I have blogged before about the overriding importance of the necessity test when it comes to the question of the legality of an arrest [Read: Necessity Criteria: Why Failure To Consider Alternatives to Arrest is a Police Abuse of Power].
The stringency with which this test, a key safeguard of our civil liberties and restraint upon the power of the Police, must be applied in cases involving the arrest of a child was highlighted in a High Court appeal decision last month.
The watchword of the UK’s ‘unwritten constitution’ is the same word which defines the unwritten social contract that exists between the Police and the public: reasonableness and the test as to whether or not it is reasonable to arrest a child when a crime is being investigated is right and properly set at a much higher level than in the case of an adult.
The case of ST v The Chief Constable of Nottinghamshire Police  EWHC 1280 (QB) concerned the arrest of the Claimant, identified for the Court proceedings as ‘ST’, in December 2011 when he was only 14 years old.
ST was arrested just after 5.30am on 20 December 2011, in his own home, and thereafter detained in an adult cell in a Police Station for several hours before being interviewed and released on bail. He was never charged with any offence.
The basis of ST’s arrest was an incident which had occurred some 12 days earlier on 8 December 2011, outside ST’s school.
A pupil, identified in the Court proceedings as ‘J’, snatched a mobile phone from a 12 year old girl identified as ‘EB’. ST was nearby and came over and asked if EB was okay and then told her he would go and get J, before running off after the other boy.
EB and her mother then drove in their car and located J and ST. J returned the phone to EB but without its pink case or sim card. The Court noted that the value of the pink case was approximately £5 and the sim card was effectively valueless, as it was on contract and was stopped immediately.
In the following days, the school decided that J should be excluded as a result of his theft of the phone but the school was equally satisfied that ST had done nothing wrong.
However, on 19 December 2011 J was arrested by PC Lilliman and when being interviewed by the Police J alleged that it was ST who had told him to steal the phone. He alleged that it was ST who had retained the sim card and phone cover. As Mr Justice Cotter observed in the Appeal Judgment – “I pause to observe that this would have been a curious step as the value lay in the phone not in the pink case and EB’s sim card”.
PC Lilliman then decided that ST should also be arrested. He recorded his decision as follows –
“Decision taken to arrest ST the next day, to search for the stolen property before he left for school. Email sent to nightshift to arrest ST and search for outstanding property and I would deal with him in the morning when I started work at 8am”.
The task was allocated to PC Laughland and PC Turnbull who were working the nightshift.
It is important to note here that there is no record of any consideration by the Police as to whether instead of arresting ST, a search warrant could have been obtained and/or a voluntary interview requested.
The low value phone case, and the apparently worthless sim card, had been taken some 12 days previously whereas the valuable item – the mobile phone – had almost immediately been returned to EB. It clearly struck the appeal Court that it was very far fetched to assume both that ST had in fact taken the case and card and that he would have retained, rather than discarded, these very low value items. The Court also noted that the school’s own investigation had identified J as the perpetrator and expelled him, and not ST.
Nottinghamshire Police, on the other hand, appear to have had a tunnel-vision focus on the fact that the theft of the phone met the definition of the “very serious indictable offence of robbery” rather than on the practical details of the age of those involved, the minor nature of the offence and the slim chance that the low value ‘missing’ items were in ST’s possession. In other words, the decision to take the draconian step of arresting ST appears to have been taken without any adequate consideration of –
- ST’s welfare given his young age (taken in the context of the low level of seriousness of the alleged offence);
- the fact that the offence had occurred 12 days previously; and
- that ST would not be difficult to locate if the Police did indeed want to interview him.
As Mr Justice Cotter observed, it appeared that the timing of the arrest, in the early hours of the morning, with the deliberate intention that ST would then be ready and waiting in a cell when PC Lilliman came on duty at a more ‘civilised hour’ that morning – was largely, if not solely, for the Officer’s convenience.
Indeed, the Judge at first instance (HHJ Godsmark QC, sitting in Mansfield County Court) had – metaphorically – spilt his coffee when hearing Police witnesses give the glib excuse that 5.30am arrest visitations were common practice because it was a ‘good time to catch people at home’. HHJ Godsmark found it “extraordinary” that the arrest of a 14 year old boy was tied to the convenience of a particular Officer’s shift and stated –
“In my time sitting as a Judge in both civil and criminal jurisdictions I have not heard of such a thing before. I really wonder how many members of the community would agree with such an arrest”.
That final sentence goes very much to the heart of the matter here, in my opinion – the social imperative that the Police exercise their powers in an objectively reasonable manner so as to ensure the good health of the ‘policing by consent’ relationship between UK Police and public.
When confronted by Police Officers at the door, in these shocking circumstances, seeking, rather grandiosely, to arrest his son for ‘robbery’ the Claimant’s father tried to reason with PC Laughland – offering to bring ST to the station to answer any questions the Police had at a more reasonable hour that morning.
Not only had ST been awoken in these distressing circumstances, but also his four siblings as well, and it is understandable that ST’s father would have been very upset at what was unfolding. However, it was clear that he kept a level head and made a sensible suggestion to try to resolve the situation.
Indeed, the challenge and alternative suggestion made by ST’s father appears to have given PC Laughland pause for thought, as at this point she telephoned her supervising Officer for advice, but was directed to continue with the arrest.
PC Laughland’s colleague PC Turnbull later commented –
“I did have my own reservations about attending at such an hour considering the age of the boy and the fact that the offence was 12 days old but such ‘arrestograms’ from other departments are common place and tend not to be questioned. I found it hard not to agree with ST’s dad at the time, but we were stuck in an unfortunate situation”.
Accordingly, ST was subject to the indignity of being arrested and he was taken by the Officers to Bridewell Police Station and detained alone in an adult cell on suspicion of robbery because “there was no other place to put him”.
Ultimately ST was detained for approximately 6 hours, during which time, some 3 hours after his arrival in Custody, he was interviewed in the presence of his father (acting as Appropriate Adult) and a solicitor and shortly thereafter released.
In January 2012 it was decided that no further action would be taken against ST, but the harm of course, had already been done.
Code G of the Police and Criminal Evidence Act (PACE) 1984 contains the following clear direction at paragraph 1.3 – The use of the power [of arrest] must be fully justified and Officers exercising the power should consider if the necessary objectives can be met by other, less intrusive means.
In other words, arrest must never be used simply because it can be used. As Sir Brian Kerr LCJ said in Re Alexanders Application for Judicial Review  NIQB 20 –
“…it is difficult to envisage how it could be said that a Constable has reasonable grounds for believing it is necessary to arrest, if he does not make at least some evaluation as to whether voluntary attendance would achieve the objective that he wishes to secure”.
The criteria for a summary arrest – as opposed to either the more formal process of applying for an arrest (or search) warrant, or the more informal alternative of a voluntary interview – could be satisfied under the Code G Necessity Criteria if there was evidence that, for example, the suspect was likely to collude with others or to hide or destroy evidence if he was not immediately taken into Police custody. Those factors simply did not apply on any reasonable analysis of the facts of ST’s case.
As Mrs Justice Thornton stressed in Commissioner of the Police for the Metropolis v MR  EWHC 888 (QB) –
“The test of necessity is more than simply ‘desirable’ or ‘convenient’ or ‘reasonable’. It is a high bar, introduced for all offences in 2005 to tighten the accountability of Police Officers”.
Despite all of this, as well as his own evident discomfort at the heavy handed nature of the ‘dawn raid’ carried out by Nottinghamshire Police in this case, the Judge at first instance, His Honour Judge Godsmark QC ruled in favour of The Chief Constable by deciding that the arrest necessity criteria were satisfied.
In his reasoning, Judge Godsmark appeared to fall into a trap of circular logic by deciding that once the Police had knocked on the door of the family’s home at 5.30am that morning “the die was cast” because even though they were now presented with the reasonable offer from ST’s father to bring his son to the police station later that morning, Judge Godsmark felt it was nevertheless lawful for PC Laughland to continue with her intention to arrest ST because to fail to do so was to lose the complimentary power (granted by Section 18 of PACE) which allows Officers to compulsorily and lawfully search the arrestee’s place of residence for evidence associated with the crime. The Judge’s reasoning was that for the Officers to withdraw at that point without making the arrest would have given ST the opportunity to dispose of the evidence of the crime (if indeed he had committed it).
Nevertheless, HHJ Godsmark did appear troubled by his own finding and again reiterated that the arrest of a 14 year old boy, with no criminal record, at 5.30am in the morning, did not sit comfortably with him, and even whilst finding against ST, Judge Godsmark enunciated that very principle which should be the central ethos of UK Policing and the lens through which the exercise of Police powers should always be scrutinised –
“In a country where it is generally said that Policing is by consent of the community, I really wonder how many members of the community would agree with such an arrest”.
ST’s appeal against the rejection of his claim, was cogently advanced by Ms Sarah Hemingway of Garden Court Chambers on multiple grounds, of which the key lines of argument were as follows:-
- There was no contemporaneous evidence as to why it was thought necessary to arrest ST and thereby circumvent the usual statutory safeguards in obtaining a search warrant, or otherwise inviting him to a voluntary interview, prior to the Officers attending at the family’s home. In the circumstances, the Chief Constable had failed to prove that there were reasonable grounds for ST’s arrest prior to the attendance of PC Laughland at his home.
- Furthermore and following on from this, if there were no reasonable grounds to believe an arrest was necessary up until that moment, then it was perverse in the extreme to find that the arrest could have been made lawful and necessary by the Officers’ own mistakes (i.e. the Officers’ prior decision to attend at the family home at 5.30am thus ‘alerting’ ST to the fact that they wished to interview him and search his property). Yet it was this very justification that HHJ Godsmark appeared to have applied such weight to in his own Judgment.
In his detailed analysis of the appeal, the High Court Judge Mr Justice Cotter stressed the crucial importance of the test of arrest necessity noting that it is designed to protect the public from autocratic decisions and that arrest must never be used simply because it can be used (or is simply convenient for the progression of an investigation) –
“In the present case there was a central and obvious consideration; the Appellant was a child. In my judgement the Judge was led into error by submissions which, to a significant extent, equated children with adults…the Judge should have concluded that the approach of the Officers failed to factor into the assessment of the necessity the best interests of a 14 year old child. Where time for reflection exists, the test of necessity for arrest and detention requires anxious scrutiny of the fact that a child is involved. This approach is consistent with the duty under the Children Act 2004 and wider obligations”.
(Paragraphs 94 – 95)
In this country the treatment of children in detention is governed not only by our domestic law but also by the UN Convention on the Rights of the Child (UNCRC) which the UK has signed and ratified in accordance with our longstanding traditions of being at the forefront of development of the global gold standard for human rights.
Article 3 UNCRC provides that in all actions concerning children undertaken by public institutions, Courts of Law, administrative authorities and legislative bodies the best interests of the child shall be a primary consideration and, in particular, Article 37 requires that “the arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time”.
The requirement that the best ‘interests of the child’ should be integral to the decisions and actions of public bodies (including of course the Police) is enshrined in Section 11 of the Children Act 2004.
In any Police Officer’s consideration as to whether or not it is necessary to exercise their power of summary arrest upon a person, in accordance with PACE Code G, the fact that that person is a child should be ‘front and centre’ (Mr Justice Cotter’s words) in that consideration – and an assessment of whether a less intrusive step than arrest is a practical alternative, must be undertaken.
Indeed, although the Chief Constable of Nottinghamshire appeared to be unaware of this fact for the purposes of the claim brought by ST, the same principle is clearly endorsed by the College of Policing in its Authorised Professional Practice Guide on the arrest and detention of children and young persons –
“Officers must take into account the age of a child or young person when deciding whether any of the Code G statutory grounds for arrest apply. They should pay particular regard to the timing of any necessary arrest of children and young people and ensure that they are detained for no longer than needed in accordance with paragraph 1.1 of Code C. Officers should avoid holding children overnight in Police cells unless absolutely necessary”.
Applying these highly important guidelines and principles to the facts of the specific case the appeal Judge found –
- PC Lilliman did not appear to have weighed up whether there was an alternative to arrest, specifically obtaining a search warrant and/or seeking a voluntary interview.
- An arrest had to satisfy the high bar of being necessary, not just convenient and given the evidence, HHJ Godsmark QC should, on an independent and objective analysis, have reached the conclusion that PC Lilliman had failed to clear it. This was therefore a serious mistake by the Judge at first instance.
- The overarching mistake made by the actual arresting Officer PC Laughland (who made the ultimate decision to arrest, albeit acting on PC Lilliman’s instructions) was that ST being a teenager (14 years old) somehow meant that he was not to be considered as a child.
- Furthermore, the limited information set out in the ‘arrestogram’ about the offence/investigation could not have amounted to sufficient detail to provide PC Laughland with reasonable grounds for belief in the necessity of arrest – “An Officer can not ‘play safe’ and arrest someone because given all the circumstances as known to others it may be necessary” (Paragraph 110).
- Yet further, insufficient consideration was taken to ensure that a 14 year old child was detained for no longer than needed.
- The offer by ST’s father to bring him to the station voluntarily at a more reasonable hour that morning was an obvious practical alternative to arrest and yet further – the Officers present at the house, and also the more senior Officer who they consulted, failed to consider the obvious option of asking ST’s father to allow them to undertake a search of his son’s bedroom with the family’s consent and without ST having to be arrested – ST after all was only 14 and therefore had no power to prevent a search if his father, the owner of the house, permitted it (which on the facts available it seems highly likely he would have done so as to avoid the unnecessary stress and stigma for all concerned of his son being arrested and taken into police custody). Instead, the Officers in fact gave no thought at all to achieving the central objective of a search without arrest.
In all the circumstances – and not pulling any punches – Mr Justice Cotter concluded “I cannot see how… the [first] Judge could have found that reasonable grounds existed for the belief that arrest was necessary”. He therefore granted ST’s appeal, labelling the Police decision to arrest as “lamentable” and without due regard for the welfare of a child.
I very much applaud this Judgment in which the High Court has not only criticised the lazy and ‘glib’ policing which led to a child’s unlawful arrest, and reproved the Police for their tendency to treat teenagers as if they were adults, but has also sent a timely reminder to the rest of our civil justice system that it is the duty of lawyers and the judiciary to ensure that the exercise of policing power is always balanced by the responsibility to be reasonable.