I wrote a while ago about names. How we change them to desensitise a topic or practice. One of those mentioned was the change of an accident to a collision. I won’t go into all the details but do check the blog for yourself here;
The link between that blog and today’s is knee-jerk responses. A crazy ruling in a court that sent police forces around the country into panic as they reclassified and rebranded all accidents as collisions to avoid other motoring offenders using this nonsense of a defence.
The latest issue is that of GMP v Hookway. Forces around the country are in blind panic about how to deal with the judgement by Mr Justice McCombe.
It has become massively complicated in the last 2 weeks. A bit like getting solicitors involved in what was until then an amicable separation! In essence though it is quite simple.
Since the inception of the Police and Criminal Evidence Act 1984 (PACE) Police forces have proceeded on the basis that we have certain time limits to deal with detainees. The wording changed a little while back from serious arrestable offence to indictable but the limitations on detention were unaffected. Our limits are;
1. 24hrs to process for an offence
2. Up to a further 12hrs on authority of a Supt if an indictable offence and more time to investigate/interview is needed.
3. On application to magistrates a warrant of further detention up to a further 36hrs (PACE s43)
4. Following on from s43 warrant, on application to magistrates a warrant of further detention of up to 36hrs (PACE s44)
There is a maximum of 4 days (96hrs) from the relevant time (time of arrival at police stn/custody suite) if all the criteria are met. Those of you who are smart will realise already that three periods of 36hrs is 108hrs. The proviso on the two warrants is that the time granted does not exceed 96hrs from the relevant time.
During the initial 24/36hrs the police have been allowed to bail a detainee whilst further enquiries are conducted. Any time the detainee is not in “detention” does not count toward their 24/36 limit. When answering bail the clock resumes from where it paused.
In the Hookway case GMP have granted bail on a s43 warrant and applied the same clock stop/resume theory. To further exacerbate this they have then asked for second warrant under s44. This was refused and lead to the hearing at the high court by Mr Justice McCombe.
My opinion is just one of many. I’ve been wrong before and will no doubt be wrong again. I don’t propose to offer a learned breakdown of the judgement. But I do have a view.
McCombe has determined that the clock doesn’t stop and just ticks down until expired whether on bail or not. Reading the judgement I see this as applying to WFD’s. Not the initial statutory periods. However, many forces have adopted this ruling to apply to all custody clocks. It has to be said that erudite members of the legal profession hold this view too. I do not believe this is what McCombe was alluding to. If he was then I believe he is wrong.
To me is there is a difference between the 36hrs the police can authorise and the 60hrs the court can impose by a WFD. Such warrants are for serious offences. Matters that are likely to lead to a charge and remand to court. In my 5 years experience as a custody sgt I have never been asked to bail somebody on a WFD. They have always ALWAYS been charged and sent back to court. The fact this case led to bail raises considerable question marks about how the investigation has progressed. I should make it clear I offer no criticism of GMP. I am not privy to the intricacies of the case and the difficulties they may have encountered. But for me the fact remains that once you have gone onto a WFD then it stands to reason you have a serious offence requiring considerable investigation. It is also a safe assumption that for such a serious offence, once onto a WFD that the likelihood of bail is pretty much, academically, non-existent. It is quite embarrassing after the might of such an investigation and the time spent on it to not have a charge at the conclusion.
The next matter is that PACE indicates that the clock does indeed stop. Previous time in detention then counts toward the total. McCombe raises this in his judgement and appears to support it in para 26 but states he does not see how it could also apply to a WFD. The wording is somewhat loose, notwithstanding his veiled criticism of the QC representing GMP for being vague. The debate will continue but how when searching for and requiring clarity we can end up with such a vague judgement beggars belief. But what is patently clear from his words is a total assumption of how the police work. He states “on reflection” that the police always re-arrest on new evidence. Where did he get such information? It is not unheard of but certainly not the norm. It seems to be a classic case of someone making a decision that is out of touch with the reality of day to day policing.
Then we have the timing and speed at which these matters progress. The judgement was made on 19.5.11. Yet as a “guardian of excellence” within live custody processes it was only brought to my attention on 23.6.11. If this was such a serious issue why did it take the powers that be so long to tell us? We are now caught in a situation that could already have been resolved by prompt action. Why are they still vacillating on this subject?
In the meantime there is much confusion in custody suites and many investigating officers are worried about their cases.
In a time of crisis, calm heads and clear thinking are needed. There is no place for wild speculation and exaggeration. Yet a representative for the defence appeared on the Today program on Radio 4 last week and made some bizarre comments. He made allegations that the police abuse the system. That we have plans to keep people on bail for years (note the plural) at a time with no evidence whatsoever. He also mentioned that he was fully in support of a new arrest on new evidence. This allows police to “zero” the clock and start again. He also stated, which makes a mockery of the previous statement that they initially had no objections to the s44 WFD as they had been told there was new evidence. Now forgive me if I’m wrong but if there was new evidence, and based on his earlier comment, why was he not objecting to the warrant? Surely he should have neen advocating a further arrest?
Clearly no matter which way you look at this case there have been errors on both sides. What a great solicitor though who advocates his client should be rearrested every time there is new evidence and thereby opening him to multiple 24hr periods in custody. Whilst PACE allows this, the police have worked on the fairer option of simply using 24hrs once. A system that up until this case has simply been accepted across the country, no doubt by him too.
I’m a great believer in common sense. I cannot see it being applied to any of the conclusions currently being drawn. The interpretations undermine 25+ years of policing and accepted practice across the board. It makes many cases where bail has been applied as unlawful detention. This provides grounds for those on bail now and those convicted and in prison or not to appeal against sentence. This really is utter nonsense and the sooner the posturing and mud slinging stops the sooner we can get back to normal and get on with our jobs.
The decision and current interpretation pretty much rubbishes the concept of bail altogether. All said and done if upheld the financial consequences to forces, which means the government, which means you and I, will be huge. As a result, in these times of austerity, I suspect the monetary incentive will dictate the final outcome and we can expect it to be overturned in due course.