BG, R (On the Application Of) v West Midlands Constabulary & Anor

Section 38 of the Police and Criminal Evidence Act 1984 applies to a juvenile detained after being charged with an offence. It does not govern detention following arrest for breach of bail conditions under section 7 of the Bail Act 1976. The welfare duty in section 11 of the Children Act 2004 makes safeguarding and promoting children’s welfare a primary consideration, but it does not redefine police functions or authorise rewriting other statutory schemes. A local authority must maintain a reasonable system for responding to requests for secure accommodation, but section 21 of the Children Act 1989 does not impose an absolute duty to provide secure accommodation whenever requested. Judicial review relief remains discretionary and depends on the circumstances of the individual detention.

The claimant, who was aged 16 during the relevant events, sought judicial review concerning four periods of detention in police custody before court appearances. The challenges concerned the continued detention of juveniles under section 38 of the Police and Criminal Evidence Act 1984, welfare duties under section 11 of the Children Act 2004, the separation duty under section 31 of the Children and Young Persons Act 1933, certificates under section 38(6) and (7) of PACE, and the local authority’s accommodation obligations under section 21 of the Children Act 1989.

The first and second detentions followed arrest and charge or related criminal proceedings. The third and fourth followed arrest for breach of bail conditions. The central issues were whether the police should have transferred the claimant to local authority accommodation, whether the local authority had failed to provide secure accommodation, and whether the detention was otherwise unlawful.

1. Renewed application refused. The court held that the claim concerning the second and fourth periods of detention was unarguable. They lasted less than five hours and three hours respectively, so transferring the claimant to secure accommodation would have been impracticable and would probably have delayed his court appearance.
2. For the first detention, the custody officer had reasonable grounds to conclude that detention was necessary to prevent further offending and protect the public from serious harm. The decision was open to him on the facts. The absence of more detailed reasons did not invalidate it.
3. Section 11 of the Children Act 2004 requires relevant public bodies to discharge their functions having regard to the need to safeguard and promote children’s welfare. It makes the child’s best interests a primary consideration and incorporates the essence of the United Kingdom’s obligations under article 3 of the United Nations Convention on the Rights of the Child. It does not, however, redefine police duties or authorise the rewriting of other statutory provisions. Whether the duty has been breached is fact-sensitive. The police’s enquiries about secure accommodation were evidence that they had had regard to the claimant’s welfare.
4. Sections 38(6) and (7) of PACE require a certificate stating the relevant circumstances of a juvenile’s detention. Section 38(3) requires a written record of the grounds for detention. The custody record sufficiently recorded those grounds. Failure to produce a certificate would not, without more, make the detention unlawful.
5. Section 31 of the Children and Young Persons Act 1933 is directed to preventing a child from associating with an adult charged with an offence. There was no evidence that the claimant had shared a cell or mixed with adult detainees.
6. Section 38 of PACE was not engaged by the third detention, because the claimant had been arrested solely for breach of bail conditions under section 7 of the Bail Act 1976. The applicable duty was to bring him before a justice as soon as practicable and within 24 hours. The court declined to rewrite section 38 by deleting its reference to a person who is charged with an offence.
7. The court did not need to decide whether the local authority had a reasonable system for obtaining secure accommodation. It noted, following R(M) v Gateshead MBC, that the local authority’s duty to provide accommodation is absolute, but the duty to provide secure accommodation is discretionary and subject to a reasonable response system.

This was a renewed application for permission to bring judicial review proceedings after permission had been refused on the papers by Mitting J. The Administrative Court refused the renewed application.