PACE 1984 Section 38 Detention for Juvenile Protection Compatible with ECHR Article 5 – Archer v Commissioner of Police of the Metropolis

Introduction

The case of Archer v The Commissioner of Police of the Metropolis ([2021] EWCA Civ 1662) adjudicated by the England and Wales Court of Appeal (Civil Division) on November 12, 2021, delves into the legality of police detention of a juvenile for his own protection under section 38 of the Police and Criminal Evidence Act 1984 (PACE). The appellant challenged the provisions in section 38, arguing their incompatibility with Article 5 of the European Convention on Human Rights (ECHR), which safeguards the right to liberty and security.

At the heart of the appeal was whether the police's authority to detain a juvenile based solely on concerns for the individual's protection aligns with the stringent requirements of Article 5, which enumerates specific circumstances under which liberty can be lawfully restricted.

Summary of the Judgment

Chamberlain J, in the initial judgment dated June 17, 2020, concluded that the continued detention of the appellant, under suspension due to suspicion of violent disorder and possession of an offensive weapon, was lawful and compatible with Article 5. The appellant asserted that detention for his own protection was incompatible with Article 5(1)(c), which the court had to evaluate in light of both domestic legislation and ECHR obligations.

The Court of Appeal upheld the original judgment, determining that detention under PACE section 38 for a juvenile’s own protection can be justified under Article 5(1)(c) provided certain conditions are met. These conditions include the detention being for a short period, existing under exceptional circumstances related to the offense's nature and context, and there being no reasonably available alternative means to ensure the juvenile's protection.

Ultimately, the court dismissed the appellant's appeal, affirming that the police's decision to detain him for his own protection was lawful and did not contravene his rights under the ECHR.

Analysis

Precedents Cited

The judgment extensively referenced both domestic and international case law to support its conclusions:

IA v France (1998): Established that “own protection” can be a relevant and sufficient reason for continued detention under Article 5(1)(c).
Buzadji v Moldova (2016): Affirmed the principles laid out in IA, reinforcing that personal protection can justify detention if specific conditions are met.
Serdar Mohammed v Ministry of Defence (2014): Discussed the necessity and purpose of detention within Article 5 frameworks.
S v Denmark (2019): Clarified the flexibility required in interpreting detention purposes under Article 5(1)(c).
Austin v Commissioner of the Police of the Metropolis (2009 & 2012): Addressed the practical application of police discretion in detention while safeguarding against arbitrariness.
Hicks v Commissioner of the Police of the Metropolis (2017): Highlighted the balance between police duties and individual rights under Article 5.

These precedents collectively underscore the court’s approach to balancing police discretion with human rights protections, particularly emphasizing the necessity and proportionality of detention measures.

Legal Reasoning

The Court of Appeal engaged in a nuanced interpretation of Article 5(1)(c), meticulously aligning it with the statutory provisions of PACE. Key aspects of the legal reasoning include:

Exhaustiveness of Article 5(1) Exceptions: The court upheld that the exceptions listed within Article 5(1) are exhaustive, necessitating a narrow and strict interpretation to prevent arbitrary detentions.
Purpose Requirement: It was determined that detention under Article 5(1)(c) must be for bringing the individual before a competent legal authority or to prevent the commission of an offense, and not merely for the individual’s own protection. However, when detention serves to prevent further offenses or risks to the individual, it can align with Article 5 provisions.
Flexibility in Interpretation: Following the Supreme Court's guidance in cases like Hicks and S v Denmark, the court adopted a flexible approach. This flexibility ensures that the police can perform their duty to maintain public order without infringing on individual rights, provided that detentions are justified, necessary, and non-arbitrary.
Safeguards for Juveniles: The court recognized the vulnerability of juveniles in the justice system, emphasizing that detention should be a measure of last resort, be as short as possible, and entail specific protective measures.

The court also scrutinized the procedural aspects under PACE, ensuring that the detention followed the prescribed legal protocols, including timely judicial reviews and the presence of protective detainee conditions.

Impact

This judgment has significant implications for the intersection of police powers, juvenile justice, and human rights:

Clarification of Police Discretion: It delineates the boundaries within which police can exercise discretion to detain juveniles for their own protection, reinforcing that such powers are compatible with human rights when appropriately applied.
Strengthening Safeguards for Juveniles: By acknowledging the unique vulnerabilities of juveniles, the judgment underscores the necessity for heightened safeguards and emphasizes that detention should remain a last resort.
Balance Between Public Order and Individual Rights: The decision exemplifies how courts can balance the need for maintaining public order and individual protection without overstepping human rights boundaries.
Guidance for Future Cases: Future judicial decisions will likely reference this case when assessing the compatibility of detention provisions with human rights, particularly in contexts involving vulnerable populations.

Overall, the judgment reaffirms the compatibility of PACE provisions with ECHR rights, provided that detention is justified, necessary, and carried out with due regard for the individual's rights and circumstances.

Complex Concepts Simplified

Article 5 of the European Convention on Human Rights (ECHR)

Right to Liberty and Security: Article 5 protects individuals from arbitrary detention. It outlines specific circumstances under which a person can be lawfully deprived of their liberty, such as after conviction, to secure court appearance, to prevent crime, or for the individual's own protection.

Police and Criminal Evidence Act 1984 (PACE) Section 38

This section empowers police custody officers to continue detaining a person after they have been charged with an offense. For juveniles, detention can be justified not only for securing evidence or preventing further crimes but also for their own protection, considering their vulnerability.

Preventive Detention

Detaining someone not because they have been convicted but because there is a reasonable belief they might commit further offenses or are at risk of harm. Under Article 5(1)(c), this involves bringing the individual before a legal authority promptly to assess the necessity of continued detention.

Exhaustive Exceptions

Article 5(1) lists specific exceptions to the right to liberty. These exceptions are exclusive, meaning no other justifications for detention are permissible outside those enumerated in the article.

Purpose Requirement

For detention under Article 5(1)(c) to be lawful, it must serve the purpose of bringing the individual before a competent legal authority or preventing the commission of an offense. Detention purely for the individual's protection must align with these purposes to avoid being deemed arbitrary.

Flexibility in Interpretation

The courts recognize the need for a flexible interpretation of legal provisions to accommodate practical necessities, such as upholding public order, while safeguarding individual rights against arbitrary actions.

Conclusion

The Archer v Commissioner of Police of the Metropolis judgment serves as a pivotal reference in understanding the compatibility of juvenile detention under PACE section 38 with the ECHR's Article 5. By emphasizing the necessity, proportionality, and stringent safeguards required for such detentions, the court reinforced the balance between police discretion and the protection of individual liberties.

The decision underscores the judiciary's role in ensuring that law enforcement practices adhere to human rights standards, particularly when dealing with vulnerable populations like juveniles. It affirms that while the state holds significant power to maintain public order and protect individuals, such powers must be exercised judiciously and within the boundaries set by human rights conventions.

For legal practitioners, law enforcement agencies, and policymakers, this judgment offers clear guidance on the lawful application of detention powers, ensuring that the rights of individuals, especially minors, are diligently protected against arbitrary state actions.