High Court of Justice in Northern Ireland Queen's Bench Division Decisions

The facts, as appears from the affidavits

"I agree that this matter would be better dealt with by way of report but the I/O is under instructions to deal with the matter by way of charge".

According to paragraph 8 of Miss Grant's affidavit, the police "took the position that a child could not be released on police bail in the absence of an appropriate adult signing bail". There was no person willing to sign bail, the applicant's mother refusing to do so as she had no active role in his life and Damien Maguire, the social worker in attendance at the interview, stating that it was not his role to sign bail, while Glenmona Resource Centre indicated its policy not to sign bail on behalf of any resident. At 1602 hours on 28 April 2005 Sgt Fleming made the following entry in the custody record:

"Glenmona RC staff and D/Ps mother are not prepared to sign bail for the DP. DP has 5 cases pending and 8 convictions. In view of these matters there are reasonable grounds to believe that if released DP may fail to appear or commit further offences. DP has gone missing from Glenmona 12 times since 1 February 2005 and in view of this I am of the opinion that DPs interests would be better served by the DP being in custody."

As the custody record further shows, Sgt Fleming spoke to staff at Rathgael Juvenile Justice Centre at 1629 hours, but it stated that the Juvenile Justice Centre was not in a position to accommodate the applicant pending his court appearance. The applicant was then detained overnight in a cell at Grosvenor Road Police Station and appeared the following morning, 29 April 2005, at Belfast Youth Court where he was released back to the Glenmona Resource Centre on his own bail of £50 with the imposition of a curfew upon breach of which he could have been re-arrested by the police.

"I accept that a juvenile may be released without an adult signing for him. This presupposes that it is appropriate for the juvenile to be released in those terms. In the case of this applicant, I did not consider that it was appropriate simply to release him onto the street. I was aware of his criminal record (8 convictions). I was also aware that the applicant had 5 cases outstanding against him before the courts, one of which was for burglary. I was also aware that he had been resident at Glenmona Resource Centre and had gone missing or absconded on 12 occasions since 1 February 2005. He had been found on the streets in the early hours of the morning and may have been abusing solvents. No one was prepared to agree to take any responsibility for this young man. ---

I attempted to obtain suitable alternative accommodation for the applicant at Rathgael Justice Centre. However I was advised that this centre would not be able to accept the applicant. No other accommodation was available for the applicant. In spite of this I remained of the view that the applicant should not be released. In those terms there was no alternative but to accommodate the applicant at the police station pending his appearance before the Youth Court on 29 April, when he was admitted to bail with a curfew."

In a letter dated 1 December 2005 from the Crown Solicitor's Office, it is stated that Sgt Fleming accepts that "no consideration was given to accommodating the applicant elsewhere". Counsel for the applicant and the respondent are both agreed that in the present case there was no other place of safety where the applicant could have been held other than Rathgael Justice Centre which had refused to accommodate him and the Glenmona Resource Centre from which he had absconded as he had done on 12 occasions since 1 February 2005.

"The choice that then faces me is whether to submit a report to my authorities with a view to prosecution or to charge the person forthwith subject to further review by my authorities and the Public Prosecution Service. In this case I felt that a charge was the most appropriate course of action. The primary reasons behind this were the applicant's circumstances being, his criminal record, the pending matters before the courts, the nature of the alleged offences, his age, his possible substance abuse and the time when the offences occurred. Balancing all these circumstances against the applicant's youth, I felt that a curfew should be imposed. It is not possible for police officers to impose a curfew when someone is subject to a report. This can only be imposed by the court following a charge."

He goes on to aver in paragraph 5 of his affidavit that the PSNI Burglary Unit does not have a policy of charging persons in all burglary cases and that to the best of his knowledge there has never been any such policy and no such policy was applied to the decision to charge the applicant. He further avers that each case is considered on its merits and that not all persons who are arrested for burglary by the unit are charged and that it is more usual for juveniles to be reported as opposed to being charged straight away. He denies that he indicated to Ms Grant that there was any such policy in respect of charging in all burglary cases and avers that Ms Grant must have misconstrued what he did say. As a result of Ms Grant's indication that she would apply for judicial review, he phoned his superior, Acting Detective Sergeant White, who having been informed about the details of the case, told him to proceed by way of a charge. He accepts that he did tell Ms Grant that it was policy to charge in this type of case but by this he meant to convey that it was policy to charge in circumstances where it is felt that a condition, such as a curfew, is required. He had no objections to the applicant being released on bail subject to a strict curfew. Both counsel agree that if the police had decided to grant the applicant bail, they would have had no power to impose any conditions such as a curfew.

The Police and Criminal Evidence (Northern Ireland) Order 1989, Article 39(6) provides:

"Where a custody officer authorises an arrested juvenile to be kept in police detention under paragraph (1), the custody officer shall, unless he certifies that it is impracticable to do so, make arrangements for the arrested juvenile to be taken to a place of safety and detained there; and it shall be lawful to detain him in pursuance of the arrangements."

Article 39(7) provides:

"A certificate made under paragraph (6) in respect of an arrested juvenile shall be produced to the court before which he is first brought thereafter."

Although D/C McTaggart in paragraph 9 of his affidavit stated that there was a copy of this certificate on the file, neither the original certificate nor a copy, can now be found despite exhaustive searches.

Article 39(8) of the 1989 Order, as amended by the Criminal Justice (Children) (NI) Order 1998 Schedule 5 paragraph 34, provides that place of safety means "any juvenile justice centre, any hospital or surgery, or any other suitable place, the occupier of which is willing temporarily to receive the arrested juvenile."

Section 38(6) of the Police and Criminal Evidence Act 1984, which is the English equivalent to Article 39(6) of the Police and Criminal Evidence (NI) Order 1989 has been amended by Section 59 of the Criminal Justice Act 1991 and later by Section 24 of the Criminal Justice and Public Order Act 1994, but those amendments have not been made to the 1989 Order in relation to Northern Ireland.

"(6) Were a custody officer authorises an arrested juvenile to be kept in police detention under sub-section (1) above, the custody officer shall, unless he certifies that it is impracticable to do so, make arrangements for the arrested juvenile to be taken into the care of a local authority and detained by the authority, and it shall be lawful to detain him in pursuance of the arrangements."

Prior to the amendments being made in England, and prior to the enactment of the Human Rights Act 1998, a divisional court in England had considered what was meant by "impracticable" in Section 38(6) of the 1984 Act. In R v Chief Constable of Cambridgeshire Constabulary, ex parte M [1991] 2 All ER 777. In that case, as appears from the headnote, the applicant, who was aged 16 had been in voluntary care for 4 years in a local authority hostel. He had previously been convicted of theft, theft from motor vehicles and burglary. He was arrested for theft from motor vehicles and interviewed at a police station in the presence of a solicitor and a social worker before being charged. The police refused to release him on bail because they suspected that he would contact another youth who was suspected of receiving stolen property from the applicant. The custody officer, having decided that the appellant should be detained in custody as an arrested juvenile, was required by Section 38(6) of the Police and Criminal Evidence Act 1984 to make arrangements for him to be taken into the care of the local authority and detained by it unless he certified that it was impracticable to do so. The local authority informed the police that the applicant could return to the hostel but the custody officer refused to release him into the care of the local authority because the police considered that the hostel was not a practical means of housing him since it was insecure and he would be able to commit further crimes and interfere with the course of justice by contacting the other youth. The applicant applied for judicial review of the custody officer's decision, contending that the decision whether it was impracticable under Section 38(6) for the local authority to take an arrested juvenile into care to be detained by it was a matter for the local authority and not the custody officer to decide. Watkins LJ, delivering the judgment of the court, stated at page 781e:

"The detention of juveniles is clearly governed by Section 38 upon a justifiable refusal of bail. Here, the decision of the sergeant to refuse bail appears to have been sensible and realistic. It has not been criticised in the context of this application. However, if the argument advanced on behalf of the applicant is correct, the sergeant was obliged to transfer the applicant to the local authority, who, through Mr Staff, intended, as the sergeant was told, to return him to the insecure hostel at which he was living at the time of his arrest. In our view, the practical effect of that would be, as the sergeant undoubtedly would have immediately appreciated, tantamount to the grant of bail; to accept that situation he would be obliged to ignore his own reasonable anxiety and the consequence of transferring the juvenile to the local authority could be further loss or damage to property or interference with the administration of justice."

At page 783c Watkins LJ continued:

"In our judgment, the wording of Section 38(6) is clear. The custody officer who has made the decision to detain the juvenile must do everything practicable to see that the place of detention for that juvenile is in local authority accommodation and not at the police station. This is so whether or not the juvenile in question was previously in the care of the local authority. The local authority is equally obliged to do what it can to provide accommodation which will enable the juvenile to be accommodated outside the police station.

We have no reason to doubt that in practice both local authorities and police officers do their utmost to ensure that this particular object is achieved. If, however, the only accommodation apparently available for the detention of the juvenile will be insufficient to avoid the very consequences which lead to the original decision to refuse bail, the custody officer is, in our judgment, entitled to reach the conclusion that proper arrangements for the care and detention of the juvenile by the local authority outside the police station was impracticable. We simply cannot accept that the custody officer is required by statute to transfer the juvenile into the care of the local authority if he is dissatisfied with the proposed arrangements for the detention of the juvenile. We think the general public will be appalled to learn that Parliament had provided otherwise in times which have seen an explosion of crimes by juveniles.

Without wishing to minimise the importance of removing juveniles from custody at police stations at the earliest practicable opportunity, circumstances undoubtedly do arise which require such detention. The period of custody in a police station will not be long. The juvenile court will be seized of the case within a short time. Thereafter, the question of detention of the juvenile and arrangements for him will be decided by the juvenile court.

On the facts of the present case Sergeant Goodliff was, in our view, entitled to reach the conclusion that the proposed arrangement that the applicant should be returned to the hostel at which he was living at the time of his arrest was not an adequate form of `detention' and, in the absence of any alternative proposal, that it was `impracticable' for necessary arrangements for his transfer to the care of and detention by the local authority to be made. We hold that Sergeant Goodliff was entitled to refuse to transfer the juvenile.

The application is refused."

That decision is not binding on this court but is a decision with which I entirely agree.

The present case is rather similar to that case in that the Glenmona Resource Centre was an institution where the applicant was a voluntary resident and which, as on the night in question, he had left to commit further crime.

"No child shall be deprived of his or her liberty unlawfully or abritrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time."

I do not consider that there was any breach of Article 37(b) of that Convention.

Mr Sayers for the Applicant

Mr McAlister for the Respondent

Hearing: 5 December 2005