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Cite as: [2009] NIQB 105

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Neutral Citation No. [2009] NIQB 105	Ref:	CAM7503

Judgment: approved by the Court for handing down	Delivered:	07/05/09
(subject to editorial corrections)*

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

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QUEEN'S BENCH DIVISION (JUDICIAL REVIEW)

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Morgan's (Francis) Application [2009] NIQB 104

IN THE MATTER OF AN APPLICATION BY FRANCIS MORGAN

FOR JUDICIAL REVIEW

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SIR ANTHONY CAMPBELL

[1] The decision under review was taken by Sergeant Gilpin, in the capacity of custody officer at Armagh Police Station on 19 December 2005, and it was to release the applicant on bail following his arrest and require him to return to the station on 16 January 2006.

[2] Where a person has been arrested and is brought before a custody officer article 35(6) of the Police and Criminal Evidence (Northern Ireland) Order 1989 empowers the officer to grant bail. The question raised in this application is whether this power may be exercised by a custody officer in the absence of the consent of the person to be granted bail. If the custody officer has such a power, despite the absence of consent on the part of the person arrested, the further question arises as to whether on the facts of the present case the decision of the custody officer to grant bail was proportionate.

The Police and Criminal Evidence (NI) Order 1989 ("PACE")

[3] Article 35 (6) provides:

"Where –

(a) it appears to the custody officer -

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

(ii) that proceedings may be taken against that person in respect of any such matter; and

(b) the custody officer considers that, having regard to all the circumstances, that person should be released only on bail,

the custody officer shall so release that person".

Article 48 of the Order, where material to this case, reads:

"(1) The duty of a person who is released on bail under this Part to surrender to custody under Article 4 of the Criminal Justice (Northern Ireland) 2003 consists of a duty…

(b) to attend at such police station at such time as the custody officer may appoint.

(2) The time to be appointed under paragraph (1) shall be … a date not later than 28 days from the date on which the person is released."

Article 35 (8) states:

"a person who returns to a police station to answer to bail… shall be treated as arrested for an offence and the offence in connection with which he was granted bail shall be deemed to be that offence."

The facts

[4] The extent of disagreement in the affidavit evidence as to the facts is such that it is not possible for the applicant to discharge the burden of proof that lies upon him. In R v The Justices of the County of Surrey Ex Parte Curl (12 June 1990) Farquharson LJ said that where there is a clear conflict as to what has taken place "one has to accept the evidence which stands against the person who has the responsibility of showing that certiorari should lie." This is the approach that the court adopted in the present case.

[5] On 23 November 2005 the applicant was questioned under caution by police officers at his home about the ownership of a large number of vehicles. The vehicles had been found in business premises in Warrenpoint during a search carried out on foot of a warrant issued under s.25 of the Theft Act (NI) 1969.

[6] On the following day the applicant was arrested on suspicion of being in possession of criminal property, contrary to s.329 (c) of the Proceeds of Crime Act 2002. He accompanied police officers to Armagh Police Station where the arrest was accepted by the custody officer. The applicant was interviewed in the presence of his solicitor and at the conclusion of the interview he was released by the custody officer, on his own recognisance of £20,000, to appear at Armagh Police Station on 19 December 2005.

[7] When the applicant appeared at Armagh Police Station on 19 December 2005, accompanied by a different solicitor, he was introduced to Sergeant Gilpin, the custody officer on duty. The investigating police officer told the custody officer that he was not yet in a position to question the applicant further as he had more inquiries to make. He explained that these inquiries related to matters that had been raised by the applicant during the course of his previous interview with the police. The investigating officer added that a number of documents had been seized in a search of property belonging to the applicant and that these remained to be considered. Sergeant Gilpin stated that he understood from what he had been told by the investigating officer that there was a distinct possibility that an interview might take place when the applicant returned in answer to his bail.

[8] The applicant's solicitor informed the custody officer that his client was not prepared to sign or enter into any bail and on being asked to do so the applicant refused. The response of the custody officer was that whether the applicant was willing to sign a recognisance or not he was being released on police bail as an interview could not be carried out at that stage. The applicant was advised that failure to return as required to the police station on 16 January 2006 could result in his arrest with a view to prosecution for failing to answer bail. The applicant was then released, without entering into a recognisance, to appear at Armagh station 16 January 2006 at 11.00 hours. He failed to appear on 16 January 2006 in answer to his bail.

[9] The custody officer states in his affidavit:

"I felt it necessary to have him return because the investigating officer did not wish to release the applicant unconditionally as he would have further questions to put to him following the completion of ongoing enquiries arising out of issues raised at the initial interview. I was also concerned that should the applicant be granted unconditional release the applicant may not be further arrested without new evidence, a situation which might frustrate the purpose of the investigation. I was satisfied that the conditions set out in Article 35(6) of PACE 2 were met …"

The applicant's case

[10] Mr Ronan Lavery, who appeared for the applicant, submitted that the need for consent is implicit before bail is granted under Article 35(6) of PACE. He suggested that bail is a form of agreement under which a person held in custody agrees to certain conditions being imposed upon him by a court or custody officer in return for being released from custody.

[11] Mr Lavery further submitted that the condition imposed on the applicant to return to the police station within 28 days was a considerable restriction on his liberty as on doing so he would return into custody. If the investigating officers were not then in a position to interview him this process could be repeated over a long period of time. If he refused to accept bail he had to be brought before a court within 48 hours and he could ask the court to examine the grounds for his arrest. While Mr Lavery accepted that deprivation of liberty for the purpose of questioning, following arrest for the purpose of bringing a person before a court, on suspicion of having committed an offence, was lawful under article 5 of the Convention he submitted that it was not lawful to detain someone for the purpose of processing them.

The respondent's case

[12] Mr Maguire QC on behalf of the respondent described PACE as representing a statutory code which finds a balance between the rights of the community, through the police, to have effective and efficient powers to investigate crime and the upholding of the rights of the individual. The legislation contains a number of compulsory powers which do not require the consent of the person involved such as those of arrest and search and the grant of bail is another example of this.

[13] The process, to which counsel referred, begins with the exercise of the power of arrest under article 26 of PACE and is followed by the person under arrest being brought to a police station where the custody officer carries out his duty under article 38 to determine whether he has before him sufficient evidence to charge the person. If there is such evidence, the person must be brought before a court as soon as practicable. If there is no evidence, the person has to be released unconditionally. If there is evidence (a reasonable suspicion) and the custody officer is satisfied under article 38(2) he may authorise detention for the purpose of questioning. Where the custody officer is so satisfied and considers that, having regard to all the circumstances, the person should be released on bail then he must be so released.

[14] The maximum period for which the person can be released on bail is 28 days and when he returns to the station at the end of this, or any lesser period for which he has been released, the custody officer must consider the position afresh. If he is satisfied that there is a need for further investigation he may authorise his detention and again he must decide if, in all the circumstances, the person should be released on bail.

[15] Article 42 of PACE provides that the maximum period that a person may be detained in police custody (subject to the process for extension) is 24 hours. When the applicant attended the station following his arrest the period that he was held was logged, as was the time that he spent in custody when he attended with his solicitor on 19 December 2005. The time that the appellant has been held in custody on these occasions forms part of the relevant period of 24 hours.

Conclusion

[16] The plain meaning rule of statutory interpretation as stated by Lord Reid in Pinner v Everett [1969] 1 WLR 1266 at 1273 is that:

"In determining the meaning of any word or phrase in a statute the first question to ask always is what is the natural or ordinary meaning of that word or phrase in its context in the statute. It is only when that meaning leads to some result which cannot reasonably be supposed to have been the intention of the legislature that it is proper to look for some other possible meaning of that word or phrase."

[17] Article 35 (6)(c) requires a custody officer to release a person on bail where it appears to him that there is a need for further investigation and he considers that the person should be released only on bail. To introduce a requirement that he may only do so where the person consents to entering into bail would require a departure from the plain meaning of the legislation and would import into the provision a stipulation that the legislature gave no indication was required.

[18] Before such an implication could be found within the express words of article 35 (6)(b) there would have to be a principle of law that required it. Although usually the person who is seeking bail makes an application both at common law and by statute, an application is not a prerequisite to bail being granted. At common law, "to refuse or delay to bail any person bailable, is an offence against the liberty of the subject" (4 Blackstone's Commentaries 297). The Bail Act 1976 in England and Wales provides in section 4:

"(1) A person to whom this section applies shall be granted bail except as provided in Schedule 1 to this Act.

(2) This section applies to a person who is accused of an offence when—

(a) he appears or is brought before a magistrates' court or the Crown Court in the course of or in connection with proceedings for the offence, or

(b) he applies to a court for bail or for a variation of the conditions of bail in connection with the proceedings."

In Part 11A of Schedule 1 it is provided:

"If the court decides not to grant the defendant bail, it is the court's duty to consider, at each subsequent hearing while the defendant is a person to whom section 4 above applies and remains in custody, whether he ought to be granted bail."

Both at common law and in this statutory example the duty is placed on the court to grant bail whether the defendant makes an application or not. If bail is to be granted in the absence of an application this is a strong indication that no form of consent is necessary before bail can be granted. Otherwise a person in custody could prevent a court from carrying out its duty to grant bail by refusing to consent.

[19] I conclude that a requirement for consent cannot be implied into article 35 (6) of the Police and Criminal Evidence (Northern Ireland) Order 1979. Such a requirement could make the scheme of police bail unworkable at the whim of arrested persons who declined to co-operate in the grant of bail and it is inconceivable that this was the intention of Parliament.

[20] The second issue is whether the decision made by the custody officer was proportionate. The solicitor acting for the applicant has stated that following a conversation with an investigating officer he was left with the impression that the investigation could take a number of months since it involved the examination of thousands of documents and of a number of computers and mobile telephones. The officer in question has stated that she has responsibility for a larger investigation into money laundering and this is different from the investigation in relation to which this application is made. She agrees that the solicitor did ask her questions about this larger investigation.

[21] As noted earlier the custody officer understood there to be a distinct possibility that an interview might take place when the applicant returned in answer to his bail. No doubt it was going to be an inconvenience to the applicant to have to travel to Armagh in answer to his bail and to spend time in custody if on his return the investigating officers were not in a position to interview him. If they were not in a position to do so, however, the custody officer then on duty had to make a fresh decision as to whether the applicant should be granted bail or released.

[22] On 19 December 2005 the custody officer granted bail for the maximum period that he had power to do so and balancing the duty on the Police Service to investigate crime with the liberty of the applicant the decision to grant bail was, in my judgment, clearly proportionate.