G, R (on the application of) v Director of Public Prosecutions

Under the Police and Criminal Evidence Act 1984, post-arrest detention requires clear authority in Part IV. Once a custody officer has determined that there is sufficient evidence to charge, section 37(7) provides an exhaustive set of choices: charge or release without charge, with or without bail. A consultation with the Director of Public Prosecutions under section 37B requires release on bail. Guidance issued under section 37A may regulate how suspects are dealt with under section 37(7), but cannot create an additional power to detain without charge or extend the statutory alternatives.

The appellant was arrested for assault occasioning actual bodily harm and later answered bail at a police station. The custody officer considered that there was sufficient evidence to charge him, but detained him for several hours while the Crown Prosecution Service considered the appropriate charges. The appellant sought judicial review, arguing that he should have been released on bail.

The Divisional Court dismissed the claim, holding that the detention was lawful under the Police and Criminal Evidence Act 1984, as amended by the Criminal Justice Act 2003: [2006] EWHC 3485 (Admin). The central issue was whether the pre-2007 statutory scheme permitted detention without charge pending a charging decision by the Director of Public Prosecutions.

Appeal allowed. The President of the Queen’s Bench Division delivered the principal judgment. Lord Justice Carnwath agreed, although with reluctance, and Lord Justice Toulson agreed and added separate reasoning.

1. The factual issue was resolved against the respondent. The custody officer had gone beyond merely beginning the charging process. He had determined that there was sufficient evidence to charge the appellant with the offence for which he had been arrested.
2. Part IV of the Police and Criminal Evidence Act 1984 formed an exhaustive scheme governing post-arrest police detention. Section 34 prohibited detention except in accordance with that Part. Under sections 37(1) and 37(10), detention was permitted only for the time necessary to determine whether there was sufficient evidence to charge, or to secure, preserve or obtain evidence. Once the necessary determination had been made, continued detention without charge was not authorised.
3. Section 37(7), read with section 37(7A), gave the custody officer four alternatives after determining that there was sufficient evidence to charge. Those alternatives were exhaustive. Where the purpose was to obtain a decision from the Director of Public Prosecutions under section 37B, section 37(7)(a) required release without charge and on bail. Section 37B itself was predicated on release on bail.
4. Section 37A guidance could assist custody officers in deciding how a suspect should be dealt with under section 37(7). It did not add to the alternatives in that subsection and did not delegate to the Director of Public Prosecutions an unspecified power to enlarge police detention. Any guidance had to remain subordinate to, and consistent with, the express statutory scheme.
5. The later amendment made by section 11 of the Police and Justice Act 2006 expressly permitted continued detention for the purpose of obtaining a prosecutorial decision. That amendment did not justify the detention in December 2005. The appellant could have been invited to wait voluntarily, but could not lawfully be compelled to remain in detention by refusing bail.

• Court of Appeal (Civil Division) allowed the appeal and held that the continued detention was unlawful.
• Divisional Court dismissed the application for judicial review and held that the detention was lawful: [2006] EWHC 3485 (Admin).