Neutral Citation Number: [2007] EWHC 3212 (Admin) 
CO/9628/2007 
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
THE DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2 

Date: Friday, 17th December 2007
 
B E F O R E:

LORD JUSTICE MAURICE KAY
MR JUSTICE BURTON 

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THE QUEEN ON THE APPLICATION OF TORRES 
(CLAIMANT)

‑v‑ 

THE COMMISSION OF POLICE OF THE METROPOLIS
(DEFENDANT) 
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Mr S Field (instructed by Peter Bonner & Co Solicitors, London) appeared on behalf of the CLAIMANT
Mr P Stagg (instructed by Director of Legal Services, London) appeared on behalf of the DEFENDANT
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JUDGMENT

1.	LORD JUSTICE MAURICE KAY:  This is an application for judicial review for which Collins J gave permission on 12 November.  The circumstances of the case have changed fundamentally since then, and I shall shortly explain why the matter is now being treated as it is.  Before I do that I should also explain that this case grows out of a police investigation as a result of which a person not a party to these proceedings is being prosecuted for a very serious offence.  There are also ongoing proceedings in the family court.  For those reasons I intend to explain the background to the case in rather attenuated and laconic terms so as not to risk any prejudice to either the criminal law or the family proceedings.  Suffice it to say that the claimant was arrested on 13th September 2006.  He was taken to the police station, detained and interviewed and at 4.00 that day he was bailed to return on 13th November.  He had not then been charged with any offence.  The custody officer granting bail attached conditions to that bail, including a condition not to contact a member of the family or to discuss matters with prosecution witnesses.
2.	On 31st October these judicial review proceedings were issued, it being asserted, on behalf of the claimant, that the custody officer had no power to attach conditions to the grant of bail.  Put simply, the case for the claimant is that he ought to have been bailed under section 34 of the Police and Criminal Evidence Act 1984 and that by virtue of section 47(1)A of that Act there is no power to attach conditions to a grant of police bail under section 34(5).
3.	As I have related, on 12th November Collins J granted permission to apply for judicial review.  The next day, 13th November, the claimant answered to his bail at the police station.  By that time the police had entered into some dialogue with the Crown Prosecution Service but had received no final advice, nor were they in a position to interview the claimant further on 13th November.  What happened on that occasion was that a different custody officer granted him bail, subject to the same conditions without more ado.  
4.	On 15th November the applicant applied to the Magistrates' Court for a variation of the bail conditions but that was refused by a district judge.  On 5th December the police wrote to the claimant confirming that no further action was to be taken against him in relation to one of the matters for which he had been arrested and as a result the condition not to contact the member of the family was revoked.  Today in court Mr Stagg, on behalf of the Commissioner, has told us that the police have now resolved not to proceed against the claimant on the other matter either.  It follows that there is nothing outstanding against him, he is or will very soon no longer be on bail, and since 5th December there have been no conditions attaching to his bail.
5.	At the outset of the hearing today Mr Field, on behalf of the claimant, sought permission to amend his claim form so as to add a challenge to the decision of the custody sergeant on 13th November and also to add a claim for damages under the Human Rights Act.  It is right to say that reliance on Article 8 of the ECHR had been intimated in the claim form originally but there had not been a prayer for damages and that was sought by amendment.
6.	We made it plain to Mr Field that we thought his proposed challenge to the attachment of conditions to bail on 13th November was utterly without merit because on that occasion the evidence is plain that the custody officer relied not on section 34 but on section 37 of the 1984 Act and in relation to that provision there is a power to attach conditions under section 47(1)A.  It seem to us clearly clear beyond doubt that that decision was unchallengeable, that the remedy, if any, lay in the Magistrates' Court, but that the decision of the district judge on 15th November was itself unassailable.  
7.	Mr Field, when formulating his proposed amendments, had first sought to allege that the documentation of 13th November was something of a sham to disguise the fact that it was still a section 34 and not a section 37 case.  However, he accepts that in the light of the evidence now filed on behalf of the Commissioner that is simply unsustainable in this court.  
8.	He also concedes that any damages that he could recover, whether in relation to the decision of 13th November or the decision of 13th December, would be no more than nominal at best.
9.	In those circumstances it may be thought that this case has now become wholly academic.  The conditions have ceased to apply and any damages would be nominal.  We have investigated whether in these circumstances it is appropriate to hear the application for judicial review at all.  However, we have been persuaded by both sides that there is an issue as to the relationship between section 34 and section 37 which would benefit from resolution in this case.  Initially we wondered whether the factual circumstances and the evidential basis of this case made it appropriate for that determination, but now it has been reduced to a pure point of law we accede to the request of both sides to deal with the matter.
10.	At this stage it is appropriate to set out the relevant statutory provisions.  Section 34 provides: 
"(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 provision 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." 
I should add that subsections (3) and (4) raise no issue in this case.  
11.	Subsection (5) provides: 
"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 a need for further investigation of any matter in connection with which he was detained at any time during that period of his detention ... 
And, if it so appears, he shall be released on bail."
12.	The relevant parts of section 37 are in these terms: 
"(1) Where ‑

(a) a person is arrested for an offence ‑  ... 
The custody officer at each police station where he is detained after his arrest shall determine whether he has before him sufficient evidence to charge that person with the offence for which he was arrested and may detain him at the police station for such period as is necessary to enable him to do so.  
 (2)  If the custody officer determines that he does not have such evidence before him, the person arrested shall be released either on bail or without bail, unless the custody officer has reasonable grounds for believing that his detention without being charged is necessary to secure or preserve evidence relating to an offence for which he is under arrest or to obtain such evidence by questioning him.  
... 
 (10) The duty imposed on the custody officer under subsection (1) above shall be carried out by him as soon as practicable after the person arrested arrives at the police station or, in the case of a person arrested at the police station, as soon as practicable after the arrest."
13.	Section 47(1)A provides:  
"The normal powers to impose conditions of bail shall be available to him where a custody officer releases a person on bail under section 37(1)(a) above or section 38(1) above ... but not in any other cases."
It is perhaps worth adding that where a person has been bailed under section 34 and attends a police station to answer his bail he is treated as arrested for an offence when he does so by reason of section 34(7).
14.	Turning to the factual circumstances that arose on 13th September, all that it is necessary to relate is that when the custody sergeant bailed the claimant he completed a pro forma known as Form 60B which documents in its standard form states that the person is being granted bail "under the provisions of section 34(5)(7) Police and Criminal Evidence Act 1984."  In other words on its face it is purported to be a grant of bail under section 34 rather than under section 37.  If that were indeed the complete factual position then the attachments of conditions under section 34 would be unlawful by reason of section 47(1)A.  
15.	However, the evidence before the court from the custody sergeant is that although he did not amend the pro forma by hand, as his colleague did on 13th November, at all material times he considered that he was acting not under section 34 but under section 37.   
16.	The submission of Mr Field is a simple one.  Accepting, as he must, that Sergeant Sweatman believed that he was acting under section 37, notwithstanding the use of the unamended section 34 form, he submits that it was not lawful to resort to section 37 on 13th September because the facts fell exclusively within the province of section 34.  In other words, there is no overlap between the two provisions and section 37 only came into the picture on 13th November when things had moved on and the Crown Prosecution Service had become involved.  
17.	Mr Stagg's reply to that is that sections 34 and 37 exist side by side, giving a custody officer a choice; and if he chooses section 37 and satisfies its requirements it is not for the bail person to complain that section 34 should have been chosen instead.  In these circumstances the attachment of conditions is lawful, albeit implementing with a clerical error.  The conditions were authorised under section 47(1)A subject to any successful application for their variation or discharge.
18.	At first sight it may seem surprising that the relationship between section 34(5) and section 37, material parts of which have remained in the same form since 1984, has not been litigated previously.  However, until this year the present dispute would not have had its current practical consequences.  It is only since the amendment of section 47 by the Police and Justice Act 2006 that it has become possible to attach conditions to bail under section 37 in circumstances such as this.  Previously conditions could not have been attached under either provision except after charge or upon formal reference to the Crown Prosecution Service under in section 37 in circumstances which had not arisen in the present case.
19.	In my judgment, the difficulty with Mr Field's attempt at a schematic and temporal separation between section 34 and section 37 is that although section 37 applies when a suspect returns to the police station to answer his bail, it also applies to every single occasion when a person under actual or deemed arrest is produced to a custody officer, including the occasion when he is first arrested.  I can see nothing in the language of section 37 which would render it inapplicable to the point in time when Sergeant Sweatman made his decision in this case on 13th September.  Indeed, there is a similarity between the circumstances envisaged by section 34(5) and those envisaged by section 37(1) and (2).  The former concerns a situation where the custody officer considers that "there is need for further investigation", whereas the latter requires the custody officer to "determine whether he has before him sufficient evidence to charge" the person in question.  If he determines that he does not have such evidence before him, he may release on bail but for reasons which must include a need for further investigation, the very subject matter of section 34(5).  It is also instructive to stand back and to consider this part of the Act in context.  Successive amendments of the 1984 text have moved consistently in the direction of enlarging the power of police officers to attach conditions to bail.  Thus, under the 1984 Act as originally enacted, police officers could not impose conditions on bail at all.  By amendments introduced in the Criminal Justice and Public Order Act 1994, the police were given power to impose conditions but only after a suspect has been charged.  By the Criminal Justice Act 2003 a power was given to impose conditions when the police were required to refer a case to the Crown prosecution service for a decision as to whether a suspect should be charged.
20.	Since the Police and Justice Act 2006 came into force conditions may now be imposed whenever bail is granted under any part of section 37.  I emphasise that I have thus far confined consideration of section 37 to the circumstances in which it arises in this case.  It is in fact a fuller piece of legislation.  Moreover, any constable can now attach conditions to what is commonly known as "street bail" under section 30A subject to, among other things, an application to a court for variation.
21.	In these circumstances, as Mr Stagg submits and as I accept, it would be very odd if a custody officer with his seniority, training and responsibilities were unable to attach conditions in the circumstances which arose on 13th September.  
22.	For these reasons, and without the need to resort to the more fanciful techniques of statutory construction floated by Mr Stagg in his skeleton argument one of which would have involved reading section 47(1)A in an unthinkable way, I conclude that a custody officer in the position of Sergeant Sweatman and in the circumstances of this case was entitled to process the claimant under section 37 and was entitled to attach conditions by reference to section 47(1)A.
23.	I express no view on whether a district judge was correct to conclude as he did on 5th October that he had no jurisdiction to entertain an application by the claimant.  That decision is not currently under challenge.  It seems to me, however, that if the matter had been considered substantively by a district judge at that time, it is inevitable that he would not have acceded to the claimant's application in the circumstances of this case.  
24.	That all disposes of the point of principle that we are invited to resolve.  It means that the claimant's claim for damages under the Human Rights Act must fail.  
25.	It is appropriate to express a view on two further matters.  First, it is astonishing to be told that even now the pro forma documents used by the Metropolitan Police extend only to section 34 forms, there being none referring, on the face of them, to section 37.  Secondly, in view of the legislative history to which I have referred, it is surprising that Parliament has not conferred a condition attaching power to section 34(5).  It makes little sense to have one in section 37 and for street bail but not when section 34 is deployed.  A custody officer with knowledge of the law, as explained in this judgment, will plainly prefer section 37 to section 34 in these circumstances.  But to leave section 34 in its present naked form is in my view a recipe for further litigation of this type.
26.	MR JUSTICE BURTON:  I agree. It is plain that on 13th September on the evidence before us, which has not been challenged, Sergeant Sweatman concluded that there was a need for further investigation, and that consequently he did not have sufficient evidence before him to charge the claimant with an offence and that the circumstances of section 37(1)(a) thus applied. He used the wrong form. It appears, as my Lord has said, that this is because only section 34 forms are presently made available to police stations, and it is to be hoped, as my Lord has said, that that is soon resolved by the provision of proper forms.  
27.	Once again on 13th November ‑‑ and this was not in the event challenged before us when Mr Field decided not to pursue his amendment application in the face of resistance by the court ‑‑ a similar decision was made by Sergeant Dooley leading him to grant bail under section 37 and lawfully to compose conditions upon it. The reason why there has been the availability of challenge, on the face it, to Mr Field, is the use of the incorrect form on the first occasion, notwithstanding the fact that the views of the two custody officers were identical. 
28.	It is plain that until and unless the law is satisfactorily streamlined, as my Lord has said, custody officers will be well advised to follow the procedures under section 37. Those procedures in any event accord with the duty of the custody officer at each police station under section 37(10)to reach a decision, as soon as is reasonably practicable, after detaining the person for such period as is necessary to enable him to reach such a decision, and then having decided, if he does, that there is at that stage insufficient evidence, then to release on bail with conditions if appropriate; while Mr Stagg's submission is that section 34 is in fact a fallback position available to an accused, and by way of a protection for him, if the provisions of section 37 have not been satisfactorily followed.
29.	It is plain, as my Lord has said, that it was not intended to create any distinction between street bail and bail before charge, as appears from a Home Office Circular, 021/2007, paragraph 11 of which has been recited before us which states:  
"... the police will be able to attach conditions to bail issued elsewhere than at a police station (street bail) ... The change will provide a consistent approach to conditions of bail in relation to all types of police bail.  ... Conditions may now be attached to all forms of bail issued by the police where it appears necessary to protect the investigation, victims or the suspect." 
In those circumstances street bail will be followed by bail, if appropriate, under section 37.  There is no lacuna in between, provided that the provisions of section 37 are applied, and, if they are, then there is the availability of conditions of bail, which are now statutorily provided for.  
30.	In those circumstances, I agree with my Lord that there was no unlawful act by the defendant in this case and consequently that the claim under Article 8 falls away.  It is quite clear that on the facts of this case it was wholly appropriate to impose conditions, provided that there was lawful power to do so, and I am satisfied, like my Lord, that there was.
31.	LORD JUSTICE MAURICE KAY:  The order will therefore simply say that the application is dismissed. 
32.	MR STAGG:  My Lord, we're very grateful for that clarification of the law, which I think will make it much easier for custody officers to know where they stand.  I can assure your Lordships that action will be taken to ensure that the correct forms are made available as soon as can reasonably be achieved.  
33.	My Lord, I'm instructed to make an application for costs order on the pools basis, ie that the claimant should pay the costs, subject to detailed assessment and an assessment of what he should pay under section 11 of the Access to Justice Act.  I say nothing about whether that would be enforced, but I am instructed to make the application. 
34.	MR FIELD:  Could I oppose that, my Lord, strongly, on the following basis. First of all, in terms of my Lord's detailed ruling and careful analysis of post‑September evidence, we now know the custody sergeant had a certain thought in his mind that he didn't convey to the rest of the world, and indeed the claimant was ‑‑
35.	MR JUSTICE BURTON:  It is only since permission was granted that the true position has been revealed; namely, that it was on incorrect form. 
36.	LORD JUSTICE MAURICE KAY:  Essentially what you are saying is: we would not be here if they had used the right form in the first place.
37.	MR FIELD:  Precisely. We are entitled to be here, my Lord, and certainly on the careful analysis and judgment of my Lords, that perhaps ‑‑
38.	MR JUSTICE BURTON:  You certainly are entitled to go up to permission.
39.	MR FIELD:  My Lord, yes, and on the face of it he was denied ‑‑ right up until the date of the permission hearing he was denied up until then at the Hendon Magistrates Court that conditions were reimposed. But can I add this. Just as the claimants took a very responsible view, I submit, as to including the magistrates as the defendant for today's hearing, or seeking to join them, it was the Commissioner's view that this was an extremely desirable case for this court to adjudicate upon. And it may be that the Commissioner could have written to the claimant's solicitor to say: look, we're wasting everybody's time now, we don't wish this matter to proceed. Indeed the Commissioner, I submit, has as much out of this ruling if not more than the defendant. 
40.	LORD JUSTICE MAURICE KAY:  That is why he is asking for his costs.
41.	MR FIELD:  No: more than he really sought, more than just to see off his claim.  He has obtained my Lord's authoritative ruling.  That is more valuable, perhaps, than the costs of this case; that is what the defendant sought. 
42.	LORD JUSTICE MAURICE KAY:  Has he been legally‑aided throughout?
43.	MR FIELD:  Yes. 
44.	LORD JUSTICE MAURICE KAY:  You don't need to say more.  We will make no order, but presumably you want an assessment. 
45.	MR FIELD:  That's all I ask, my Lord.
46.	 
47.	LORD JUSTICE MAURICE KAY:  Thank you both very much.