Castle & Ors v Commissioner of Police for the Metropolis

Section 11 of the Children Act 2004 requires chief officers of police to perform their existing functions having regard to the need to safeguard and promote children’s welfare. The duty extends beyond organisational training and policy dissemination, but does not create new police functions. In public-order operations, containment affecting innocent third parties is lawful only where a breach of the peace is imminent, no other practicable means can prevent it, and the action is reasonably necessary and proportionate. Planning should address alternatives to containment and mitigation of its effects, including on children. On the facts, the police had reasonably planned for contingent containment and release of vulnerable people, and the prolonged containment was justified by continuing violence and risks outside the cordon.

Three minors sought judicial review and damages after being contained in Whitehall during a public demonstration against proposed increases in university tuition fees and removal of the Educational Maintenance Allowance. They argued that the containment and its duration were unlawful at common law, under articles 5, 8, 10 and 11 of the European Convention on Human Rights, and because the police had breached their duty under section 11 of the Children Act 2004.

The court granted permission despite delay. The parties accepted that containment had become necessary because the police reasonably apprehended an imminent breach of the peace. The central issues were whether section 11 imposed an operational duty, whether any breach affected the lawfulness of the containment, and whether continuing detention was necessary, proportionate and lawful.

1. Claim dismissed. Section 11 of the Children Act 2004 required the chief officer of police to carry out existing functions in a way that took account of the need to safeguard and promote children’s welfare. It was not confined to institutional arrangements, training and dissemination of information. It did not, however, redefine police functions.
2. In a public-order operation, the duty required planning, where appropriate, to safeguard children and promote their welfare. The police had to plan for alternatives to containment where practicable and minimise its effects on innocent third parties. Failure to take reasonable steps could make the action unlawful towards affected innocent third parties.
3. The common-law power to contain depended on a reasonably apprehended imminent breach of the peace, the absence of any other means of preventing it, and action that was no more intrusive than necessary, reasonable and proportionate. The court applied the principles in R (Laporte) v Chief Constable of Gloucestershire Constabulary, [2006] UKHL 55, and Austin v Commissioner of the Police of the Metropolis, [2008] EWCA Civ 989.
4. The defendant had made reasonable preparations. Intelligence did not indicate significant attendance by schoolchildren or identify where containment would be needed. It was sufficient to prepare for contingent containment and instruct commanders to protect vulnerable people. Children were treated as within that category and were released throughout the afternoon and evening.
5. The continuing containment, searches for weapons and arrests for suspected offences were not unnecessary, unreasonable or disproportionate. Continuing violence, armed protesters, risks at both ends of Whitehall and attempts by released protesters to regroup justified the delay. The claim under common law and article 5 failed. The article 8, 10 and 11 arguments were not determined because any interference was lawful, pursued a legitimate aim and proportionate.