At present, the autonomous nature of European Law continues to have implications for settled domestic legislation. Recently one such matter, Archer, came before Mr Justice Chamberlain in the Queen's Bench Division in which s38 (1) (b) (ii) of Police and Criminal Evidence Act 1981 ("PACE") was alleged to be incompatible with Article 5 of the ECHR.
Section 38 power
S38 (1) (b) (ii) provides a jurisdiction for a Police Custody Officer to permit the detention of a juvenile if the officer has reasonable grounds to believe the detention is in the juvenile's best interests. This is both an objective and subjective test, subjective in analysing the grounds for detention and objective in assessing the reasonability of those grounds. This provides a safeguard against arbitrary detention.
Often, minors who find themselves in police custody are vulnerable in that they have either committed an offence or have been involved in the commission of an offence. Wherever possible, a juvenile's involvement in crime, either as perpetrator or victim ought to be prevented. This contention underlines the power enshrined by s38 (1) (b) (ii) to detain a minor in their own interest, especially when they may unwilling/unable to do so themselves.
Article 5 provides protection for the unlawful deprivation of liberty. No person's liberty, adult or juvenile shall be denied, save in permitted circumstances. Minors are referenced specifically in Article 5 as a minor may be detained for the purposes of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority. However, this provision did not loom large in the analysis of the Court.
Any of the excepted provisions within Article 5 are subject to qualification; detainees must be promptly assessed by the Court to safeguard against arbitrary detention or arrest. The reason for detention i.e. risks to self or others must continue long enough for the detainee to be brought before the Court. If the case for detention is subject to revision so must be the grounds for that detention. There must be mechanisms in place to ensure prompt release if cause cannot be shown.
In Archer, the Claimant was involved in a local gang incident in which he suffered serious injuries. The Claimant was arrested and charged with a number of offences due to his involvement in the incident and thereafter, was remanded in custody for his own safety. The concomitant issues associated with gang-violence featured heavily in the Court's careful analysis. The Court focussed on Article 5 (1) (c) which provides that liberty may be restricted if following charge it is reasonably considered necessary to prevent the commission of an offence or fleeing after having done so. This was assessed in addition to detention for reasons associated with protecting the detainee either from reprisals or their own actions.
The charges against the Claimant were eventually dropped on the date of trial.
The Queen's Bench Division decided that the Claimant's continued detention under s 38 (1) (b) (ii) gave effect to the spirit of Article 5 in that;
a. it was not arbitrary,
b. There was a reasonable suspicion of the Claimant having committed an offence;
c. There was a real risk of future harm to the Claimant or others (preventive detention);
d. It was reasonably necessary to prevent further crime or to prevent the Claimant fleeing and such cause continued throughout;
e. The detention was undertaken with a view to bringing the Claimant before a competent legal authority to consider grounds for arrest or continued detention;
However, the Judgment emphasises that inertia on behalf of the detaining authorities may lead to a breach of Article 5 if the spirit of Article 5 does not inform the reason for detention.
Preventive detention in the interest of the detainee must be exceptional and well founded in the context of the offence charged, the characteristics of the detainee and those who may seek to exact reprisals. Although preventive detention under s38 (1) (b) (ii) is not incompatible with Article 5 and in this case the Police successfully defended the Claim, the power should be used exceptionally and in harmony with well-founded grounds.
Lesser used aspects of UK legislation tend not to have endured the same level of scrutiny through the ECHR aperture and as such, are more prone to challenge. The Custody Officer in this matter was vindicated in their reasoning for detention. However, this case highlights that preventive detention of a juvenile should be exceptional.
Author: Andrew Holland and Rose Silvester.