ST v CCNP: Consideration of a child’s welfare and timing are relevant to lawfulness of arrest

ST v Chief Constable of Nottinghamshire Police [2022] EWHC 1280 (QB)

This High Court judgment confirms that consideration of a child‘s best interests must be factored into police decisions on arrest, and the timing of any arrest is relevant to necessity. An officer’s belief in the necessity of arrest will not be reasonable if these factors have not been considered.

Details

ST, who was 14 years old, was arrested at 5:30am at his home address.

The circumstances were that ST had been present when a phone had been snatched from a pupil at ST’s school by another pupil (‘J’). The phone was returned to the victim soon afterwards by J, with the sim card and phone case missing. The school conducted an investigation, and took no action against ST. J was excluded.

The police took a statement from the victim, who stated ST had checked if she was ok before running after J. In his police interview, J alleged that ST had told him to steal the phone, and had taken the sim card and phone case before handing the phone back. The investigating officer left instructions for night shift officers to attend ST’s address and arrest him before school the next day (12 days after the incident), in order to search for stolen property, and so that he could be interviewed when the investigating officer arrived on shift at 8am.

Two officers attended ST’s home address at 5:30am. His father offered to bring him for a voluntary interview at a more reasonable hour and officers sought advice from a supervisor. They were told to continue with the arrest, on the basis that they had alerted the family to the police interest in ST, and there was a risk that evidence could now be destroyed.

ST’s bedroom was searched and nothing was found. He was arrested, detained at the police station in an adult cell, and released shortly after interview around 6 hours later. He was subsequently informed that no further action would be taken.

ST brought a claim in false imprisonment. Mr Justice Cotter held (on appeal) that the arresting officers did not have reasonable grounds to believe ST’s arrest was necessary, and the arrest was therefore unlawful. Several reasons are given for this finding, including:

  • There was no evidence the officers had considered ST’s welfare, the fact that 12 days had elapsed since the offence, or the fact that ST would not be difficult to locate;
  • Less intrusive alternatives had not been considered; and
  • The arrest had been timed ‘largely, if not solely for the [investigating] officer’s convenience’ (§15)

Crucially, the Judge held that ST’s age was a ‘central and obvious consideration’ (§94) and that police must differentiate between children and adults when considering the necessity of arrest and detention. This was held to be required not only by PACE 1984 but by wider obligations including the UN Convention on the Rights of the Child (Articles 3 & 37) and the Children Act 2004 (section 11).

Timing will also be relevant to lawfulness. The Judge rejected the police submission that timing was a matter for police discretion, stating: ‘The consideration of the welfare of children cannot be watered down to a mere matter of an officer’s discretion as to whether it should be afforded any weight. Rather it must be considered, as an obviously material factor, when assessing whether the arrest of a child is necessary at any particular time’. (§116)

Commentary

This judgment will be extremely helpful for practitioners challenging the necessity of arrests and detention of children, both at the police station and in civil claims for false imprisonment. In particular, it clarifies the requirements for reasonableness in relation to an officer’s belief in necessity. The officer must consider the child’s best interests, or their belief will not be reasonable: ‘Where time for reflection exists, the test of necessity for arrest and detention requires anxious scrutiny of the fact that a child is involved’ (§95).

Where there is a need to search a child’s home address, this does not automatically mean that arrest is necessary, and officers should first consider alternatives. In this case a search warrant could have been obtained, and/or permission could have been requested from ST’s father (as the owner of the property) to carry out a voluntary search. The Judge found that ‘the officers gave no thought at all to achieving the central objective of a search without arrest’ (§128). This accorded with their general lack of regard to ST’s age and welfare, and further undermined the reasonableness of their belief in the necessity of arrest.

The judgment also confirms that the police cannot rely on their own mistakes to justify an arrest. In this case officers should have considered whether ST’s arrest was necessary before attending the address; their actions in knocking on the door and alerting the family could not render an otherwise unnecessary arrest necessary.

Finally, Mr Justice Cotter made helpful obiter comments on the duty of custody officers to conduct an independent assessment of necessity when considering whether to authorise the detention of a child (§144-149).

 

Written by Joanna Khan, trainee solicitor, Bhatt Murphy