Detention of a minor for his own protection – round two

23 November 2021 by Alice Kuzmenko

The Court of Appeal has recently upheld the High Court decision that Section 38 of the Police and Criminal Evidence Act 1984 (“PACE”) is not incompatible with Article 5 of the European Convention on Human Rights (“ECHR”) insofar as it purports to authorise the detention of minors for their own protection, in the case of Archer v Commissioner of Police of the Metropolis [2021] EWCA Civ 1662.

For a more detailed exploration of the factual background and High Court decision, please see my post on the UK Human Rights Blog following the lower court’s decision. 

Background 

In 2012, the Appellant, then a juvenile, was arrested on suspicion of violent disorder and possession of an offensive weapon. This happened five days after he was struck on the head and stabbed in the back and head by people he described as local gang members. He was charged with those two offences, but refused bail for the following reasons by Sergeant Smith:

[…] 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 [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 sustainfurther injuries or inflict violence upon his original intended victims

The following morning, 13 hours on from the refusal of bail, he was taken to Bexley Youth Court where he was remanded in custody. 

Legal Provisions 

The key provisions in this case are Section 38 of PACE: 

(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.

and Article 5 ECHR:

• 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:

[…]

[…]

Grounds of Appeal

The Appellant challenged two decisions: that Section 38 is in principle capable of being justified under Article 5 on the basis that it is necessary for his or her own protection and further, that the Appellant’s detention was lawful on the facts. The grounds of appeal were that: 

1. The Judge erred in concluding that Section 38(1)(a)(vi) and (b)(ii) of PACE were not incompatible with Article 5. Those provisions purport to authorise a deprivation of liberty outwith the purpose for which such a deprivation may lawfully be effected pursuant to Article 5(1)(c);
2. The Judge erred in concluding that the appellant’s detention on 22/23 February 2012 was not incompatible with his rights under Article 5. The primary basis for that detention was Section 38(1)(a)(vi) and (b)(ii) of PACE and, for the reasons given in Ground 1, that is a deprivation of liberty outwith the purpose for which such a deprivation may lawfully be effected pursuant to Article 5(1)(c); 
3. In the alternative, if the Judge was correct that detention for one’s own protection is compatible with Article 5(1)(c), the Judge erred in concluding that, on the evidence which was before him, the appellant’s detention was justified on that basis.

Parties’ submissions

On Grounds 1 and 2, Richard Hermer QC for the Appellant submitted that the primary position was that detention effected for the purpose of the Appellant’s own protection is not permitted under Article 5(1)(c). As such, the High Court gave an overly expansive meaning to the words “effected for the purpose” of bringing someone before the competent legal authority, particularly as the exceptions in Article 5(1) are exhaustive and to be interpreted strictly. As to Ground 3, Mr Hermer submitted that Police Sergeant Smith had no recollection of the appellant or his detention, and contemporaneous records revealed no consideration at all as to either exceptionality or alternatives to detention. Therefore, there was absolutely no basis (and in fact went contrary to the evidence) for the Judge to infer from the facts that it was difficult to see how it would have been possible to devise and implement alternative measures in the very short overnight period in question. 

The written submissions for the Respondent in seeking to uphold the High Court judgment focused on Article 5(1)(c), making submissions that it would be “plain wrong” if denial of bail on the basis of concerns about a juvenile’s safety could never be compatible with Article 5 unless expressly mentioned there. Further, the interpretation of Article 5 should be influenced heavily by the principled need to avoid arbitrary detention, and the flexibility to avoid making it impracticable for the police to fulfil their duties of maintaining order and protecting the public. As to Ground 3, it was submitted that the Judge was entitled to find that the circumstances were exceptional and to infer, as a matter of likely reality, that alternative protective measures were not reasonably available.

In oral submissions however, Mr Andrew Warnock QC took a different approach. He suggested that this was not even an Article 5(1)(c) case, as there is no dispute that the Appellant was lawfully arrested and placed into custody under that Article. Instead, he submitted, the case concerns whether there were factors justifying continuing detention under Article 5(3) – the custody officer was reviewing whether or not detention should continue, and detention for one’s own protection was held in IA and endorsed in Buzadji as a sufficient reason for detention to continue. Further, the fact that a child who poses a risk only to him or herself must be referred to the local authority (under Section 38(6)) does not mean that exercise of the power of detention for own protection can never be necessary and thus be incompatible with Article 5. 

Judgment

Grounds 1 and 2 

The court summarised the overarching question of the appeal as one of whether the detention of a person for their own protection, pursuant to subsection 38(1)(a)(vi) and 38(1)(b)(i) of PACE, is compatible with Article 5 of the Convention. They made three preliminary points:

1. First, though the young age of the appellant is relevant to the assessment of the facts and circumstances of this case, it does not affect the fundamental question of principle that arises;
2. There is a difference in the wording of subsections 38(1)(a)(vi) and b(ii) (necessary for own protection/ought to be detained in own interests), but that nothing turned on that difference;
3. It was conceded in this case that the appellant was lawfully detained on the basis that there was a substantial risk of him committing further offences if released on bail

The Court started by rejecting the Appellant’s characterisation of the “own purpose” criterion [author’s note: this seemingly is meant to say “own protection”] [AK1] as a standalone basis for continued detention, whereas in fact the underlying basis for detention was the reasonable suspicion of his having committed an offence. Therefore, in the court’s view, the proper characterisation of this case is of whether an individual can be kept in police custody for reasons of their own protection, provided that the police have a reasonable suspicion that they have committed an offence. It concluded that:

There is nothing arbitrary about continuing to detain a suspect in the circumstances summarised by Police Sergeant Smith, i.e. continuing to detain someone who is otherwise lawfully detained for the purpose of production before the court, if releasing him puts his life at serious risk, something which would of course defeat the purpose of bringing him before the court.

and therefore that continued detention of an individual for their own protection, where there exists a reasonable suspicion of his having committed an offence, is not inherently contrary to Article 5 of the Convention.

The Court also endorsed the High Court’s outline of the three limitations upon pre-trial detention of juveniles (see these detailed in the Author’s previous post. Briefly, the detention must be a short period, particular factors of the case require it, and there are no reasonably available alternatives), before rejecting Grounds 1 and 2 of the appeal. 

Ground 3

The Court of Appeal summarised the following questions as those needing consideration: 

1. Was there a reasonable suspicion that the appellant had committed an offence which persisted through his detention?
2. Did the review of the basis of the appellant’s detention, at which it was determined that he could be further detained for reasons of his own protection, happen promptly after his arrest? 
3. Did the circumstances having to do with the nature of the offences concerned, the conditions in which they were committed and the context in which they took place, exceptionally, justify the detention?
4. Were there any reasonably available alternative means to afford protection – i.e. was detention used only as a last resort? 
5. Was the appellant’s detention for a short period of time (i.e. as short as possible)? 
6. Was the appellant kept separate from adults?

To these six questions, the Court of Appeal considered that the High Court judge was both entitled and right to answer these questions in the affirmative. Further, they endorsed the following passage as correct on protective measures short of detention:

[A]lthough there was no express consideration of protective measures short of detention, it is difficult to see how it would have been possible to devise and implement such measures in the very short overnight period between Sgt Smith’s decision to refuse bail and the [appellant’s] appearance at Bexley Youth Court on the following morning. Although it is in general important that adequate reasons should be given addressing each of the limitations on the power to detain, it is also important not to apply the limitations in a way which would “make it impracticable for the police to fulfil their duties of maintaining order and protecting the public…

Through these considerations, the Court of Appeal found that in giving the fullest weight to the special considerations that apply to the pre-trial detention of a juvenile, they would also reject Ground 3. 

Comment

The force of the Appellant’s submissions is understandable, where there has been a clear expression that it was considered “necessary to further detain the person for their own protection”. However, there is a powerful argument in that release (in these circumstances) would put the Appellant’s life at serious risk. As such, his protection was in effect a necessary part of the purpose of getting him to the court. Throughout, however, was the reasonable suspicion of having committed an offence – without which it is agreed that there is no basis for detention. 

There was, in this case, the additional factor of the substantial risk that the Appellant, if released, may also inflict violence upon others. The claim and appeal has seemingly sidestepped this additional factor. Nevertheless, the judgment has reiterated the existence of that factor throughout, yet still framed its decision as one applicable even for the scenario where the factor may not have existed. It is plausible that in another case of such “own protection” detention, this judgment may be revisited, but it is clear from the recognition of the importance of the specific factual matrix that it may not be a case that we will see any time soon.