Today the High Court, sitting with two members as the divisional court, passed judgment in the Just for Kids Law challenge to the Secretary of State to amend the Police Code of Practice.
The challenge was brought because the current code allows the police to treat 17 year-olds, who are arrested, as adults. When the Secretary of State was asked to amend the PACE code, she refused to do so. In court, it was argued on her behalf that because there are protections in the code for all detainees who are vulnerable, this was sufficient even though the safeguards were not the same as for children and young people under the age of 17. She also argued that because it is common practice for officers to treat 17 year olds as young people rather than as children, there did not need to be a change in the Code of Practice. Among her other arguments, was an argument that the cost would be prohibitive; although – in a move familiar to some – the secretary of state had not actually provided the basis or breakdown for her estimate of £19.1 million and suggested that the figure was indicative only and would not withstand scrutiny.
Drawing on the treatment of young people up to the age of 18 by the CPS, the court system and the Youth Offending Teams, the court found that the situation at the police station was an anomalous but not necessarily irrational. The court also examined the international treaties, the UN Convention on the Rights of the Child, the UN Committee on the Rights of the Child and the Council of Europe have all set out the need for specialised treatment of young people up to the age of 18 and reached their conclusion that the treatment of 17 year-olds was a breach of Article 8 of the European Convention on Human Rights (ECHR). Article 8 prevents the interference with family and private life save where that interference is proportionate and necessary and as the court said, it is difficult to imagine a case that more clearly engages with the Article 8 rights of both parents and children than the detention of a child.
The court made a clear distinction between how children and young people face the criminal justice system and adults. The court set out that an “appropriate adult will usually be somebody the young person knows and trusts, often their parent. It is difficult to think of an occasion where the need to obtain advice and help from someone who is familiar and trusted is more vital than the very first occasion of detention in a police station on suspicion of an offence.”
What remains to be seen is how and when the Secretary of State will amend the Code of Practice and what approach the youth courts will take in the meantime to interviews which take place where young people do not have an appropriate adult.
By Francis Trevena, Tooks Chambers