W, R (on the application of) v Commissioner of Police for the Metropolis & Ors

A statutory power to remove a child is not coercive merely because the legislation uses the word “remove” or because coercion might be convenient. A power to use reasonable force must arise by necessary implication, which requires a compelling conclusion from the statutory language, context, purpose and surrounding circumstances. Where Parliament has not expressly authorised interference with lawful conduct or tortious conduct, the presumption is against such an implication. Section 30(6) of the Anti-Social Behaviour Act 2003 therefore permits police officers and community support officers to take a qualifying child home only with the child’s agreement.

W, aged 14, sought judicial review of authorisations covering dispersal areas in Richmond Town Centre and Ashburnham Road, Ham. The authorisations were made under section 30 of the Anti-Social Behaviour Act 2003, with the consent of the local authority. W argued that section 30(6) unlawfully enabled police officers or community support officers to remove children under 16 to their homes after 9 pm, potentially by force.

The central issue was whether the statutory power to “remove” a qualifying child was permissive or coercive, and in particular whether it included an implied power to use reasonable force.

1. Application granted. Section 30(6) of the Anti-Social Behaviour Act 2003 did not confer on a constable in uniform or a police community support officer any power to use force to remove a person under 16 to that person’s place of residence.
2. The use of the same word, “remove”, in section 46 of the Children Act 1989 did not determine its meaning in section 30(6). Section 46 operates in an emergency, permits removal from parental control and allows the child to be kept in suitable accommodation. Its context therefore supports a coercive power, unlike section 30(6).
3. The existence of an implied power to use force depends on necessary implication. That requires more than a reasonable or sensible inference. It must follow compellingly from the express statutory language read in context, having regard to the offence, the mischief and the circumstances relevant to Parliament’s intention, as explained in B (A Minor) v DPP [2000] 2 AC 428 and R (Morgan Grenfell Ltd) v Special Commissioner for Income Tax [2002] UKHL 21; [2003] 1 AC 563.
4. The factors favouring coercion were weak and ambiguous. The section was not limited to emergencies, did not make the child’s presence an offence, supplied no power to arrest or require identification, and contained no ancillary arrangements for a child who could not enter the home. Section 30(6) also contained no express equivalent of section 117 of the Police and Criminal Evidence Act 1984.
5. The longstanding presumption that Parliament does not authorise tortious conduct without express words, identified in Morris v Beardmore [1981] AC 446, reinforced the conclusion. A child behaving lawfully in a dispersal area was not subject to interference under section 30(6), although the child remained subject to directions under section 30(4).
6. The court indicated that the appropriate relief was a declaration that section 30(6) conferred no power to use force.