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:
- 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.
- 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.
- 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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