R HC (a child, by his litigation friend CC) v The Secretary of State for the Home Department (1st Defendant) The Commissioner of Police of the Metropolis (2nd Defendant)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moses,Mr Justice Kenneth Parker |
| Judgment Date | 25 April 2013 |
| Neutral Citation | [2013] EWHC 982 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/7772/2012 |
| Date | 25 April 2013 |
[2013] EWHC 982 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moses
Mr Justice Kenneth Parker
Case No: CO/7772/2012
Ms Caoilfhionn Gallagher (instructed by Lawrence & Co) for the Claimant
Mr Hanif Mussa (instructed by Treasury Solicitors) for the 1 st Defendant
Ms Sarah Le Fevre (instructed by The Metropolitan Police) for the 2 nd 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
Four weeks after his 17 th birthday at 3.55 p.m., on 19 April 2012, the claimant was arrested on suspicion of robbery of a mobile phone on a bus. Shortly after he was taken to Battersea Police Station he asked that his mother be informed. That was not allowed. She did not learn that he was in custody for about four and a half hours after he had been arrested, at 8.30 p.m. She was not allowed to speak to him. The claimant was released after 11 1/2 hours in custody, on 20 April 2012. One month later he was informed by letter that his bail was cancelled. No charges were ever brought against him. The claimant had never been in trouble before.
This first experience of the criminal justice system occurred not as a result of the police ignorance of the claimant's age or disregard of their obligations to children. The police applied Code C of the Code of Practice under the Police and Criminal Evidence Act 1984. Both the Police and Criminal Evidence Act 1984 and the Code permitted the police to treat a 17 year-old as an adult. As an adult, he had no unqualified right to let his mother know what had happened, nor did his mother have a right to speak to him. Under PACE and the Code an inspector was permitted to delay such contact in light of his belief that it would interfere with the investigation.
The experience of the claimant puts into sharp relief the issue which arises in this application for judicial review. The focus of the challenge is not on the Metropolitan Police, the second defendant, but rather on the first defendant, the Secretary of State for the Home Department. She has decided that she will not exercise the power, which she accepts she has (subject to approval by resolution of each House of Parliament), to revise the Code of Practice so as to distinguish the procedures applicable to a 17 year-old detainee from those applicable to an adult. This application raises the question whether it was lawful for the Secretary of State to refuse to revise the Code so as to prevent a future similar experience to that suffered by this claimant and, so the court was told, by many other 17 year-olds. Parents of 17 year-old detainees have provided evidence in support of this claim. Annex 2 comments on the effect of the intervention of Coram Children's Legal Centre and the Howard League.
Most of the statutory provisions relating to criminal justice draw a line between those who have reached 18 and those under that age. Such provisions treat those under 18 differently from adults. But when those aged 17 are taken into custody by police for questioning, they are treated as adults. This is described as an anomaly by those with the greatest experience of the treatment of detainees, HMI Constabulary, HMI Prisons, HMI Probation, the Care Quality Commission, the Health Care Inspectorate, Wales, and the Care and Social Services Inspectorate, Wales:
"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).
There is a leaden irony in the title to these proceedings. As a 17 year-old, the claimant, under the Civil Procedure Rules ( C.P.R.21.1(2)(b) and 21.2.(2)), required the assistance of his mother or of another adult to challenge Code C which denied him the unqualified right to the assistance of his mother.
The Facts
Some further details of the facts are important. This is not so much because the second defendant's conduct at Battersea Police Station is impugned, but because the details illustrate the consequences of treating this 17 year-old as an adult in police detention. The claimant was living with his grandmother during the week, while he attended a Sixth Form College. At about 3.55 p.m. on 19 April 2012 he was handcuffed, cautioned and arrested after, as the custody record shows, having been identified as matching the description of one of two males involved in a knifepoint robbery where an "iPhone" was stolen. He arrived nearly an hour later at 4.40 p.m. at Battersea police station and the custody record was opened at 5.13 p.m. He gave the address of his grandmother at 5.28 p.m. and was described on arrival as "cooperative". At 5.35 p.m., during a risk assessment, when asked how he was feeling, he said "like I want to go home". The claimant, who, I repeat, had never been arrested, still less been in custody before, had his rights read to him:-
"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."
The skeleton argument of the second defendant says that the claimant's rights were explained to him. In the absence of evidence, the court does not know precisely what explanation was given but reading those rights to this appellant would hardly constitute explanation. The record shows, by means of a tick, that he did not request a solicitor and that when reminded of his right to speak to a solicitor, declined for a second time. It is of significance that the record notes that no reason was given for not wanting legal advice. He now says that he did not appreciate that the solicitor would be independent from the police. Whatever his reasons, there was no independent person in the police station to recommend that he should obtain the services of a solicitor.
The record shows that the claimant did want a "nominated person" informed. That was his mother, whose telephone number was given. But he was not allowed to tell his mother and his mother was not informed. An inspector authorised delay in making a telephone call to his mother:-
"…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.
At 6.08 p.m., that is, one and a half hours after he had been brought to the police station and over two hours since his arrest, the inspector authorised the search of the address he had given, the address, be it noted, of his grandmother, although the evidence does not reveal whether the claimant had tried to explain that his mother did not live there because he only stayed with his grandmother during the week. The search was to be for the "iPhone" or evidence of some other offences. In the entry authorising a search it was recorded that evidence was sought for anything that "might constitute evidence of a money-laundering offence such as unexplained income or assets not commensurate with an individual's circumstances".
The detention dragged on pending a search of the grandmother's home. The claimant was visited in his cell just over one hour later, at 7.12 p.m., and an hour after that, and said he was "OK".
At 8.03 p.m. his grandmother's home was searched. The records show that the search lasted seven minutes and finished at 8.10 p.m. His grandmother was there when four police officers searched. It appears nothing of interest was found, not even any assets not commensurate with an individual's circumstances indicating involvement in money-laundering. By 8.30 p.m., 20 minutes after the negative search, this claimant's mother had learnt what had happened. The note records that, when she rang the police station, she demanded to know what was going on. She was told that her son was in the police station and was "OK". She wanted to know why he had not been allowed to make a call telling her what was happening. The officer explained that:-
"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...
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