Police bail limited to 96-hours
I have just read a BBC report saying that a court has ruled that the police cannot bail anybody for more that 96-hours or 4-days. The BBC are a little late with this story as it was reported by CrimeLine last Friday, but there you go.
The case, called Greater Manchester Police v (1) Hookway, (2) Salford Magistrates' Court, is a judicial review brought by the police following a refusal by a District Judge to grant further time for them to question a murder case suspect.
CrimeLine's Andrew Keogh (a well known and highly respected criminal lawyer who provides extensive training for much of the criminal law world) described the judgment as "... one of the most bizarre cases I have ever read... ". He goes on to say that he understands the case is being appealed, which is not a surprise.
Before going on, I should explain for those who do not know that when a person is arrested the police have 24-hours in which to question the suspect and make a decision whether to charge the person or not. In serious cases, a police superintendent can extend the time limit and a further extension can be sought from a magistrates' court. The time the police have to hold a suspect is often called the custody clock and it usually starts to tick from the time a suspect arrives at the police station, which in reality often means the time he is booked in by the custody officer.
There are a number of possible outcomes from this case and it is entirely unclear which of them is correct in law. First, the case could apply to all bail cases, meaning that the custody clock continues to tick when a person is released on bail. Secondly, it could mean that it applies to any extension beyond the usual 24-hour period. Thirdly, it might apply only to cases involving warrants of further detention. Finally, the judge could well have just got in a muddle and made a bit of a pigs-ear of the whole thing.
I am a little surprised that the Police and Criminal Evidence Act 1984 does not clearly state whether time spent on bail counts against the custody clock; however, I suspect that since the Act constantly refers to "detention" periods the authors simply thought the point so obvious as not to require explanation. In any event, I believe that s. 47(6) implies that time on bail will not count toward the custody clock as it states that time spent in detention before the grant of bail will count as well as time spent in detention when the suspect answers bail. I also note s.118 of the 1984 Act expressly defines the meaning of police detention and that does not include any mention of time spent on bail.
I wonder whether this will turn out to be a storm in a teacup. I see from paragraph 22 of the judgment that the warrant issued for the suspects detention allows detention for a period "from the time of issue of the warrant". I don't know if this is how all such warrants a phrased as I haven't seen them all, but I suspect that the problem can be solved with a very simple bit of re-drafting.
The case, called Greater Manchester Police v (1) Hookway, (2) Salford Magistrates' Court, is a judicial review brought by the police following a refusal by a District Judge to grant further time for them to question a murder case suspect.
CrimeLine's Andrew Keogh (a well known and highly respected criminal lawyer who provides extensive training for much of the criminal law world) described the judgment as "... one of the most bizarre cases I have ever read... ". He goes on to say that he understands the case is being appealed, which is not a surprise.
Before going on, I should explain for those who do not know that when a person is arrested the police have 24-hours in which to question the suspect and make a decision whether to charge the person or not. In serious cases, a police superintendent can extend the time limit and a further extension can be sought from a magistrates' court. The time the police have to hold a suspect is often called the custody clock and it usually starts to tick from the time a suspect arrives at the police station, which in reality often means the time he is booked in by the custody officer.
There are a number of possible outcomes from this case and it is entirely unclear which of them is correct in law. First, the case could apply to all bail cases, meaning that the custody clock continues to tick when a person is released on bail. Secondly, it could mean that it applies to any extension beyond the usual 24-hour period. Thirdly, it might apply only to cases involving warrants of further detention. Finally, the judge could well have just got in a muddle and made a bit of a pigs-ear of the whole thing.
I am a little surprised that the Police and Criminal Evidence Act 1984 does not clearly state whether time spent on bail counts against the custody clock; however, I suspect that since the Act constantly refers to "detention" periods the authors simply thought the point so obvious as not to require explanation. In any event, I believe that s. 47(6) implies that time on bail will not count toward the custody clock as it states that time spent in detention before the grant of bail will count as well as time spent in detention when the suspect answers bail. I also note s.118 of the 1984 Act expressly defines the meaning of police detention and that does not include any mention of time spent on bail.
I wonder whether this will turn out to be a storm in a teacup. I see from paragraph 22 of the judgment that the warrant issued for the suspects detention allows detention for a period "from the time of issue of the warrant". I don't know if this is how all such warrants a phrased as I haven't seen them all, but I suspect that the problem can be solved with a very simple bit of re-drafting.
Interesting - good post - great blog.
ReplyDeleteThe actual Warrant of FD was issued at 18.22 on 8th November. The warrant must state its time of issue and the period of extension granted by the court.
"You, the constables of Greater Manchester Police Force, are hereby authorised to keep the above named defendant in police detention for 36 hours from the time of issue of this warrant."
That is it. Clear words. The warrant died at 06.22 on 10th November.
Surely, it matters not whether the Police released the suspect before 06.22 on 10th November.
I have often wondered about the idea that somehow unexpired portions of time can be held in abeyance. Obviously, to say that they could be, is a "police-friendly" way of looking at things. However, PACE is concerned with the rights of the citizen and places limits on Police powers. Such powers have to be interpreted strictly - surely?
"Such powers have to be interpreted strictly - surely? "
ReplyDeleteI would say so. The Today programme this morning interviewed a legal expert (I didn't catch his name) who said that the judge should have used his common sense and not taken the wording of the Act literally. What?
ObiterJ, I agree with your point about the wording of the warrant. Slack drafting has been a problem in criminal law since I began practice. I've seen indicitments being amended because nobody bothered to look up the precedent and drafted complete nonsense. My personal favourite was a prosecutor who drafted a Sexual Offences Prevention Order that required the offender (a paedophile) to live with a child under the age of 16-years! Amazingly the judge, clerk and defence (not me) all failed to notice this glaring error!
ReplyDeleteIn your point about unexpired portions of time being held in abeyance, are you talking only about warrants of FD or more generally because PACE allows for bail pre-charge.
Conor, I heard the Today programme as well, although you would have been better off listening to BBC radio Manchester where one of my trainee solicitors gave a very reasoned contribution to the debate.
Wordings of Acts of Parliament are not always taken literally. When you study law you have to endure a module called "The English Legal System" that goes through in great and tedious depth the different ways of reading an Act from the literal to the mischief rule and onto new shiney Europeanesque methods. All of which boil down to "try and read it in a way that supports your case".
No, but this was an act that placed restrictions on what the police could do, and personally I'm not happy with the Government second-guessing what Parliament intended over 27 years ago. Perhaps it though as I think now, that if the police can't think of all necessary questions within the first 72 hours - tough.
ReplyDeleteConor, I understand your point, but unfortunately as we can't ask the 1984 Parliament what they intended all that the courts can do is to make a decision as to their intentions based on all the evidence available to them from the wording of the Act to the judge's understanding of modern society.
ReplyDeleteIt occurs to me that although I've seen at least one claim that this case means thousands will 'escape justice' the reality is that it is currently pretty damn difficult to get the CPS to charge anybody with anything.
ReplyDeleteIn my opinion, it's only because the police can no longer 'verbal' people willy-nilly and charge them when there is little or no evidence, that they have (until now) overused and abused the police bail system.
ReplyDeleteAnyone in this country can be dragged off the streets and have draconian restrictions placed on them without a shred of evidence to a crime being available.
Whether the judge was right or wrong I guess his interpretation stands for all people bailed after his ruling and until a change in the law or a different interpretation is made by the Supreme court.
ReplyDeleteThat should mean that those people affected have the right to have their bail ended after 96 hrs and all confiscated materials etc returned if they are not charged. I also assume that if you have not been charged within the 1st 96 hrs your bail is quashed and you are "released" unless new evidence is found.
Any extension of bail would also be illegal?
Also if evidence is found during the illegal bail period will it be admissible?
Any suggestions?
The solicitor involved in this case was on the Today Programme this morning and said that when this act was introduced, the police were acting in accordance with this "new" interpretation.
ReplyDeleteI don't see why solicitor wouldn't have been noticed the switch though. But then again, I don't see why nobody would have spotted this before.
Few, if any, come out of this abysmal mess with any credit.
ReplyDelete1. Parliament - NIL out of 10 - they have failed to ensure that important legislation dealing with Police powers is clear. Anyone who looks at PACE - in its present, excessively amended form, would be appalled at the complexity.
2. Defence Lawyers - NIL out of 10 - no challenge brought against Police practice despite the legislation clearly relating detention without charge time to the "relevant time" + so many hours. Suppose the relevant time is 0600 on 2nd July 2011. How the hell can 96 hours after that somehow become a time in, say, September? It would be 0600 on 6th July.
Even the Hookway case was not a challenge by defence lawyers. The Police brought the case to get an extension to a warrant of further detention. Unfortunately for them, the warrant was worded so that it had died ages before. They then argued that PACE s47(6) saved the day for them anyway.
3. The Judges - NIL out 10 - because this case ought to have been heard by a Divisional Court (i.e. 2 or more Judges) but was not. (Some consider this practice to be unlawful. At best, I say it is undesirable). NEXT - the Supreme Court is to hear an application to STAY the judgment but will hear this in PRIVATE. The matter is too important for "secret hearings."
4. The Home Office - NIL out of 10 - for (a) civil servants first running to ACPO with the problem rather that to Ministers and (b) for Ministers instantly taking the Police side rather than taking a proper look at the legislation.
Finally, we should watch this "emergency legislation." It might be a lot more "pro Police" than even the present regime.
does that 96 hours include saturday and sunday??
ReplyDeleteAnon, yes it includes saturday and sunday. Also includes bank holidays, xmas day etc.
ReplyDeleteEarlier anon, it seems to me that if the judgment affects all bails not just those with warrants of further detention then in ordinary cases the police would only be able to bail suspects for 24-hours from the time they were arrested as that is the standard time they have; however, as I've said I don't see that it does impact on those cases.
ObiterJ, if there is a general principle here and all warrants of FD are unlawful then I agree it is terrible that nobody has ever noticed before. But, are all WFD drafted in the style of Hookway? I cannot see anything about a standard format in the Criminal Procedure Rules nor anything that requires them to be drafted in the manner of Hookway. Unfortunately, somebody has pinched my copy of Vol 12 of the Encyclopedia of Forms and Precidents, which I assume has criminal forms in it as none of the others do, so I cannot say whether that contains a standard format. This could yet turn out to be a very localised problem or no problem at all. It's been well over a week since that judgment and civilisation is still here... now I've said that they'll be a civil war breaking out this afternoon!!
By PACE s43(10) all that a WFD has to state is the time of issue and say that it authorises the detention of the named person for the period stated in it.
ReplyDeleteIt was very interesting how the WFD actually issued in Hookway was worded. If on say 4th July at 1800, one were to issue a WFD (or an extension) allowing 36 hours then it probably could be worded to expire at 0600 on 6th July. Alternatively, it could simply say that on 4th July at 1800 detention for 36 hours was granted. Like you, I have not seen enough of these to be sure whether there is a standard practice.
McCombe J did not seem to think that his ruling would cause major problems. I am not sure whether, in actual fact, it has or not. The Police - especially ACPO - are very adept at presenting their own viewpoint which is usually along the lines of "we need more power."
The vast majority of cases do not even get to the Superintendent power to extend let alone a WFD and even fewer get the Extension to WFD.
In many cases, as I'm sure you know, the Police either charge or release on bail and use their power to re-arrest for "new evidence." Since "new" is not defined, almost anything would probably suffice - e.g. results returned of blood tests etc.
As I said above, I often wondered about how the Police applied PACE when everything is related to the "relevant time." In my view, McCombe J got this right. With the greatest of respect, I am not personally convinced at all by ZanderQC's argument which can be found via my blogpost on this subject..
Here is the proposed emergency legislation:
ReplyDeletehttp://www.publications.parliament.uk/pa/bills/cbill/2010-2012/0216/2012216.pdf
Interestingly they want to make it totally retrospective if I understand ss3 correctly.
Can an amendment to the act be retrospective???
ReplyDeleteArrested on police bail, and been extended 4 times coming up to nine mounths, when is enought ? enought ?
ReplyDeleteHow longs a peace of sting ? i wonder in this fair country of ours.
"SOMEONE PUT A STOP TO THE UNCERTENTY", MIND GAMES.
Not much to ask 96 hourd no 26 weeks more like, and now they can come and get you on double jepady.