4th July 2011: A Police Detention and Bail Bill is to be rushed through the House of Commons this coming Thursday and the House of Lords early next week. It will give the Police what they want. An interesting question is whether it will give them even more power? Rushed legislation is invariably ill-considered and usually leads to further problems.
5th July: The Supreme Court refused to "stay" the High Court's judgment in the Hookway case. See the Supreme Court's brief statement.
A recent ruling by McCombe J has put the cat among the pigeons. The case is R (Chief Constable of Greater Manchester) v Salford Magistrates' Court and Paul Hookway  EWHC 1578. The Police and the Home Secretary are clearly highly unhappy with it - BBC 29th June 2011. To understand the facts of the case it is necessary to read the full judgment since some media reports seem to have shortened the factual sequence of events.
The law is in the Police and Criminal Evidence Act 1984 sections 41 to 45. The time for which a suspect (S) can be held commences from the "relevant time." What the relevant time is will depend on section 41 but, in many cases, it is the time at which S is checked in at the Police Station following his arrest. The basic rule is that he may be held for a maximum of 24 hours from the relevant time (RT+24). Under section 42, a Police officer of Superintendent rank or above may, provided certain conditions are met, authorise detention up to relevant time + 36 hours (RT+36).
If the Police need still more time, they must apply to the Magistrates' Court which, under section 43, may issue a Warrant of Further Detention. This must state the time of issue and will authorise the detention of S for the period stated in it. The maximum time the Magistrates may grant is 36 hours thereby taking the detention toward relevant time + 72. (The precise time will depend on the time of issue of the warrant and how much time the court gives). A final possibility
is that the magistrates may extend a warrant of further detention - section 44. However, an extension must not take detention beyond relevant time + 96 hours.
In the Hookway case, Salford Magistrates Court (comprising a District Judge) issued a Warrant of Further Detention. That was on 8th November 2010 and was for 36 hours from the time the warrant was issued - i.e. 18.22 hours on 8th November. Almost 28 hours into that 36 hour period, the Police released Hookway on bail. The Police then considered that they had almost 8 hours of authorised custody time up their sleeve for future use. Of course, on the very wording of the warrant, it would have ceased to have effect at 06.22 on the 10th November.
Hookway answered his Police bail on 5 occasions from 11/11/10 to 9/2/11. On 5th April 2011 he again answered his bail whereupon his further detention was authorised by the custody officer. By now, the Police reckoned that they still had over 7 hours of time left from the warrant issued in November 2010.
As McCombe J put it - "This proceeds upon the assumption that upon release following the issue of a warrant, if the period of the extension has not expired, that period remains in suspension until used up by later periods of detention."
The Police now applied for an extension to the warrant of further detention which had been issued in November 2010. At the court hearing it seems that a legal adviser pointed out to the District Judge that the November warrant had actually expired due to its wording - 36 hours from time of issue. The District Judge refused to authorise an extension of time. There was nothing to extend!
The interpretation placed on PACE by McCombe J is, to say the least, poles apart from the view which, so it seems, the Police have taken of their powers for many years.
Police powers in PACE are aimed at striking a fair balance between the duty of the Police to investigate offences and the rights of the citizen. It may be that Parliament, when enacting PACE 1984, possibly had in mind the situation in which a suspect is held continuously. The Police have interpreted things as allowing for authorised time to be divided up and "unused" time held in suspension for later use.
The "long stop" in all of this seems to be section 44 which requires even an extension of a warrant of further detention to be no longer than "relevant time"+96 hours. "Relevant time" must surely include not merely a "time" but also a "date" so that there is a baseline from which the period of detention can be calculated.
Especially with more complex investigations, the judgment clearly presents the Police with considerable difficulty and they seem to have sought leading counsel's opinion on the ramifications of the judgment. It may be that the detention scheme in PACE will have to be reconsidered by Parliament. It remains to be seen how things develop whether via appeal or by the government rushing amending legislation through Parliament. The likelihood is that the police view will, one way or another, be made to ultimately prevail. Meanwhile, the rule of law requires that the Police follow the law as set out by McCombe J.
Other links: Please see The Defence Brief and this Guidance issued by the Metropolitan Police. Nothing in the Hookway judgment seems to throw legal doubt on any Police Bail. Persons who are bailed by the Police must continue to abide by that bail - e.g. by attending the Police Station or by adhering to bail conditions. Failure to do this could result in arrest for breach of bail. It is also possible for the Police to re-arrest persons who have been released in the event that "new" evidence comes to light justifying such arrest. There is no clear definition of "new" though the wording of PACE refers to new evidence which has come to light since the person was released - see, for example, section 41(9). The implication is that the evidence is something which was not available to the Police at the time when the person was in Police detention.
Note: Different rules apply for terrorism cases - see Parliamentary report.
Addendum 30th June:
Policing Minister Nick Herbert MP announced in Parliament that a bill would be presented to reverse Hookway - Guardian 30th June. See also the Addendum.
For an argument, based on PACE s.47(6), that McCombe J got this wrong see M. Zander QC "The Detention Clock: An Unhelpful Decision which is surely wrong" (Criminal Law and Justice Weekly Vol 175 18th June) and also see Criminal Law Week which brings section 34(7) into the mix. Zander's article is interesting in that he looked back at the proceedings in Parliament when PACE was a bill - (a "Pepper v Hart" approach).
The Criminal Law Week article criticises the practice, which occurred here, of listing appeals by way of case stated before a single judge. At the very least, this is not an ideal practice even if, as appears to have happened here, it is expedient. Interestingly, the article goes so far as to describe the practice as "unlawful." If so, would McCombe J's judgment be a nullity? However that may be, it is interesting to note that McCombe J stated that Langstaff J (the judge in charge of the Administrative List) had given approval to the matter being heard by a single High Court Judge rather than by a Divisional Court. Had the latter been ordered then the rule is that a Divisional Court shall comprise two or more judges (Senior Courts Act 1981 s66). The Ministry of Justice website indicates that "appeals by way of case stated" from magistrates "can be and usually are heard by a Divisional Court."
Addendum 1st July: Solicitor Andrew Keogh, writing in a bulletin issued by Crimeline, has asked - "What of the thousands of cases between 1 January 1986 when PACE came into force and the date of the Royal assent of any emergency legislation?" Many people might have been unlawfully detained and perhaps be entitled to compensation. There is also the appeal issue - those cases founded on evidence (e.g. confession) obtained at a time when the suspect was unlawfully detained. This is why the case is heading to the Supreme Court in late July since the government needs to head off damages claims. Having said this, Keogh points out that lawyers will not escape blame either. No one single objection to the PACE clock calculation was raised over the last 25 years. (Interestingly, in Hookway, only the Police attended the High court - via counsel). "Surely", asks Keogh, "if there is any blame to be apportioned here, the lawyers share it at least equally?"
Addendum 2nd July: The Guardian has reported that there is to be an application made in the Supreme Court to STAY the Hookway judgment. A private hearing, before three judges, is scheduled for Monday 4th July. It beggars belief that, given the massive public importance of this issue, the hearing cannot be in open court. Meanwhile, so The Guardian reports, "Police Chiefs" have said that the common practice in most inquiries of releasing suspects on bail and calling them back for questioning weeks later is "pretty much a dead duck."
The M.P. Mark Reckless picked up on the point that the first reaction of civil servants to the judgment was to go and talk to the Association of Chief Police Officers rather than report their concerns to Ministers. He asked - "Who is in charge: Ministers or ACPO."