Rochaun Archer v The Commissioner of Police of the Metropolis

JurisdictionEngland & Wales
JudgeDame Victoria Sharp P.
Judgment Date12 November 2021
Neutral Citation[2021] EWCA Civ 1662
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: A2/2020/1171
Between:
Rochaun Archer
Appellant
and
The Commissioner of Police of the Metropolis
Respondent

and

Liberty Just for Kids Law
Interveners

[2021] EWCA Civ 1662

Before:

PRESIDENT OF THE QUEEN'S BENCH DIVISION

Lord Justice Holroyde

and

Lady Justice Carr

Case No: A2/2020/1171

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT

QUEEN'S BENCH DIVISION

Mr Justice Chamberlain

QB-2019-004216

Royal Courts of Justice

Strand, London, WC2A 2LL

Richard Hermer QC and Tim James-Matthews (instructed by Bhatt Murphy Solicitors) for the Appellant

Andrew Warnock QC and Adam Clemens (instructed by Weightmans LLP) for the Respondent

Caoilfhionn Gallagher QC and Donnchadh Greene (instructed by Liberty and Just for Kids Law) for the Interveners

Hearing dates: 11 & 12 May 2021

Approved Judgment

Dame Victoria Sharp P.

Introduction

1

This appeal concerns the lawfulness of the police detention of a juvenile for his own protection or in his own interests under section 38 (s. 38) of the Police and Criminal Evidence Act 1984 (PACE). The appellant contends that the provisions in s.38 entitling a custody officer to decline to order a person's release from police detention for such reasons are incompatible with Article 5 of the European Convention of Human Rights (Article 5) (the Convention).

2

In a judgment dated 17 June 2020, Chamberlain J (the Judge) concluded that the continued detention of a person held on suspicion of having committed an offence under s. 38 is in principle capable of being justified under Article 5 on the basis that it is necessary for his or her own protection and further, that the appellant's detention was lawful on the facts. The appellant challenges both conclusions.

3

The appellant's central argument of principle is that Article 5(1)(c) precludes any detention of a person for his own protection. The consequences would be that s. 38(1)(a)(vi) and, in so far as it authorises detention for the detainee's own protection, s. 38(1)(b)(ii) would be incompatible with Article 5. Since Article 5(1) makes no distinction between detention by the police and detention by the courts, detention on the “own protection” grounds in paragraph 3 of Parts 1 and II of Schedule 1 to the Bail Act 1976 would likewise be incompatible with Article 5. 1

4

This is the judgment of the court, for which purpose it has had the benefit of submissions from Mr Hermer QC and Mr James-Matthews for the appellant, Mr Warnock QC and Mr Clemens for the respondent, and Ms Gallagher QC and Mr Greene for the interveners, Liberty and Just for Kids Law (the Interveners).

The Facts

5

On 17 February 2012 the appellant, then aged 15 years, was the subject of a violent attack in a takeaway restaurant known as “Sam's Chicken” in Woolwich. He and two of his friends were confronted by a group of four male youths. One of those youths struck the appellant to the head and stabbed him to his back and head. The appellant received hospital treatment for his injuries.

6

At 6.50am on 22 February 2012 the appellant was arrested at home in relation to this incident on suspicion of violent disorder contrary to s. 2(1) and (5) of the Public Order Act 1986 and possession of an offensive weapon contrary to s. 1(1) of the Prevention of Crime Act 1953. He was conveyed to Plumstead Police station and placed in a cell at around 7.25a.m. The reasons for his detention were recorded as follows:

“To obtain evidence by questioning, To secure or preserve evidence”

He was to be (and was) observed at least every 30 minutes. His mother attended the police station as the appellant's appropriate adult. He saw his solicitor in consultation

at approximately 11.05am. At approximately 11.20am an inspector's review was carried out and “continued detention…authorised as there are reasonable grounds to believe that it is necessary in order [t]o obtain evidence by questioning”. The inspector recorded that he was “happy that this is being dealt with expeditiously”
7

The appellant was interviewed in the presence of his mother and solicitor between approximately 11.40am and noon. He relied on a prepared statement identifying that he was the victim in the attack. He went on to say:

“…I thought [one of the four male youths] may have a gun. I did take the knife from my friend only to scare the boys so that they would go away.”

He stated that he did not want to be shot or have any further assaults on him. Everything he did he believed to be reasonable in the circumstances. He then made no comment in answer to questions.

8

Post-interview he was returned to his cell. Observations at least every 30 minutes continued. The appellant appeared alert and moving normally or asleep. He refused a meal at around 1.30pm but accepted food and drink at approximately 6.45pm.

9

The appellant was then charged at 7.45pm. The detention log contains the following entry by Police Sergeant Smith at 7.53pm:

“Bail refused — Detained Person Informed

Detained to appear at Bexley youth Court on 23/2/12

Charged.

Bail refused.

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 [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.

BAIL REFUSED.”

10

A further entry by Police Sergeant Smith at 7.54pm reads similarly:

“Custody Officer Review — Initial Review After Charge/Change in Circumstances

Review — Conducted at 1953

Reminded of right to free legal advice

Detention after charge authorised as I have reasonable grounds to believe that detention is necessary because 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 detained person is a juvenile and it is believed that they ought to be detained in their own interests..

The grounds are Dp 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.

BAIL REFUSED.”

It was then recorded that the appellant's next court appearance would be at 9.30am the following day.

11

The appellant continued to be monitored throughout the night. He appeared to sleep on and off until approximately midnight after which he was asleep until approximately 8am the next day. A custody officer review was carried out at 4.30am. Further detention was authorised for the same reasons as before.

12

The appellant was duly taken to Bexley Youth Court in the morning of 23 February 2012. He was remanded into custody (for reasons which can no longer be confirmed due to the loss of the court log). He was detained at Medway Secure Training Centre until 30 March 2012 when he was granted bail by the Crown Court at Croydon on condition that he reside with his aunt in North London and be subject to an electronically monitored curfew.

13

It was the appellant's position throughout that he was the victim of targeted, unprovoked violence from a criminal gang known as the “Deptford Boys”. He had been subject to a number of violent attacks, often involving knives, prior to this incident as a result of having previously co-operated with the prosecution of and given evidence against a violent associate of the “Deptford Boys”.

14

The proceedings against the appellant were discontinued on the day of trial (on 13 April 2012). Two of his assailants were subsequently convicted and sentenced to 18 months' imprisonment (or detention).

15

On 18 April 2012 DC Wylie of the Violent and Organised Crime Unit for Greenwich Police wrote a strong letter in support of the re-housing of the appellant outside the Royal Borough of Greenwich where the appellant currently lived. He detailed the appellant's association with an active street gang known as the “Cherry Boys” and that gang's long-standing rivalries with two other street gangs, namely “T Block” and the “Deptford Boys”. Both those gangs attended the area where the appellant lived with his mother and he would be considered a target for them to attack. Of greater concern was the number of occasions over a period of 18 months on which the appellant had been targeted personally and attacked with knives. DC Wylie commented that the incident on 17 February 2012 could “easily have proved fatal”. DC Wylie concluded his letter by stating:

“I consider that if [the appellant] continues to reside within the Royal Borough of Greenwich he will be the victim of further violent assaults. Due to the severity of previous attacks, and the violent offending histories of those who seek to harm [him], I believe that his life is at risk.”

16

The appellant was attacked and hospitalised again on 10 September 2012 and moved out of the Borough three days later.

The history of the claim

17

The claim has a convoluted history. Proceedings were issued in May 2012 in the Central London County Court against the respondent and the Crown Prosecution Service (the CPS). Time for service of Particulars of Claim was extended whilst the appellant's police claim was investigated. Particulars of Claim were then served in May 2013. The claim as originally pleaded was for personal injury, aggravated and exemplary damages for false...

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