In R (Cousins-Chang) v (1) Secretary of State for the Home Department and (2) The Commissioner of Police of the Metropolis [2013] EWHC 982 (Admin) the Court ruled Code C of PACE to be unlawful insofar as it allows 17 year-olds in police detention to be treated as adults.

The decision has an immediate and direct impact on the treatment of 17 year-old detainees in police custody. It is suggested that they should now (pending formal revisions to Code C) be treated as having the same rights and entitlements as those who are 16 and under. Most significant are the rights in all cases:

  • to have their parent / appropriate adult told of their arrest, and location of detention, (unless it is in the detained person’s best interests for a parent not to be told); and
  • to have an appropriate adult present during the relevant stages of the custody process, including being told the grounds for the arrest, their rights and entitlements (such as to legal advice), interview and charge.

As far as 17 year-olds are concerned, these are rights – it does not mean they are necessarily requirements to be imposed against their will. Custody officers may be reluctant to contact a 17 year-old’s parents unless s/he agrees. In circumstances where there is no agreement to contact the parent, the attendance of an independent, professional appropriate adult should be sought.

Background

The Claimant was a 17 year old who had never been arrested but was on 19 April 2012 arrested by the Metropolitan Police on suspicion of robbery of a mobile phone (subsequent investigations showed he was innocent, and he was not charged).

Under s.37 of PACE, for the purposes of custody procedures, a juvenile is someone who “appears to be under the age of 17”. Under Code C, 17 year olds have the same rights as adult detainees rather than those afforded to detainees aged 16 and under. The Claimant was treated as a 17 year old.

The Challenge

The Claimant challenged his treatment under Code C by way of judicial review. He argued that the Home Secretary had acted unlawfully in failing to amend Code C so as to ensure that 17 year olds were treated differently in custody from adults. The Metropolitan Police Commissioner was also a Defendant to the action, although it was not alleged that the Claimant’s treatment by the MPS had been in breach of Code C as drafted.

The Claimant mounted a wide-ranging challenge to the lawfulness of Code C in its application to 17 year olds. For example, it was argued that:

  • in treating 17 year olds as adults for the purposes of police custody, Code C was out of step with the rest of the criminal justice system;
  • Article 8 of the ECHR was engaged by the fact of detention, and the forcible separation of a minor from his family, and prevention of contact with his family;
  • in considering the application of Article 8, the Court had to consider the UN Convention on the Rights of the Child 1989 (UNCRC), a convention ratified by the UK and applicable to all under the age of 18;
  • Code C was in clear contravention of the UNCRC;
  • the Secretary of State was irrational in her failure not to amend Code C.

The Court did not reach any concluded view on rationality, but did observe that where “Parliament has failed to make the distinction between 17 year-old detainees and adults, it is difficult to say that the Secretary of State’s failure to revise the Code is irrational.

However, the Court had no hesitation in finding that the forcible separation (by arrest) of a 17 year old from his family would engage both his and his parents’ right to a family life. It is settled law that, in applying the ECHR in domestic law, regard is to be had to the UNCRC – see R (SR) v Nottingham Magistrates’ Court [2001] EWHC Admin 802). The Court stated that, as our domestic law has put the age of majority at 18, there could be:

“…no question but that the treatment of 17 year-olds as adults when arrested and detained, under Code C, is inconsistent with the UNCRC and the views of the United Nations Committee of the Rights of the Child.” (paragraph 47).

Having reached this view, it seemed inevitable that the Court would find that Code C is unlawful in its application to 17 year olds. The Court disposed fairly shortly with many of the Home Secretary’s reasons for arguing that the Code was not unlawful. Of particular interest was a difference in understanding between the Home Secretary and the Metropolitan Police as to the practical application of Code C to 17 year olds. The Home Secretary argued that police forces had a discretion to obtain the assistance of an appropriate adult, that they could (and therefore, presumably, should) be more ready to exercise for 17 year olds. Indeed, in recent years there are a few police forces who have routinely been arranging the attendance of appropriate adults for 17 year olds. The Metropolitan Police did not accept that Code C could be read as clearly giving this discretion to custody officers, and argued that clear rules were required.

The Court concluded that, “the present Code is unlawful and needs to distinguish between 17 year-old detainees and adults.

Conclusion

Where does this leave Code of Practice C? A review of some of the PACE codes is being conducted, with the consultation period ending 10 May 2013. However, this consultation does not include Code C, which was revised as recently as 2011. The Home Secretary’s formal response to the judgment is awaited. Pending a formal announcement of interim revisions to Code C, it is suggested that all forces should consider advising their custody officers and detention staff to afford 17 year-olds the same rights and protections in custody as 16 year-olds, and to interpret Code C’s references to juveniles as including those of 17 years of age. Agencies supplying custody staff should be told of this change in the force’s approach.

In order to avoid a challenge from a 17 year-old whose parent was told of his arrest against his or her wishes, it may be felt preferable in these circumstances to arrange for the attendance of an independent, professional person to act as the appropriate adult.

On 29 April 2013 ACPO issued Interim Guidance that until the Home Secretary amends Code C:

“…is important to be aware that neither Code C nor PACE or any other primary legislation has been amended.

We do, however, recommend that, in line with the HMIC position, and with immediate effect Forces offer the services of an appropriate adult to all 17 year olds. It is important to note an appropriate adult can only be provided with the consent of the 17 year old. It is recommended that Forces record both the offer and the reply. This will ensure that you are acting in the spirit of the ruling whilst remaining within the law.”

Lastly, the High Court was critical of two aspects of the implementation of Code C that, although they were not the subject of formal challenge, should be of concern to all custody officers for the future:

  • First, in relation to the phrase seen in the custody record, ‘rights explained’, the Court was of the view that simply reading the rights, as they are set out in the Code of Practice, “would hardly constitute an explanation.
  • Secondly, where a teenager’s home was searched following a suspected street robbery, the Court was extremely sceptical about the stated basis for the search including anything that “might constitute evidence of a money-laundering offence such as unexplained income or assets not commensurate with an individual’s circumstances.” These features of the case should be another reminder of the need to avoid unthinking jargon or formulaic approaches in modern policing.