Adam Clemens successfully defends The Met’ Commissioner in landmark human rights incompatibility challenge

In Archer v The Commissioner of Police of the Metropolis [2020] EWHC 1567 (QB), the High Court (Chamberlain J) rejected a challenge that the provisions in s.38 of the Police and Criminal Evidence Act 1984 permitting a post-charge denial of bail to a juvenile for his own protection and in his own interests, are incompatible with Article 5.

The claimant, then 15, accepted that his detention, if viewed under s.38 in isolation, was lawful.  Historically, he had been the victim of gang violence in South East London and, days before his arrest for violent disorder (the legality of which was not challenged) he had been stabbed to the head and body in a gang related incident, necessitating hospital treatment.  Post-charge, the custody officer’s primary concern was that, if released, the claimant might be the subject of reprisal attack.  He was produced at the Youth Court the next morning (in compliance with s.46 PACE) where bail was refused.

Section 38(1)(a)(vi), by s.38(1)(b)(i) PACE, permits a denial of bail where a custody officer has reasonable grounds for believing that detention is necessary for a juvenile’s “own protection.”  (The provision applies equally to adults and juveniles.)  Section 38(1)(b)(ii) adds an extra layer of protection for juveniles where detention is necessary in their “own interests.”

The claimant’s submission was stark: that the permitted justifications listed in Article 5 are exhaustive and to be interpreted narrowly.  Neither “own protection” or “own interests” is listed, so cannot ever justify a deprivation of liberty.   If that was the beginning and end of the analysis, the Commissioner had to lose.  Instead, the Judge was persuaded to adopt a more expansive interpretation of Article 5 when not doing so could result in vulnerable juveniles being released when at risk of reprisal attack, when the governing principle should be the avoidance of arbitrary detention, and when a situation should be avoided of making it impracticable for the police to fulfil their duties of maintaining order and protecting the public.

Why is this a landmark case?  In part because the discrete issue has not been considered directly in the Article 5(1) context in Strasbourg, but principally because no domestic court has considered whether a claimed justification not listed in Article 5(1)(a)-(f) can legitimise a deprivation of liberty.  In Austin v The Commissioner of Police of the Metropolis [2009] 1 AC 564 (the Oxford Circus “kettling” case during globalisation protests) neither the Court of Appeal nor the House of Lords needed to decide the issue because they held that Article 5 was not engaged.  Similarly in R(Hicks) v The Commissioner of Police of the Metropolis [2017] AC 256 (preventive detention where breaches of the peace were feared at the royal wedding) the Supreme Court held that Article 5 was not engaged.

The Commissioner’s argument was that, in considering whether there had been an Article 5 breach, it would be illogical not to look at the (non-listed) underlying purpose(s) for the detention when the same considerations – in Austin it was the protection of public order and the interests of public safety – were taken into account to determine whether the Article 5 threshold of deprivation (and not just a restriction on liberty) was reached.

Given Chamberlain J’s findings, it was not necessary for the court to rule on whether parallel provisions under the Bail Act 1976 are similarly incompatible, whether the claimant was entitled to a declaration of incompatibility because of the effect of s.6(2)(b) HRA and whether the claimant would have made good his claim for damages under s.8(3) HRA and Article 5(5).  On damages, the Commissioner’s position was that the claimant would have been detained in any event and that he should receive only nominal damages in accordance with the Lumba principle, as applied in the police context in Parker v Chief Constable of Essex Police [2019] 1 WLR 2238.   Interestingly, Chamberlain J [61] doubted whether, if a declaration of incompatibility had been made, there was jurisdiction to award damages as well.

Chamberlain J has granted the claimant permission to appeal on the bases that the claim raises a question of law of public importance, and because of the lack of domestic authority and a sparsity of relevant Strasbourg authority.

For the moment at least, custody officers can take some reassurance from this case that the s.38 “own protection” and “own interest” criteria will not offend Article 5, but the rationale underpinning those concerns has to be rooted factually in the all the circumstances and, critically, must be recorded fully on the custody record.  Detention should be viewed as a last resort, with other alternatives properly considered.

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