#UKLaw: Detention of a minor for his own protection! #PACE1984s38 #Art5ECHR #Statism vs #Autonomy

Detention of a minor for his own protection | Alice Kuzmenko | UK Human Rights Blog | 14 July 2020

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.

______
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Detention of a minor for his own protection – round twoAlice Kuzmenko | UK Human Rights Blog | 23 November 2021 |

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. 

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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.

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