R (W) v Commissioner of Police of the Metropolis and the LondonBorough of Richmond-upon-Thames
| Jurisdiction | England & Wales |
| Judgment Date | 11 May 2006 |
| Date | 11 May 2006 |
| Court | Court of Appeal (Civil Division) |
: Sir Igor Judge, President of the QBD, May and Wall LJJ
Appearances: J Herberg and V Windle (instructed by Liberty) for W; S Grodzinski (instructed by Directorate of Legal Services, Metropolitan Police and Legal Services, Richmond LBC) for the Commissioner and the Borough; T Otty (instructed by the Treasury Solicitor) for the Home Secretary
: Whether s. 30(6) of the Anti-Social Behaviour Act 2003 confers a power to use force in removing a young person to his place of residence
: Section 30 of the Anti-Social Behaviour Act 2003 allows a relevant officer to give an authorisation for the exercise of powers to disperse young persons, and s. 30(6) allows officers, where an authorisation is in force and subject to certain conditions, to remove a young person to their home. The Commissioner, with the consent of the London Borough of Richmond, granted an authority to remove persons under the age of 16 from dispersal areas in Richmond Town Centre and Ashburnham Road, Ham.
W lives with his parents in Ashburnham Road. He visited shops in Richmond with a school friend on 22 June 2004. W confronted a Community Support Officer who had been watching him. According to W the CSO explained to them that they were in a dispersal area and that he thought they had been acting suspiciously. He gave them a piece of paper which contained a map of the dispersal area, and told them about the effect of the police's powers under s. 30. After this experience W did not feel he could be out in Richmond Town Centre any more in the evenings without his parents: he could not even meet his friends or go to the cinema or shopping or take a bus home after band practice because he might be picked up by a policeman or a CSO.
W sought judicial review of the authorisations. During pre-action exchanges the Commissioner's Director of Legal Services asserted that s. 30(6) conferred on the police the power to use reasonable force when removing a young person under the age of 16 to his place of residence. The Secretary of State argued that the language of s. 30(6) of the 2003 Act had been borrowed from s. 46 of the Children Act 1989(removal of children in cases of emergency); in the latter case there was plainly an implied power to use force and so too should there be in the former case. The Divisional Court granted a declaration that s. 30(6) of the Act does not confer on a constable in uniform or a police community support officer any power to use force in removing a person to his place of residence: [2005] Police Law Reports 202. The Commissioner and the Borough appealed.
1. This is a judgment of the Court.
2. There has been much concern in recent years about anti-social behaviour. Part 1 of the Crime and Disorder Act 1998enables a relevant authority, including a local government council and a chief officer of police, to apply to a court for an anti-social behaviour order prohibiting a person aged 10 or over from doing anything described in the order. Breach of such an order is an offence and the offender is liable to imprisonment or a fine. The present appeal concerns Part 4 of the Anti-social Behaviour Act 2003, which provides for dispersal of groups.
The legislation
3. Section 30 of the 2003 Act provides:
"Dispersal of groups and removal of persons under 16 to their place of residence"
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(1) This section applies where a relevant officer has reasonable grounds for believing
(a) that any members of the public have been intimidated, harassed, alarmed or distressed as a result of the presence of behaviour of groups of 2 or more persons in public places in any locality in his police area (the "relevant locality"), and
(b) that anti-social behaviour is a significant and persistent problem in the relevant locality.
(2) The relevant officer may give an authorisation that the powers conferred on a constable in uniform by subss(3) to (6) are to be exercisable for a period specified in the authorisation which does not exceed 6 months.
(3) Subsection (4) applies if a constable in uniform has reasonable grounds for believing that the presence or behaviour of a group of 2 or more persons in any public place in the relevant locality has resulted, or is likely to result, in any members of the public being intimidated, harassed, alarmed or distressed.
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(4) The constable may give one or more of the following directions, namely-
(a) a direction requiring the persons in the group to disperse (either immediately or by such time as he may specify and in such way as he may specify),
(b) a direction requiring any of those persons whose place of residence is not within the relevant locality to leave the relevant locality or any part of the relevant locality (either immediately or by such time as he may specify and in such way as he may specify), and
(c) a direction prohibiting any of those persons whose place of residence is not within the relevant locality from returning to the relevant locality or any part of the relevant locality for such period (not exceeding 24 hours) from the giving of the direction as he may specify;
but this subsection is subject to subs(5).
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(5) A direction under subs(4) may not be given in respect of a group of persons-
(a) who are engaged in conduct which is lawful under s. 220 of the Trade Union and Labour Relations (Consolidation) Act 1992, or
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(b) who are taking part in a public procession of the kind mentioned in s. 11(1) of the Public Order Act 1986 in respect of which-
(i) written notice has been given in accordance with s. 11 of that Act, or
(ii) such notice is not required to be given as provided by subss(1) and (2) of that section.
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(6) If, between the hours of 9pm and 6am, a constable in uniform finds a person in any public place in the relevant locality who he has reasonable grounds for believing-
(a) is under the age of 16, and
(b) is not under the effective control of a parent or a responsible person aged 18 or over,
he may remove the person to the person's place of residence unless he has reasonable grounds for believing that the person would, if removed to that place, be likely to suffer significant harm."
4. Section 36 defines "anti-social behaviour" as:
"… behaviour by a person which causes or is likely to cause harassment, alarm or distress to one or more other persons not of the same household as the person."
It defines "public place" as:
"(a) any highway, and
(b) any place to which at the material time the public or any section of the public has access, on payment or otherwise, as of right or by virtue of express or implied permission."
This would, so it seems, include cinemas, restaurants, coffee bars and public houses. It defines "relevant officer" as "a police officer of or above the rank of superintendent".
5. Section 30 of the 2003 Act thus enables a senior police officer to delineate an area in which there has been significant and persistent anti-social behaviour. The officer may then authorise uniformed constables for a period not exceeding 6 months to give dispersal directions to groups of persons whose public presence or behaviour in the delineated area has resulted, or is likely to result, in members of the public being intimidated, harassed, alarmed or distressed. A person who knowingly contravenes a direction given to him under s. 30(4) commits an offence and is liable on summary conviction to a fine or imprisonment (s32(2)). An authorisation may not be given without the consent of the local authority for the relevant area (s31(2)). Publicity must be given to the authorisation before the beginning of its operative period (s31(3), (4) and (5)). Designated community support officers have power to exercise the powers conferred on a uniformed constable by s. 30(3) to (6) (s33, amending the Police Reform Act 2002). When the power in s. 30(6) to remove a person under the age of 16 is exercised, the relevant local authority must be notified (s32(4)).
6. By s. 34, the Secretary of State may issue a code of practice about authorisations under s. 30 and the exercise of the powers conferred by s. 30(3) to (6). The Secretary of State has not yet done so. If he had, relevant officers and uniformed constables or community support officers would be obliged to have regard to it (s34(4) and (5)). The Home Office issued a circular in January 2004 - Circular 004/2004.
The dispersal areas
7. Richmond-upon-Thames had trouble with widespread anti-social behaviour during 2004. Around the Green and along the Riverside, on weekends in the summer months, large numbers of people would come into the area to drink. On a weekend evening, up to 8,000 people might be drinking along the Riverside. In the area of the town centre, the Green and the Riverside, the police could expect to receive an average of a call a day concerning disturbances in a public place or on licensed premises, excluding reports of crime. On 14 May 2004, Supt Channer duly authorised the exercise of the powers conferred by s. 30(3) to (6) of the 2003 Act in...
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