the Custody Officer need not refer the case to a Crown Prosecutor before releasing that person, whether on bail or otherwise.

(a) "

[15]The Threshold Test is described thus in paragraph 3.10:
"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 person of having committed an offence (in accordance with Article 5 of the European Convention on Human Rights) and that at that stage 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 under the Full Code Test, but will be based on the information available at the time of charge, which will often be limited. 3.11. 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 in accordance with paragraph 3.10 above."
[16]The Full Code Test is again identified in the guidance, in paragraph 3.8 and it is this:
"... (following a review of the evidential material provided) ... there is enough evidence to provide a realistic prospect of conviction and that it is in the public interest to proceed."
[17]The Threshold Test goes no further than reasonable suspicion, which is no greater than that state of mind which justifies an arrest. I do not regard that as an appropriate test for determining whether there is sufficient evidence to charge. As paragraph 3.11 makes clear, the Full Code Test relating to evidence (that to say that there is enough evidence to provide a realistic prospect of conviction) must be applied. The Full Code Test includes the need to be satisfied that it is in the public interest to proceed but that aspect may not be a material consideration for the custody officer in reaching his decision under section 37(7), since the subsection refers to sufficiency of evidence alone. Thus, in my judgment, the guidance is defective in that the Threshold Test is not capable in law of justifying a determination that there is sufficient evidence to charge. But the Threshold Test is relevant in that, if in the custody officer's view it is crossed, he should seek the advice of the duty prosecutor. In reality he will, I am sure, only approach the duty prosecutor when he feels that there may be enough evidence to justify a charge for whatever offence the prosecutor feels appropriate but he will not have to determine that there is enough to charge for the offence for which the suspect was arrested. That decision is unnecessary, indeed undesirable, because, generally, the custody officer should not make it before he has sought and received advice from the duty prosecutor. The guidance recognises that he may sometimes have to charge where, for example, advice is not available within a reasonable time and it is in his view not a case in which bail should be granted. There must then be a proper evidential basis for a holding charge and the defendant must be taken to court and the court will then decide whether a remand in custody or on bail is appropriate. But it is clearly improper to charge without an evidential basis simply in order to retain a suspect in detention at a police station. Insofar as paragraph 3.9(ii) of the guidance, which I do not need to cite, may suggest otherwise, it is in my view unlawful.[18]The custody officer's evidence in this case establishes the following. The officer in the case, presumably the arresting officer, had told him that following the interview it was his intention to seek the Crown Prosecution Service's advice on charges. He, the custody officer, considered that he did have power to authorise continued detention because it was his duty to decide how to deal with the claimant under section 37(7) and, in making his decision, he was required to follow the DPP's guidance. The claimant was a persistent young 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. At the end of the interview -- there was a short interview on 22nd September which was in fact a no comment interview -- the custody officer says that he was satisfied applying the Threshold Test, that there was sufficient evidence to charge, and the case was referred to the CPS for a decision.[19]I have already indicated that in my view the Threshold Test is insufficient to trigger section 37(7) and so the effect of what the custody officer did was, in my view, to seek advice in deciding whether there was sufficient evidence. That has always been regarded as proper and was so regarded under the unamended Police and Criminal Evidence Act. Custody officers would routinely seek advice, whether from senior colleagues, from lawyers or from looking at law books. That approach is not only still lawful but now there is an obligation to seek advice from the CPS. Thus the amendment in the 2006 Act was in my view unnecessary since a sensible construction of the Act gives the necessary role to the CPS and ensures that charging decisions are, unless there are good reasons why the advice cannot be obtained, on advice from and so determined by the CPS. Paragraph 8.4, in particular, of the guidance will need some reconsideration but that it is advice which I regard as erroneous does not mean that the detention in this case was unlawful. As I have said, it seems to me that, on the facts of this case, having regard to what I have decided in relation to the Threshold Test, in essence the custody officer was doing what he should do and was seeking the necessary advice as to what charge should be preferred, if any. There may be circumstances where the custody officer, because he is unable perhaps to obtain the necessary advice, does have to form his own view and, as is clear, under the Act the only proper trigger for use of the section 37(7) powers is his determination that there is sufficient evidence to charge for the offence for which the suspect was arrested. It is that narrow approach which is in my view no longer appropriate, having regard to the new approach which was indicated by Auld LJ and accepted and so has been brought into effect by the 2003 Act. It is, I repeat, entirely unfortunate that the provisions of section 37 were not radically reconsidered so as to fit in to this new approach. But even if it was appropriate to regard the Threshold Test as meaning that the sufficiency of evidence test was satisfied so that the options in 37(7) were triggered, it would be consistent with the purpose of the amendments to allow a reasonable time to ensure that the charge was an appropriate one. It is undesirable for a number of reasons to have to release on bail, which is what Mr Cragg submits is the only course that can be adopted by the custody officer if the particular suspect is one who can properly be released on bail. There will be further unnecessary delays, unnecessary additional paperwork, requirement to return to the police station and face a further period of detention there while the necessary processes are undertaken.[20]Mr Cragg relies on paragraph 21 of the explanatory notes, which I have already cited, and the last sentence of paragraph 8.4 of the guidance and he submits that that last sentence, in particular, requires release on bail if a defendant is suitable for bail. It is not as clearly drafted as it should be but it is consistent with the approach that it should be construed, and in my view the proper construction is, that it requires the custody officer simply to exercise one or other of the options open to him in section 37(7) so that, if he decides, for whatever reason, that it is not a case which is appropriate for referral because, for example, a decision cannot be expected within a reasonable time, he may decide to release on bail and there may be cases where the Crown Prosecutor himself indicates that, perhaps because there are complications or because it is necessary for him to take further time, it would be desirable that the suspect be released on bail to enable him to have sufficient time to make the necessary decision. But in my view the guidance in paragraph 8.4 should not be read as requiring a release on bail simply because the individual is one who can be released on bail.[21]Thus I am persuaded that there is power to seek advice, even where the sufficiency of evidence test is met before a charge is preferred. Any period of detention for that purpose, whether before or after the sufficiency of evidence test is met, must only be for so long as is reasonable and I see no reason to doubt that three hours was, on the facts of this case, not unreasonable or, if the proper test is proportionality, was not disproportionate.[22]While I have accepted that the power exists without the need for the amendment in the 2006 Act to seek advice after the sufficiency of evidence test has been met, I am clearly of the view that it is more appropriate to seek the advice of the Crown Prosecutor before making the determination of sufficiency of evidence, particularly as that determination relates only to the charge for which the suspect was arrested and it may well be, and no doubt frequently is, the case that that turns out not to be an appropriate charge when fuller evidence is obtained or the suspect has told his side of the story in interview. That being so, it is in my view unnecessary and perhaps undesirable for the custody officer to make that determination before seeking advice. He can in due course charge for any offence which is appropriate and indeed must follow the advice given by the Crown Prosecution Service. I recognise that this leaves a lesser role for section 37B since it applies in terms only to a person released on bail under section 37(7)(a). But the approach indicated by section 37B is in any event being applied since the guidance can and does require all necessary information to be provided to the Crown Prosecutor and obliges the custody officer to comply with the Crown Prosecutor's decision.

(i) of the guidance, which provides:

"Crown Prosecutors will be responsible for the decision to charge and the specifying or drafting of the charges in all indictable only, either way or summary offences where a Custody Officer determines that the Threshold Test is met in any case, except for those offences specified in this Guidance which may be charged or cautioned by the police without reference to a Crown Prosecutor."
That seems to me to be absolutely correct and how the matter should be approached and, as I have said, in my view the Threshold Test will be satisfied before any question of satisfaction of the evidential test exists.[23]In those circumstances, and for those reasons, I would dismiss this claim.[24]MR JUSTICE OWEN: I agree. I concur in particular with the observations of my Lord Mr Justice Collins as to the unsatisfactory manner in which the relevant recommendations of the old report were implemented by amendment of section 37 of PACE.[25]MR JUSTICE COLLINS: Yes. Now, we have had a letter from Mr Cragg, in which he asked us to give 28 days to make an application for leave to appeal. We indicated yesterday, I think, that we were minded to give him some time because we were coming up to the Christmas period. What we did not do, and what we perhaps should have done, was to decide then whether we would grant leave to appeal and so the extension would be to enable him to apply, if so advised, to the Court of Appeal. We have not heard a formal application from him for leave to appeal but we are clearly of the view that this is not an appropriate case in which to grant leave to appeal and that it will be necessary for an application for that purpose to be made to the Court of Appeal. We are each of us entirely clear that, on any view, however one approaches it, the detention was lawful and, in all the circumstances, as we say, we do not think that is appropriate to grant leave to appeal. But we will extend the time within which he can apply to the Court of Appeal to 28 days.[26]We should indicate, because we have not heard any argument, that there must be liberty to apply to us but we do not encourage him to do so and he should recognise that a sensible course would be to accept this decision and to decide whether it is a matter that should be pursued to the Court of Appeal.[27]He will have the usual detailed assessment order in relation to his legal aid.

Cited in 1 later judgment