PW, R (on the application of) v Commissioner of Police for the Metropolis & Anor

The statutory power to remove a child under 16 from a designated dispersal area at night authorises reasonable force where necessary. Its exercise is controlled by the statutory purpose and safeguards. It is not an arbitrary power to impose a curfew. Removal must relate to protecting the child from the physical or social risks of actual or imminently anticipated anti-social behaviour, or preventing the child’s own participation in it. A constable must act reasonably, considering the child’s age, the hour, vulnerability or distress, the child’s explanation, and the nature of the anti-social behaviour. A claimant who has not been removed lacks Convention victim standing without a sufficiently serious, real and immediate apprehension of unlawful interference.

W, a child under 16, challenged dispersal-area authorisations made under Part 4 of the Anti-social Behaviour Act 2003. He argued that section 30(6) did not authorise reasonable force, or should be read down or declared incompatible with Convention rights. W had never been removed under the provision, but feared that it created a curfew effect.

The Divisional Court, in [2005] EWHC 1586 (Admin), reported at [2005] 1 WLR 3706, held that the power was permissive rather than coercive and made a declaration accordingly. The Commissioner and the Secretary of State appealed. The central issues were the meaning and scope of “remove”, and whether W had standing to challenge the provision under the Human Rights Act 1998.

The Court of Appeal, in a judgment of the Court, allowed the appeal, quashed the Divisional Court’s order and declaration, and dismissed the claim for judicial review.

1. Jurisdiction. Although W had never been removed under section 30(6), the court considered the issue. It was a clear-cut question of general concern, particularly to the police, and leaving the Divisional Court’s decision in place would have left the law in an unsatisfactory limbo. The restriction on hypothetical proceedings discussed in R v Secretary of State for the Home Department, ex parte Wynne [1993] 1 WLR 115 did not prevent determination of the issue.
2. Meaning of “remove”. In its statutory context, “remove” naturally and compellingly meant taking the child away using reasonable force if necessary. This was a matter of statutory meaning, rather than necessary implication. The requirement that a power curtailing freedom of movement be compellingly clear, identified in B (a minor) v Director of Public Prosecutions [2000] 2 AC 428, was satisfied. The absence of an express force provision such as section 117 of the Police and Criminal Evidence Act 1984 did not alter that conclusion. The presumption discussed in Morris v Beardmore [1981] AC 446 was met because the power arose from the meaning of the statutory word itself.
3. Purpose and limits. Section 30(6) had two purposes: protecting children from the physical and social risks of anti-social behaviour by others, and preventing children from participating in anti-social behaviour themselves. It did not authorise removal merely because a child was present in a designated area at night. The power was not a power of arrest and could not be used arbitrarily or for a purpose other than that for which it was conferred.
4. Reasonableness. The discretion could be exercised only where removal was reasonable in the light of those purposes. Relevant considerations included the child’s age, the lateness of the hour, vulnerability or distress, the child’s explanation for being present, and the nature of actual or imminently anticipated anti-social behaviour. The statutory designation, authorisation, publicity and notification requirements formed important constraints.
5. Convention standing. Because W had never been removed, and had no sufficiently serious, real and immediate apprehension that the power would unlawfully interfere with a Convention right in his case, he was not a victim for the purposes of section 7 of the Human Rights Act 1998.

1. Court of Appeal (Civil Division). The appeal by the Commissioner and the Secretary of State was allowed. The Divisional Court’s order and declaration were quashed, and the claim for judicial review was dismissed.
2. Divisional Court, Queen’s Bench Division. In [2005] EWHC 1586 (Admin), also reported at [2005] 1 WLR 3706, the court held that section 30(6) conferred only a permissive power to take a willing child home and made a declaration to that effect. Permission to appeal was later granted by Mummery LJ.