Torres, R (on the application of) v The Commission of Police of the Metropolis

Sections 34 and 37 of the Police and Criminal Evidence Act 1984 may operate concurrently when a person is first brought before a custody officer after arrest. Section 37 is not confined to a later return to the police station to answer bail. Where the custody officer considers that there is insufficient evidence to charge and that further investigation is required, the officer may proceed under section 37 and release the person on bail subject to conditions authorised by section 47(1A), as amended. The use of an incorrect standard form does not invalidate the decision where the officer in fact proceeded under section 37. Section 34(5) remains available, but its absence of a power to impose conditions makes section 37 the appropriate route where lawful conditions are required.

The claimant sought judicial review of conditions imposed by a custody officer when he was released on police bail after arrest. He argued that the officer had acted under section 34 of the Police and Criminal Evidence Act 1984, under which section 47(1A) did not permit conditions, and that section 37 could not apply at that stage.

Permission was granted, but the claimant was later released from bail and the proposed damages were accepted to be nominal. At the parties’ request, the Divisional Court nevertheless determined the remaining point of statutory construction: whether sections 34 and 37 could overlap on the initial occasion when an arrested person was brought before a custody officer.

1. The application was dismissed. The claimant’s proposed challenge to the later bail decision and his Human Rights Act damages claim were abandoned or incapable of success. The court resolved the statutory issue because it had continuing practical importance.
2. Sections 34 and 37 of the Police and Criminal Evidence Act 1984 operate side by side. Section 37 applies whenever a person under actual or deemed arrest is brought before a custody officer, including immediately after the initial arrest. Its language contains no temporal restriction confining it to a later return to the police station.
3. There was a substantive overlap between section 34(5) and section 37(1) and (2). Both address circumstances in which further investigation is required and the custody officer lacks sufficient evidence to charge. The custody officer therefore had a choice of statutory route, provided the requirements of section 37 were satisfied.
4. On the evidence, the custody officer concluded that further investigation was necessary and that there was insufficient evidence to charge. He was therefore entitled to process the claimant under section 37 and to impose conditions under section 47(1A), notwithstanding that the standard form referred to section 34. The form contained a clerical error, but it did not alter the decision actually made.
5. The legislative history supported that construction. Amendments made by the Criminal Justice and Public Order Act 1994, the Criminal Justice Act 2003 and the Police and Justice Act 2006 progressively enlarged the police power to attach bail conditions. Mr Justice Burton agreed that custody officers should use section 37 procedures where conditions were required until the legislation and forms were streamlined.
6. The court expressed no concluded view on the district judge’s jurisdiction to entertain the claimant’s earlier application. It observed that the decision would in any event have been unsuccessful on the merits. The court also noted that the absence of a condition-attaching power under section 34(5), combined with the availability of such a power under section 37 and street bail, was likely to generate further litigation.
7. The application was dismissed. The court made no order as to costs, subject to assessment of the claimant’s legally aided costs.

First-instance judicial review proceedings. Permission was granted by Collins J on 12 November 2007. The Divisional Court determined the statutory issue and dismissed the application.