England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
DIVISIONAL COURT

		Royal Courts of Justice The Strand London
		18 November 1999

THE LORD CHIEF JUSTICE: In this application for judicial review the applicants are respectively the Joint Branch Board of the Kent Police Federation, and the secretary of that Board. The Board represents all ranks of the Kent County Constabulary up to and including that of Chief Inspector. The respondent is the Chief Constable of Kent. The issue between the parties is whether a scheme put forward by the Chief Constable to conduct reviews of police detention under section 40(1)(b) of the Police and Criminal Evidence Act 1984 by video link is lawful, as the respondent contends, or unlawful, as the applicants contend.

Article 5 of the European Convention on Human Rights provides so far as relevant:

"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law;

....

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

....

3. Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

....

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation."

These provisions are not yet part of the domestic law of England and Wales, but the Article embodies important and basic rights which English law recognises and protects. If citizens are to be deprived of their liberty, such deprivation must be in accordance with the law. The law which governs the detention of persons arrested is to be found in sections 34 to 51, which appear in Part IV of the 1984 Act under the general heading "Detention". In section 34(1) it is provided:

"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."

In section 35 one finds a provision governing "Designated police stations", of which there are 17 in Kent. Section 36 deals with custody officers at police stations. It is there provided that there shall be one or more custody officers appointed for each designated police station. Such custody officers are to be appointed by the chief officer of police for the area or his nominee, and it is provided that the custody officer must be of the rank of sergeant at least. In subsection (4) it is provided:

"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."

In subsection (7) it is provided:

"Where an arrested person is taken to a police station which is not a designated police station, the functions in relation to him which at a designated police station would be the functions of a custody officer shall be performed --

(a) by an officer who is not involved in the investigation of an offence for which he is in police detention, if such an officer is readily available; and

(b) if no such officer is readily available, by the officer who took him to the station or any other officer."

Section 37 lays down the duties of a custody officer before charge. Of immediate relevance to this application are the following subsections:

"(1) Where --

(a) a person is arrested for an offence --

(i) without a warrant; or

(ii) under a warrant not endorsed for bail, .....

(b) ....

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.

(3) If the custody officer has reasonable grounds for so believing, he may authorise the person arrested to be kept in police detention.

(4) Where a custody officer authorises a person who has not been charged to be kept in police detention, he shall, as soon as is practicable, make a written record of the grounds for the detention.

(5) Subject to subsection (6) below, the written record shall be made in the presence of the person arrested who shall at that time be informed by the custody officer of the grounds for his detention.

(6) Subsection (5) above shall not apply where the person arrested is, at the time when the written record is made --

(a) incapable of understanding what is said to him;

(b) violent or likely to become violent; or

(c) in urgent need of medical attention."

Section 38 lays down further duties to be performed by a custody officer after charge. Section 39 lays down the duties of the custody officer in relation to a person detained. One of those duties is to ensure that all persons in police detention are treated in accordance with the Act and any code of practice issued under it. If there is any variance between directions given by an officer of higher rank than the custody officer and any decision taken by the custody officer, then the custody officer must refer the matter at once to an officer of the rank of superintendent or above.

Section 40 of the Act, which is central to this application, contains a number of important provisions:

"(1) Reviews of the detention of each person in police detention in connection with the investigation of an offence shall be carried out periodically in accordance with the following provisions of this section --

(a) in the case of a person who has been arrested and charged, by the custody officer; and

(b) in the case of a person who has been arrested but not charged, by an officer of at least the rank of inspector who has not been directly involved in the investigation.

(2) The officer to whom it falls to carry out a review is referred to in this section as a 'review officer'.

(3) Subject to subsection (4) below --

(a) the first review shall be not later than six hours after the detention was first authorised;

(b) the second review shall be not later than nine hours after the first;

(c) subsequent reviews shall be at intervals of not more than nine hours.

(4) A review may be postponed --

(a) if, having regard to all the circumstances prevailing at the latest time for it specified in subsection (3) above, it is not practicable to carry out the review at that time;

(b) without prejudice to the generality of paragraph (a) above --

(i) if at that time the person in detention is being questioned by a police officer and the review officer is satisfied that an interruption of the questioning for the purpose of carrying out the review would prejudice the investigation in connection with which he is being questioned; or

(ii) if at that time no review officer is readily available.

(5) If a review is postponed under subsection (4) above it shall be carried out as soon as practicable after the latest time specified for it in subsection (3) above.

(6) If a review is carried out after postponement under subsection (4) above, the fact that it was so carried out shall not affect any requirement of this section as to the time at which any subsequent review is to be carried out.

(7) The review officer shall record the reasons for any postponement of a review in the custody record.

(8) Subject to subsection (9) below, where the person whose detention is under review has not been charged before the time of the review, section 37(1) to (6) shall have effect in relation to him, but with the substitution --

(a) of references to the person whose detention is under review for references to the person arrested; and

(b) of references to the review officer for references to the custody officer."

In subsection (11) one finds another provision dealing with the situation where different directions are given by the review officer and an officer of higher rank. In subsection (12) there is a requirement that the review officer shall give a person whose continued detention is under review the opportunity to make representations, save in two specified situations. In subsection (13) there is again a right to make representations either orally or in writing, and in subsection (14) a limited right for the review officer to refuse to hear oral representations.

The effect of reading section 37 in accordance with the transposition of language required by section 40(8) is to cause the following provisions of section 37 to be read as follows:

"(1) Where --

(a) a person is arrested for an offence --

(i) without a warrant; or

(ii) under a warrant not endorsed for bail ...

(b) ....

the [review] 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.

....

(3) If the [review] officer has reasonable grounds for so believing, he may authorise the person [whose detention is under review] to be kept in police detention.

(4) Where a [review] officer authorises a person who has not been charged to be kept in police detention, he shall, as soon as is practicable, make a written record of the grounds for the detention.

(5) Subject to subsection (6) below, the written record shall be made in the presence of the person [whose detention is under review] who shall at that time be informed by the [review] officer of the grounds for his detention.

(6) Subsection (5) above shall not apply where the person [whose detention is under review] is, at the time when the written record is made --

(a) incapable of understanding what is said to him;

(b) violent or likely to become violent; or

(c) in urgent need of medical attention."

Attention should be drawn to section 41 which prescribes a limit on the period for which a person may be held in detention without charge. Subsection (2) of that section defines the relevant time. In section 42(1) it is provided:

"(1) Where a police officer of the rank of superintendent or above who is responsible for the police station at which a person is detained has reasonable grounds for believing that --

(a) the detention of that person without charge 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;

(b) an offence for which he is under arrest is a serious arrestable offence; and

(c) the investigation is being conducted diligently and expeditiously,

he may authorise the keeping of that person in police detention for a period expiring at or before 36 hours after the relevant time."

In sections 60 and 67 of the Act authority is given for the promulgation of codes of practice and a procedure is prescribed for the approval of such codes. Relevant for present purposes is the current code C:2 dealing with custody records. The terms of the code are relevant for the present purposes but in my judgment not determinative. Relevant also are the provisions of code C:15 "Reviews and extensions of detention", in relation to which I draw attention to one of the notes for guidance, C:15C which currently reads:

"If in the circumstances the only practicable way of conducting a review is over the telephone then this is permissible, provided that the requirements of section 40 of the Police and Criminal Evidence Act 1984 or of Schedule 3 to the Prevention of Terrorism (Temporary Provisions) Act 1989 are observed. However, a review to decide whether to authorise a person's continued detention under section 42 of the 1984 Act must be done in person rather than over the telephone."

The facts giving rise to this application can be very briefly summarised. On 27 August 1999 a letter was written by Detective Superintendent Sparks of the Kent County Constabulary to the applicants. Relevant paragraphs of that letter read:

"Re: Video Conferencing

The Task Force are currently looking at the issue of Video Conferencing. Phase I will examine the possibility of using new technology in custody suites to obviate the requirement for an Inspector to attend in person in order to conduct reviews of detention.

The project is still in the scoping stage but initial views of the relevant Home Office departments have been canvassed.

Legal advice has also been sought and predictably counsels extreme caution. The Chief Constable, however, has come to a more robust interpretation of all the facts.

On 27th September 1999 at KPM(D), I intend to ask the Chief Constable for permission to run a pilot site with detention reviews conducted remotely using video conferencing equipment. Should this pilot prove successful then I would seek to have the Codes of Practice amended by way of Statutory Instrument."

The letter goes on to acknowledge the risk of vigorous legal challenge and a postscript refers to the obtaining of legal advice on the preparation for judicial review. We have before us a document headed "PROJECT INITIATION DOCUMENT" which describes in outline the procedures for conducting reviews of detention by video. That document indicates that a pilot scheme was scheduled to be introduced on 18 October 1999.

On 9 September 1999 the applicants replied to Mr Sparks, formally asking him to reconsider the proposals and halt the proposed pilot scheme, the submission being made that the proposed video review went beyond the provisions of the 1984 Act and could leave police officers in a vulnerable position. That invitation to reconsider the matter and halt the review was declined in a letter written on behalf of the respondent on 13 September 1999. The applicants wrote a letter before action on 20 September, but failed to achieve any alteration in the Chief Constable's position. They accordingly issued notice of application to move for permission to apply for judicial review on 8 October and the matter came before the single judge on 27 October when he granted permission to apply and ordered that the hearing of the application be expedited. The respondent gave an undertaking not to proceed with the scheme until the legal issue had been resolved.

It is plain from the evidence now before us that the respondent does not propose that all reviews of detention under section 40(1)(b) should be conducted by video link, there being a residual discretion in inspectors to visit police stations if they think it necessary or desirable to do so, but he does accept and make plain that it is proposed that the majority of reviews should be conducted in this way. He also however makes plain that he has no intention whatever to break the law, as indeed one would confidently expect.

We have before us evidence from Detective Superintendent Sparks, who is Head of the Intelligence Led Policing Model Task Force of the Kent County Constabulary which is a research and development unit within the Force. In an affidavit of 15 November 1999 he describes the significant reduction in the number of officers who now comprise the Kent County Constabulary and deposes that there has been a marked increase in the number of persons detained, as there has in the number of claims against the police. He observes that there has been a changed approach on the part of solicitors representing suspects in police stations, and he draws attention to the acute strains on the budget of the County Constabulary. He speaks with obvious authority of the advent of technological change and of the innovative schemes which are in the course of implementation by the Force. He makes certain criticisms of the manner in which reviews of detention are currently conducted and contends that it would be of notable benefit to all concerned, including suspects, if reviews of detention under section 40(1)(b) of the Act were in appropriate cases conducted over a video link between the person whose detention is under review in a designated police station and an inspector at a physically removed central location.

So far as the factual evidence of Mr Sparks is concerned, I have no doubt that it is true. There may well be very great persuasive force in the practical arguments which he advances. The question for the court, however, is quite simply whether the proposed procedure is permitted by the Act and so lawful or inconsistent with the Act and so unlawful.

The issue between the parties is one of statutory construction. We have been reminded that we should give the statutory language such meaning as best gives effect to the legislative intention. We have also been reminded that we should focus on the mischief at which the legislation is directed, which is the prolonged detention of suspects without periodic reviews of their detention. We have been urged that we should not construe the statutory language in the abstract, but with close reference to the facts to which in real life the statute must be applied. Most important of all, we have been reminded that we should treat the 1984 Act as an on-going Act and not as an instrument the meaning of which was settled once and for all when the Act was passed. That is an aspect of particular importance here because information technology has made huge strides since the 1984 Act was in embryo. We should not therefore approach the Act as if the wheel had still to be invented. We must give the Act a 1999 interpretation.

All these points I for my part would accept. I would also however bear in mind that we are dealing with an area of extreme sensitivity, namely the circumstances in which, and the conditions on which, a citizen not convicted or even charged with crime may be deprived of his or her liberty. The 1984 Act and the codes giving effect to it represent a very complex and careful balance between the obviously important duty of the police to investigate crime and apprehend criminals on the one hand and the rights of the private citizen on the other. It is one thing to give a 1999 interpretation to what Parliament enacted in 1984; it may be quite another to rule as a matter of statutory interpretation that a suspect need no longer enjoy the rights which Parliament in 1984 ordained that he should have.

The applicants' main point on the construction of section 40 is very simple. When, by virtue of section 40(8), section 37(5) is applied to the continued detention of a person whose detention is under review by a review officer, a written record of the grounds for his detention must be made by the review officer "in the presence of the person whose detention is under review". That condition, so it is argued, is not met if the review officer is in one place and the person whose detention is under review is in another. In support of that argument the applicants rely on the dictionary definition of "presence" as meaning "the fact or condition of being .... in the same place". They rely further on the ordinary usage of that expression today, submitting that A is only said to be in the presence of B if they are in the same place. The applicants submit that, despite technological advances, A is not said to be in the presence of B if they are communicating by a video link, however perfect the technique involved. The applicants point out that when Parliament wishes a person not present to be treated as if he were present by virtue of a live television link or otherwise, a deeming provision is called for, as exemplified by section 57 of the Crime and Disorder Act 1998. The applicants submit that section 37(6) specifies circumstances in which section 37(5) need not be complied with, and that the present situation is not one of those circumstances.

The respondent in reply points out that section 37(5) does not refer to physical presence. That is true, but presence in ordinary parlance means physical presence (at any rate outside the theological sphere). All the benefits of physical presence, it is argued on behalf of the respondent, are supplied by a high-quality video link and therefore the objectives of the Act are satisfied. That may as a matter of fact be true, although one can see possible room for argument. In my opinion, however, it is simply not possible, even taking a modern and progressive approach, to hold that a record is made by a review officer in the presence of a person whose detention is under review if they are not in the same place and in each other's company at the time.

That conclusion is in my judgment fortified by a further point made by the applicants. When, in the context of a review, section 37(1) is read, having made the transposition required by section 40(8), we find a reference to "the review officer at each police station where he [the suspect] is detained". That points, counsel for the applicants submits, to the physical presence of the review officer at the police station where the person whose detention is under review is detained. As a matter of statutory construction that seems to me to be so.

Counsel also points out the similarity of language between subsections (4) and (7) of section 36 and subsection (4)(b)(ii) of section 40, in each of which provisions reference is made to the ready availability of a custody officer or review officer. In Vince v Chief Constable of Dorset Police [1993] 1 WLR 415, 424H, McCowan LJ construed the expression "readily available" and said:

"In my judgment, unlike the other two expressions, 'readily available' covers a situation where a custody officer is not actually at the station but could without much difficulty be fetched there."

The applicants rely on that as supporting the inference that the custody officer (or as the case may be the review officer) must end up at the station for purposes of performing his relevant duties. They submit that this is another pointer towards the correctness of their construction.

Counsel for the respondent, in the course of a very well argued submission, acknowledges the force of this point. He suggests that it is an accident of draftsmanship explicable because the procedure now proposed was not in the realm of contemplation in 1984 when the Act was drafted.

I do not for my part think this point can be lightly dismissed. It is no doubt true that Parliament did not contemplate the procedure now proposed. Parliament in fact provided for a face- to-face confrontation between the review officer and the suspect. It may be that alternative procedures are just as good and that the time may have come for a change. If, however, important rights enacted to protect the subject are to be modified, it is in my judgment for Parliament after appropriate consultation so to rule and not for the courts.

Counsel for the applicants made a further submission based on the contrast between the power to detain in section 37(1), which could only be exercised at a police station, and the power of a senior officer to authorise the keeping of the person in detention under section 42(1), which need not be exercised at a police station. If I have correctly understood this point (and I may not have done so), it seems to me on the whole unpersuasive since references to authorising detention are to be found in subsections (3) and (4) of section 37 as well as in subsection (1) of section 42 when, on the applicants' submission, as I understand it, the custody officer or the review officer as the case may be must be at the police station. If, however, this point does not support the applicants' argument, nor in my judgment does it undermine it.

The provisions of the Code do not as I think provide conclusive support for either construction. Most of the provisions obviously envisage that the review officer will be at the police station, but it may be that most of them could be met by means which did not require the physical presence of the review officer at the police station in the company of the person whose detention is under review. I do however for my part have difficulty in seeing how a review conducted over the telephone could ever comply with the requirements of section 40, as appears to be envisaged by the note for guidance which I have cited. Counsel for the respondent did not find it possible to submit that a suspect was in the presence of a review officer simply because they were on the telephone to each other. I do not myself understand why it is thought that procedures under section 42 must be conducted in person if those under section 40 need not. We have not, however, heard full argument on this point and it would be wrong to express a final conclusion. It does, however, seem to me that the approval, conditional though it is, in note C:15C of conducting section 40 reviews by telephone may be misleading and wrong.

Since the Chief Constable has made it plain that, subject to any further decision elsewhere, he will give effect to this decision, the parties are agreed that it is unnecessary for the court to make a declaration.

MR JUSTICE HARRISON: I agree.

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