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Public law and Regulation

Case reports and guidance on public law and professional regulation issues

03 JUL 2013

R (on the application of HC) v (1) Secretary of State for the Home Department and (2) Commissioner of Police for the Metropolis [2013] EWHC 982 (Admin); (2013) PLLR 073

Criminal procedure - children - police custody - treatment of 17 year olds as adults - Police and Criminal Evidence Act 1984 - Code C of the Code of Practice - lawfulness of refusal to revise - Article 8 European Convention on Human Rights - United Nations Declaration on the Rights of the Child - section 6 Human Rights Act 1998

The treatment of 17 year olds in police custody in the same way as adults was unlawful.

25 April 2013

Administrative Court

Moses LJ and Kenneth Parker J

(1)        The claimant (HC) was 17 at the time at which he was arrested on suspicion of robbery. He was held in custody for eleven and a half hours. Under the Police and Criminal Evidence Act 1984 and Code C of the Code of Practice containing to that Act he was treated as an adult. This meant that the officer in charge of the investigation was able to delay his contacting anyone to inform them of his arrest, and that his mother, when she discovered what had happened, was unable to speak to him. No charges were brought against HC following his release.

(2)        HC sought judicial review of his detention, arguing that (a) the first defendant (SSHD) was unlawful in her refusal to modify the Code of Practice and that it breached his rights under Article 8 of the European Convention on Human Rights.

(3)        Moses LJ held: That it was clear that children were to be treated differently within the criminal justice system. This could be seen from section 11(1)(h) of the Children Act 2004, which required the police to discharge their functions whilst having regard to the need to safeguard and promote children's welfare. That Act defined a child as a person under 18 years of age (section 65(1)). Numerous other enactments ensure different treatment for those under 18 within the criminal justice system. Treating a 17 year old in detention as an adult was inconsistent with the United Nations Declaration on the Rights of the Child, and a number of international texts made a similar point. Both domestic comment and case law recognised the special position of the child in the criminal justice system [30] - [31], [36] - [38], [46] - [63].

(4)        Although the need to include 17 year olds within the scope of those afforded special protection in custody was almost unanswerable, it was difficult to say that SSHD's discretion to refuse to amend the Code of Practice was irrational. Parliament had chosen not to distinguish between 17 year olds and adult.

(5)        It was difficult to imagine a case which would more strikingly engage the Article 8 rights of both HC and his mother. Article 8 had to be interpreted against a background of general principles of international law (ZH (Tanaznia) v Secretary of State for the Home Department) [2011] 2 AC 166 and R (R) v Durham Constabulary [2005] UKHL 21 followed). An interpretation which reflected the United Nation Conventions on the Rights of the Child meant that a 17 year old must be treated as a child whose interests must be the primary consideration. To give a 17 year old only those protections afforded to an adult was not consistent with this interpretation of Article 8. The arguments put forward by SSHD to try to demonstrate that HC's treatment as an adult was proportionate failed as they presumed that a 17 year old did not require any further protection. It did not take into account the need to take HC's best interests into consideration. SSHD's failure to amend the Code of Practice was a breach of her obligation under section 6 of the Human Rights Act 1998.

(6)        Although there was no need to decide whether Article 6 was engaged, at the time at which he was detained it was still possible that HC could be charged with a criminal offence. The early stages of contact between a detainee and the police are an important part of the preparatory process. Article 6 envisages its obligation to inform a detainee of the accusation being carried out an early stage of detention. The goal of the justice system in relation to young people should be prevention and diversion. Refusing to allow contact reinforced the detainee's vulnerability.

(7)        The second defendant (CPM) was not at fault for having followed the Code of Practice. No separate relief was to be granted against CPM.

Application granted

Key paragraphs

[1] - [5] - Introduction

[6] - [12] - The facts

[13] - [21] - The statutory scheme

[22] - [29] - Code C

[30] - [37] - Treatment of a 17 year old

[38] - [50] - International law and the child

[51] - [64] - Domestic opinions and jurisprudence as to the need for special protection for 17 year olds in custody

[65] - [74] - The Secretary of State's reasons

[75] - [77] - Conclusions as to rationality

[78] - [89] - Article 8

[90] - [94] - Article 6

[95] - [97] - The second defendant

[98] - [99] - Conclusion and remedy

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