The custody clock as we know it is no more.

The judgement of Mr Justice McCombe in the case of R (on the application of Chief Constable of Manchester)v Salford Magistrates’ Court [2011] EWHC 1578 brought police and lawyers alike to a screeching halt. ACPO have since released guidance as to their reading of it. Both the judgement and guidance can be found here (courtesy of Andrew Keogh).

In brief:

The interested party, then accused party Paul Hookway, had been arrested for murder. Prior to the expiry of the initial 24 hours, a superintendent’s extension of 12 hours had been granted. The police had then gone before the Justices at Salford Magistrates’ Court for a warrant of further detention and been granted a further 36 hours. He was subsequently police bailed a number of times and some months later the police tried to apply for an extension of the warrant. The legal advisor said that they could not have an extension as the warrant had expired and the application was refused by DJ Feinstein.

On Judicial Review by the police, the decision of the DJ was upheld. The majority of his judgement related to the WFD, stating specifically that the warrant runs for no more than 36 hours from the point at which it is issued by the court, as opposed to just adding time to an ongoing clock which can be stopped by bailing someone.

He also discussed however (paras 25-27) the general practice of bailing a person from the police station to return at a later point. He says at paragraph 26 that ‘section 47(6) cannot alter the express limits on the court’s powers set out in section 44(3)’ ie that whilst the police might have the power to grant bail, even a full extension by the Magistrates Court could not end later that 96 hours after the relevant time. He said that “if a person has been released on bail before the expiry of the statutory period…and is bailed to return within that period… if time in fact remains it can be used up.”

So essentially, the judge is saying that the initial 24 hour detention period means 24 hours from the time of detention, literally. Time is constantly ticking… and once it’s up, it’s up. It’s not sitting in the PACE bank to be used over a period of weeks and months as has previously been the case.

Whilst not strictly outlawing police bail, the judgement states that the police can still bail but only if the suspect returns within the statutory period (i.e. 24 hours unless extension already granted, to a maximum of 96 hours). It remains to be seen whether a decision will ever be made to bail for a matter of hours.

The only exception to this rule, according to ACPO, is when a suspect is bailed for the purposes of CPS advice under s37(7), when they can be detained to be charged following such a decision. This section stipulates that this can happen 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", but it may be interesting to see whether we see an increase in cases "bailed for CPS advice" rather than for further evidence to be obtained.

The alternative, it seems, is to NFA a matter and arrest on new evidence later. The ACPO guidance accepts that “new” is a loose term. One wonders how many ways this will be interpreted, and how many s78 arguments will result from questionable decisions in relation to this.

It is understood that the Home Office is planning emergency legislation to overturn the ruling, but for now it will be interesting to see how strictly it is followed and whether it is of benefit or not to those in criminal defence.

Kate Harney works for the Crown Court Department of Burton Copeland.