QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE KENNETH PARKER
| The Queen on the Application of
HC (a child, by his litigation friend CC)
|- and -
|The Secretary of State for the Home Department
The Commissioner of Police of the Metropolis
Mr Hanif Mussa (instructed by Treasury Solicitors) for the 1st Defendant
Ms Sarah Le Fevre (instructed by The Metropolitan Police) for the 2nd Defendant
Ms Joanne Cecil (instructed by Coram Children's Legal Centre) Intervener
Ms Felicity Williams and Ms Laura Janes (instructed by The Howard League) Intervener
Hearing dates: 26th-27th February, 2013
Crown Copyright ©
Lord Justice Moses:
"This report considers 'juveniles' (children and young people aged 10 to 16 years), because the special provisions of care under the Police and Criminal Evidence Act 1984 apply to that age group only. This makes 17 year-olds an anomaly. Under all other United Kingdom law and United Nations Conventions, a child or young person is considered to be up to 18 years old. However, in a police station, a 17 year-old is treated as an adult." (report of December 2011: Who is Looking Out for the Children?)
The report recommends that a 17 year old should not be treated as an adult (recommendation 9).
"You have the right to have someone informed that you have been detained. You have the right to consult privately with an independent solicitor either in person, in writing or on the telephone. Independent legal advice is available from the duty solicitor free of charge. You also have the right to consult a copy of the Codes of Practice covering police powers and procedures. You may do any of these things now, but if you do not, you may still do so at any time whilst detained in the police station."
"…as the detained person is in custody for an indictable offence and has not been charged and there are reasonable grounds for believing that the exercise of that right/those rights will hinder the recovery of property obtained in consequence of the commission of such an offence. The grounds are Subject has been arrested for suspicion of robbery and the stolen property is outstanding."
That entry in the record is shown at 5.49 p.m. and signed by the inspector. His own mobile was examined shortly after, revealing nothing untoward, and DNA, fingerprints and a photograph were taken.
"Her son didn't need an appropriate adult as he was 17 and he couldn't call due to the s.18 being in place. She then told me to tell him to ring her. I explained I couldn't tell him what to do."
There was then a conversation as to the location of the police station and a note that the claimant's mother asked how she could talk to him. She was told she could call back "in an hour or so or she could wait for him to call her". She hung the phone up.
The Statutory Scheme ...Annex 1 sets out some of the relevant statutory provisions and of Code C)
"3.13 If the detainee is a juvenile, the custody officer must, if it is practicable, ascertain the identity of a person responsible for their welfare. That person:
may be the parent or guardian (other alternatives are then identified)
must be informed as soon as practicable that the juvenile has been arrested and where they are detained. This right is in addition to the juvenile's right not to be held incommunicado"
"3.15 If the detainee is a juvenile….the custody officer must, as soon as practicable:
inform the appropriate adult, who in the case of a juvenile may or may not be the person responsible for the juvenile's welfare, as in 3.13, of:
the grounds for their detention;
Treatment of a 17 Year-old as a Child
"their functions are discharged having regard to the need to safeguard and promote the welfare of children…" (s.11(2)(a))
Objectives designed to improve the well-being of children include the contribution made by them to society and social and economic well-being (s.10(2)(d)(e)). These are fortified by the statutory guidance made pursuant to s.11(4). The general objective is to ensure that children have "optimum life chances" and enter adulthood successfully.
International Law and the Child
"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child should be of primary consideration."
"1. States parties shall ensure that a child shall not be separated from his parents against their will…(save where separation is necessary for the best interests of the child).
4. Where such separation results from any action initiated by a State party, such as the detention…of the child, that State party shall, upon request, provide the parents…or, if appropriate, another member of the family, with the essential information concerning the whereabouts of the absent member of the family."
"every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall have the right to maintain contact with his family,…save in exceptional circumstances."
"…to be informed promptly and directly of the charges against him or her and, if appropriate, through his or her parents or legal guardians and to have legal or other appropriate assistance…"
The guarantee under 40.3 requires States Parties procedures specifically applicable to children alleged to have infringed the penal law.
"8.178 Code of Practice C…sets out the procedures that police officers should follow in relation to detention, treatment and questioning. The Code of Practice includes provisions specifically applicable to juveniles (under 18s). In particular, a juvenile must be provided with an appropriate adult, whilst at the police station, who will be present during any police interview." (my emphasis)
"It is difficult to expect that a child could be heard without the assistance of parents and/or legal representative. The child's ability to communicate effectively is often restricted both physically and psychologically." (page 30)
"The parents or the guardian shall be entitled to participate in the proceedings and may be required by the competent authority to tend them in the interest of the juvenile (subject to exclusion where necessary in the interests of the juvenile)."
Domestic Opinions and Jurisprudence as to the Need for Special Protection for 17 Year-olds in Custody
"When an arrested child or young person finds themselves in police custody, the only independent person solely there for their welfare, with an opportunity to effect change, is the AA (appropriate adult). That role, therefore, is crucial." (2.3)
"2.13 PACE, however, uses the term 'juvenile' rather than using child, young person or young adult, creating an inconsistency in both terminology and treatment. Following their arrest and detention, 17 year olds are not offered AAs, their parents/guardian do not need to be notified they are in police detention, and they may decline legal representation without recourse to anyone else…..
2.14 Curiously, the YJB National standards require the police to advise the YOT within 24 hours of all children and young people who are charged with an offence, and this requirement includes 17 year olds.
2.15 As a result, within the criminal justice system, the only place that a 17 year old is treated as an adult is in a police station".
"Having this one particular relationship to support the detainee through what may be a somewhat puzzling, confusing and threatening experience should not be underestimated." (Nacro 2004 Youth Crime Briefing)
" Ignoring the special position of children in the criminal justice system is not acceptable in the modern civil society. In 1990 the United Kingdom ratified the Convention on the Rights of the Child (Cm 1976) which entered into force in January 1992. Article 40(1) provides 'States parties recognise the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others, and which takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society'. This provision imposes both procedural and substantive obligations on the State parties to protect the special position of children in the criminal justice system…it is true that the Convention became binding on the United Kingdom after R v Caldwell was decided. But the House cannot ignore the norm created by the Convention. This factor on its own justified a reappraisal of R v Caldwell."
"The question is what, if anything, the court needs to do to ensure that the defendant is not at a substantial disadvantage compared with the prosecution and any other defendants: see Delcourt v Belgium  EHRR 355, paragraph 28."
There can be no doubt as to that imbalance and as to the intimidating effect of a young person's first experience of the criminal justice system when taken into custody for interrogation.
"It is in everyone's interest that children should be brought up to be decent law-abiding members of society. Both national and international law recognise that the criminal justice system is part of that process of bringing them up. The straightforward retributive response which is proper in the case of an adult offender is modified to meet the needs of the individual child."
The Secretary of State's Reasons
Conclusion on Rationality
"(1) Everyone has the right to respect for his private and family life…"
The proposition that included within the scope of private life and family life is the right to establish, develop and maintain relationships and in particular the relationship of family is well-established (Niemietz v Germany  16 EHRR 97 paragraph 29, Botta v Italy  26 EHRR 241) even within the context of prison, Messina v Italy No. 2 App. No. 25498/94, 28 September 2000, and R (Daly) v Secretary of State for the Home Department  UKHL 26  2 AC 532 paragraph 23.
"Where children in custody are concerned the provisions of the Convention (UNCRC) are available to inform the content of ECHR Article 8 (The Queen on the Application of SR v Nottingham Magistrates' Court  EWHC Admin 802 paragraph 65)".
"The Beijing Rules are not binding on member States, but the same principle is reflected in the United Nations Convention on the Rights of the Child 1989 ('UNCRC'), which has been ratified by all but two of the member States of the United Nations. This is not only binding in international law; it is reflected in the interpretation and application by the European Court of Human Rights of the rights guaranteed by the European Convention: see, for example, V v United Kingdom  30 EHRR 121; to that extent at least, therefore, it must be taken into account in the interpretation and application of those rights in our national law."
In ZH she said:
"23. For our purposes the most relevant national and international obligation of the United Kingdom is contained in Article 3.1 of the UNCRC: (which she then cites)
This is a binding obligation in international law, and the spirit, if not the precise language, has also been translated into our national law."
"This does not mean (as it would do in other contexts) that identifying their best interests would lead inexorably to a decision in conformity with those interests. Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of the children, it could conclude that the strength of the other considerations outweighed them. The important thing, therefore, is to consider those best interests first."
Baroness Hale then applied that approach to the assessment of proportionality under Article 8.2, in asking "what is encompassed in the 'best interests of the child' in the context of an expulsion case?"
"1. In the determination of…any criminal charge against him, everyone is entitled to a fair…hearing…by a…tribunal."
Article 6(3)(a) provides:-
"Everyone charged with a criminal offence has the following minimum rights:
(a) To be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him ;"
The Secretary of State and the second defendant contend that Article 6 has no application in circumstances such as these where the claimant has not been charged with any offence. In R (R) v Durham Constabulary (q.v.supra) Lord Bingham expressed doubt as to whether the concession that Article 6 applied before an accused was formally charged was correct . His analysis was based on Attorney-General No. 2 of 2001  UKHL 68 -. The case concerned a 15 year-old who was given a warning in respect of his admitted indecent assault without seeking or obtaining his stepfather's consent. Once a firm decision had been made not to prosecute, the criminal charge ceased to exist . Since the warning did not involve the determination of a criminal charge against him, the defendant's fair trial rights were not engaged . But Lord Bingham did acknowledge:-
"For good and understandable reasons, the protection given to criminal defendants by Article 6 covers not only the trial itself but extends back to the preparatory and preliminary processes preceding trial and forwards to sentence and appeal. But the primary focus of the right is the trial itself, because that is the stage at which guilt is decided with the possibility of condemnation and punishment. I find it hard to see how a criminal charge can be held to endure once a decision has been made that rules out the possibility of any trial, or condemnation, or punishment." 
In the instant case the determination of a criminal charge had by no means been ruled out. The early exchanges between police and detainee are an important part of the preparatory and preliminary process. After all, Article 6(3)(a) envisages, in its obligation to inform a detainee promptly of the accusation, that that obligation will be fulfilled at an early stage of detention.
"67. The court notes that the applicant as 17 years old at the material time. In its case law on Article 6 the court has held that when criminal charges are brought against a child, it is essential that he be dealt with in a manner which takes full account of his age, level of maturity and intellectual and emotional capacities and that steps are taken to promote his ability to understand and participate in the proceedings (see T v The United Kingdom [GC No 24724/94] 16 December 1999 paragraph 84). The right of an accused minor to effective participation in his or her criminal trial requires that he be dealt with with due regard to his vulnerability and capacities from the first stages of his involvement in a criminal investigation and, in particular, during any questioning the police. The authorities must take steps to reduce as far as possible his feelings of intimidation and inhibition (see mutatis mutandis T v The United Kingdom cited above, paragraph 85) and ensure that the accused minor has a broad understanding of the nature of the investigation, of what is at stake for him or her…it means that he or she, if necessary with the assistance of, for example, an interpreter, lawyer, social worker or friend, should be able to understand the general thrust of what is said by the arresting officer and during his questioning by the police…(ibid.)."
The Second Defendant
Conclusion and Remedy
Mr Justice Kenneth Parker:
Children and Young Persons Act 1933
(2) Where a child or young person is in police detention, such steps as are practicable shall be taken to ascertain the identity of a person responsible for his welfare.
(3) If it is practicable to ascertain the identity of a person responsible for the
welfare of the child or young person, that person shall be informed, unless it is not
practicable to do so—
(a) that the child or young person has been arrested;
(b) why he has been arrested; and
(c) where he is being detained.
(4) Where information falls to be given under subsection (3) above, it shall be given as soon as it is practicable to do so.
Criminal Justice Act 1991
Section 68, Schedule 8:
1. (1) Section 31 of the 1933 Act shall be renumbered as subsection (1) of that section and after that provision as so renumbered there shall be inserted the following subsection –
(2) In this section and section 34 of this Act, "young person" means a person who has attained the age of fourteen and is under the age of seventeen years.
Police and Criminal Evidence Act 1984
In this Part of this Act—
"arrested juvenile" means a person arrested with or without a warrant who appears to be under the age of 17;
"endorsed for bail" means endorsed with a direction for bail in accordance with section 117(2) of the Magistrates' Courts Act 1980.
Section 56 - Right to have someone informed when arrested
(1) Where a person has been arrested and is being held in custody in a police station or other premises, he shall be entitled, if he so requests, to have one friend or relative or other person who is known to him or who is likely to take an interest in his welfare told, as soon as is practicable except to the extent that delay is permitted by this section, that he has been arrested and is being detained there.
(2) Delay is only permitted—
(a) in the case of a person who is in police detention for an indictable offence; and
(b) if an officer of at least the rank of inspector authorises it.
(5) Subject to sub-section (5A) below an officer may only authorise delay where he has reasonable grounds for believing that telling the named person of the arrest -
(a) will lead to interference with or harm to evidence connected with an indictable offence or interference with or physical injury to other persons; or
(b) will lead to the alerting of other persons suspected of having committed such an offence but not yet arrested for it; or
(c) will hinder the recovery of any property obtained as a result of such an offence.
Section 66 - Codes of practice
The Secretary of State shall issue codes of practice in connection with -
(a) the exercise by police officers of statutory powers -
(i) to search a person without first arresting him;
(ii) to search a vehicle without making an arrest; or
(iii) to arrest a person;
(b) the detention, treatment, questioning and identification of persons by police officers;
(c) searches of premises by police officers; and
(d) the seizure of property found by police officers on persons or premises.
67 - Codes of practice—supplementary
(2) The Secretary of State may at any time revise the whole or any part of a code.
(6) The power conferred by subsection (5) is exercisable by statutory instrument.
(7) An order bringing a code into operation may not be made unless a draft of the order has been laid before Parliament and approved by a resolution of each House.
(7A) An order bringing a revision of a code into operation must be laid before Parliament if the order has been made without a draft having been so laid and approved by a resolution of each House.
PACE - Code C (2012 revision)
3. Initial action
(a) Detained persons – normal procedure
3.1 When a person is brought to a police station under arrest or arrested at the station having gone there voluntarily, the custody officer must make sure the person is told clearly about the following continuing rights which may be exercised at any stage during the period in custody:
(i) the right to have someone informed of their arrest as in section 5;
(ii) the right to consult privately with a solicitor and that free independent legal advice is available;
(iii) the right to consult these Codes of Practice. See Note 3D
3.5 The custody officer shall:
(a) ask the detainee, whether at this time, they:
(i) would like legal advice, see paragraph 6.5;
(iii) want someone informed of their detention, see section 5;
(b) ask the detainee to sign the custody record to confirm their decisions in respect of a);
(c) determine whether the detainee:
(iii) is, or might be, in need of medical treatment or attention, see section 9;
• an appropriate adult;
• help to check documentation;
• an interpreter;
(d) record the decision in respect of (c).
3.17 If the appropriate adult is:
• already at the police station, the provisions of paragraphs 3.1 to 3.5 must be
complied with in the appropriate adult's presence;
• not at the station when these provisions are complied with, they must be complied with again in the presence of the appropriate adult when they arrive.
3.18 The detainee shall be advised that:
• the duties of the appropriate adult include giving advice and assistance;
• they can consult privately with the appropriate adult at any time.
5. Right not to be held incommunicado
5.1 Subject to paragraph 5.7B, any person arrested and held in custody at a police station or other premises may, on request, have one person known to them or likely to take an interest in their welfare informed at public expense of their whereabouts as soon as practicable. If the person cannot be contacted the detainee may choose up to two alternatives. If they cannot be contacted, the person in charge of detention or the investigation has discretion to allow further attempts until the information has been conveyed. See Notes 5C and 5D 5.2
5.2 The exercise of the above right in respect of each person nominated may be delayed only in accordance with Annex B.
5.3 The above right may be exercised each time a detainee is taken to another police station.
5.4 If the detainee agrees, they may at the custody officer's discretion, receive visits from friends, family or others likely to take an interest in their welfare, or in whose welfare the detainee has an interest. See Note 5B
5.5 If a friend, relative or person with an interest in the detainee's welfare enquires about their whereabouts, this information shall be given if the suspect agrees and Annex B does not apply. See Note 5D
5.6 The detainee shall be given writing materials, on request, and allowed to telephone one person for a reasonable time, see Notes 5A and 5E. Either or both these privileges may be denied or delayed if an officer of inspector rank or above considers sending a letter or making a telephone call may result in any of the consequences in:
(a) Annex B paragraphs 1 and 2 and the person is detained in connection with an indictable offence;
(b) Not used
Nothing in this paragraph permits the restriction or denial of the rights in paragraphs 5.1 and 6.1.
5.7 Before any letter or message is sent, or telephone call made, the detainee shall be informed that what they say in any letter, call or message (other than in a communication to a solicitor) may be read or listened to and may be given in evidence. A telephone call may be terminated if it is being abused. The costs can be at public expense at the custody officer's discretion.
5.7A Any delay or denial of the rights in this section should be proportionate and should last no longer than necessary.
5.7B In the case of a person in police custody for specific purposes and periods in accordance with a direction under the Crime (Sentences) Act 1997, Schedule 1 (productions from prison etc.), the exercise of the rights in this section shall be subject to any additional conditions specified in the direction for the purpose of regulating the detainees' contact and communication with others whilst in police custody. See Note 5F
5.8 A record must be kept of any:
(a) request made under this section and the action taken;
(b) letters, messages or telephone calls made or received or visit received;
(c) refusal by the detainee to have information about them given to an outside enquirer. The detainee must be asked to countersign the record accordingly and any refusal recorded.
ANNEX B – DELAY IN NOTIFYING ARREST OR ALLOWING ACCESS TO LEGAL ADVICE
A Persons detained under PACE
1. The exercise of the rights in Section 5 or Section 6, or both, may be delayed if the person is in police detention, as in PACE, section 118(2), in connection with an indictable offence, has not yet been charged with an offence and an officer of superintendent rank or above, or inspector rank or above only for the rights in Section 5, has reasonable grounds for believing their exercise will:
(i) lead to:
• interference with, or harm to, evidence connected with an indictable offence; or
• interference with, or physical harm to, other people; or
(ii) lead to alerting other people suspected of having committed an indictable offence but not yet arrested for it; or
(iii) hinder the recovery of property obtained in consequence of the commission of such an offence.
Crime and Disorder Act 1998
117 - General interpretation
(1) In this Act—
- "child" means a person under the age of 14;
- "young person" means a person who has attained the age of 14 and is under the age of 18;
- "youth offending team" means a team established under section 39 above.
37 - Aim of the youth justice system.
(1) It shall be the principal aim of the youth justice system to prevent offending by children and young persons.
(2) In addition to any other duty to which they are subject, it shall be the duty of all persons and bodies carrying out functions in relation to the youth justice system to have regard to that aim.
Children Act 2004
Section 10 - Co-operation to improve well-being
(1) Each local authority in England must make arrangements to promote co-operation between -
(a) the authority;
(b) each of the authority's relevant partners; and
(c) such other persons or bodies as the authority consider appropriate, being persons or bodies of any nature who exercise functions or are engaged in activities in relation to children in the authority's area.
(2) The arrangements are to be made with a view to improving the well-being of children in the authority's area so far as relating to—
(a) physical and mental health and emotional well-being;
(b) protection from harm and neglect;
(c) education, training and recreation;
(d) the contribution made by them to society;
(e) social and economic well-being.
(3) In making arrangements under this section a local authority in England must have regard to the importance of parents and other persons caring for children in improving the well-being of children.
11. Arrangements to safeguard and promote welfare
(1) This section applies to each of the following –
(h) the local policing body and chief officer of police for a police area in England;
(4) Each person and body to whom this section applies must in discharging their duty under this section have regard to any guidance given to them for the purpose by the Secretary of State.
(1) In this Act—
- "child" means, subject to section 9, a person under the age of eighteen (and "children" is to be construed accordingly);
Much of the substantial material with which the court was provided came as a result of the submissions of the two interveners. A single judge, who it was not intended should sit on the application, gave permission for Coram Children's League Centre and the Howard League to intervene in writing. Despite an application seeking directions by the Secretary of State, no directions as to timing or the sequence of events which should be followed were obtained from that judge. The result was that lengthy written submissions from both were sent to the court at the same time as the first defendant's response. The first defendant's counsel had no reasonable opportunity to consider them in depth before the application started. No adjournment was sought, but it placed the first defendant under some difficulty. The court ordered both interveners to produce a summary of their submissions and provide the authorities and materials on which they rely. A huge bundle of authorities and other materials then appeared on the second day.
Counsel for the Secretary of State was too courteous to complain and skilfully dealt with the points which arose. But he should not have been placed under that sort of pressure. The interventions should have arrived at a proper time to be incorporated, insofar as the claimant wished, in the claimant's submissions and at a time when the defendants could properly respond. Many of the important arguments were not contained in the claimant's submissions but rather emerged, if one delved into the interstices, within the intervener's submissions.
All of this could have been avoided if a timetable had been set which required the interventions to be served at a time when the defendants could properly respond and the claimant decide which of the arguments within those interventions he wished to deploy. This application cried out for directions to be obtained, either in writing or at a case management hearing well before the hearing of the application and, if at all possible, by one of the judges who was going to hear it.