Vera’s briefing on the controversial bail case of Police vs Hookway
Salford case of Hookway and Police (Detention and Bail) Bill 2011
Police and Criminal Evidence Act 1984
1.What happened in Hookway case?
He was arrested on suspicion of murder and detained from 12 40pm on 7th November 2010.
(Note detention after arrest is in S37. If there is evidence sufficient to charge that he must be charged but;
S37(2) PACE If the custody officer determines that he does not have such evidence before him the person arrested shall be released either on bail or without bail unless the custody officer has reasonable grounds for believing that his detention without charge is necessary to secure or preserve evidence relating to an offence for which he is under arrest or to obtain such evidence by questioning him
S37(3) If the custody officer has grounds for so believing he may authorise the person arrested to be kept in police detention.
S.41 of allows detention for max 24hours without being charged to start from “the relevant time” i.e the time of arrival at the police station, in this case 12 40pm 7th Nov 2010
S.42 allows a Superintendent to extend detention beyond 24 hours (for similar reasons to those justifying original detention) “for a period expiring at or before 36 hours after the relevant time.”
This was done
S.43 allows application to the court for a warrant of further detention thereafter (WoFD), which has to be made before the expiry of 36 hours from the relevant time and can extend detention a further 36 hours.
This was done.
The timing was such that Hookway could have been kept until 6.22am on 10th November but he was bailed at 22.19 on 9th, leaving a balance of unexpired detention time of 8 hours and 3 minutes. He was required to return to the police station to answer to his bail and did so on 11th Nov, 18th Nov,8thJan 2011,13th Jan 2011 and 9th February 2011 and finally on 5th April.
On 5th April the custody officer authorised his further detention. The police believed that they could use up to the unexpired detention time (authorised by the warrant under S43 in November 2010) of 8 hours and 3 minutes.
As Mr Justice McCombe said in the judgement:
“This proceeds upon the assumption that upon release following the issue of a warrant, if the period of the extension has not expired, that period remains in suspension until used up by later periods of detention”
Further, the police applied to Salford Magistrates Court for an extension of the WoFD to keep Hookway beyond that 8hrs 3 minutes. S.44 allows such an application for an extension to a WoFD, to take the total detention up to an absolute and final maximum of 96 hours from “the relevant time”.
This is the application the Magistrate refused saying that he could not extend a warrant which had expired. The November warrant was dated 8.11.10 and said:
“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 the issue of this warrant”
Mr Justice McCombe agreed that the warrant had expired and no extension was possible and also looked at the earlier periods of detention.
He decided that:
• All the sections which relate to police detention without charge refer to timing the detention from “the relevant time”
• That means that there is a maximum of 96 hours, supposing all possible extensions are obtained which runs from “the relevant time”
• “The relevant time” in this case was 12 40pm on 7th November 2010
• Therefore the assumption set out above was incorrect, despite being used for many years. No unexpired balance of detention could remain once 96 hours had passed after “the relevant time”.
Counsel for the police showed him S 47(6) of PACE which says:
“Where a person who has been granted bail under this part and either has attended at the police station in accordance with the grant of bail or has been arrested under S46A (this is arrest for failing so to attend) any time during which he was in police detention prior to being granted bail shall be included as part of any period which falls to be calculated under this Part of the Act”
But McCombe rejected that as an answer saying:
“I am afraid that I am unable to see how that subsection can operate to push back the date laid down expressly as the end date for any period of extension or warrant of further detention that has been set out in S44 (3) It simply provides that if a suspect had been released on bail the time in detention must count in any period which “falls to be calculated under this part of the Act” If a period has expired it no longer falls to be calculated at all.”
Thus he found it determinative that the provisions of PACE all require that detention time is counted from “the relevant time”
Professor Zander THE authority on PACE) thinks he is wrong and so do I. The case is poorly decided because he looked only at the specific provisions and not at their purpose or their history.
The Law
S47(7) of PACE says “Where a person who was released on bail under this part subject to a duty to attend at a police station is re-arrested the provisions of this part of the Act shall apply to him as they apply to a person arrested for the first time but this subsection does not apply to a person who is arrested under S46A (for failing to attend in accordance with the grant of bail) or has attended at a police station in accordance with the grant of bail and who is accordingly by section 34(7) deemed to have been arrested for an offence”
This means where someone is re-arrested because there is new evidence, the PACE detention clock starts again and all the periods of extension etc are available as if he were being “arrested for the first time”. But the second part of 47(6) says that that is not the case for someone either arrested for not failing to attend in accordance with the grant of bail or for someone who actually attends at a police station in accordance with his bail.
So if the PACE “detention clock” does not start again for people in those second two categories what does happen when they attend the police station later?
S 34(7) says “For the purposes of this part of the Act a person who
• returns to a police station to answer to bail granted under this part
Is to be treated as arrested for an offence and that offence is the offence in connection with which he was granted bail.
So he is treated as arrested for the original offence and s47(6) applies so that
“ any time during which he was in police detention prior to being granted bail shall be included as part of any period which falls to be calculated under this part of the Act”
In a simple case if someone is detained 10 hours of the original 24 available, then bailed to return to the police station, when he attends he is treated as arrested for the original offence – s34(7)- and via s47(6) the 10 hours he has already been detained is deducted from the 24 so that he can only be detained again for 14 more.
The Hookway case was just more complicated because of all the extensions
It is not good if legislation requires you to look for obscure bits of it to make sense but S 47 was originally a lot clearer. It used to have a subsection (5) which was removed by the 1994 Criminal Justice and Public Order Act when it introduced a power of arrest for failing to surrender to bail. Prior to that S47 (5)and(6) said:
S47(5) where a person arrested for an offence who was released on bail subject to a duty to attend at a police station so attends, he may be detained without charge in connection with that offence if the custody officer at the police station has reasonable grounds for believing ( it lists the ordinary grounds for detention)
S47(6)where a person is detained under subsection (5) above any time during which he was in police detention prior to being granted bail shall be included as part of any period which falls to be calculated under this part of the Act”
Now there is no subsection (5) and (6) stands says
S.47(6) Where a person who has been granted bail under this part and either has attended at the police station in accordance with the grant of bail or has been arrested under S46A ( this is arrest for failing to attend in accordance with the grant of bail) any time during which he was in police detention prior to being granted bail shall be included as part of any period which falls to be calculated under this Part of the Act”
The earlier version was much clearer and makes explicit that the unexpired balance of detention was intended to be available as an absolute rule, irrespective of whether the attendance at the police station in accordance with bail, occurs on a date after the expiry of the maximum of 96 hours from the “relevant time” at which the person was first detained.
The New Bill
The new Bill further amends S47(6)
S.47(6) Where a person who has been granted bail under this part and either has attended at the police station in accordance with the grant of bail or has been arrested under S46A ( this is arrest for failing to attend in accordance with the grant of bail)
any time during which he was in police detention prior to being granted bail shall be included as part of any period which falls to be calculated under this Part of the Act”
By adding “and any time during which he was on bail shall not be so included”
This is to deal with McCombe’s finding that “any period which falls to be calculated under this part of the Act” (from 24 hours in the first instance through extensions to a maximum of 96 hours) has to run from “the relevant time” and expires as soon as that time passes chronologically whether the person is in custody or on bail during that time.
The Bill says in effect you only count the time in custody “from the relevant time” not a continuous period because you exclude the periods when he is on bail.
What was envisaged in 1984 was a continuous period of custody, starting from “the relevant time” and going to a maximum of 96 hours without charge but with the express provision, in the old s47(5) and (6) that if a person were released on bail during any of the authorised periods, the” detention clock” would not re-start from the beginning when he surrendered to bail . He would get a “credit” for the period he had already been in detention.
PACE has been extensively amended over the years, by all Governments and is now, as typified by section 47 less clear as a consequence.
The trend over the years has been to bail people for long periods and it is likely to be a dislike of police abusing their power under PACE in this way, often putting people on prohibitive bail terms for months and months that made Mr Justice McCombe sympathetic to an otherwise poor argument. In this case Hookway was on bail for 6 months, reporting to police repeatedly AND they wanted to detain him afresh for an extra 36 hours on top of the unexpired balance of detention they had, when they ultimately re-detained him The suspect Mr Jefferies in the Joanna Yeates murder was on conditional bail without for about three months, long after the culprit had admitted killing her.
It is a shame that neither was McCombe asked to suspend the order nor the Supreme Court asked to expedite the Appeal. SC said yesterday that they were unsure they could suspend the order themselves and were persuaded against it by the imminence of legislation and the delay from MY 19TH. It is notable that Professor Zander wrote an critique of the judgement published in Criminal Law and Justice Weekly 18th June edition, when the Coalition says it only received the judgment that day 18th June.
A Better New Law
A clearer way of clarifying the law which is not well-drafted after all the amendments would be to put S47(5) back in roughly as below and amend S47(6)to match.
However, the politics of it is all for you!
S47(5) where a person arrested for an offence who was released on bail subject to a duty to attend at a police station so attends, or has been arrested under S46A and is brought to a police station(irrespective of when this happens in relation to the “relevant time” from when his original detention started) he may be detained without charge in connection with that offence if the custody officer at the police station has reasonable grounds for believing that his detention without charge is necessary to secure or preserve evidence relating to the offence for which he is under arrest or to obtain such evidence by questioning him
S47(6)where a person is detained under subsection (5) above any time during which he was in police detention prior to being granted bail shall be included as part of any period which falls to be calculated under this part of the Act”