G v Chief Constable of West Yorkshire Police & Anor

Section 37 of the Police and Criminal Evidence Act 1984 permits a custody officer to obtain prosecutorial advice before deciding whether there is sufficient evidence to charge, and, where necessary, after that threshold has been reached. Any detention for that purpose must be reasonable and proportionate.

The statutory threshold concerns sufficient evidence to charge, not merely reasonable suspicion. The DPP’s guidance was defective to the extent that it treated the Threshold Test as sufficient for that purpose, although the Threshold Test remained relevant to deciding whether to seek advice. The guidance did not require release on bail merely because a suspect was suitable for bail.

G, aged 16, attended a police station with legal representation after being arrested on suspicion of assault occasioning actual bodily harm. The custody officer considered that there was sufficient evidence to charge, but detained G for about three hours while obtaining advice from a Crown Prosecutor. G was ultimately charged with affray and common assault.

G sought judicial review, arguing that section 37 of the Police and Criminal Evidence Act 1984 permitted detention only to decide whether there was sufficient evidence to charge for the offence of arrest, and did not permit detention to obtain advice about the appropriate charge. He also challenged the scope and effect of the DPP’s guidance.

1. Claim dismissed. The detention was lawful. Mr Justice Collins gave the judgment, with which Mr Justice Owen agreed.
2. Section 37 must be construed in light of the 2003 amendments, whose purpose was to involve the Crown Prosecution Service in charging decisions at the earliest appropriate stage. The custody officer may seek advice from a Crown Prosecutor before determining whether there is sufficient evidence to charge, and may also seek advice after that determination where necessary to identify the appropriate charge.
3. The statutory sufficiency-of-evidence threshold is not satisfied merely because the custody officer has a reasonable suspicion. The DPP’s Threshold Test, which reflected reasonable suspicion and the public interest, was therefore defective insofar as it purported to justify a determination that there was sufficient evidence to charge. The Full Code Test, so far as concerned the evidence, required enough evidence to provide a realistic prospect of conviction. The public-interest element was not necessarily material to the custody officer’s determination under section 37(7), which referred to sufficiency of evidence.
4. The Threshold Test nevertheless remained relevant. If it was met, the custody officer should seek advice from the duty prosecutor. The guidance could properly address the approach to the statutory options under section 37(7), and Code of Practice C made compliance with the guidance mandatory. Paragraph 8.4 did not require release on bail merely because the suspect was suitable for bail.
5. It was unlawful to charge a suspect without an evidential basis merely to retain him in police detention. However, the custody officer in this case had properly sought advice about the appropriate charge. The three-hour detention was reasonable and, if proportionality was the applicable test, was not disproportionate. The court refused leave to appeal but extended the time for an application to the Court of Appeal to 28 days, and made the usual detailed assessment order for legal aid.