Detention of a minor for his own protection

14 July 2020 by

The High Court recently dismissed a claim of incompatibility with Article 5 ECHR arising from a detention of a minor for his own protection in the case of Archer v Commissioner of Police of the Metropolis [2020] EWHC 1567 (QB).

Background

On 17 February 2012, the Claimant, then 15 years’ old, was struck on the head and stabbed in his back and head by persons he described as members of a local gang, the Deptford Boys. This took place near to his home. He was treated at King’s College Hospital.

But on 22 February 2012, he was arrested on suspicion of violent disorder and possession of an offensive weapon. He was placed in a cell at 7:25am, and by 7:45pm he was charged with those two offences. He was, however, refused bail at 7:53pm. The reasons for refusal by Sergeant Smith are recorded as follows:

[…] it is believed necessary to further detain the person for their own protection, that the detained person has been arrested for a non-imprisonable offence and it is believed necessary to further detain to prevent physical injury to another person, that the detained person has been arrested for an imprisonable offence and it is believed necessary to further detain in order to prevent the commission of a further offence.

The grounds are Dp [sc. detained person] has been involved in a ‘gang’ related fight where he has sustained injuries that required hospital treatment. It is feared that if released on bail there will be repercussions where he may sustain further injuries or inflict violence upon his original intended victims.

On the morning of 23 February, he was taken to Bexley Youth Court, where he was remanded in custody.

It is this period of 13 hours from the refusal of bail to the remand by Court that the Claimant sought to argue was unlawful.

Issues in the case

The issues for Mr Justice Chamberlain to decide were twofold. Firstly, the compatibility of Section 38(1)(b)(ii) of the Police and Criminal Evidence Act 1984 (“PACE”) with Article 5 of the European Convention on Human Rights (“ECHR”) insofar as it purports to authorise the detention of minors in their own interest. If it does provide such authority, the Court would then examine whether it followed that parts of the Bail Act were also incompatible with Article 5.

The second was a factual issue of whether this particular claimant’s detention was contrary to Article 5 for having been detained for his own protection and therefore unlawful. If so, there would be a further question of the award of damages.

The statutory scheme for the detention of arrested persons

The provision that the court was concerned with was Section 38 of PACE, set out in full at [15] of the judgment, on the duties of custody officers after charging a person arrested for an offence. The key aspect of it is as follows:

(1) Where a person arrested for an offence otherwise than under a warrant endorsed for bail is charged with an offence, the custody officer shall, subject to section 25 of the Criminal Justice and Public Order Act 1994, order his release from police detention, either on bail or without bail, unless—

(a) […]

(b) if he is an arrested juvenile—

[…]

(ii) the custody officer has reasonable grounds for believing that he ought to be detained in his own interests.

The Bail Act 1976 (“the 1976 Act”) governs decisions by the courts about the detention of those accused of offences. Section 4(1) provides that “A person to whom this section applies shall be granted bail except as provided in Schedule 1 to this Act.” Parts I and II of that Schedule contain exceptions applicable to those accused of offences punishable with and without imprisonment respectively. Paragraph 3 of each states the following:

The defendant need not be granted bail if the court is satisfied that the defendant should be kept in custody for his own protection or, if he is a child or young person, for his own welfare.

The law

Article 5 ECHR concerns the right to liberty and security. Paragraph (1) provides that “[e]veryone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law” before setting out various exceptions. Central to this case is at Article 5(1)(c) as follows:

the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so[.]

Furthermore, Article 5(3) and (5) provide the following:

(3) Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

(5) Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.

Parties’ submissions

Richard Hermer QC for the Claimant submitted that Article 5(1) is exhaustive and must be interpreted narrowly. The singular exception to this relates to situations of armed conflict, as found in Hassan v UK; it is not relevant to this case. In Mr Hermer’s submission, the detention in the Claimant’s “own interests” was “unconnected to the expeditious processing of the criminal complaint”, thereby falling outside of the justifications available. The detention of the Claimant had no relationship to whether or not he would be brought before a court. In any event, there was an absence of any assessment of risks to the Claimant that would result from the grant of bail, beyond generalised assertions that risks existed.

Adam Clemens for the Defendant focused on the underlying rationale of the provision; detention in the Claimant’s interests was “inextricably related to, and dependant on, the facts of lawful detention and fear of commission of a further offence”, given that “the commission of a further offence involving an attack by the Claimant on others necessarily risked his being injured”. Releasing such individuals would be arbitrary and would offend a pragmatic construction of Article 5(1)(c). He relied on IA v France and Buzadji v Moldova as authority that short detention for the claimant’s protection, based on a genuine and honestly held concern for that claimant’s wellbeing, would not contravene Article 5(1)(c).

Judgment

The incompatibility issues

Chamberlain J accepted that a detention of a person under Article 5(1)(c) “must be effected for the purpose of bringing him before a competent legal authority”. He did not, however, accept the Claimant’s submission that this equates to the detention only being legal where the detention is necessary, in order for that purpose to be fulfilled. Rather, there can be multiple reasons for the detention, so long as the purpose is achieved. He gave the following helpful analogy at [43]:

To take a mundane example, I can walk to work or take the tube. If I decide to take the tube, my tube journey is still taken for the purpose of getting to work, even though it was not necessary to achieve that purpose. [emphasis in original]

As such, Chamberlain J found that even where a detainee, if released, would likely attend court, keeping them detained for their safety would still be for the purpose of bringing them before a competent legal authority because that remains the intended end point of the detention.

Moreover, Chamberlain J found support from the extensive case law providing that pre-trial detention is compatible with Article 5 in order to prevent the detainee from interfering with evidence or witnesses, or obstruct justice, even where these are not expressly justified under Article 5(1)(c). That is because they still fit the requirements imposed under Article 5(3) of holding continuing reasonable suspicion that the detainee committed the offence, and the detention is not arbitrary (ie: there are relevant and sufficient reasons for that detention). These two subsections of Article 5 must be read together.

Therefore, he concluded that the detention of a person held on suspicion of having committed an offence can be capable of justification under Article 5(1)(c) and Article 5(3), where that detention is necessary for the detainee’s own protection. As such, the question of declarations of incompatibility became redundant.

The lawfulness of the Claimant’s detention

Chamberlain J took guidance from IA and from S v Denmark as follows:

  1. Short period: The detention for a detainee’s own protection is only permissible for a short period, although the exact length of time depends on the particular circumstances and risk of danger in each case. For minors, this period ought to be for the shortest appropriate period of time.
  2. Focus on particular factors of the case: A generic concern for safety is insufficient. There must be circumstances particular to the detainee, including the nature of the offences and characteristics of the detainee, that give rise to the concern for safety.
  3. No reasonably available alternatives: This was more likely to concern cases with a longer period of detention than that of the Claimant. There must be a consideration given to alternatives that are reasonably available to protect the person. If there are such alternatives, it would be arguable that detention is not necessary.

With this guidance, he concluded that the Claimant’s detention was lawful.

First, it was a short period of time, about 13 hours overnight, before the Claimant was brought to court.

Secondly, the reasons given by Sgt Smith were sufficient in demonstrating a particular concern of the safety of this Claimant: the Claimant was stabbed in the context of gang violence, near to the Police station and his home – these gave rise to a real risk that the Claimant might be attacked if he were released.

Thirdly, he found that (although not expressly considered by Sgt Smith) it was difficult to see how it would be possible to establish an alternative protective measure for the Claimant in the short period of 13 hours of overnight detention, keeping in mind also the need to not make it impracticable for the police to fulfil their duties.

As such, the question of damages also fell away.

Comment

It is clear that the courts will take an expansive view of Article 5(1) when it comes to those who are vulnerable to risks of injury, such as potential revenge attacks considered in this case. This is the sensible approach when considering other case law by the Strasbourg Court. However, Chamberlain J is clear that detention can be compatible with Article 5 where it is to protect the detainee. Nonetheless, generic considerations will not suffice: extensive fact specific considerations of the particular circumstances faced by the detainees need to be undertaken.

This author considers that this judgment is unlikely to affect current bail practices, but serves as a reminder of the importance of using detention as a last possible resort and for the briefest possible period.

Alice Kuzmenko is a pupil barrister at 1 Crown Office Row. She will join Chambers as a tenant in September.

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board care homes Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus coronavirus act 2020 costs costs budgets Court of Protection covid crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Facial Recognition Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy Professional Discipline Property proportionality prosecutions Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania round-up Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence shamima begum Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: