Detention after charge for one’s own interest or own protection: no infringement of the Article 5 right to liberty
The case of R Archer v The Commissioner of Police of the Metropolis  EWHC 1567 (QB)
Note: The claimant has been granted permission to appeal to the Court of Appeal.
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 automatically incompatible with Article 5 of the European Convention on Human Rights. The exceptions in Article 5(a)-(f) are to be narrowly construed but that should not prevent detention that is considered to be in the detainee’s “own interests” or for their “own protection”.
The claimant, then a minor, was arrested for violent disorder and possession of an offensive weapon. He had been involved in a violent altercation with a gang, “The Deptford Boys”, during which he was stabbed. At this time, he was believed to be the victim of an attack. He had been a victim of gang- related attacks previously.
Officers viewed CCTV footage of the incident. Contrary to initial beliefs officers formed the view that the claimant was a protagonist in the incident. The claimant was arrested and taken to custody where his detention was authorised. He was subsequently charged with violent disorder and possession of an offensive weapon. Bail was refused primarily on the basis that continued detention was necessary for the claimant’s own protection pursuant to section 38(1)(b)(ii) of PACE. The custody sergeant’s entry on the custody record rooted the refusal to the circumstances of the claimant’s arrest.
The following day the claimant was presented to the Youth Court where bail was further refused. 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 released on bail with conditions some weeks later. The prosecution against the claimant was discontinued on the day of the trial.
The dispute between the parties 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 claim was dismissed by Mr Justice Chamberlain who concluded:
- Section 38(1)(a)(vi) and (b)(ii) of PACE are not incompatible with Article 5 of the European Convention on Human Rights insofar as they authorise detention for the detainee’s own protection.
- The claimant’s detention overnight from 22-23 February 2020 was not incompatible with the claimant’s rights under Article 5.
In addressing the available case law and general principles [19 – 24] Mr Justice Chamberlain identified five considerations relevant to the interpretation of Article 5(1)(c) and (3);
- The Convention attaches great importance to liberty and security. The list in Article 5(1) is to be regarded as exhaustive and the categories narrowly interpreted: S v Denmark, Secretary of State v JJ, Austin v Commissioner of the Police of the Metropolis).
- Article 5(1)(c) must be read with 5(3) “with which it forms a whole”. In that way subsection (c) authorises detention of a person on three bases – on reasonable suspicion of having committed an offence, when reasonably considered necessary to prevent commission of an offence or when reasonably considered necessary to prevent his fleeing: Lawless v Ireland No.3, S v Denmark.
- Each of these must be effected for the purpose of bringing the detainee before the competent legal authority but this requirement should be interpreted flexibly: S v Denmark.
- The aim of bringing the detainee to legal authority is either with a view to trial or the examine the legality of detention: Lawless v Ireland No. 3, S v Denmark.
- Detention must be free from arbitrariness and include substantive safeguards (i) relevant and sufficient reasons for detention (ii) that alternative means of securing appearance at trial have been considered (iii) that the period of detention is justified and (iv) that there has been special diligence in the conduct of proceedings: S v Denmark.
- Article 5 should not be interpreted in such a way as to make it impractical for the police to fulfil their duties providing that they comply with the underlying principle of Article 5: Austin, Hicks, S v Denmark.
Mr Justice Chamberlain derived assistance from Budjazi v Moldova which supported the view that a person’s own protection may be sufficient when deciding whether detention is compatible with Article 5(3). If the claimant’s submissions were correct detention could never be effected for any reason other than for those mentioned in Article 5(1); own protection could not be sufficient. The Strasbourg Court has confirmed that they are.
Mr Justice Chamberlain confirmed that his interpretation “..flows from the language used, interpreted in accordance with the Strasbourg and domestic authorities. It is also consistent with the need (recognised by the Strasbourg Court and the domestic courts) to avoid making it impracticable for the police to fulfil their duties of maintaining order and protecting the public” – [47- 48, 24].
Mr Justice Chamberlain went on to examine the circumstances under which “own protection” detention would be permissible under Article 5(1)(c). He concluded that detention would be permissible; (1) for only a short period, (2) in exceptional circumstances, (3) that there should be consideration to alternatives to detention i.e. measures the police can put in place in short of detaining someone at risk – [50-53].
In applying his interpretation and examining the circumstances of the claimant’s detention Mr Justice Chamberlain concluded that the claimant’s detention for his own protection was, in these circumstances, compatible with Article 5. The claimant’s claim failed.
This is a pragmatic decision which preserves a custody sergeant’s power to refuse bail for a detainees own protection or own interests in the appropriate circumstances. The outcome was rooted in the specific facts of the index arrest. Custody sergeants should be alive to their duties under Article 5 and fully consider and record the rationale for any decision to refuse bail for a detainee’s own protection or own interests.
Adam Clemens of 7 Bedford Row represented the Commissioner at trial instructed by Weightmans LLP.
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