Police and Criminal Evidence Act 1984, section 37B

Consultation with the Director of Public Prosecutions

Part IV Detention

(1)Where a person is [F205 dealt with under section 37(7)(a)F205] above, an officer involved in the investigation of the offence shall, as soon as is practicable, send to the Director of Public Prosecutions such information as may be specified in guidance under section 37A above.

(2)The Director of Public Prosecutions shall decide whether there is sufficient evidence to charge the person with an offence.

(3)If he decides that there is sufficient evidence to charge the person with an offence, he shall decide—

(a)whether or not the person should be charged and, if so, the offence with which he should be charged, and

(b)whether or not the person should be given a caution and, if so, the offence in respect of which he should be given a caution.

(4)The Director of Public Prosecutions [F206 shall give noticeF206] of his decision to an officer involved in the investigation of the offence.

[F207 (4A)Notice under subsection (4) above shall be in writing, but in the case of a person kept in police detention under section 37(7)(a) above it may be given orally in the first instance and confirmed in writing subsequently.F207]

(5)If his decision is—

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

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

a custody officer shall give the person notice in writing that he is not to be prosecuted.

[F208 (5A)Subsection (5) does not prevent the prosecution of the person for an offence if new evidence comes to light after the notice was given.F208]

(6)If the decision of the Director of Public Prosecutions is that the person should be charged with an offence, or given a caution in respect of an offence, the person shall be charged or cautioned accordingly.

(7)But if his decision is that the person should be given a caution in respect of the offence and it proves not to be possible to give the person such a caution [F209 (whether because of section 17 of the Criminal Justice and Courts Act 2015 or for any other reason) F209] , he shall instead be charged with the offence.

(8)For the purposes of this section, a person is to be charged with an offence either—

[F210 (a)when he is in police detention at a police station (whether because he has returned to answer bail, because he is detained under section 37(7)(a) above or for some other reason), orF210]

(b)in accordance with section 29 of the Criminal Justice Act 2003.

F211(9). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .F204]

Definitions used in section 37B 2

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
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

Cases considering section 37B 6

Walker, R v

[2016] EWCA Crim 751 · 29 June 2016

The court treated the statutory charging scheme as placing the determination of charge with the Director of Public Prosecutions through Crown prosecutors. That scheme supported the conclusion that the charging decision supplied valid consent (see paras [20]; [29]). The court relied on the Director’s statutory role in deciding whether there was sufficient evidence to charge. The prosecutor’s assessment formed part of the valid charging decision in this case (see paras [20]; [29]). The court relied on the Director’s statutory function of deciding whether a person should be charged and selecting the offence. The selection of the offence was part of the valid consent process (see paras [20]; [29]). The court relied on notification of the charging decision to the police as part of the statutory procedure. Notification, following the decision to charge, supported the conclusion that consent had been given (see paras [17]; [29]). The court treated the requirement that the person be charged in accordance with the Director’s decision as confirming that the police were implementing the prosecutor’s decision. That decision necessarily connoted consent to the charge (see paras [18]; [20]; [29]).

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

[2008] EWCA Civ 28 · 5 February 2008Interprets

The court interpreted section 37B as operating after release without charge and on bail. It therefore could not justify a period of detention while the Director of Public Prosecutions or a representative considered the charging decision. (see paras [18]-[19]; [29]; [34])

Coghlan v Chief Constable of Cheshire Police & Ors

[2018] EWHC 34 (QB) · 17 January 2018Defines

The court used the provisions to identify the Crown Prosecutor as the person who decides whether there is sufficient evidence to charge and which offence should be charged.

What each judgment says about section 37B is in the case-law panel in the full Act.

Amendments and notes

11 notes from legislation.gov.uk

Amendments

  1. F204S. 37B inserted (29.1.2004 for certain purposes, 3.7.2004 for certain further purposes and 1.10.2007 otherwise) by Criminal Justice Act 2003 (c. 44), ss. 28, 336, Sch. 2 para. 3; S.I. 2004/81, art. 4(1)(2)(c); S.I. 2004/1629, art. 2(1)(2)(b)(c): S.I. 2007/2874, art. 2
  2. F205Words in s. 37B(1) substituted (15.1.2007) by Police and Justice Act 2006 (c. 48), ss. 52, 53, Sch. 14 para. 10(2); S.I. 2006/3364, art. 2(j)(k) (as amended by S.I. 2007/29, art. 2)
  3. F206Words in s. 37B(4) substituted (15.1.2007) by Police and Justice Act 2006 (c. 48), ss. 52, 53, Sch. 14 para. 10(3); S.I. 2006/3364, art. 2(j)(k) (as amended by S.I. 2007/29, art. 2)
  4. F207S. 37B(4A) inserted (15.1.2007) by Police and Justice Act 2006 (c. 48), ss. 52, 53, Sch. 14 para. 10(4); S.I. 2006/3364, art. 2(j)(k) (as amended by S.I. 2007/29, art. 2)
  5. F208S. 37B(5A) 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(7), 183(1)(5)(e); S.I. 2017/399, reg. 2, Sch. para. 18
  6. F209Words in s. 37B(7) inserted (13.4.2015) by Criminal Justice and Courts Act 2015 (c. 2), ss. 18(5), 95(1); S.I. 2015/778, art. 3, Sch. 1 para. 14
  7. F210S. 37B(8)(a) substituted (15.1.2007) by Police and Justice Act 2006 (c. 48), ss. 52, 53, Sch. 14 para. 10(5); S.I. 2006/3364, art. 2(j)(k) (as amended by S.I. 2007/29, art. 2)
  8. F211S. 37B(9) omitted (31.1.2017 for specified purposes, 3.4.2017 in so far as not already in force) by virtue of Policing and Crime Act 2017 (c. 3), ss. 66(8), 183(1)(5)(e); S.I. 2017/399, reg. 2, Sch. para. 18

Modifications

  1. C385Ss. 37-37B modified (21.7.2009) by Borders, Citizenship and Immigration Act 2009 (c. 11), s. 31(4) (with s. 36(4))
  2. C386Ss. 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)
  3. C387S. 37B 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)