By Frances Trevena
A children’s charity and advocacy service “Just for Kids” launched a challenge to the detention of 17 year olds in police custody. The case was heard in the High Court last Tuesday; the grounds of challenge were that 17 year olds are routinely detained and held at police stations, often overnight, and are interviewed without the attendance of an appropriate adult in contravention of national law and international treaties.
The case that will test the validity of the system of arrest and police station detention of youths under 18 relates to a 17 year old boy who was arrested on suspicion of burglary. Having been detained at the police station he was not permitted, or offered, an appropriate adult to accompany him during interview. The boy had not even been allowed to call his parents, who had no idea of his whereabouts. He was held overnight and later released without charge.
In their press release the charity gave another example of a 17 year old girl with learning difficulties whose father was at the police station but was not allowed to see her or sit with her during interview.
The Criminal Justice Act 2003 made provisions for the arrest and detention of children aged 16 and under. Amendments were made to the PACE Code, which governs what police can and cannot do from first stopping someone. It includes your rights regarding searches, drugs testing, identification and treatment while in detention.
Pace Code C relates to the detention, treatment and questioning of suspects by the Police. At 1.7, the code requires officers to treat as a juvenile, “anyone who appears to be under the age of 17”.
Where the arrested person is under 17, the code [C3.15] makes provisions for the custody officer to:
• inform the appropriate adult, who in the case of a juvenile may or may not be a person
responsible for their welfare, as in paragraph 3.13, of:
∼ the grounds for their detention; C
∼ their whereabouts.
• ask the adult to come to the police station to see the detainee
And at [C3.18] tell the young person:
• the duties of the appropriate adult include giving advice and assistance;
• that they can consult privately with the appropriate adult at any time
The case brought by Just for Kids relies on the Children Act 2004, which requires various public bodies, including the police (s11(1)(h)) and the British Transport Police (s11(1)(i)), to act to promote the welfare of children.
Section 11 (2)Each person and body to whom this section applies must make arrangements for ensuring that—
(a)their functions are discharged having regard to the need to safeguard and promote the welfare of children; and
(b)any services provided by another person pursuant to arrangements made by the person or body in the discharge of their functions are provided having regard to that need.
This requirement mirrors the requirements in the UN Convention on the Rights of the Child (known as the UNCRC), and appears in other UK legislation, including the Children Act 1989 (section 1(1)) and the Borders, Citizenship and Immigration Act 2009 (section 55).
When the Supreme Court were asked to examine the wording above in the context of immigration cases in ZH (Tanzania)  UKSC 4, Baroness Hale stated that the duty to have regard to the need to safeguard and promote the welfare of children meant that the best interests of children were a primary, but not only, concern. These best interests could be outweighed by other interests – in the case of detention these may include the need for justice, investigation of crimes and public safety – but that the best interests of the child, including where that child is aged 17, must be considered first.
In the case of young people detained, it appears that little consideration is given to the need to safeguard them, much less to promote their welfare. No one can argue that separating a child from his parents overnight, without informing his parents of his whereabouts, is in that child’s best interests.
UN Convention on the Rights of the Child, to which the UK is a signatory, states that:
a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.
Across the UK, the age for majority is 18.
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration
And Article 40
(b) Every child alleged as or accused of having infringed the penal law has at least the following guarantees:
(i) To be presumed innocent until proven guilty according to law;
(ii) To be informed promptly and directly of the charges against him or her, and, if appropriate, through his or her parents or legal guardians, and to have legal or other appropriate assistance in the preparation and presentation of his or her defence;
(iii) To have the matter determined without delay by a competent, independent and impartial authority or judicial body in a fair hearing according to law, in the presence of legal or other appropriate assistance and, unless it is considered not to be in the best interest of the child, in particular, taking into account his or her age or situation, his or her parents or legal guardians;
Alongside the concern that a young person may be prematurely separated from his or her family, are whether that child fully understands what is going on at the police station, and whether he or she will understand the importance of having legal advice, without the assistance of an adult to help them with these decisions.
Although it does not appear to form part of the current case, a child who is aged 17 or over may also be tested for drugs without an appropriate adult. The Criminal Justice Act 2003 amended the PACE codes in respect of testing for Class A drugs to set out that testing must take place with an appropriate adult where the detained person is under 17:
(5A) In the case of a person who has not attained the age of 17—
(a) the making of the request under subsection (4) above;
(b) the giving of the warning and (where applicable) the information under subsection (5) above; and
(c) the taking of the sample,
may not take place except in the presence of an appropriate adult.
Therefore, once a child is 17, they can be tested for drugs – if someone refuses, they can be charged with a separate offence of failing to provide a sample.
It is simply not right that a 17 year old may be asked for a test, without an appropriate adult present, and then charged for an offence if they fail to do so.
Despite the arrests of children being on the decline, 75,000 17 year olds were arrested last year, indicating that this is not a minority problem. It is widespread and it is frequently distressing and confusing for young people to find themselves arrested and held by the police. In each of the cases in the Just for Kids press release, the young people had clean records and had never been in police detention before. Such detention is a frightening and bewildering experience, there are long periods of delay and young people may not understand the need to be represented at the police station. They need an adult there, whom they trust, to help advise them and if necessary to call a lawyer for them.
It is clear from examining the law, that the duties to children do not stop when they turn 17. They are still considered as youths within the criminal justice system and so it is an anomaly that prior to being produced in court, the police can treatment them as adults and that under the law, the police have individual discretion whether to treat them as young people. Absent the decision of the High Court in the case brought by Just for Kids, the UK is not fulfilling its obligations to these young people or its obligations to international treaties.
Frances is a barrister specialising in crime, family and immigration with a particular interest in representing young people at court. Her chambers profile can be found here.