Adam Clemens successful in Court of Appeal on the construction of Article 5

In Archer v Commissioner of Police of the Metropolis, Liberty and Just for Kids Law intervening [2021] EWCA Civ 1662, the Court of Appeal upheld Chamberlain J’s judgment ([2020] EWHC 1567 (QB)) that post-charge detention of a juvenile for his own protection under s.38 PACE is not incompatible with Article 5(1)(c) (or 5(3)).  Had there been a declaration of incompatibility, the Bail Act would, similarly, have been incompatible.

The appellant argued for a narrow construction of Article 5, and because “own protection” is not an express ground justifying a deprivation of liberty, that it could never be a permissible basis for detention.  The appellant, who had repeatedly been a victim of gang violence, had been arrested and charged with violent disorder in relation to an attack where he had been stabbed, and hospitalised.

Post-charge, no secure local authority accommodation was available, and the custody officer feared, if released, that the appellant might attempt either to exact revenge, or would be the subject of a further, possibly fatal, attack.

By the time the case came to trial, it had been reformulated and cast only as a challenge based on Article 5 incompatibility.  It was accepted that the appellant’s arrest and detention under s.38 were, of and in themselves, lawful.  His case was not that he should have been held in local authority accommodation, but that he should have been released on police bail.  The fallacy of the appellant’s argument was that it artificially attempted to divorce his interests from the need to bring him before a court.  As stressed by the respondent, the risk of injury to the appellant was inextricably linked with the fundamental reason for his arrest in the first place.

Whilst true that Article 5 does not mention “own protection” as a permissible ground for detention – and whilst there is consistent domestic and Strasbourg jurisprudence that the Article 5 grounds should be construed narrowly and exhaustively – the Court accepted a wider and more expansive interpretation of Article 5.  That recognised (i) an underlying suspicion of the commission of a criminal offence and an intention to bring the appellant before the court and (ii) that being forced to release a detainee (adult or juvenile) at risk would impinge on the overarching duty to prevent crime and prevent injury and would make policing practically difficult if not impossible.

The Court, influenced by International Instruments, held that the detention of a juvenile should only be a matter of exceptional last resort and could only be justified for a short period so as not to offend the principle that Article 5’s primary purpose is to protect against arbitrary detention.  For a wider read on s.38 and local authority provision of secure accommodation (or lack thereof), see also R (on the application of AR (a child)) v Waltham Forest LBC [2021] 7 WLUK 495.

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