R (A (a child through his father and litigation friend)) v Chief Constable of Dorset Police
| Jurisdiction | England & Wales |
| Judge | Mr Justice Blake |
| Judgment Date | 16 July 2010 |
| Neutral Citation | [2010] EWHC 1748 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/12780/09 |
| Date | 16 July 2010 |
[2010] EWHC 1748 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Blake
Case No: CO/12780/09
and
Alison Macdonald (instructed by Fisher Meredith and Co) for the Claimant
Russell Fortt (instructed by Dorset County Counsel Legal Services) for the Defendant
Phillippa Kaufmann (instructed by Bindman and Co) for the Interested Party
Hearing dates: 30 June 10
Introduction
This is an application made by the interested party B who seeks the court's directions to prevent the defendant from serving the claimant with what are described as sensitive confidential documents in the course of an application for judicial review. The claimant brings the claim for declaratory relief and damages with respect to police actions to which he was subject in August 2009. The sensitive documents include the defendant's draft summary grounds for resistance to the claim and the evidence exhibited to those summary grounds.
In brief the interested party submits as follows:—
i) The defendant's proposed grounds of resistance rely on the material concerning B that is presently private and confidential.
ii) Disclosure of the whole or indeed the gist of such material would have an adverse effect on B and his interests, particularly his right to respect to private life within the meaning of Article 8 of the ECHR but also other human rights.
iii) Disclosure of such material is not necessary for the claimant to litigate the judicial review claim he seeks to bring.
iv) Further or in the alternative, non-disclosure is necessary and proportionate and required by the court's duty to protect the interested party's human rights.
The interested party relies on further sensitive material to support the case of breach of Convention rights.
The Judicial Review
The claimant is a young man of sixteen years of age in full time education and of good character. At about 11pm on Friday 31 July 2009 the claimant and three of his friends were present in a part of Bournemouth. He states that his parents knew that he was out that night and was planning to stay the night with one of his friends. The group was searched for alcohol and drugs by two police officers and a number of police community support officers, nothing was found and the officers left. A little later the claimant and his group met the same police officers and/or PCSOs who asked them where they were going and how old they were. The claimant gave his age as sixteen; another member was sixteen and two were aged fifteen. They told the police that they were going to get food from a fast food outlet. A little later shortly before midnight, the group arrived at the fast food outlet to buy food and when they went out to eat it they encountered the officers who took them into a police vehicle and brought them to a centre elsewhere in Bournemouth. After a time the parents were informed of A's presence at the safe centre. They were told by officers that A had not committed any crime and that he was not in any trouble but were given limited information in response to the question why A had been picked up. The officers told the claimant's parents that the claimant had been seen with an "inappropriate adult" but would not give any further details, they were given a document entitled "Stay Safe 31 July 2009". An officer drove the claimant and his mother home at about 1.30am.
The defendant accepts that the claimant was compulsorily removed from the fast food outlet in Bournemouth and detained for a period of time, if the claimant's timings are right, something in the order of an hour and a half, but contends that such detention was authorised by Section 46 of the Children Act 1989. That provision is in the following terms:—
"(1) Where a constable has reasonable cause to believe that a child would otherwise be likely to suffer significant harm, he may-
a) Remove the child to suitable accommodation and keep him there or
b) Take such steps as are reasonable to ensure the child's removal for any hospital or any place in which he is then being accommodated is prevented.
(2) For the purposes of this act a child with respect to whom a constable had exercised his power under this section is referred to as having been taken into police protection.
(3) As soon as it's reasonably practicable after taken a child into police protection, the constable concerned should-
i. Inform the local authority within whose area the child was found and the steps that have been taken and are proposed to be taken with respect to this child and the reasons for taking them;
ii. Give details to the authority within whose area the child is ordinarily resident ("the appropriate authority") of the place at which the child is being accommodated;
iii. Inform the child (if he appears capable of understanding)-
1. Of the steps that have been taken with respect to him under this section and the reasons for taking them and
2. Of the further steps that have been taken with respect to him under this section;
iv. Take such steps as are reasonably practicable to discover the wishes and feelings of the child…
(4) As soon as is reasonable and practicable after taking the child into police protection, the constable concerned shall take such steps as are reasonably practicable to inform:
i. The child's parents…of the steps that he has taken with the respect to the child the reasons for taking him and the further steps that may be taken with respect to him under this section.
(5) On completing any inquiry under Section 3e, the officer conducting it shall release the child from police protection unless he considers that there is still reasonable cause for believing that the child would be likely to suffer significant harm if released.
(6) No child may be kept in police protection for more than 72 hours."
Some of these terms are defined by Section 319 of the Children Act 1989 as follows:
"'harm' means ill treatment or the impairment of health or development including for example impairment suffered from seeing or hearing the ill treatment of another;"
'development' means physical, intellectual, emotional, social or behavioural development;
'health' means physical or mental health;
'ill treatment' includes sexual abuse and forms of ill treatment which are not physical."
The claimant's solicitors sought further information as to why A had been made subject to this detention on the night in question. The best answer they received was in a letter of 23 October 2009 which simply states that:
"On the night in question your client was seen by police officers in the company of three other young persons, two boys and a girl, in a take-away in Christchurch Road where an adult had recently met up with them. This was at 23.35hrs. Officers had concerns about the welfare of your client and his companions with this adult and a decision was made to remove your client and his friends to a place of safety in accordance with the operation".
On 28 October 2009 this claim was issued. The claimant submitted this summary account of the detention of the claimant in pursuit of the statute and the police operation underway that night was unlawful for a number of reasons namely:—
i) The detention was outwith the power of the statute properly construed.
ii) The operation being conducted by the police on the night in question was far broader in terms of its aims than the statutory powers permitted.
iii) However the statute construed there was no reasonable cause to believe that the claimant was likely to suffer significant harm, if not immediately removed from the take-away.
iv) The claimant's treatment amounted to detention and a deprivation of liberty within the meaning of Article 5 of the ECHR and the reasons given were incapable of amounting to any basis for lawful justification within the meaning of Article 5(1). The claimant in particular focuses upon the provisions of Article 5(1)(d) as the only potentially applicable sub paragraph 'the detention of a minor by lawful order for the purpose of educational supervision is lawful detention for the purpose of bringing him before the competent legal authority'.
v) The information provided was incapable of constituting the reasons that the statute was required to provide, and the absence of reasons is both a breach of the statute itself and prevents effective supervision of the legality of the detention on challenge in the courts.
On 4 December 2009 the defendant prepared summary grounds in response to this application. The claimant has not yet seen these grounds although they contained matters of law as well as fact. In summary the grounds contend that the removal and detention was in accordance with the powers under Section 46 of the Children Act and did not give rise to a breach of Article 5 or 8 of the ECHR. The defendant submits that he has only to give broad outline reasons for the removal of the claimant due to the competing interests of the interested party who was with the claimant at the time of the removal. Full reasons were provided to the court. If the court considers it appropriate to serve these grounds on the claimant notwithstanding the stance which the interested party takes in these proceedings then any inadequacy in the reasons would have been rectified. In any event the defendant submits that final failure to give reasons does not render the detention unlawful.
The defendant sought a stay of the application until the question of whether he could serve the summary grounds could be the subject of adjudication. Paragraphs 23 to 37 of those summary grounds set out the defendant's contentions of law. Amongst those is...
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