Law Report: Duty to appoint custody officer was limited: Vince and another v Chief Constable of Dorset - Court of Appeal (Lord Justice Fox, Lord Justice McCowan and Lord Justice Steyn), 30 July 1992

A chief constable is not under a statutory duty under section 36 of the Police and Criminal Evidence Act 1984 to appoint a sufficient number of custody officers to ensure that at each designated police station there will ordinarily be available a custody officer to perform the functions of custody officers. A chief constable's duty under section 36 is to appoint one custody officer for each designated police with a discretion, which must be exercised reasonably, to appoint more than one custody officer if he considers it right to do so.

The Court of Appeal allowed an appeal by the chief constable from a declaration granted by Sir Peter Pain, sitting as a High Court judge on 26 July 1991, and dismissed (Lord Justice Steyn dissenting) the plaintiffs' cross-appeal against part of his decision.

Section 36 of the 1984 Act provides: '(1) One or more custody officers shall be appointed for each designated police station . . . (3) No officer may be appointed a custody officer unless he is of at least the rank of sergeant.'

Sir Peter Pain granted the plaintiffs, acting on behalf of the members of the joint branch of the Police Federation of England and Wales of the Dorset Police and of the Sergeant's Central Committee of the Police Federation, a declaration that the chief constable was under a duty under section 36(1) of the Police and Criminal Evidence Act 1984 to appoint sufficient custody officers to ensure that at each designated police station at least one custody officer was normally available to perform the functions of a custody officer. He refused a declaration that an acting sergeant might not lawfully be appointed a custody officer under section 36(3) of the Act.

Alan Rawley QC and Nicholas Haggan (Solicitor, Dorset City Council) for the chief constable; Michael Beloff QC and Philip Havers (Russell Jones & Walker) for the plaintiffs.

LORD JUSTICE McCOWAN said that the 1984 Act placed heavy and important duties upon a custody officer and sought to ensure, where possible, that those duties were performed by officer who was not involved in the investigation of the offence for which the person in question was in police detention at the time.

The chief constable argued that the words of section 36(1) were not ambiguous and plainly said that the chief constable was under a duty to appoint one custody officer for each designated police station, but had a discretionary power to appoint more than one custody officer for each designated police station.

The plaintiffs argued that the chief constable was under a duty to appoint one custody officer for each designated police station and was given a power (coupled with a duty) to appoint as many custody officers as were required to ensure that at each such station there would ordinarily be available a custody officer to perform the functions thereof.

'Readily available' in section 36(4) was not synonymous with 'normally available', or 'ordinarily available'. Unlike the other two expressions, 'readily available' covered a situation where a custody officer was not actually at the station but could without much diffculty be fetched there.

If the intention of the legislature was that a custody officer must ordinarily be in attendance at a designated police station, the wording of section 36(1) was surprising.

The wording of section 36(1) was not ambiguous. It plainly meant that the chief constable had a duty to appoint one custody officer for each designated police station and a power to appoint more in his discretion, which must be reasonably exercised. There was no breach by the chief constable of section 36(1) and the appeal would be allowed.

Turning to the plaintiffs' cross-appeal, in R v Alladice (1988) 87 Cr App R 380 the Court of Appeal (Criminal Division) decided that the holder of an acting rank was to be treated as if he were the holder of the substantive rank. It would be difficult to distinguish the case of Alladice.

The position was, however, that while not accepting that the chief constable had never appointed an acting sergeant to be a custody officer, the plaintiffs had not pointed to any instance where he had.

The question was an academic or hypothetical question and no final view would be expressed on it. In any event, it was not an appropriate case for the making of a declaration.

The cross-appeal would be dismissed.

LORD JUSTICE STEYN said that the 1984 Act was an important reforming statute. By and large it had worked tolerably well in practice. But the case showed that a central provision was a less effective safeguard than many might have thought. If there was a fault, it lay in the language of section 36.

Since the effectiveness of the Act was a matter of crucial importance to the criminal justice system, it might be that the overburdened Royal Commission on Criminal Justice might wish to examine the point. Reluctantly, the chief constable's appeal should be allowed.

Turning to the cross-appeal, the decision in Alladice was not only distinguishable but it was of no assistance in the present case.

An officer who, in accordance with police regulations, had not attained the rank of sergeant had not attained eligibility for appointment as a custody officer since he did not hold 'the rank of sergeant' within section 36(3).

It was fair and just to grant a declaration that acting sergeants might not be appointed as custody officers. It was in the wider public interest that chief constables throughout the country knew where they stood.

LORD JUSTICE FOX agreed with Lord Justice McCowan.