(1999) The Times, December 1 QUEEN'S BENCH DIVISIONAL COURT

The Point at issue

Could an officer conducting a review, under section 40(1)(b) of the Police and Criminal Evidence Act 1984, of the detention of a person who had been arrested but not charged, do so by video link?

The Law

THE LORD CHIEF JUSTICE referred to article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms (1953, Cmd 8969) and said that, although not yet part of domestic law, it embodied important and basic rights recognised and protected by English law.

If citizens were to be deprived of their liberty such deprivation had to be in accordance with the law.

His Lordship set out the scheme provided by sections 34 to 51 of the 1984 Act which governed the detention of arrested persons, and referred to the Police and Criminal Evidence Act 1984 (s.66) Codes of Practice promulgated to give it effect, in particular Code C2 and C15, and to guidance note C15C.

He recognised that there might well be great persuasive force in the practical arguments advanced in support of the chief constable's proposal, but the question for the court was one of statutory construction: whether the proposed procedure was permitted by the Act and so lawful, or was inconsistent with the Act and so unlawful.

His Lordship accepted that the court should give the statutory language such meaning as best gave effect to the intention, the mischief at which it was directed being the prolonged detention of

suspects without periodic reviews of their detention; and that the court should not construe the language in the abstract, but with close reference to the facts to which in real life the statute had to be applied.

Most importantly, the court 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 was an aspect of particular importance because information technology had made huge strides since the 1984 Act was in embryo; the Act had to be given a 1999 interpretation.

He would also bear in mind that the court was 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 might be deprived of his or her liberty.

The Act and the codes giving it effect represented a 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 was one thing to give a 1999 interpretation to what Parliament enacted in 1984. It might be quite another to rule as a matter of statutory interpretation that a suspect need no longer enjoy the rights which Parliament in 1984 had ordained that he should have.

His Lordship referred to the applicants' submissions on the construction of section 40:

(i) that where, by virtue of section 40(8), section 37(5) was applied to the continued detention of a person whose detention was under review, a written record of the grounds of detention had to be made by the review officer "in the presence of the person whose detention is under review";

(ii) that that condition was not met if the review officer was in one place and the person whose detention was under review was in another, reliance being placed on the dictionary definition of "presence" meaning "the fact or condition of being ... in the same place" and on the ordinary current usage of the expression;

(iii) that, despite technological advances, a person was not said to be in the presence of another if they were communicating by a video link, however perfect the technique involved;

(iv) that when Parliament wished a person not present to be treated as though he were, by virtue of a live television link or otherwise, a deeming provision was called for: see section 57 of the Crime and Disorder Act 1998.

His Lordship accepted that, as the chief constable had pointed out, section 37(5) did not refer to physical presence. That was true, but "presence" in ordinary parlance meant physical presence, at any rate outside the theological sphere.

All the benefits of physical presence, the chief constable argued, were supplied by a high-quality video link and therefore the objectives of the Act were satisfied.

That might be true as a matter of fact, although there was possible room for argument.

However, in his Lordship's opinion, it was simply not possible, even taking a modern and progressive approach, to hold that a record was made by a review officer in the presence of a person whose detention was under review if they were not in the same place and in each other's company at the time.

His conclusion was fortified by the applicants' further submission: that the reference in section 37(1), when read with section 40(8), to "the review officer at each police station where [the suspect] is detained" pointed to the physical presence of that officer at the station where the person whose detention was under review was held. As a matter of statutory construction, that seemed to be so.

Reliance was also placed on references in the provisions to the ready availability of the review officer; see Vince v Chief Constable of Dorset Police ([1993] 1 WLR 415, 424) as supporting the inference that the review officer had to end up at the station for the purpose of performing his relevant duties.

Counsel for the Chief Constable acknowledged the force of the point and suggested that it was an accident of draftsmanship explicable because the procedure now proposed was not in the realm of contemplation in 1984.

His Lordship accepted that Parliament had not contemplated the proposed procedure. It had in fact provided for a face-to-face confrontation between the review officer and the suspect. It might be that alternative procedures were just as good and that the time had come for a change.

If, however, important rights enacted to protect the subject were to be modified, it was for Parliament after appropriate consultation so to rule and not for the courts.

The provisions of the Code did not provide conclusive support for either construction.

With regard to guidance note C15C, his Lordship had difficulty in seeing how a review conducted over the telephone could ever comply with the requirements of section 40, as that note appeared to envisage.

In the absence of full argument it would be wrong to express a final conclusion, but the approval, conditional although it was, in that note of conducting section 40 reviews by telephone might be misleading and wrong.

The Decision

An officer conducting a review, under section 40(1)(b) of the Police and Criminal Evidence Act 1984, of the detention of a person who had been arrested but not charged, could not do so by video link

That Act, on its proper construction, in providing that certain procedures were be done "in the presence" of the detainee, required the officer and the detainee to be physically in the same place and in each other's company at the time.

The Queen's Bench Divisional Court so held when granting an application by Kent Police Federation Joint Branch Board, and Peter Harman, the board's secretary, for judicial review of the proposal by the Chief Constable of Kent that the conduct of reviews of police detention under section 40(1)(b) of the 1984 Act should be, in the majority of cases, by video link.

Comment

The below extract from the Report is worth repeating since it casts doubt on the note the note 15c.

"With regard to guidance note C15C, his Lordship had difficulty in seeing how a review conducted over the telephone could ever comply with the requirements of section 40, as that note appeared to envisage".