The claimant, who was 15 years old at the relevant time, was involved in an incident at a takeaway restaurant in which he was injured by persons whom he described as members of a local gang. He was arrested several days later on suspicion of violent disorder and possession of an offensive weapon and taken to a police station where, having been charged with the two offences, he was detained overnight. The custody officer refused bail on the grounds, inter alia, that it was necessary to detain him “for his own protection” and “in his own interests”, it being feared that he would face repercussions from the gang if released. The following morning the claimant was taken to the youth court where he was remanded in custody. Eventually the case against him was discontinued. The claimant brought a claim against the defendant police commissioner seeking, inter alia, a declaration that section 38(1)(b)(ii) of the Police and Criminal Evidence Act 1984, under which a juvenile might be detained “in his own interests”, was incompatible with his right to liberty under article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The judge held, inter alia, that the continued detention of a person held on suspicion of having committed an offence was in principle capable of being justified under article 5(1)(c) and (3) of the Convention on the basis that it was necessary for his or her own protection, and that the claimant’s detention for his own protection, pursuant to section 38(1)(a)(vi) and 38(1)(b)(i) of the 1984 Act, was in the circumstances compatible with article 5 since it was for a short period, there were exceptional circumstances, and it was difficult to see how it would have been possible to devise and implement protective measures short of detention in the very short overnight period in question. The judge therefore dismissed the claim.
On the claimant’s appeal—
Held, appeal dismissed. (1) Detention for an individual’s “own protection” was not capable of being justified in circumstances where none of the limbs of article 5(1)(c) of the Convention for the Protection of Human Rights and Fundamental Freedoms were made out. The true question was whether an individual could be kept in police custody for reasons of their own protection, provided that the police had a reasonable suspicion that they had committed an offence. The reasons for the claimant’s detention were twofold: (i) the substantial risk that he might commit further offences and (ii) because it was in his own interests. Reading article 5(1)(c) and article 5(3) of the Convention together, a person could be detained for a period between their initial arrest and their production before the court, provided detention was in accordance with a procedure prescribed by law (and therefore not arbitrary), and provided the detainee was brought before the court promptly. There was nothing arbitrary about continuing to detain a suspect who was otherwise lawfully detained for the purpose of production before the court, if releasing him put his life at serious risk. Such detention would only be permissible for a short period of time, in exceptional 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, and only if there were no reasonably available means other than detention to afford protection. Where there existed a reasonable suspicion of his having committed an offence, the continued detention of an individual for his own protection was not inherently contrary to article 5 of the Convention. It followed that section 38(1)(a)(vi) of the Police and Criminal Evidence Act 1984, which concerned the continued detention of an arrested adult for reasons of his own protection, was not incompatible with article 5 (paras 115, 116, 119, 120, 121, 122, 123, 126).
(2) Children occupied a unique place in the criminal justice system and required additional protections. Children brought into police custody were in a particularly vulnerable position, not only by virtue of their age, but also because of the circumstances which brought them into contact with the police. The best interests of the child had to be at the heart of any decision-making involving children, and pretrial detention of minors was a measure of last resort, and where strictly necessary only. Together, sections 38 and 21 of the Children Act 1989 made it clear that there were very limited circumstances to justify the detention of children at police stations. The pretrial detention of juveniles for their own protection should be the exception and not the rule, and the facts and circumstances relating to each individual decision to do so had to be rigorously considered to ensure the limitations were respected. The judge had been right to hold that in the case of a juvenile “own protection” detention would be permissible under article 5(1)(c) only for a short period, in exceptional 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, and if there were no reasonably available means other than detention to afford protection. Accordingly, continued detention of a juvenile for reasons of his own protection under section 38(1)(b)(i) of the Police and Criminal Evidence Act 1984 was not incompatible with article 5 of the Convention (paras 98, 99, 105, 125, 126).
(3) Giving the fullest weight to the special considerations that applied to the pretrial detention of a juvenile, the judge had been correct in concluding on the evidence before him that the claimant’s detention was justified on the basis that (i) there had been a reasonable suspicion that the claimant had committed an offence which persisted through his detention, (ii) the review of the basis of the claimant’s detention, at which it was determined that he could be further detained for reasons of his own protection, happened promptly after his arrest, (iii) 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 justified the detention, (iv) there had been no reasonably available alternative means to afford protection, (v) the detention had been for a short period of time as possible and (vi) the claimant had been kept separate from adults (paras 128–136).
Richard Hermer QC and Tim James-Matthews (instructed by Bhatt Murphy Solicitors) for the claimant.
Andrew Warnock QC and Adam Clemens (instructed by Weightmans LLP) for the defendant.
Caoilfhionn Gallagher QC and Donnchadh Greene (instructed by Liberty and by Just for Kids Law) for the interveners.