The UN Convention on the Rights of the Child (UNCRC) which the UK has signed and ratified, as is only right and proper given our country’s status as both a founding member of the United Nations and wellspring of many of the Human Rights traditions which are at the core of its ethical mission, injuncts that –
“No child shall be deprived of his or her liberty unlawfully or arbitrarily. 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”.
A few months ago I blogged about the case of ST v The Chief Constable of Nottinghamshire Police which highlighted the extreme importance of safeguarding children from arrest except in cases of the utmost necessity. In this week’s blog I will be discussing one of my own cases in which, by upholding that principle, I was able to win a substantial financial settlement on behalf of a young teenager who had been wrongfully arrested.
My client, whom I will identify as ‘Harry’ for the purposes of this blog, was only 14 years old when he was arrested at home in October 2020 by PC Parker on suspicion of rape. In a subsequent witness statement made later the same day, PC Parker re-counted the explanation that he gave to Harry at the time of his arrest as follows:-
“We have received an allegation that during the summer of 2020 on two separate occasions during the same day you have engaged a 13 year old female to perform oral sex on you. Therefore I am arresting you on suspicion of 2 counts of rape. Your arrest is necessary to prevent the loss of property and to protect vulnerable people”.
Harry was then transported alone into Custody at a local Police Station where he was processed and later interviewed (the interview taking place in the presence of Harry’s father) before being released at approximately 22.30 under investigation.
The arrest necessity reasons as specified in the Custody Record were as follows:-
- Allow a prompt and effective investigation;
- Prevent a person causing loss or damage to property;
- Protect a child or other vulnerable person.
Whilst Harry was in Custody he was required to provide his fingerprints and a DNA sample.
During Harry’s interview under caution it transpired that the event giving rise to the alleged offence had occurred several months earlier (on an unspecified date in the summer of 2020) and that the Police had not yet obtained a formal statement from the alleged victim.
It was also put to Harry that other teens had been present at the time of the alleged offence and that somebody may have videoed the incident. Under legal advice, Harry chose not to answer any of the questions put to him.
Approximately 2 weeks later, Harry’s parents received a telephone call from DS Mansfield to advise that no further action would be taken against Harry on the basis that no criminal activity had taken place.
DS Mansfield subsequently updated the investigation log with the following summary of her discussion with the alleged victim of the rape:-
“I then explained to REDACTED that the acts she had described did not amount to an offence or to criminal activity. Harry had not forced her into performing the act nor would have had any way of knowing that she did not consent, although REDACTED is not actually saying that she didn’t consent. We spoke about peer pressure and ….. gave advice on dealing with situations in the future.
In summary, this is a case of a truth and dare game that has possibly escalated. REDACTED accepts that she was not forced into committing a sexual act on Harry but felt peer pressured into doing it. This is denied by all other people present at the time. There is no evidence of any coercion or incitement, no assault and no false imprisonment. REDACTED states that there were 2 incidents. This is not supported by any other witnesses who all maintain that there was just one.
Harry and REDACTED 2 and REDACED 3 parents have all been updated with the outcome and their phones returned. The parents have been supportive and provided strong words of advice to their children about these matters. They have voiced their concerns about the way the initial report was dealt with and that their children were arrested, which they found traumatic. …. advice has been given to parents about applying to have their children’s information removed from PNC.
This case therefore is now complete. I request that the matter is filed. Although it is clear that a sexual act has taken place between two 14 year old children, there is no evidence to suggest that this was forced in any way and there was no imbalance of power or threats. Although REDACTED indicates she felt peer pressured into doing it, she also accepts that she did not verbalise this and therefore no one would have been aware. She was not assaulted or falsely imprisoned… at any time and therefore there is no evidence to support or prove any of the offences for which the children were arrested. Although it is confirmed that a recording took place, there are differing stories around how this came about and whose idea it was. It was confirmed that it was recorded on the sister’s phone, again with differing explanations as to how this came about. As stated, CPS would not criminalise children for this. I request that this matter is filed with no further action”.
The unnecessary arrest of a child
A lawful arrest requires 2 elements:-
- A person’s involvement or suspected involvement or attempted involvement in the commission of a criminal offence; and
- Reasonable grounds for believing that the person’s arrest is necessary.
Both elements must be satisfied, or else the person’s arrest and detention will constitute false imprisonment.
The case which I built against the police on behalf of Harry was that his arrest and detention were unlawful as not being founded upon reasonable suspicion of the commission of the alleged offence and/or because arrest was not necessary as required by Section 24 of the Police and Criminal Evidence Act 1984 (as amended by) Section 110 (4) and (5) (e) of the Serious Organised Crime and Police Act 2005).
Section 24 PACE, so far as is relevant, provides that:
Arrest without warrant: constables
(1) …
(2) If a constable has reasonable grounds for suspecting that an offence has been committed, he may arrest without a warrant anyone whom he has reasonable grounds to suspect of being guilty of it.
(3) …
(4) But the power of summary arrest conferred by subsection (1), (2) or (3) is exercisable only if the constable has reasonable grounds for believing that for any of the reasons mentioned in subsection (5) it is necessary to arrest the person in question.
(5) The reasons are—
(a) to enable the name of the person in question to be ascertained (in the case where the constable does not know, and cannot readily ascertain, the person’s name, or has reasonable grounds for doubting whether a name given by the person as his name is his real name);
(b) correspondingly as regards the person’s address;
(c) to prevent the person in question—(i) causing physical injury to himself or any other person;
(ii) suffering physical injury;
(iii) causing loss of or damage to property;
(iv) committing an offence against public decency (subject to subsection (6)); or
(v) causing an unlawful obstruction of the highway;
(d) to protect a child or other vulnerable person from the person in question;
(e) to allow the prompt and effective investigation of the offence or of the conduct of the person in question;
(f) to prevent any prosecution for the offence from being hindered by the disappearance of the person in question.
Further guidance is provided in PACE Code G regarding certain circumstances which an arrest would be necessary. Code G 1.3 reminds Officers that the use of the power of arrest must be fully justified and Officers exercising the power should consider if the necessary objectives (listed above) can be met by other, less intrusive means. Arrest must never be used simply because it can be used.
The case which I argued on behalf of Harry was that even if, which was not admitted, the Police had on the day of Harry’s arrest sufficient evidence to amount to a reasonable suspicion that the alleged offence had been committed, then given the considerable length of time that had elapsed since the commission of that alleged offence, and the young age of the persons involved it cannot have been necessary to arrest Harry and therefore the investigation could and should have instead been progressed by means of a voluntary attendance and interview at the Police Station with Harry and his father, without arrest.
I am pleased to confirm – not least because a speedy conclusion to litigation in this case was of obvious benefit to Harry in allowing him to put these highly unpleasant events behind him and avoid the experience of a contested trial – that whilst the police initially failed to admit liability, I have now secured Court approval of a settlement in the sum of £6,000 damages for Harry, plus his legal costs, and can confirm that this settlement comes after the granting of Harry’s father’s application for deletion of his son’s Police National Computer records in relation to this wrongful arrest. The settlement damages agreed reflect the fact that Harry’s relatively short period of detention in police custody (just over 4 hours) was accompanied by significant aggravating factors such as the shock and distress caused to a 14 year old child subjected to ‘adultification’ in this way by being deprived of his liberty and processed at the Police Station as a criminal suspect, as well as the fact that Harry’s arrest took place at home in front of his parents, puncturing the sense of safety and security that any child is entitled to enjoy in that environment and the anguish and embarrassment caused by the nature of the offence for which he was arrested.
I fully accept that the allegation which the police received, and which certainly required investigation by them, was an extremely serious one – but even on the face of that allegation it should have been clear that there was no danger of immediate or continuing harm to the alleged victim and that, given the time lapse of several months since the event was said to have occurred, there were simply no reasons to trump the presumption that children should not be subjected to arrest – a presumption enshrined in the Police Codes of guidance, in the case law of England and Wales, and in the UNCRC itself. This matter could properly have been investigated by way of a voluntary interview arranged with Harry and his father, thereby preserving Harry’s dignity and minimising the distress and anxiety caused to him. Indeed, it does seem from DS Mansfield’s review of the evidence that had the police actually carried out proper enquiries with the alleged victim first, that this matter could have been dealt with without Harry being subjected to any police inquisition at all, let alone arrest and detention.
I trust that the Police Force concerned will take the lessons of this case to heart and better safeguard the welfare of children in the future. Sometimes the most important duty of those who hold vast power over others, is simply not to use that power.
All names have been changed.
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