S.36 of the Police and Criminal Evidence Act 1984 provides: (1) One or more custody officers shall be appointed for each designated police station. (3) No officer may be appointed a custody officer unless he is of at least the rank of sergeant. (4) An officer of any rank may perform the functions of a custody officer at the designated police station if a custody officer is not readily available to perform them.
In Vince v Chief Constable of Dorset (1992) The Times, 17 September, proceedings had begun by originating summons, the plaintiffs, acting for the Joint Branch Board of the Police Federation of England and Wales, claimed, inter alia, a declaration that by virtue of s.36(3) of the PACE Act 1984 that the chief constable was under a duty to appoint sufficient custody officers to ensure that at each designated police station at least one custody officer was always readily available to perform the functions of a custody officer as provided by the Act; and a declaration that an acting sergeant might not lawfully be appointed under s.36(3) of the Act.
The Queen's Bench Divisional Court, [1992] 1 WLR 47, and see 56 JCL 202) had decided that s.36 placed a duty upon Chief Constables to appoint sufficient custody officers to ensure at least one was readily available at each designated station. It was from that judgment that the Chief Constable of Dorset appealed.
McCowan LJ; said it was apparent that the Act placed heavy and important duties upon a custody officer and sought to ensure where possible that those duties were performed by an officer who was not involved in the investigation of an offence for which the person in question was in police detention at the time.
Were the the words of s.36(1) ambiguous? Whereas subsections (1) and (3) dealt with the appointment of custody officers, subsection (4) dealt with the performance of the functions of the custody officer, "if a custody officer is not readily available to perform them". It would be curious in those circumstances if the construction of the subsection (1) were to be determined by the words of subsection (4).
His Lordship did not believe that "readily available" was synonymous with "normally available" or "ordinarily available". Unlike the other two expressions, "readily available" covered a situation where a custody officer was not actually available at the station but could without much difficult be fetched there.
Held, allowing the appeal, the wording of subsection (1) was not ambiguous. It plainly meant that the chief constable had a duty to appoint one custody officer for each designated station and a power to appoint more in his discretion, which had to be reasonably exercised. There was no breach by the chief constable of the subsection. No duty was imposed to ensure one custody officer was "normally available".
Turning next to a cross appeal by the Police Federation, against the decision of the Divisional Court that adjudged it not appropriate to make a declaration that an acting sergeant might not be lawfully appointed a custody officer under s.36(3). Counsel for the chief constable repeated his instructions that the chief constable had never appointed an acting sergeant as a custody officer under subsection (3) and had no intention of ever doing so. Nevertheless counsel submitted he had the power to do so. McCowan LJ; said that the question was academic and one upon which his Lordship would prefer to express no final view, he agreed this was not a case for a making of such a declaration. The cross appeal was dismissed.
Steyn LJ; dissenting, reluctantly agreed that the chief constable's appeal should be allowed. He said that an officer who, in accordance with Police Regulations, had not attained the rank of sergeant had not attained the eligibility for appointment as custody officer since he did not hold "the rank of sergeant" within the meaning of s.36(3). In his Lordship's view, it would be fair and just to grant a declaration that acting sergeants might be appointed as custody sergeants so that chief constables throughout the country would know where they stood. His Lordship thought it appropriate that the Royal Commission on Criminal Justice might wish to examine the point.
Rob Jerrard