Custody officer’s power to deny bail after charge on ‘own interest’ or ‘own protection’ grounds preserved

R Archer v The Commissioner of Police of the Metropolis Interveners: Liberty & Just for Kids Law [2021] EWCA Civ 1662

Summary

Detention for one’s ‘own interests’ or ‘own protection’ under section 38(1)(a)(vi) and (b)(ii) of the Police and Criminal Evidence Act 1984 (PACE) is not incompatible with Article 5 of the European Convention on Human Rights, provided that certain procedural safeguards are met.

Background

The claimant appealed the judgment of the High Court (Chamberlain J) [2020] EWHC 1567 (QB) on 3 grounds.

The claimant, then 15, was arrested for violent disorder and possession of an offensive weapon. He had been involved in a violent altercation with a gang during which he was stabbed. He had previously been the victim of gang violence and was, at first, believed to be the victim in this incident. However, having viewed CCTV footage, officers formed the view that the claimant was a protagonist. He was arrested, detained, and charged. Bail was refused on the basis that continued detention was necessary for the claimant’s own interests pursuant to section 38(1)(b)(ii) of PACE. Section 38(1)(a)(vi) of the Police and Criminal Evidence Act 1984 (PACE) permits refusal of bail of adults on ‘own protection’ grounds where a custody officer has reasonable grounds for believing that detention is necessary for that purpose. There are similar provisions available to the court under the Bail Act 1976.

The custody sergeant’s entry on the custody record rooted the refusal to the circumstances of the claimant’s arrest. The custody sergeant was concerned that, if released, the claimant might be subjected to an attack or commit a revenge attack. The following day the claimant was presented to the Youth Court where bail was refused by the court. The parties were unable to identify the basis on which the Youth Court came to that conclusion but it is known that the claimant was eventually released on bail with conditions. The prosecution against the claimant was discontinued on the day of the trial.

Although initially intimated, there was no challenge to the lawfulness of the arrest or detention up to charge. The claimant deliberately confined his case to an Article 5 incompatibility argument and so the dispute between the parties at first instance was narrow; is section 38(1)(b)(ii) of PACE compatible with Article 5, the right to liberty? Was the claimant’s detention overnight contrary to Article 5? The claimant sought to argue that neither ‘own protection’ or ‘own interests’ appeared in the permitted exceptions in Article 5 and so, on the claimant’s case, these could not justify detention. The claim was dismissed by Chamberlain J in the High Court. Detention for ‘own interests’ or ‘own protection’ under section 38(1)(a)(vi) and (b)(ii) of PACE was not automatically incompatible with Article 5. It was acknowledged that the exceptions in Article 5(a)-(f) were to be narrowly construed but that should not prevent detention considered to be in the detainee’s ‘own interests’ or for their ‘own protection’ when the additional purpose of detention was to bring a detainee to court (Article 5(1)(c)). The claimant appealed. The crux of the claimant’s appeal was that Chamberlain J gave an overly expansive interpretation to the words “effected for a purpose of bringing him before a competent legal authority” in Article 5(1)(c). The interveners supported the claimant on this point. The claimant also sought to argue, in the alternative, that Chamberlain J was wrong, on the evidence before him, to determine that the claimant’s post-charge detention was necessary on ‘own protection’ or ‘own interest’ grounds.

The decision

The appeal was dismissed. The court concluded that reading Articles 5(1)(c) and Article 5(3) together, a person can be detained for a period between their initial arrest and production at court for their own protection, provided detention is in accordance with a procedure prescribed by law (and therefore not arbitrary) and the person is brought before the court promptly. Detention for own protection will only be permissible for a short period of time, in exceptional circumstances relevant to the offence, the conditions in which it was committed and the context it took place and only if there were no other reasonable alternatives to detention to provide protection.

Where there is a reasonable suspicion of a person having committed an offence, detention on own protection or own interest grounds is not inherently contrary to Article 5. Detention under section 38 (1)(a)(vi) (detention of adults for own protection) is not incompatible with Article 5. In the case of a juvenile, pre-trial detention should only be used as a last resort (1), it should be as short as possible (2) and where detention is necessary, (3) children should be kept apart from adults. Detention of a juvenile under section 38 (1)(b)(i) is not incompatible with Article 5.

The ‘own protection’ rationale for detention was recorded on the custody record which was rooted to the offences and the circumstances upon which they arose. The court endorsed the approach of Chamberlain J to the extent that it was agreed that the nature of the offences, the context and conditions in which they were committed exceptionally justified the detention. It was also agreed that Chamberlain J was right to conclude that there were no reasonably viable alternatives to detention. It was noted that Chamberlain J should have taken into account the second witness statement of PS Smith (a point raised in the respondent’s notice). Chamberlain J said he placed no weight on it because of the custody sergeant’s lack of recollection of the claimant or his detention. However, in his second witness statement, the custody sergeant did recollect the lack of secure accommodation of juveniles generally based on his experience as a custody officer in that area at the time. Detention was justified.

Commentary

This decision preserves a custody sergeant’s ability to refuse bail for a detainee’s ‘own protection’ or ‘own interests’ in the appropriate circumstances. Refusal on these grounds must be recorded in full on the custody record and be rooted to the offence and the circumstances upon which it arose. Detention after charge, particularly in the case of juveniles, should be a measure of last resort with all alternatives having been considered.