England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(SIR PETER PAIN)
(Sitting as a Judge of the High Court)

		Royal Courts of Justice.
		30th July 1992.

LORD JUSTICE McCOWAN: This is an appeal from a judgment of Sir Peter Pain, sitting as a Judge of the High Court, delivered on 2 6 July 1991 by which he made a declaration that by virtue of section 36(1) of the Police and Criminal Evidence Act, the appellant is under a duty to appoint sufficient custody officers to ensure that at each designated police station at least one custody officer is normally available to perform the functions of a custody officer as provided for by the Act. The respondents in turn cross-appeal against so much of the judgment as adjudged that it was not appropriate to make a declaration that an acting sergeant may not lawfully be appointed a custody officer under section 36(3) of the Act.

The plaintiffs in the proceedings (and respondents to the appeal) brought the proceedings respectively on behalf of the Members of the Joint Branch of the Police Federation of England and Wales of the Dorset Police and of the Members of the Sergeant's Central Committee of the Police Federation of England and Wales. The defendant to the proceedings (and appellant in the appeal) is the Chief Constable of Dorset.

In the proceedings, which were by way of originating summons, the following relief was claimed:

"(1) A declaration that by virtue of Section 36(1) of the Police and Criminal Evidence Act 1984 (hereinafter referred to as 'the Act') the Defendant is under a duty to appoint sufficient Custody Officers to ensure that at each designated Police Station at least one Custody Officer is always readily available to perform the functions of a Custody Officer as provided for by the Act.

(2) A declaration that an acting Sergeant may not lawfully be appointed a Custody Officer under Section 36(3) of the Act.

(3) A declaration that pursuant to Section 36(4) of the Act an officer other than a Custody Officer may not lawfully perform the functions of a Custody Officer at a designated Police Station save in the event of some operational emergency or other unforseen circumstances.

(4) A declaration that under Section 36(2) of the Act an Officer may not lawfully be appointed a Custody Officer for more than one designated Police Station."

The following sections of the Police and Criminal Evidence Act 1984 are relevant.

"30 Arrest elsewhere than at police station

(1) Subject to the following provisions of this section, where a person -

(a) is arrested by a constable for an offence; or

(b) is taken into custody by a constable after being arrested for an offence by a person other than a constable,

at any place other than a police station, he shall be taken to a police station by a constable as soon as practicable after the arrest.

(2) Subject to subsections (3) and (5) below, the police station to which an arrested person is taken under subsection (1) above shall be a designated police station.

(3) A constable to whom this subsection applies may take an arrested person to any police station unless it appears to the constable that it may be necessary to keep the arrested person in police detention for more than six hours.

.......

(6) If the first police station to which an arrested person is taken after his arrest is not a designated police station, he shall be taken to a designated police station not more than six hours after his arrival at the first police station unless he is released previously.

34 Limitations on police detention

(1) A person arrested for an offence shall not be kept in police detention except in accordance with the provisions of this Part of this Act.

(2) Subject to subsection (3) below, 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; and

(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, subject to subsection (4) below, to order his immediate release from custody.

(3) No person in police detention shall be released except on the authority of a custody officer at the police station where his detention was authorised, or, if it was authorised at more than one station, a custody officer at the station where it was last authorised.

(4) A person who appears to the custody officer to have been unlawfully at large when he was arrested is not to be released under subsection (2) above.

(5) A person whose release is ordered under subsection (2) above shall be released without bail unless it appears to the custody officer -

(a) that there is need for further investigation of any matter in connection with which he was detained at any time during the period of his detention; or

(b) that proceedings may be taken against him in respect of any such matter,

and, if it so appears, he shall be released on bail.

(6) For the purposes of this Part of this Act a person arrested under [section 6(5) of the Road Traffic Act 1988] is arrested for an offence.

35 Designated police stations

(1) The chief officer of police for each police area shall designate the police stations in his area which, subject to section 30(3) and (5) above, are to be the stations in that area to be used for the purpose of detaining arrested persons.

(2) A chief officer's duty under subsection (1) above is to designate police stations appearing to him to provide enough accommodation for that purpose.

........

36 Custody officers at police stations

(1) One or more custody officers shall be appointed for each designated police station.

(2) A custody officer for a designated police station shall be appointed -

(a) by the chief officer of police for the area in which the designated police station is situated; or

(b) by such other police officer as the chief officer of police for that area may direct.

(3) No officer may be appointed a custody officer unless he is of at least the rank of sergeant.

(4) An officer of any rank may perform the functions of a custody officer at a designated police station if a custody officer is not readily available to perform them.

(5) Subject to the following provisions of this section and to section 39(2) below, none of the functions of a custody officer in relation to a person shall be performed by an officer who at the time when the function falls to be performed is involved in the investigation of an offence for which that person is in police detention at that time.

....."

Section 37 deals with "Duties of custody officer before charge", section 38 with "Duties of custody officer after charge" and section 39 with his "Responsibilities in relation to persons detained". It will be apparent that the Act places heavy and important duties upon a custody officer and seeks to ensure where possible that those duties are performed by an officer who is not involved in the investigation of an offence for which the person in question is in police detention at the time.

The nature of the dispute in respect of the first declaration sought in the proceedings is clearly brought out by the following passages in an affidavit sworn on 28 February 1991 by Mr. Cooper, the solicitor having the conduct of the proceedings on behalf of the respondents.

"7. The first question which arises concerns the proper construction of Section 36(1) of the Act. On one construction of this sub-section a Chief Officer of Police is under a duty to appoint one but no more than one Custody Officer for each designated Police Station. On the basis of that construction the Chief Officer must have a discretion to appoint more than one Custody Officer but the exercise of that discretion would be a matter entirely for the Chief Officer. On the other construction, Section 36(1) must be construed with Section 36(4) with the result that a Chief Officer of Police is under a duty to appoint sufficient Custody Officers to ensure that at each designated Police Station at least one Custody Officer is always readily available to perform the functions of a Custody Officer as provided for by the Act.

8. The Plaintiff believes that the former construction would have a number of undesirable consequences which cannot have been intended by Parliament. If correct, it would mean that the appointment of only one Custody Officer, no matter how large and/or busy the designated Police Station to which he was appointed may be, would satisfy the requirements of the Act. As a result many of the safeguards explicit in the requirement that the custody officer must be of at least the rank of Sergeant (see Section 36(3)) would be removed and the purpose of the Act would be undermined.

9. This issue has given rise to a particular area of concern in Dorset where, in relation to a number of designated Police Stations, the Defendant has appointed only three Custody Officers. Where this has occurred it is impossible to ensure that a Custody Officer will at any material time be in attendance by reason of the following: first, the absence from duty of the appointed Custody Officers due to rest days, annual leave, sickness, attendance at courses, etc.; secondly, additional former appointments (e.g. as Patrol Officers) which means that appointed Custody Officers are frequently away from the designated Police Station.

10. It is submitted by the Plaintiff that on a proper construction of Section 36(1) and (4) the Chief Officer of Police, in this case the Defendant, is under a duty to appoint sufficient Custody Officers to ensure that at each designated Police Station at least one Custody Officer is always readily available to perform the functions of a Custody Officer as provided for by the Act."

Mr. Davies, a senior assistant solicitor with the Dorset County Council, having the conduct of the proceedings on behalf of the appellant, made the following points in an affidavit sworn on 5 July 1991.

"3. There are 11 designated police stations in Dorset. The designated police stations at Bournemouth, Poole and Weymouth remain open to the public for 24 hours a day and are situated, certainly so far as Bournemouth and Poole Police Stations are concerned, in the major centres of population in Dorset. The remaining eight designated police stations are situated in the smaller towns of Dorset and although open from an operational standpoint throughout any 24 hour period are not open to the public during that same period. Many of these designated police stations are situated in comparatively quiet market towns and have a much smaller percentage of work that involves the use of custody officers. By way of comparison I set out the number of persons arrested during 1990 by way of reference to all 11 designated police stations.

Bournemouth	—	7,207
Poole	-	4,975
Weymouth	-	3,051
Christchurch	-	1,026
Bridport	-	518
Dorchester	-	484
Blandford	-	439
Wareham	-	416
Shaftesbury	-	245
Sherborne	-	216
Swanage	-	217

4. Due to the volume of work generated within the areas covered by Bournemouth, Poole and Weymouth Police Stations the Defendant appointed full time custody officers of the rank of Sergeant to those stations. Five custody officers were appointed to Bournemouth and four each to Poole and Weymouth. The remaining designated police stations had a minimum of three sergeants appointed to each of them but having regard to the small and variable number of arrests the sergeants who were appointed to those stations were appointed to perform both the role of custody officer at those designated police stations in conjunction with their normal supervisory policing role to ensure that the most effective and efficient use was made of their time.

......

11..... In deciding the number of custody

officers to be appointed to each designated police station the Defendant had due regard to both the number of persons likely to be arrested and brought to those police stations and the likely times of such arrests and his duty to ensure that the most efficient use was made of the time of each custody officer. To this end those designated police stations which were to remain open for 24 hours per day and both receive and detain arrested persons throughout that period had appointed to them sufficient custody officers of the rank of sergeant to enable one such officer to be present performing the duties of a custody officer at all times. The remaining designated police stations had a minimum of three sergeants appointed to each to perform both custody officer and supervisory functions. At the six police stations specifically referred to by Mr. Cooper in his affidavit whilst there may not always be a custody officer physically present at the police station at all times a custody officer is always readily available to perform the functions of that post. If for any reasons, an unforeseen emergency arose requiring the attendance of all officers who could perform the function of custody officer then an arrested person would be taken to one of the three main police stations at Bournemouth, Poole or Weymouth where a custody officer would be present to receive them. The Defendant interprets the phrase 'readily available' to mean available promptly or without unreasonable delay but not necessarily immediately. It is unreasonable and not the Defendant's policy to have a custody officer present at each designated police station on the off chance that their services will be required - such a policy would not make the most effective or efficient use of those officers under the Defendant's operational control."

It is apparent from the terms of the judgment, that the main argument before the judge, in respect of the first declaration sought, was as to whether or not the words of section 36(1) are ambiguous. In arguing that they were not, reliance was placed for the appellant before the judge on paragraph 857 of Vol. 44 of the Fourth Edition of Halsbury's Laws of England, reading:

"If the words of a statute are clear and unambiguous, they themselves indicate what must be taken to have been the intention of Parliament, and there is no need to look elsewhere to discover their intention or their meaning."

In their submission the words of subsection (1) plainly say that the Chief Constable is under a duty to appoint one custody officer for each designated police station, but has a discretionary power to appoint more than one custody officer for each designated police station. For the respondents before the learned judge, reliance was placed on paragraph 896 of the same volume of Halsbury's Law, reading:

"If the language of a statute is ambiguous so as to admit of two constructions, the consequences of the alternative construction must be regarded, and that construction must not be adopted which leads to manifest public mischief, or great inconvenience, or repugnance, inconsistency, unreasonableness, or absurdity, or to great harshness or injustice."

It was submitted to the judge on behalf of the respondents that the words of subsection (1) are ambiguous, and that the construction argued for by the appellant would lead to public mischief. The judge resolved this conflict as follows (see [1992] 1 WLR 47, 51):

"I am left in no doubt that there is an ambiguity in the sub-section. It might have the meaning of conferring a discretion upon the Chief Constable as to the number of custody officers he appoints, providing that he appoints one; or it might be making provision for the complement of each designated police station or duty to include a custody officer. I therefore have to resolve this ambiguity.

I have no doubt that the meaning for which the Plaintiffs content is the right one. Parliament could indeed have expressed it a good deal more clearly. But when one looks at the concept of a custody officer, it is plain that he must normally be readily available at each designated police station. The stop-gap provision in Section 36(4) implies that in the normal way the custody officer will be readily available.

.....

I readily accept that I must not interfere with the discretion of the Chief Constable. But to construe the statute is not to interfere with his discretion. If I take Mr. Rawley's construction to its logical conclusion, the Chief Constable could exercise his discretion by appointing one custody officer only to each designated police station, and leaving it to any officer, however junior, who is not involved in the investigation for which the prisoner is in custody, to perform the highly responsible duties of the custody officer for the greater part of the time when the custody officer will not be on duty if, as is normal, the three shift system is worked. I do not believe that any Chief Constable would do this. But I also cannot believe that Parliament intended to give a Chief Constable discretion to act in a way which would completely undermine one of the important principles of the Act. I am therefore prepared to make a declaration in the terms sought in paragraph 1 of the summons with one amendment. The words 'normally available' should be substituted for 'always readily available'.

Subsidiary to this is the third declaration sought. I am not prepared to grant a declaration in these terms. I think that to do so would be to interfere improperly with the discretion of the Chief Constable, who must be at liberty to deploy his men subject to the proper construction of the Act. It is to emphasise this liberty that I have chosen the rather wide words 'normally available' in the declaration I have made.

Similarly, as to the fourth declaration, it is not for me to say whether one officer can be normally available at two stations which are a few miles apart. Much will depend on the likely number of arrests and the means of communication between the arresting officer and the designated station. Normal availability all depends on the circumstances and that is a matter for the judgment of the Chief Constable."

It is to be noted that whereas the respondents had sought a declaration in terms of at least one custody officer being "always readily available" (the words "readily available" obviously coming from subsection (4)), the judge granted the declaration in terms of at least one custody officer being "normally available", a phrase not used in the section. Mr. Beloff, who appeared for the respondents before this court but not before the judge, was not apparently happy with either version and put forward somewhat tentatively for our consideration a third version which would place the Chief Constable under a duty "to appoint sufficient custody officers to ensure that at each designated police station there will ordinarily be available a custody officer to perform the functions thereof". He agreed, however, that formulating any declaration to meet his purposes in this case was a difficult task, and suggested that if we were in his favour in principle we should defer for later argument the precise wording of the declaration.

In fact, the argument advanced to this court by Mr. Beloff was very different from that advanced on the respondents' behalf below. Mr. Beloff does not say that the words of subsection (1) are ambiguous. On the contrary, they are clear, but not in the sense argued for on behalf of the appellant. Mr. Beloff argues that they mean that the Chief Constable is under a duty to appoint one custody officer for each designated police station and is given a power (coupled with a duty) to appoint as many custody officers as are required to ensure that at each such station there will ordinarily be available a custody officer to perform the functions thereof.

In Mr. Beloff's contention, the present is a case similar to Padfield and Others v. Minister of Agriculture, Fisheries and Food and Others [1968] AC 997 where it was held that the permissive words there in question gave the Minister a discretion, but he was not entitled to use that discretion in such a way as to thwart the policy and objects of the Act. For my part, however, I regard the suggestion that what the Chief Constable has done in the present case constitutes a thwarting of the policy and objects of the Act as sheer hyperbole.

We were also referred by Mr. Beloff to Reg. v. Secretary of State for Social Services and Another, Ex parte Child Poverty Group and Others [1990] 2 QB 540. I fact, the Court of Appeal held in that case that the Secretary of State was under no duty to have an adjudication officer available immediately to deal with the claim and that a decision on the claim could be lawfully reached after the stipulated period of 14 days if it were not practicable for it to be reached earlier. Mr. Beloff, however, places reliance on these words of Woolf LJ in giving the judgment of the court at 555B:

"The fact that we have rejected Mr. Drabble's submission does not mean that the Secretary of State is under no obligation as to numbers of officers he appoints. He has a discretion as to the number of adjudication officers who he should appoint and this is a discretion to be exercised reasonably, taking into account the legislative scheme requiring the expeditious disposal of claims within 14 days, where this is practicable. If, for reasons other than the refusal of the Treasury to give its consent the Secretary of State were to exercise this discretion unreasonably, or to use another word irrationally, then a Wednesbury challenge (see Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 KB 223) could be mounted."

Mr. Rawley for the appellant indeed, while arguing that the Chief Constable has a discretion as to whether to appoint more than one custody officer at a designated police station, accepts that the discretion has to be reasonably exercised and, if it is not, that the actions of the Chief Constable can be judicially reviewed. He must, however, submits Mr. Rawley, be granted responsibility and flexibility. In this context Mr. Rawley relies on a line of authority which shows that the courts will not interfere with the daily operation of a police force, culminating in these words in the speech of Lord Keith of Kinkel in Hill v. Chief Constable of West Yorkshire [1989] AC 53, at page 59D:

"By common law police officers owe to the general public a duty to enforce the criminal law: see Reg, v. Commissioner of Police of the Metropolis, Ex parte Blackburn [1968] 2 QB 118. That duty may be enforced by mandamus, at the instance of one having title to sue. But as that case shows, a chief officer of police has a wide discretion as to the manner in which the duty is discharged. It is for him to decide how available resources should be deployed, whether particular lines of inquiry should or should not be followed and even whether or not certain crimes should be prosecuted. It is only if his decision upon such matters is such as no reasonable chief officer of police would arrive at that someone with an interest to do so may be in a position to have recourse to judicial review."

Mr. Rawley points out that the effect of the declaration sought by Mr. Beloff, namely that the Chief Constable must ensure that at each designated police station there will ordinarily be available a custody officer to perform the functions thereof, will be very seriously to curtail the Chief Constable's discretion and to require him to employ a great many more sergeants. At a station that opens 24 hours a day, not even three custody officers each working the customary 8-hour shift would suffice when account is taken of illness and holidays. Mr. Beloff for his part frankly admits that if the respondents are right, one happy result for them will be many more officers promoted to sergeant and a greater call on the public purse, but says that there is nothing objectionable in that if in the process it achieves the intention of Parliament.

It is to be noted that whereas subsections (1) and (3) deal with the appointment of custody officers, subsection (4) deals with the performance of the functions of a custody officer "if a custody officer is not readily available to perform them". It would be very curious in those circumstances if the construction of subsection (1) were to be determined by the words of subsection (4). The latter moreover only applies conditionally, that is to say, "if a custody officer is not readily available". Finally, on this subsection, I do not believe that "readily available" is synonymous with "normally available" or "ordinarily available". In my judgment, unlike the other two expressions, "readily available" covers a situation where a custody officer is

Regulations 1979 (and who by reason of Regulation 4 will in any event have passed the Sergeants' examination and have a minimum of 2 years' service) but simply a Constable who is required by his Chief Officer to 'act up' as Sergeant for a defined period, typically during the absence on leave of a named substantive Sergeant. It is respectfully submitted that the practice of appointing acting Sergeants as custody officers is unlawful and contrary to Section 36(3) of the Act because a Constable acting up does not thereby acquire 'the rank' of Sergeant (as opposed to a Regulation 8 promotion which is 'to the higher rank') Further, it is submitted that the practice is plainly contrary to the spirit and intention of Part IV of the Act which are that (save in exceptional circumstances) only Officers whose competence and experience have qualified them for promotion to the rank of Sergeant should perform the manifold and often difficult functions and duties of a custody officer."

The judge dealt with this part of the claim at page 10D in these terms:

"The plaintiffs accept that a temporary sergeant qualifies to be a custody officer under Section 36(3). The [Chief Constable] says that he has never appointed a constable required to perform a sergeant's duties as a custody officer and has no intention of doing so. But [the affidavit] contends that there is no distinction or difference between a temporary sergeant and an 'acting sergeant'. Mr. Rawley tells me that this is meant to be a contention of law. I do not think it appropriate to make a declaration in the circumstances, but to assist the parties, I express the clear conclusion that an officer required to act up to the duties of a sergeant is not qualified to be appointed a custody officer."

Mr. Beloff submits that, being against Mr. Rawley's contention of law, the judge had no good reason for refusing the declaration sought.

Before this court Mr. Rawley has repeated the instructions which he has received from the Chief Constable, that he has never appointed an acting sergeant as a custody officer under subsection (3) and has no intention of ever doing so. Nevertheless, he submits that the Chief Constable has the power to do so by reason of the decision of the Court of Appeal (Criminal Division) in the case of R. v. Alladice (1988) 87 Cr. App. R. 380. There, the court was concerned with section 107(1) of the Act, which provides:

"For the purpose of any provision of this Act or any other Act under which a power in respect of the investigation of offences or the treatment of persons in police custody is exercisable only by or with the authority of a police officer of at least the rank of superintendent, an officer of the rank of chief inspector shall be treated as holding the rank of superintendent if he has been authorised by an officer of at least the rank of chief superintendent to exercise the power or, as the case may be, to give his authority for its exercise."

Giving the judgment of the court, Lord Lane CJ said:

"Chief Inspector Corbett was given apparent authority to exercise the necessary power by an officer who held the rank of chief superintendent, but did so not in a substantive but only in an acting capacity.

The appellant submits that an acting chief superintendent is not an officer of 'at least the rank of chief superintendent,' and that therefore Chief Inspector Corbett was not in any event authorised to delay access to a solicitor.

It is very much a matter of first impression, but in our judgment the holder of an acting rank, at least so far as authority and powers are concerned, is to be treated as if he were the holder of the substantive rank, unless his appointment to the acting rank was a colourable pretence, which is not suggested here."

Mr. Beloff expressly disclaimed any suggestion that that point was wrongly decided in the case of Alladice. But he pointed out that it concerned another section of the Act. He also stressed that subsection (3) is dealing with the "rank" of sergeant. However, section 107(1) is dealing with the "rank" of chief superintendent. For my part, I would find it difficult to distinguish the case of Alladice. The question is, in my judgment, one of either agreeing or not with the decision in Alladice.

The position is, however, that while not accepting that the appellant has never appointed an acting sergeant to be a custody officer, the respondents have not pointed to any instance where they say he has or indeed where any other Chief Constable has. In those circumstances I regard this question as an academic or hypothetical question and would prefer to express no final view upon it. In any event I agree with the judge that it is not an appropriate case for the making of a declaration.

I would, therefore, dismiss the cross-appeal.

LORD JUSTICE STEYN: Like the captain of a ship, a judge must sometimes start by clearing the decks. The issues in this case are limited to two important but narrow questions of statutory construction about the scope of the Chief Constable of Dorset's duties to appoint custody officers under section 36(1) of the Police and Criminal Evidence Act 1984. No other issues arise for decision. We have been referred to decisions of high authority which establish that a court of law will not interfere with the policy or operational decisions of Chief Constables about the deployment of their officers. See, for example, Hill v. Chief Constable of Yorkshire [1989] AC 53, at 59E. That is trite law. This case raises no legal issue about the scope of that principle, or about its application in the county of Dorset, or about the limited circumstances in which a court might as a matter of discretion grant declaratory relief about a Chief Constable's discharge of his statutory duties. We have also been referred to a line of decisions where courts treated discretionary statutory powers as powers coupled with a duty to exercise the powers in proper cases. Perhaps the best example of this line of authority is Padfield and Others v. Minister of Agriculture, Fisheries and Food and Others [1986] AC 997 where the House of Lords held that a ministerial discretion to appoint a committee of investigation could not be used to thwart the policy of the statute creating the power. Padfield, and other cases in this line of authority, involve issues regarding abuse of statutory power. On this construction summons those decisions are irrelevant. It has never been an issue in this case whether the Chief Constable of Dorset properly exercised a statutory discretion.

The principal point: the number of custody officers

Section 36 is the critical provision. While the setting and context of section 36 is important, I need only quote the first five subsections of section 36. Those subsections read as follows:

"(1) One or more custody officers shall be appointed for each designated police station.

(2) A custody officer for a designated police station shall be appointed -

(a) by the chief officer of police for the area in which the designated police station is situated; or

(b) by such other police officer as the chief officer of police for that area may direct.

(3) No officer may be appointed a custody officer unless he is of at least the rank of sergeant.

(4) An officer of any rank may perform the functions of a custody officer at a designated police station if a custody officer is not readily available to perform them.

(5) Subject to the following provisions of this section and to section 39(2) below, none of the functions of a custody officer in relation to a person shall be performed by an officer who at the time when the function falls to be performed is involved in the investigation of an offence for which that person is in police detention at that time."

The principal issue before the judge, and before us, was whether the Chief Constable's construction of section 36(1) is right. The Chief Constable's contention is that section 36(1) imposes upon him a duty to appoint one custody officer for each designated station, and vests in him a discretion to appoint more than one custody officer for a designated police station if he considers it right to do so. The rival contention of the Police Federation, which was upheld by the judge, is reflected in the order which the judge made. The order provides:

"By virtue of Section 36(1) of the Police and Criminal Evidence Act 1984 the Defendant is under a duty to appoint sufficient Custody Officers to ensure that at each designated Police Station at least one Custody Officer is normally available to perform the functions of a Custody Officer as provided by the said Act."

Subject to a qualification to which I will come, we must choose between these two constructions the one which best matches the intention of the legislature.

Mr. Rawley QC submitted that a linguistic or semantic process of interpretation produces only one answer, namely that the Chief Constable "shall" appoint one custody officer for each designated police station but that he "may" appoint more. That, he submitted, is the end of the matter. Mr. Rawley acknowledged that this interpretation may render the statutory safeguard of the appointment of independent custody officers of the rank of sergeant less effective than some may have thought. But, he said, we need look further than the words of section 36(1).

For my part I am satisfied that a broader approach to the construction of section 36(1) is in principle permissible. In considering the meaning of words in any statute, it is always right to take into account the purpose of the statute. The speeches in the House of Lords in Attorney General v. Prince Ernest Augustus of Hanover [1957] AC 436 showed that the purpose of a statute, or of part of a statute, is something to be taken into account in arriving at the ordinary meaning of words in the statute. See Viscount Simonds' speech, at 461, and Lord Somervell's speech, at 473. Such a purpose may, of course, also be called in aid at a later stage of the process of interpretation, namely in choosing between rival interpretations where the language of the statute is ambiguous, but that is another matter. But it does not follow that resort to the purpose of a statute will always, or even usually, be a controlling factor. The extent to which a resort to the purpose of a statute will be helpful may depend on how far the language is capable of stretching. Ultimately, having taken into account the purpose of the statute, a court cannot avoid considering what different meanings the language of the statute can accommodate.

The broad purpose of PACE was to find a pragmatic compromise between two competing considerations: one is the public interest in promoting the effective use of police power in order to ensure the peace and tranquillity of the realm, and the other is the public interest in ensuring that the police power is not used in an unfair and oppressive manner towards a detained subject. But this general purpose tells us little about the objective underlying section 36(1). It is necessary to move from the general to the specific. In striking a balance between the two competing considerations of public interest, the legislature assigned a key role to custody officers in the protection of the welfare and interests of detained suspects in police stations. In doing so, the legislature adopted a recommendation of the Royal Commission on Criminal Proceedings, Cmnd 8092. Paragraph 3.112 of the Report of the Royal Commission stated:

"We consider that what is the general practice needs to be reaffirmed, namely that, as soon as a suspect is brought into a police station under arrest, accountable responsibility for his welfare, for seeing that he is aware of his rights, for answering enquiries about his whereabouts and for decisions on his detention passes out of the hands of the arresting or investigating officer and into the hands of another officer. Who should this be? The answer to that question clearly depends upon the nature of the police station concerned and the volume of business done at it. We take the view that where the number of suspects dealt with at a police station warrants it there should be an officer whose sole responsibility should be receiving, booking in, supervising and charging suspects. He should be of no less rank than sergeant and should be of the uniform branch. He should be responsible to the sub-divisional commander."

In enacting PACE the legislature apparently proceeded on the assumption that custody officers, as officers unconnected with the relevant investigation, with the rank of sergeant, and responsible only to their sub-divisional commanders, would have the necessary competence and independence to ensure that the welfare and interests of detained subjects are properly-protected. And the duties of custody officers under PACE and its codes are extensive and onerous.

For my part I would start from the provisional premise that the legislature intended to introduce an effective system for the care and protection of detained suspects by custody officers. And on this basis section 36(4), which allows an independent officer of any rank to perform the function of a custody officer at a designated police station "if a custody officer is not readily available to perform them", can be viewed as a concession to practicality in the light of the problems which will inevitably occur in a busy police station. In other words, there is much to be said for the view that it was not intended that Chief Constables would be entitled to arrange matters so that as a matter of routine officers below the rank of sergeant performed the functions of custody officers.

If the matter is approached in this way, an acceptance of the Chief Constable's contention in this case leads to surprising consequences. It can best be illustrated by an example. The designated police station in Bournemouth is open 24 hours a day. In 1990 more than 7,000 persons were detained at that police station. The Chief Constable in fact appointed five full-time custody officers to that station. But Mr. Rawley QC argues on behalf of the Chief Constable that the Chief Constable is bound as a matter of law to appoint only one custody officer to that police station, and that the Chief Constable is entitled to arrange for the great preponderance of the duties of custody officers at that police station to be discharged by constables under section 36(4). In other words, provided that the Chief Constable appoints one custody officer for each designated station, he is free as a matter of routine to allow the duties of custody officers to be performed by constables. On this interpretation, the Chief Constable may regularly use constables, to perform the functions of custody officers, despite the fact that the constables are not qualified for promotion to the rank of sergeant by virtue of examination results, period of service and probationary service pursuant to Regulations 4 and 8 of the Police (Promotion) Regulations 1979, S.I. 1979/991. While ineligible for appointment as custody officers, inexperienced and untrained constables may routinely be used to perform the functions of custody officers. That is the legal consequence flowing from the Chief Constable's construction. The result of accepting this interpretation is even more surprising since a custody officer may be appointed to more than one police station and a custody officer may be assigned tasks other than duties as a custody officer. Mr. Rawley said that these results are not so surprising if one takes into account the possibility of judicial review of the Chief Constable's decisions under section 36(1) and (4) but, given the nature and width of the suggested discretion, the prospects of mounting successful review proceedings seem fairly limited.

The consequences of adopting the Chief Constable's construction raised in my mind an initial scepticism that the legislature could have intended to create such an ineffective safeguard for the protection of detained suspects. And I do not regard it as a satisfactory answer to say that Chief Constables can be expected to act reasonably. That is of course so, but if a Chief Constable with a limited establishment of officers is permitted by the statute to use untrained constables as custody officers as a matter of routine, nobody can blame him if he should choose to do so.

Given my view that the Chief Constable's construction emasculates the safeguard of having custody officers of the rank of sergeant, the question is whether the language of section 3 6 can accommodate the construction put forward by the Police Federation. Mr. Beloff QC recognized that the declaration made by the judge suffers from the flaw that it assumes that if one custody officer is available at each designated police station he will normally be able to perform the functions of a custody officer. In some large police stations in London and elsewhere that is almost certainly a wrong assumption. Accordingly, Mr. Beloff refined his submission by asking for an order in the following terms:

"A declaration that by virtue of Section 3 6 of the Police and Criminal Evidence Act 1984 the Chief Constable is under a duty to appoint sufficient Custody Officers to ensure that at each designated Police Station there will ordinarily be available a Custody Officer to perform the function thereof."

Mr. Beloff also observed that in a case with public law overtones, the court ought to concentrate on the substance of the matter, leaving the precise terms of any declaration to be settled after judgment. That seems to me to be a sensible and acceptable approach.

While the Police Federation need not be rigidly tied to its formulation, the question has to be faced whether the language of section 3 6 can be stretched to mean that the Chief Constable is under a statutory duty to appoint a sufficient number of custody officers to ensure that the functions of custody officers are ordinarily performed by duly appointed custody officers, or a meaning substantially to the same effect. The context of words in a statute will frequently let in more than one meaning. It is a matter of judgment in every case whether the language can accommodate more than one meaning. Having made every allowance for the context, and the purpose of the statute, it seems to me that the paraphrased words "the Chief Constable shall appoint one or more custody officers" are not capable of letting in a meaning imposing a duty on a Chief Constable to appoint a sufficient number of custody officers.

PACE was an important reforming statute. By and large PACE, has worked tolerably well in practice. But the conclusion in this case shows that a central provision of PACE is a less effective safeguard than many may have thought. In saying that, I attribute no blame to the Chief Constable of Dorset, or to Chief Constables generally. Chief Constables will, of course, loyally carry out their statutory duties but with limited resources they cannot necessarily be expected to increase the quality of the safeguards beyond that required by Parliament. If there is a fault, it lies in the language of section 36. Since the effectiveness of PACE is a matter of crucial importance to the criminal justice system, it may well be that the already overburdened Royal Commission on Criminal Justice may wish to examine this point.

Reluctantly I agree that the appeal of the Chief Constable of Dorset should be allowed.

The second point: the appointment of acting sergeants

Section 36(3) provides that no officer shall be appointed as a custody officer unless he is of at least the rank of sergeant. Regulation 4(1) of the Police (Promotion) Regulations 1979, Statutory Instrument 1979 No. 991, reads as follows:

"A constable to be qualified for promotion to rank of sergeant must -

(a) have obtained a pass in the qualifying examination for promotion to the rank of sergeant;

(b) have completed two years' service; and

(c) have completed his probationary service."

Regulation 8(1) deals with temporary promotion. It provides:

"A member of a police force who is required to perform the duties of a higher rank may be promoted temporarily thereto, provided that, in the case of promotion to the rank of sergeant or inspector, he is qualified therefor under Regulation 4."

It follows that a temporary sergeant holds the rank of sergeant for the period of his temporary appointment. It is accepted by the Police Federation that, while temporarily holding the rank of sergeant, a temporary sergeant may be appointed as a custody officer.

The question is whether an acting sergeant may be appointed as a custody officer. Whatever other attributes an acting sergeant may have, it can safely be accepted that he will usually be an officer who lacks the qualifications to be appointed as a temporary sergeant. When a constable is asked "to act up" as a sergeant, although unqualified to be one, he clearly does not in any relevant sense hold the rank of sergeant. In these circumstances the Police Federation asked the judge to rule that an acting sergeant may not be appointed as a custody officer. The judge concluded that the Police Federation's conclusion was correct but he decided that it was unnecessary to make a declaration to that effect.

On behalf of the Chief Constable, Mr. Rawley submitted that the Chief Constable may "appoint" acting sergeants, who do not hold the rank of sergeant, as custody officers under section 36(1). Prima facie the result for which Mr. Rawley contends is astonishing. After all, section 36(3) expressly provides that a custody officer must hold "at least the rank of sergeant". There is no definition in PACE of the words "at least the rank of sergeant". It seems inevitable therefore that when the subordinate legislation governing the police specifies who does or who does not hold the rank of sergeant that a court should accept that categorisation for the purposes of section 36.

Mr. Rawley's submission that acting sergeants may be appointed as custody officers is based solely on an observation by the Lord Chief Justice in Alladice [1988] 87 Cr. App. R. 380. The Lord Chief Justice said (at page 383) :

"It is very much a matter of first impression, but in our judgment the holder of an acting rank, at least so far as authority and powers are concerned, is to be treated as if he were the holder of the substantive rank, unless his appointment to the acting rank was a colourable pretence, which is not suggested here."

It is not clear that in Alladice the court was referred to regulations governing the police ranks. The judgment does not mention the regulations. In the present case, the regulations have been examined in some depth. Much of the debate has concentrated on the distinction between temporary sergeants and acting sergeants. In Alladice no corresponding distinction was explored. Since different statutory language was under consideration in Alladice, the decision is not a precedent binding on us. But it seems to me that no issue corresponding to the one we have been asked to decide was debated or decided in Alladice. In my view the decision in Alladice is not only distinguishable but it is of no assistance in the present case.

The judge concluded that "an officer required to act up to the duties of a sergeant is not qualified to be appointed a custody officer". I respectfully agree. An officer who, in accordance with police regulations, has not attained the rank of sergeant has not attained eligibility for appointment as a custody officer since he does not hold "the rank of sergeant" within the meaning of section 36(3).

That leaves only the question whether, as a matter of discretion, a declaration ought to be granted on this point. Mr. Rawley says that the Chief Constable of Dorset has never appointed an acting sergeant as a custody officer, and that the Chief Constable has no intention at present of doing so in the future. On the other hand, Mr. Rawley made quite clear that the Chief Constable is giving no assurance that he will not do so. The Chief Constable apparently considers that, because of the holding in Alladice, he is entitled to appoint acting sergeants as custody officers if it seems necessary to do so. But, says Mr. Rawley, it is unlikely to be necessary since the Chief Constable is entitled in terms of section 36(4) as a matter of routine to ask acting sergeants to perform the functions of custody officers. On the other hand it has to be faced that the Chief Constable's use of section 36(4) in such a way could conceivably be challenged in judicial review proceedings. The Chief Constable may therefore have an incentive to make appointments of acting sergeants under section 36(1) if he is entitled to do so. In any event, the Police Federation are sceptical about the accuracy of the Chief Constable's assertions and predictions. It is impossible on this construction summons to determine those issues. But Mr. Beloff is on firmer ground when he points to the fact that the Chief Constable said in his affidavit after that:

"There is no distinction or difference between a temporary sergeant and an 'acting' sergeant."

That is an erroneous view. Mr. Beloff says that if the Chief Constable's mistaken view remains uncorrected it may well colour the Chief Constable's approach to appointments under section 36(1).

In my view it is fair and just to grant a declaration that acting sergeants may not be appointed as custody officers. That will give the Police Federation the assurance which the Chief Constable is not prepared to give. And it will assist the Chief Constable of Dorset in as much as he will know where he stands. But it is also in the wider public interest that this point, which arose for decision and has been argued by leading counsel on both sides, should be decided so that Chief Constables throughout the country will know where they stand.

I would therefore allow the cross-appeal.

LORD JUSTICE FOX: I have read in draft the judgment of McCowan LJ.

I agree and would order accordingly.

(Appeal allowed with costs. Cross-appeal dismissed. Respondents' application for leave to appeal against their Lordships' ruling in relation to appeal and cross-appeal refused)