Rochaun Archer v The Commissioner of Police of the Metropolis
| Jurisdiction | England & Wales |
| Judge | Mr Justice Chamberlain |
| Judgment Date | 17 June 2020 |
| Neutral Citation | [2020] EWHC 1567 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: QB-2019-004216 |
| Date | 17 June 2020 |
[2020] EWHC 1567 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Chamberlain
Case No: QB-2019-004216
Richard Hermer QC & Tim James-Matthews (instructed by Bhatt Murphy Solicitors) for the Claimant
Adam Clemens (instructed by Weightmans LLP) for the Defendant
Hearing dates: 04 June 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
The matters now in dispute in this claim raise two sets of issues:
(a) Is s. 38(1)(b)(ii) of the Police and Criminal Evidence Act 1984 (“PACE”) incompatible with Article 5 of the European Convention on Human Rights (“ECHR”) insofar as it purports to authorise the detention of minors in their own interest? If so, should a declaration of incompatibility under s. 4 of the Human Rights Act 1998 (“ HRA”) be made?
(b) Was the Claimant's detention overnight from 22–23 February 2012 contrary to Article 5 ECHR and therefore unlawful? If so, how much (if anything) should he be awarded in damages under s. 8 of the HRA?
Background
On 17 February 2012, the Claimant was 15 years old. He and two friends were involved in an incident at a chicken shop in Woolwich. He was struck on the head and stabbed to his back and head by persons he described as members of a local gang, the Deptford Boys. He received treatment at King's College Hospital. At 6.50 am on 22 February 2012, the Claimant was arrested at his home in Charlton on suspicion of violent disorder and possession of an offensive weapon. He was taken to Plumstead Police Station, where he was placed in a cell at 7.25 am. Various investigations were made during the course of the day and at 7.45 pm the Claimant was charged with the two offences for which he had been arrested.
At 7.53 pm, the custody officer, Sergeant Peter Smith, refused bail. The custody record reads as follows:
“Reason(s) for refusing bail are that it is believed necessary to further detain the person for their own protection, that the detained person has been arrested for a non-imprisonable offence and it is believed necessary to further detain to prevent physical injury to another person, that the detained person has been arrested for an imprisonable offence and it is believed necessary to further detain in order to prevent the commission of a further offence.
The grounds are Dp [sc. detained person] has been involved in a ‘gang’ related fight where he has sustained injuries that required hospital treatment. It is feared that if released on bail there will be repercussions where he may sustain further injuries or inflict violence upon his original intended victims.”
At §2 of his witness statement of 17 October 2018, Sgt Smith said that he had “no recollection of Mr Archer or his detention”, but that in making the statement he had referred to the custody record, which he paraphrased in his statement. In a second witness statement dated 10 April 2019, Sgt Smith said this:
“4…There was a real problem with gang violence and knife crime in the Borough at that time and his detention in secure police custody was necessary for his own protection and to prevent further offences.
5. I did not like keeping youngsters in custody but sometimes there were no other options in the circumstances. In Mr Archer's case there was no viable alternative. He could not be put in local authority care because at that time the local authority did not have secure facilities. It was not appropriate in the circumstances to release him to the care of his parents because it was self-evident that they were unable to control him…”
On the morning of 23 February 2012, the morning after his arrest, the Claimant was taken to Bexley Youth Court, where he was remanded in custody. I was informed by the parties that the Youth Court's records are no longer available, so the basis for the remand is not known. He was thereafter detained at Medway Secure Training Centre until 30 March 2012, when he was granted bail by the Crown Court, subject to a condition that he reside with his aunt in North London and to an electronically monitored curfew. The case was set down for trial on 13 April 2012. On that day, however, it was discontinued. The case against the Claimant's assailants did proceed. Two of them were convicted and sentenced to 18 months' imprisonment.
The Claimant's claim was issued in the Central London County Court against the Commissioner of Police of the Metropolis (“the Commissioner”) and the Crown Prosecution Service (“the CPS”). The claim against the CPS was discontinued in October 2018. On 4 November 2019, permission was granted to claim a declaration of incompatibility under s. 4 of the Human Rights Act 1998 in respect of s. 38(1)(b)(ii) of PACE, as well as a declaration that the Claimant's detention by the police on 22–23 February 2012, for about 13 hours, violated his Article 5 rights, and compensation for the breach pursuant to Article 5(5) ECHR. The claim was transferred to the High Court.
In light of the newly pleaded claim for a declaration of incompatibility, the claim was notified to the Secretary of State for the Home Department pursuant to CPR r. 19.4A. On 11 February 2020, however, the Government Legal Department indicated in an email that she did not wish to be joined.
On 9 March 2020, by consent, Stewart J ordered that the claim be set down for hearing on the basis that the dispute about whether s. 38(1)(b)(ii) of PACE is incompatible with Convention rights “can be determined without the requirement for live evidence”.
The hearing
In advance of the hearing, I invited counsel for both parties to consider two authorities not referred to in their skeleton arguments: the decision of the European Court of Human Rights (“the Strasbourg Court”) in IA v France (1/1998/904/1116), 23 September 1998; and the Law Commission's 2001 report, Bail and the Human Rights Act 1998 (Law Com No. 269). Counsel for both parties were able to consider these and address them in their submissions at the hearing, which took place using remote video-conferencing. I invited supplemental written submissions on four further points: whether a refusal of bail under s. 38(1)(b)(ii) would be incompatible with Article 5 in “all or nearly all cases” (so as to satisfy the test for a declaration of incompatibility in R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department [2020] EWCA Civ 542, [117]–[118]; whether it was a logical consequence of the Claimant's argument that para. 3 of Parts I and II of Schedule 1 to the Bail Act 1976 would also be incompatible with Article 5; whether damages would be available under s. 8 of the HRA in the event that s. 38(1)(b)(ii) was incompatible with Convention rights; the effect, if any, of the decision of the Grand Chamber of the Strasbourg Court in Buzadji v Moldova (2016) 42 BHRC 398. I was greatly assisted by prompt and comprehensive written submissions on behalf of both parties on all these matters.
Submissions at and after the hearing helped to narrow down the area of dispute. In the Defence and in his skeleton argument, Mr Adam Clemens for the Commissioner had relied on Article 5(1)(b), (c) and (d) ECHR. In oral argument, however, he concentrated almost exclusively on Article 5(1)(c). I have done the same. I should explain briefly why Article 5(1)(b) and (d) did not loom large in the argument.
In correspondence prior to the hearing, the Commissioner had suggested that the detention could be justified under Article 5(1)(b) as effected “in order to secure the fulfilment of any obligation prescribed by law”, the obligation in question being the obligation of the police “to protect minors in their lawful custody”. That was always a circular argument. In any event, however, Mr Clemens sensibly accepted that the decision of Leggatt J in Serdar Mohammed v Ministry of Defence [2014] EWHC 1369 (QB), [311]–[313], was authority for the proposition that the phrase “obligation prescribed by law” in Article 5(1)(b) referred to an obligation of the detained person, not the detaining authority. So, even if the police had a legal obligation to protect the Claimant, it could not justify his detention under Article 5(1)(b). Mr Clemens did submit that, insofar as the detention was based on the need to prevent the Claimant from committing further offences, it could be justified as effected to secure the fulfilment of his obligation not to commit those offences. I doubt whether the obligation not to commit further offences (even specifically contemplated ones) could qualify as an “obligation prescribed by law” for the purposes of Article 5(1)(b), but even if it does, Article 5(1)(b) would add nothing, because it is common ground that detention in order to prevent a person from committing further offences is in principle permitted under Article 5(1)(c).
As to Article 5(1)(d), the Claimant's detention overnight in a police cell was plainly not “for the purpose of educational supervision”. If it was “lawful detention [of a minor] for the purpose of bringing him before the competent legal authority”, then – since it is accepted that he was reasonably suspected of having committed an offence – Article 5(1)(d) adds nothing to Article 5(1)(c).
The statutory scheme for the detention of arrested persons
The powers of the police to detain a person arrested for an offence are conferred by Part IV of PACE. This has been subject to amendments since the date of the Claimant's detention, but the amendments are not material. Part IV begins with s. 34(1): “A person arrested for an...
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