Sarah Hemingway of Garden Court Chambers acted for the claimant, instructed by Gregsons Solicitors of Nottingham.
Sarah Hemingway successfully acted for the young claimant in his claim for false imprisonment against the Chief Constable of Nottinghamshire Police after a ten-year battle for justice. The High Court ultimately found that he should never have been arrested and that his detention was unlawful. He was awarded a sum of damages in compensation but more importantly the higher courts have now, for the first time, commented on the necessity of arrest of children.
In particular, the judgment of Mr Justice Cotter, handed down on 26/5/2022, highlights the need for police to consider the age of the person arrested, the international principle of the Best Interests of the Child, and the timing of any arrest. This case promises to have consequential benefits for children coming into contact with the criminal justice system across the nation. The Court of Appeal refused the police permission to appeal further, so the judgment of Cotter J is the lead case in this area of law.
Summary of facts
Around 5:30am on 20th December 2011, ST, a 14-year-old boy of good character was arrested from his bed at his family home on suspicion of robbery. The arresting officer, PC Laughland, had been tasked to make the arrest by way of ‘arrestogram’. She had details of the person to be arrested (the Claimant) and that it was for an offence of robbery of a mobile phone, case and sim card on a 12-year-old girl outside their school on 8th December 2011 at Bar Lane. Yet she had no further knowledge of the circumstances of the offence. She had no knowledge of the situation of the victim, any co-accused, nor of the needs of the investigative process, other than information that there was outstanding property. The Claimant was detained for about 6 hours.
The legal framework
Under s.24 Police and Criminal Evidence Act (PACE), a police officer may arrest a person without a warrant provided they honestly suspected that the Claimant had committed the alleged offence and there must be reasonable grounds for that suspicion. The arresting officer must also believe that the arrest was necessary and there must be reasonable grounds for that belief. The lead authority on necessity of arrest generally is Hayes v Chief Constable of Merseyside Police  1WLR 517 (in which Sarah Hemingway was also instructed).
Further guidance is provided in PACE Code G regarding certain circumstances in 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 can be met by other, less intrusive means. Arrest must never be used simply because it can be used. It is also noted in para 2.8: In considering the individual circumstances, the constable must take into account the situation of the victim, the nature of the offence, the circumstances of the suspect and the needs of the investigative process. However, there is of yet no specific guidance in this code about arrest of children.
Once arrested and brought to the police station, the lawfulness of detention is viewed through the eyes of the custody sergeant, as s/he is the responsible officer under Part IV PACE, in particular sections 37 (authorise detention if necessary) and 34 (order immediate release if the grounds of detention cease to apply).
Importantly, in all dealings with children (under the age of 18), police must have regard to the best interests of the child and international standards on the rights of the child.
(1) Section 11 of the Children Act 2004 requires police to ensure their functions are discharged having regard to the need to safeguard and promote the welfare of children.
(2) Article 3 UN Convention on the Rights of the Child (UNCRC) provides that in all actions concerning children taken by the state, the best interests of the child shall be the primary consideration.
(3) Article 37(b) UNCRC provides, ‘The arrest, detention or imprisonment of a child shall be…used only as a measure of last resort and for the shortest appropriate period of time’.
(4) In November 2013, the Children’s Rights Alliance for England provided a submission to the Carlile Inquiry, stating that, ‘contact with the youth justice system does not serve children’s best interests [at 3.1].
(5) The UK Children’s Commissioners have urged the Government ‘to respond to the significant body of evidence that demonstrates how contact with the formal criminal justice system and acquiring a criminal record has a significant negative impact on a child’s entire life and is ineffective in terms of reoffending’.
(6) The Justice Committee stated earlier this year ‘we should avoid bringing children into the criminal justice system wherever possible’.
(7) The Centre for Social Justice (CSJ) refers to strong evidence that contact with the criminal justice system can exacerbate delinquency, particularly in children.
The Claimant brought a claim for false imprisonment. He had a 5 day jury trial.
On the basis of questions answered by the jury largely in favour of the police, the judge found that there had been reasonable grounds to suspect the Claimant of the offence of robbery and there had been reasonable grounds to believe that the arrest and detention were necessary. But when doing so, he made some very helpful comments:
“The decision made to arrest ST at 5:30am by rousing him from his bed is disturbing. The timing of the arrest was tied to the shift pattern of CID officers, which is extraordinary. Although the arrest and subsequent detention was ‘reprehensible’ and the way in which police powers were exercised in relation to ST ‘lamentable’, it was nonetheless lawful”.
The Claimant’s grounds for appeal were that the judge was wrong to find that:
- (1) the timing of an arrest cannot have a bearing on the lawfulness of the arrest.
- (2) the matters in the mind of the arresting officer amounted to reasonable grounds to believe it was necessary to arrest at the time that the arrest was affected and thereafter to detain at the police station.
- (3) an unnecessary arrest could be made necessary by fault of police wrongly taking steps to effect that arrest.
- (4) the matters in the mind of the custody officer amounted to reasonable grounds to believe it was necessary to detain the Claimant following the arrest.
The Claimant also argued that the case raises an issue of public importance, namely the arrest and detention of children, where there is no higher judicial comment on the issue.
Cotter J allowed the appeal on all grounds and made two key findings, which have set a precedent:
Police need to consider the best interests of a child they come into contact with and that will have a significant bearing on whether a decision to arrest can be deemed to be reasonable. He stated:
Proper recognition by those engaged within the criminal justice system of the need to consider the best interests, safeguarding and promotion of the welfare of children must begin with the first interaction, which, as regards a suspected offender, is usually within the investigation stage. Relevant to the current case, before any arrest, an officer should, as directed by guidance in Code G paragraph 2.8, consider the broader circumstances and whether arrest is necessary. Within that assessment process the fact that the person to be arrested is a child requires specific consideration due to the need to have regard to the duty to safeguard and promote the welfare of children. Indeed, it should be front and centre of the consideration of relevant circumstances and requires an assessment of whether a less intrusive step than arrest or detention is a practical alternative.
The timing of an arrest can have a bearing on the necessity of an arrest. In disagreeing with the decision on the issue in Mouncher and others v The Chief Constable of South Wales Police  EWHC 1367(QB), Cotter J held that, at least as regards the arrest of a child, timing and/or the place of arrest can be highly material factors to be taken into account [see paras 123 – 124].
The judge quashed the order dismissing the claim and substituted his own finding that the Claimant was subject to the tort of false imprisonment and awarded compensation.