Human rights concerns can arise in the most unpredictable of ways. Who would have imagined, for example, that a ruling by a District Judge in Salford’s magistrates’ court, on how to interpret a provision in the Police and Criminal Evidence Act 1984, would, within weeks, have led to emergency legislation being rushed through Parliament – and made retrospective to boot? The Police (Detention and Bail) Act 2011 made an appeal to the Supreme Court unnecessary, but now the Divisional Court of Northern Ireland has set the cat amongst the pigeons again by holding that the PACE provisions were perfectly in order after all. Given that the 2011 Act does not extend to Northern Ireland, will there now be an appeal from this decision to the Supreme Court?
Vicky Conway has already blogged about the English case which set this particular ball rolling. It was in November 2010 that Paul Hookway was arrested by Greater Manchester police on suspicion of murder. A police superintendent initially authorised his detention for up to 36 hours, but after questioning him the police released him on bail after 28 hours. In April 2011 the police wanted to question Mr Hookway further, so they applied to a District Judge for permission to extend the initial 36 hour detention period to 96 hours so that they could bring him in for further questioning. The application was made under section 44 of the PACE Act, which had always been interpreted as allowing the 96 hour maximum detention period to be interrupted by indefinite periods of police bail. On this occasion, however, the District Judge ruled that the 96-hour period had expired four days after the initial arrest.
The police sought a judicial review of this ruling but McCombe J upheld it on 19 May 2011. The police then sought leave to appeal to the Supreme Court and asked for the effect of McCombe J’s judgment to be suspended in the meantime. The Supreme Court did not grant the highly unusual request for a suspension order but it did grant leave to appeal. The appeal was due to be heard on 25 July 2011 but, as the new Act became law on 12 July, having been introduced in the House of Commons just a week earlier, Greater Manchester Police withdrew their application.
It was on the back of a cri de coeur from the Chief Constable of West Yorkshire, who claimed the judge’s decision was causing the police to run around like headless chickens, that the Home Secretary, Theresa May, decided to ask Parliament to pass the Police (Detention and Bail) Act. The Act amends the PACE Act so as to make it clear that time spent on police bail is not to be considered part of the maximum permissible detention period of 96 hours. To avoid the possibility of claims for false imprisonment being lodged by disaffected victims of the previous law, the Act also provides that the amendment is ‘deemed always to have had effect’ (s 1(3)).
So a violation of the right to liberty had been occurring for years without anyone noticing it. I am not aware of any outcry from Liberty or from the Equality and Human Rights Commission. I do not recall any article by any leading civil libertarian pointing out that the original intent behind section 44 had been vitiated over the years. The truth is, we all missed the abuse! And now that it has been made lawful there is not much that can be done about it.
But the question remains, what about the law in Northern Ireland? The 2011 Act applies only to England and Wales, yet article 45 of the PACE (NI) Order 1989 is worded almost identically to section 44. On 5 August 2011 the Divisional Court of Northern Ireland, in Re Connelly’s Application, held that the traditional interpretation of the police bail provisions in the PACE legislation was perfectly lawful. Morgan LCJ, and his colleagues Weatherup and McCloskey JJ, decided not to follow the Hookway decision (not that it was binding on them anyway) on the bases (a) that the PACE legislation defines ‘police detention’ as detention at a police station or in the charge of a constable, (b) that other provisions in the legislation assume that police bail does interrupt ‘police detention’, and (c) that the context within which the words are used in the legislation also make it clear what Parliament’s intention was. It was almost as if the judges in Northern Ireland thought that McCombe J had decided the case before him per incuriam. The Divisional Court reached its conclusion without having to rely on Pepper v Hart in order to look at ministerial statements made in Parliament when the PACE legislation was enacted.
It will be intriguing if leave is granted by the Supreme Court for an appeal from the decision of the Divisional Court of Northern Ireland. If the Supreme Court decides that Morgan LCJ and his brethren were correct in their interpretation then Parliament had no need to pass the Police (Detention and Bail) Act 2011 at all, and certainly not at such breakneck speed. If it decides that they were incorrect then that would be a blow to the purposive approach to statutory interpretation adopted by the Nortehrn Ireland judges. I doubt very much whether the European Court of Human Rights would find a violation of Article 5 of the European Convention if called upon to interpret the unamended PACE provisions. Certainly the police could not carry out their functions effectively if they had to have fresh evidence available every time they wished to justify re-arresting someone who had previously been released after initial questioning. The police can currently hold an arrested person for up to 36 hours before needing to apply to a District Judge for permission to extend the detention (up to a maximum of 96 hours). But 36 hours will very often not be long enough for the police to gather enough evidence to be able to charge the suspect.