Police and Criminal Evidence Act 1984, section 37

Duties of custody officer before charge

Part IV Detention

(1)Where—

(a)a person is arrested for an offence—

(i)without a warrant; or

(ii)F182under a warrant not endorsed for bail, . . .

(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

the custody officer at each police station where he is detained after his arrest shall determine whether he has before him sufficient evidence to charge that person with the offence for which he was arrested and may detain him at the police station for such period as is necessary to enable him to do so.

[F183 (2)If—

(a) the custody officer (“C”) determines that C does not have such evidence before C, and

(b)the pre-conditions for bail are satisfied,

the person arrested must be released on bail (subject to subsection (3)).F183]

[F184 (2A)If—

(a) the custody officer (“C”) determines that C does not have such evidence before C, and

(b)the pre-conditions for bail are not satisfied,

the person arrested must be released without bail (subject to subsection (3)).F184]

(3)If the custody officer has reasonable grounds for [F185believing that the person’s detention without being charged is necessary to secure or preserve evidence relating to an offence for which the person is under arrest or to obtain such evidence by questioning the personF185] , he may authorise the person arrested to be kept in police detention.

(4)Where a custody officer authorises a person who has not been charged to be kept in police detention, he shall, as soon as is practicable, make a written record of the grounds for the detention.

(5)Subject to subsection (6) below, the written record shall be made in the presence of the person arrested who shall at that time be informed by the custody officer of the grounds for his detention.

(6)Subsection (5) above shall not apply where the person arrested is, at the time when the written record is made—

(a)incapable of understanding what is said to him;

(b)violent or likely to become violent; or

(c)in urgent need of medical attention.

[F186 (6A)Subsection (6B) applies where—

(a)a person is released under subsection (2) [F187 or (2A)F187] , and

(b)the custody officer determines that—

(i)there is not sufficient evidence to charge the person with an offence, or

(ii)there is sufficient evidence to charge the person with an offence but the person should not be charged with an offence or given a caution in respect of an offence.

(6B)The custody officer must give the person notice in writing that the person is not to be prosecuted.

(6C)Subsection (6B) does not prevent the prosecution of the person for an offence if new evidence comes to light after the notice was given.F186]

(7)Subject to section 41(7) below, if the custody officer determines that he has before him sufficient evidence to charge the person arrested with the offence for which he was arrested, the person arrested—

[F188 (a)[F189 shall be—

(i)released without charge and on bail, or

(ii)kept in police detention,

for the purposeF189] of enabling the Director of Public Prosecutions to make a decision under section 37B below,

[F190 (b)shall be released—

(i)without charge, and

(ii)if the pre-conditions for bail are satisfied, on bail,

but not for the purpose mentioned in paragraph (a),

(c)shall be released—

(i)without charge, and

(ii)if the pre-conditions for bail are not satisfied, without bail, orF190]

(d)shall be charged.F188]

[F191 (7A)The decision as to how a person is to be dealt with under subsection (7) above shall be that of the custody officer.

(7B)Where a person is [F192 dealt with under subsection (7)(a)F192] above, it shall be the duty of the custody officer to inform him that he is being released [F193 , or (as the case may be) detained,F193] to enable the Director of Public Prosecutions to make a decision under section 37B below.F191]

(8)Where—

(a)a person is released under subsection (7)(b) [F194or (c)F194] above; and

(b)at the time of his release a decision whether he should be prosecuted for the offence for which he was arrested has not been taken,

it shall be the duty of the custody officer so to inform him.

[F195 (8ZA)Where—

(a)a person is released under subsection (7)(b) or (c), and

(b)the custody officer makes a determination as mentioned in subsection (6A)(b),

subsections (6B) and (6C) apply.F195]

[F196 (8A)Subsection (8B) applies if the offence for which the person is arrested is one in relation to which a sample could be taken under section 63B below and the custody officer—

(a)is required in pursuance of subsection (2) above to release the person arrested and decides to release him on bail, or

(b)decides in pursuance of subsection (7)(a) or [F197 (b)F197] above to release the person without charge and on bail.

(8B)The detention of the person may be continued to enable a sample to be taken under section 63B, but this subsection does not permit a person to be detained for a period of more than 24 hours after the relevant time.F196]

(9)If the person arrested is not in a fit state to be dealt with under subsection (7) above, he may be kept in police detention until he is.

(10)The duty imposed on the custody officer under subsection (1) above shall be carried out by him as soon as practicable after the person arrested arrives at the police station or, in the case of a person arrested at the police station, as soon as practicable after the arrest.

F198(11). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F198(12). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F198(13). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F198(14). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(15)In this Part of this Act—

  • F200 “arrested juvenile” means a person arrested with or without a warrant who appears to be [F199 under the age of 18 F199] . . .;

  • M27 “endorsed for bail” means endorsed with a direction for bail in accordance with section 117(2) of the Magistrates’ Courts Act 1980 .

Definitions used in section 37 3

bail

(3) Subject to subsections (3A) and (4) below, in this Part of this Act references to “bail” are references to bail subject to a duty—

(a)to appear before a magistrates' court at such time and such place as the custody officer may appoint;

(b)to attend at such police station as the custody officer may appoint at such time as he may appoint for the purposes of—

(i)proceedings held for the purposes of section 51 of the Criminal Justice Act 2003 (directions for live links in criminal proceedings) so far as that section applies to preliminary hearings (within the meaning of that section), and

(ii)any such hearing in relation to which a direction under that section is given requiring or permitting the person on bail to take part through a live audio link or a live video link (within the meaning of that section);

(c)to attend at such police station as the custody officer may appoint at such time as he may appoint for purposes other than those mentioned in paragraph (b) (subject to section 47ZA) .

Defined in s.47(3) · see it in the full Act
caution

(5E) In this Part “caution” includes—

(a)a conditional caution within the meaning of Part 3 of the Criminal Justice Act 2003;

(b)a youth conditional caution within the meaning of Chapter 1 of Part 4 of the Crime and Disorder Act 1998;

(c)a youth caution under section 66ZA of that Act.

Defined in s.34(5E) · see it in the full Act
the relevant time

(2) The time from which the period of detention of a person is to be calculated (in this Act referred to as “the relevant time”)—

(a)in the case of a person to whom this paragraph applies, shall be—

(i)the time at which that person arrives at the relevant police station; or

(ii)the time 24 hours after the time of that person’s arrest,

whichever is the earlier;

(b)in the case of a person arrested outside England and Wales, shall be—

(i)the time at which that person arrives at the first police station to which he is taken in the police area in England or Wales in which the offence for which he was arrested is being investigated; or

(ii)the time 24 hours after the time of that person’s entry into England and Wales,

whichever is the earlier;

(c)in the case of a person who—

(i)attends voluntarily at a police station; or

(ii)accompanies a constable to a police station without having been arrested,

and is arrested at the police station, the time of his arrest;

(ca)in the case of a person who attends a police station to answer to bail granted under section 30A, the time when he arrives at the police station;

(d)in any other case, except where subsection (5) below applies, shall be the time at which the person arrested arrives at the first police station to which he is taken after his arrest.

Defined in s.41(2) · see it in the full Act

Cases considering section 37 33

Chandrawtee Ramsingh v The Attorney General of Trinidad and Tobago (Trinidad and Tobago)

[2012] UKPC 16 · 23 May 2012

The Board held that section 37(2), although not directly applicable in Trinidad and Tobago, reflects the correct common-law approach. Continued detention without charge requires reasonable grounds for believing that detention is necessary to secure, preserve or obtain relevant evidence. (see paras [10]-[11])

Hayes v Merseyside Police

[2011] EWCA Civ 911 · 29 July 2011

The court applied the requirement of reasonable grounds for believing pre-charge detention necessary to secure, preserve, or obtain evidence by questioning. It held that those grounds existed during the short inquiry into the complainant’s withdrawal (see paras [36]; [44]-[45]).

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

[2008] EWCA Civ 28 · 5 February 2008Interprets

The court interpreted section 37(1) as permitting detention only for the period necessary for the custody officer to determine whether there was sufficient evidence to charge, or to secure, preserve or obtain relevant evidence. Once that determination had been made, it did not authorise continued detention without charge. (see paras [12]; [29]; [40]-[45]) The court applied the requirement that the custody officer perform the section 37(1) duty as soon as practicable. Extra-statutory guidance could not justify postponing the determination when the evidence was plainly sufficient. (see paras [12]; [40]; [44]-[45]) The court read section 37(2) together with section 37(1). Detention without charge after the evidential determination was not justified merely because further prosecutorial advice was required. (see para [12]) The court interpreted section 37(7) as providing an exhaustive framework of the custody officer’s options once sufficient evidence to charge had been determined. The subsection did not permit continued detention without charge pending prosecutorial advice. (see paras [15]-[19]; [29]; [34]; [42]-[44]) The court interpreted section 37(7)(a) as requiring release without charge and on bail where the purpose was to enable the Director of Public Prosecutions to decide under section 37B. Bail was a precondition to that consultation. (see paras [15]-[19]; [29]; [34]) The court treated section 37(7)(b) as one of the exhaustive alternatives available after the evidential determination: release without charge and on bail, but not for the prosecutorial purpose specified in paragraph (a). (see paras [15]-[16]; [29]; [42]) The court treated section 37(7)(c) as one of the exhaustive alternatives available after the evidential determination: release without charge and without bail. (see paras [15]-[16]; [29]; [42]) The court treated section 37(7)(d) as one of the exhaustive alternatives available after the evidential determination: charging the suspect. (see paras [15]-[16]; [29]; [42]) The court noted that section 37(7A) vested the decision under section 37(7) in the custody officer. The officer’s decision could not be postponed by guidance once the statutory evidential determination had been made. (see paras [16]; [22]; [34]) The court noted that section 37(7B) required the suspect to be informed that release on bail was for the purpose of enabling the Director of Public Prosecutions to decide under section 37B. (see para [16])

13 more judgments, and what each says about section 37, are in the case-law panel in the full Act.

Amendments and notes

28 notes from legislation.gov.uk

Amendments

  1. F182S. 37(1)(b) and the word "or" preceeding it repealed (10.4.1995) by 1994 c. 33, ss. 29(4)(a)(5), 168(3), Sch.11; S.I. 1995/721, art. 2, Sch. AppendixB
  2. F183S. 37(2) substituted (28.10.2022) by Police, Crime, Sentencing and Courts Act 2022 (c. 32), s. 208(1), Sch. 4 para. 5(2) (with s. 45(3)); S.I. 2022/1075, reg. 4(b)
  3. F184S. 37(2A) inserted (28.10.2022) by Police, Crime, Sentencing and Courts Act 2022 (c. 32), s. 208(1), Sch. 4 para. 5(3) (with s. 45(3)); S.I. 2022/1075, reg. 4(b)
  4. F185Words in s. 37(3) substituted (31.1.2017 for specified purposes, 3.4.2017 in so far as not already in force) by Policing and Crime Act 2017 (c. 3), ss. 54(6), 183(1)(5)(e); S.I. 2017/399, reg. 2, Sch. para. 12 (with reg. 5)
  5. F186S. 37(6A)-(6C) inserted (31.1.2017 for specified purposes, 3.4.2017 in so far as not already in force) by Policing and Crime Act 2017 (c. 3), ss. 66(4), 183(1)(5)(e); S.I. 2017/399, reg. 2, Sch. para. 18
  6. F187Words in s. 37(6A)(a) inserted (28.10.2022) by Police, Crime, Sentencing and Courts Act 2022 (c. 32), s. 208(1), Sch. 4 para. 5(4) (with s. 45(3))
  7. F188S. 37(7)(a)-(d) substituted for s. 37(7)(a)(b) (29.1.2004) by Criminal Justice Act 2003 (c. 44), ss. 28, 336, Sch. 2 para. 2(2); S.I. 2004/81, art. 4(1)(2)(c)
  8. F189Words in s. 37(7)(a) substituted (15.1.2007) by Police and Justice Act 2006 (c. 48), ss. 11, 53; S.I. 2006/3364, art. 2(c)
  9. F190S. 37(7)(b)(c) substituted (28.10.2022) by Police, Crime, Sentencing and Courts Act 2022 (c. 32), s. 208(1), Sch. 4 para. 5(5) (with s. 45(3)); S.I. 2022/1075, reg. 4(b)
  10. F191S. 37(7A)(7B) inserted (29.1.2004) by Criminal Justice Act 2003 (c. 44), ss. 28, 336, Sch. 2 para. 2(3); S.I. 2004/81, art. 4(1)(2)(c)
  11. F192Words in s. 37(7B) substituted (15.1.2007) by Police and Justice Act 2006 (c. 48), ss. 52, 53, Sch. 14 para. 9(a); S.I. 2006/3364, art. 2(j)(k) (as amended by S.I. 2007/29, art. 2)
  12. F193Words in s. 37(7B) inserted (15.1.2007) by Police and Justice Act 2006 (c. 48), ss. 52, 53, Sch. 14 para. 9(b); S.I. 2006/3364, art. 2(j)(k) (as amended by S.I. 2007/29, art. 2)
  13. F194Words in s. 37(8)(a) inserted (29.1.2004) by Criminal Justice Act 2003 (c. 44), ss. 28, 336, Sch. 2 para. 2(4); S.I. 2004/81, art. 4(1)(2)(c)
  14. F195S. 37(8ZA) inserted (31.1.2017 for specified purposes, 3.4.2017 in so far as not already in force) by Policing and Crime Act 2017 (c. 3), ss. 66(5), 183(1)(5)(e); S.I. 2017/399, reg. 2, Sch. para. 18
  15. F196S. 37(8A)(8B) inserted (1.12.2005) by Drugs Act 2005 (c. 17), ss. 23, 24, Sch. 1 para. 2; S.I. 2005/3053, art. 2(1)(f)
  16. F197Word in s. 37(8A)(b) substituted (28.10.2022) by Police, Crime, Sentencing and Courts Act 2022 (c. 32), s. 208(1), Sch. 4 para. 5(6) (with s. 45(3)); S.I. 2022/1075, reg. 4(b)
  17. F198S. 37(11)-(14) repealed (1.10.1992) by Criminal Justice Act 1991 (c. 53), s. 72, 101(2), Sch. 13; S.I. 1992/333, art. 2(2), Sch. 2.
  18. F200Words in s. 37(15) repealed (14.10.1991) by Children Act 1989 (c. 41, SIF 20), s. 108(7), Sch. 15 (with Sch. 14 paras. 1(1), 27(4)); S.I. 1991/828, art. 3(2)
  19. F199Words in s. 37(15) substituted (26.10.2015) by Criminal Justice and Courts Act 2015 (c. 2), ss. 42, 95(1); S.I. 2015/1778, art. 3(a)

Modifications

  1. C374Ss. 8, 9, 15, 16, 17(1)(b(2) (4), 18–20, 21, 22(1)–(4), 28, 29, 30(1)–(4)(a)(5)–(11), 31, 32(1)–(9), 34(1)–(5), 35, 36, 37, 39, 40–44, 50, 51(d), 52, 54, 55, 64(1)–(4)(5)(6), Sch. 1 applied with modifications by S.I. 1985/1800, arts. 3–11, Schs. 1, 2
  2. C375S. 37 modified (2.8.1993) by S.I. 1993/1813, art. 6, Sch. 3 paras. 3(3), 4(4)(a), 5(7)(a), 6(7)(a); s. 37 modified by the said S.I. 1993/1813, art. 6, Sch. 3 paras. 4, 5, 6 as incorporated (with modifications) (1.12.1997) by S.I. 1994/1405, art. 6, Sch. 3 paras. 5, 6, 7
  3. C376Ss. 37-37B modified (18.4.2005) by Commissioners for Revenue and Customs Act 2005 (c. 11), ss. 50, 53(1) {Sch. 4 para. 30}; S.I. 2005/1126, art. 2(2)(h)
  4. C377Ss. 37-37B modified (21.7.2009) by Borders, Citizenship and Immigration Act 2009 (c. 11), s. 31(4) (with s. 36(4))
  5. C378S. 37 applied (with modifications) (4.11.2015) by The Police and Criminal Evidence Act 1984 (Application to Revenue and Customs) Order 2015 (S.I. 2015/1783), arts. 1, 3(1), Sch. 1 (with art. 3(2), (3), 4-19, Sch. 2)
  6. C379S. 37(1)-(8) applied (with modifications) (25.6.2013) by The Police and Criminal Evidence Act 1984 (Application to immigration officers and designated customs officials in England and Wales) Order 2013 (S.I. 2013/1542), arts. 1, 12(2)-(4), Sch. 2 (with arts. 13-31)
  7. C380S. 37(4)-(6) applied (with modifications) by Criminal Justice Act 2003 (c. 44), s. 24B(1)-(3) (as inserted by Police and Justice Act 2006 (c. 48), ss. 18(1), 53 (with s. 18(2)); S.I. 2007/1614, art. 2(e))
  8. C381S. 37(9)(10) applied (with modifications) (25.6.2013) by The Police and Criminal Evidence Act 1984 (Application to immigration officers and designated customs officials in England and Wales) Order 2013 (S.I. 2013/1542), arts. 1, 12(2)-(4), Sch. 2 (with arts. 13-31)

Marginal citations

  1. M271980 c. 43.