For how long can the Police hold me?

Updated 30th June, 1st July, 2nd, 4th and 5th July: 


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.
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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 [2011] 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

Explaining our Law and Legal System ... No.6 ... Sources of Law

Law Library Oxford University

Previous posts in this series:
No.1 - Legal Personnel
No.2 - Courts of Law and Tribunals
No.3 - The Judges
No.4 - Juries
No.5 - Magistrates

"The laws of man may bind him in chains or may put him to death, but they never can make him wise, virtuous, or happy" - John Quincy Adams (1767-1848).

Can "Law" be defined?

There is no clear definition of "law."  In recent times, many modern law schools have neglected the fascinating subject of "Jurisprudence" which is, broadly speaking, the theory and philosophy of law.

The familiar notion of "law" escapes precise definition even though, over centuries, numerous thinkers and writers have attempted to explain it and also to describe the scope and content of law.  Connected to the idea of law are other elusive concepts such as "justice", "morality", "rights" and "obligations."

A post such as this cannot hope to do "justice" - (there's that word again) - to the wealth of literature which is available.  A working notion will have to suffice.  One such notion is - "The rules which a particular country or community recognises as regulating the actions of its members and which it may enforce by the imposition of penalties."  Of course, this begs questions: what is a "country" (or State), what is a "rule", from where do "rules" come (i.e. sources of law), how is something given recognition as a rule, what "authority" is empowered to make "rules", who are the "members" of a society, what are "penalties" and how are they justified.  These, and many other similar questions, would be asked of any attempt to explain what law is.

The question of law and morality:

Another difficult idea is that of "morality" but it can be said with confidence that law and morality are not identical.   An obvious example of this is that adultery or sexual promiscuity outside of marriage are not unlawful though many consider them to be immoral.  Indeed, as we have recently seen, the law will sometimes take steps to prevent publication of such activities on the basis of protecting the privacy of the individual - (Right to respect for private and family life - Article 8 of the European Convention on Human Rights).

The killing or assisting with

House of Lords Reform: Boothroyd v Ashdown

Updated 29th June

Hat tip to the  Lloyd Rees Live blog which highlights a speech, in the House of Lords, by Baroness Boothroyd - a former Speaker of the House of Commons.  She is scathing about the coalition plans to reform the House of Lords which Law and Lawyers looked at on 20th May when the House of Lords Reform Bill first emerged.  Her speech was excellent and may be viewed at Democracy Live.

My Lords, the draft Bill before us confirms my worst fears. Never in my
experience has an institution at the heart of the British constitution been
marked down for destruction on such spurious grounds. Never in all my years in public life has the bicameral role of our Parliament been so wantonly put at risk by such disregard of the nation’s best interests.

See the government's draft Bill together with Explanatory Notes.  An alternative Bill, introduced by Lord Steele, is before the House of Lords - see House of Lords Reform Bill.

Writing in The Times - 27th June - Lord Ashdown states that the coalition's bill is a great chance for reform.  He looks at four arguments used to oppose reform.  (1) that the public are not clamouring for it.  True, but neither does the public like the way politics is.  (2) an elected Lords would challenge the primacy of the Commons.  Why should it?  Ashdown says that there are 61 elected second chambers in the world.  In none has election of the second chamber threatened the primacy of the first. "Is Britain's constitution really so weak that it would risk collapse if its second chamber were elected, like the vast majority of others world wide?"  (3) a lot of expertise would be lost to the Lords if it were reformed.  Ashdown concedes that there is a reservoir of expertise in the Lords though he says "it is not evenly spread, unique, or, much of it. up to date" and most of it exists on the cross-benches.  "If some find simple

Jurors and contempt; the limits of cross-examination; government seeks appeal in Shoesmith case

Joanne Fraill

More on the juror's duty and contempt of court:

The judgment in the juror contempt of court case is available - see Attorney-General v Fraill and Sewart [2011] EWCA Crim 1570 and [2011] EWCH 1629 (Admin).  It explains how the court arrived at a sentence of 8 months imprisonment for juror Fraill but a sentence of 2 months suspended for 2 years for non-juror and acquitted defendant Sewart.  The case is also interesting in  that the judges sat first as a Divisional Court of the Queens Bench Division to deal with the contempt matter and then became a Court of Appeal (Criminal Division) to consider and, in the event, dismiss the appeal by Gary Knox.  His appeal was considered to be "misconceived" - see paragraphs 27-51 of the judgment.

The Lord Chief Justice, who had previously made a speech about jurors researching cases on the internet, was clearly determined to send out a strong message that such conduct would not be tolerated.  His Lordship emphasized that the obligation of jury secrecy does not cease once the trial is over (see para 61).  It is an indefinite obligation.  A final point was that judges should not tell jurors that they are not to discuss the case until they retire to consider their verdict.  The correct approach is for the judge to direct the jury never to discuss the case unless they are all together, and in private, and further to direct them that whatever their discussion at any stage of the case, they will obviously keep open minds and not jump to conclusions until the evidence is completed and the summing up has been given.

See Crown Prosecution Service - Contempt of Court.  Except for certain urgent cases, prosecutions for contempt are brought in the Queen's Bench Division of the High Court.  Here is the law standing on its dignity and seeking to uphold the authority of the courts and the judges.  This was said to be the correct procedure in Balogh v St Albans Crown Court [1975] QB 73 - where the defendant had referred to the judge as a "humourless automaton" - the defendant no doubt discovered that he was right !   For other examples of contempts see "Contempt of Court: Greatest Hits."

Cross-examination in the Levi Bellfield trial :

Levi Bellfield

The trial of Levi Bellfield for the murder of

Some reflections on a shameful bill

Jonathan Djanogly MP

Updated 24th June and 30th June
Law Society Gazette - Analysis of the legal aid and sentencing bill - 30th June.

Bar Council reaction
Law Society reaction
Consumer Justice Alliance view

"A Shameful bill will make us all pay" - is the title of the Editorial in the printed version of the Law Society Gazette 23rd June which looks at the Legal Aid, Sentencing and Punishment of Offenders Bill.  The internet version publishes it under the title "Whitehall turns a blind eye to fallout from legal aid cuts."

There were over 5000 submissions to the governments' legal aid consultation and, as the Gazette points out, many of these did far more than merely register opposition.  They contained "eloquent, practical and detailed explanations of the wider consequences of the cuts proposed."  Kenneth Clarke has chosen to ignore these points and has taken "public policy into territory that shares a long border with malfeasance in public office."  The cuts do not result from negligence or incompetence but are "deliberate and doctrinaire" and turn a wilful blind eye to the consequences of the policy, as identified in the submissions.  The Gazette concludes - "This is a shameful bill."  Very strong words indeed. 

A further article in the Gazette is - "We did listen on legal aid, Djanogly insists, ...."  It appears that the Bill is to be driven through Parliament on a tight timetable.  If only Parliament and not the executive actually controlled the timetable!  Such undue haste is surely even more irresponsible given

The "Legal Aid, Sentencing and Punishment of Offenders Bill" - A Quick Glance - a lot to look at and much unhappiness

With additions

Introduction:  On 21st June, the Secretary of State for Justice and Lord Chancellor (Kenneth Clarke QC MP) introduced into Parliament his Legal Aid, Sentencing and Punishment of Offenders Bill.    Along with the Bill, explanatory notes are also available.  The Bill has 119 clauses and 16 Schedules.

Parts 1 and 2 of the Bill deal, respectively, with Legal Aid and Litigation Funding and Costs.  Part 3 - which divides into 7 Chapters - deals with Sentencing and Punishment of Offenders.  Part 4 includes some "Final Provisions."  There are then 16 schedules.

The 7 Chapters in Part 3 are entitled: (1) Sentencing; (2) Bail; (3) remands of children otherwise than on bail; (4) Release on Licence; (5) Prisoners etc; (6) out of Court Disposals; (7) Knives and Offensive Weapons.

Prior consultations:  At this stage, it should be noted that the Bill builds on three consultations:

• Proposals for the reform of Legal Aid in England and Wales - November 2010
• Proposals for the reform of civil litigation funding and costs in England and Wales - November 2010 - (based on Lord Justice Jackson's Report)
• Breaking the Cycle: Effective Punishment, Rehabilitation and Sentencing of Offenders

A quick glance at some of the clauses:  Some of the instantly striking features of the Bill are:

The Bill will enact an entirely new scheme for legal aid.  Present arrangements under the Access to Justice Act 1999 will be replaced.  The Legal Services Commission will be abolished and administration of legal aid transferred to an executive agency within the Ministry of Justice.  There is to be an official known as the Director of Legal Aid Casework who will be responsible for the decision-making about legal aid in individual cases.  This will raise concerns about the executive agency's actual degree of independence from government.

Ideas - which were not implemented - in the Criminal Justice Act 2003 will be repealed.  These include "Custody Plus", "Intermittent Custody" (only briefly trialled) and the increase in Magistrates' Courts sentencing powers.  

Part 3 Chapter 6 contains amendments to the legislation under which police constables may issue a penalty notice for disorder and authorised persons may give conditional cautions. This includes the introduction of a penalty notice with an education option and provision for conditional cautions to be given without the need to refer the case to the relevant prosecutor. The amendments also allow new types of conditions to be attached to a conditional caution given to a foreign national offender without leave to enter or stay in the United Kingdom. The Chapter creates a new kind of youth caution. It also makes amendments to youth conditional cautions by making them more flexible.

Part 3 Chapter 7 creates new offences relating to threatening with weapons in public and threatening with a blade or point of offensive weapon.   There will be a minimum sentence of 6 months imprisonment for persons over 18 found guilty of these new offences (unless this would be unjust in all the circumstances).

It will become possible for Penalty Notices for Disorder to have an "education condition" attached requiring the person to attend a

Explaining our Law and Legal System ... No.5 ... Magistrates

Previous posts in this series:
No.1 - Legal Personnel
No.2 - Courts of Law and Tribunals
No.3 - The Judges
No.4 - Juries


The background:  In the region of 30,000 people hold the office of "Justice of the Peace" (JP) and deliver summary justice in the Magistrates' Courts of England and Wales.   In this task they are advised on the law and procedure by legally-qualified "legal advisers."  JPs, along with jurors, exemplify the extensive involvement of "non-lawyers" (or "lay" persons) in our legal system - (perhaps a long-established example of the "Big Society").  Their work is done voluntarily, for no reward and with little recognition.  The Magistrates Association supports and represents them though membership of the association is voluntary.

The origins of the office of JP extend back to medieval times when the Monarch had need of trusty people capable of dealing with offenders.  At that time, such persons were naturally those with wealth (i.e. usually large landowners) and local power.  It is the  Justices of the Peace Act 1361 from which the present day powers of the JP can be traced.  Over the centuries, the JP has been a very useful resource when Parliament has required some task or other to be performed.   For instance, the administration of the licensing laws was a major function of the justices for centuries until the Licensing Act 2003 transferred it to local authorities though a right of appeal to the Magistrates' Court remains.  The magistracy has proved to be extremely adaptable and the composition of a modern bench is a far cry from what it was even some 30-40 years ago.  Today it will be made up of people from many backgrounds, walks of life and income levels.

In the late 1940s a Royal Commission on Justices of the Peace - (under the Chairmanship of Lord Du Parcq) - sat and recommended the continuation of the system of lay justices.  A minority of Commission members - (notably Lord Merthyr) - dissented and considered that there should be a gradual replacement of lay justices by "stipendiary magistrates" who were legally-qualified (i.e. at the time barristers or solicitors of at least 7 years standing).  The report of the Royal Commission was considered in a Modern Law Review article by James Whiteside and it makes interesting reading.   The Lord Chancellor of the time - (Lord Jowitt of Stevenage) - stated that he would need 500 Stipendiary Magistrates if the JPs were to be replaced and he would be unable to find them.  In any event, he was of the view that it was "an excellent thing that justice should be administered by the ordinary lay people ..."   James Whiteside wrote:

" In a masterpiece of concise statement the Report commends the present system ‘because, like that of trial by jury, it gives the citizen a part to play in the administration of the law. It emphasises the fact that the principles of the common law, and even the language of statutes, ought to be (as in the case of the common law at least, they certainly are) comprehensible by any intelligent person without specialised training. Its continuance prevents the growth of a suspicion in the ordinary man’s mind that the law is a mystery which must be left to a professional caste and has little in common with justice as the layman understands it."

The long and interesting history of the Magistracy was masterfully recorded by Sir Thomas Skyrme in his three volume "History of the Justices of the Peace" (1990).

See also Law and Lawyers - "A Jewel Beyond Price ... the Magistracy of England and Wales" (December 2010) and also March 2011.

Other parts of the United Kingdom:   The system of "Lay Magistrates" in Northern Ireland is described by the Law Centre (Northern Ireland) in "An overview of the Lay Magistracy in Northern Ireland."  The Justice (Northern Ireland) Act 2002 made significant changes and introduced, from 1st April 2005, the new office of "Lay Magistrate."   Some of the background to this is considered in "The history of lay involvement in the administration of justice in Northern Ireland" and the article refers to the immense courage shown by JPs in recent years and to the murder in 1977 of Mr Robert Mitchell JP.

In Scotland, there has been a system of JPs since 1609 and a system of "Justice of the Peace Courts" has been recently set up under the Criminal Proceedings etc (Reform)(Scotland) Act 2007.   This development came about in an interesting way.  The Scottish Ministers commissioned a "Summary Justice Review" and a majority of the review team recommended abolition of the office of JP.  However, there was a "Note of Dissent" by Sheriff Brian Lockhart and Mrs Helen G Murray JP.   The Scottish Parliament was persuaded by the dissenters and not only legislated to retain "lay justice" in Scotland but also created the Justice of the Peace Courts.  The former District Courts.were abolished.  It is worth noting here that the Note of Dissent remarked (at para 7) - "Lay justice is a powerful expression of community participation in the regulation of society."

Salford Magistrates Court - closes end of 2011

The modern magistracy of England and Wales:

Appointments:  JPs are appointed by the Lord Chancellor "on behalf of and in the name of Her Majesty" (Courts Act 2003 s10).  The Lord Chancellor is "advised" in this matter by "Advisory Committees" which are responsible for recruitment and selection.  In 2010, the Ministry of Justice issued a consultation relating to these committees.  The government's response (August 2010) has been published.  The committees seek people who have "six key qualities":  Good character, Understanding and Communication, Social Awareness, Maturity and Sound Temperament, Sound judgment, Commitment and Reliability.