Today one of the government’s strongest ministers, Nick Herbert, had to come to the House of Commons to make an emergency statement about a matter on which he had been kept in the dark by his officials.
For at least 25 years, under the Police and Criminal Evidence Act 1984 (PACE), the police have released suspects on police bail between arrest and possible charge. Time spent subject to such police bail conditions has not been considered to count towards the PACE time limits for which suspects can be held, i.e. an initial 24 hours and up to 96 hours subject to various approvals.
On 19th May a High Court judge hearing a judicial review in Manchester ruled that this was unlawful, since section 44(3) of PACE states that “The [detention] period shall not … end later than 96 hours after the relevant time” and the “relevant time” is defined by section 41(2)(d) of PACE as when the suspect arrives at the police station following arrest.
That High Court judgment is a binding legal precedent for district judges and magistrates who deal daily with thousands of similar police requests to extend detention long after the initial arrest to which it relates. It is therefore a huge problem for the police.
Amazingly, when Greater Manchester Police told Home Office officials about the problem, they decided not to tell ministers. Instead, officials referred the problem to the Association of Chief Police Officers (ACPO) to decide what to do.
Five weeks later ACPO, with its jumble of committees and ‘ACPO cabinet’ and ‘ACPO leads’, finally got legal advice confirming the implications of the judgment (of which counsel would have made a note on 19th May*). ACPO then had a further meeting with home office officials and only then was a decision made to tell ministers.
A further week on Nick Herbert has come to Parliament and told us that ACPO has now advised that emergency legislation is necessary. I asked the minister whether he would publish the legal advice, given that this was the basis on which he was asking us to legislate. His reply was:
“I doubt that it would be proper for ACPO to publish its legal advice, which it has received from two Queen’s counsels, but I can confirm that ACPO has written to the Home Secretary to confirm its view that emergency legislation is required. It has given a summary of counsels’ advice, which was given to it since 23 June, and that summary was sufficient to persuade it and us that it is necessary to move forward in the way I have suggested”.
*Update: I have since confirmed that, unusually, the QC was not supported by junior counsel in this case, although I am surprised that alternative arrangements were not made to take down a reliable note of the oral judgment.