Archer v The Commissioner of Police of the Metropolis

Detention of a person suspected of an offence may, in principle, be justified under Article 5(1)(c) and Article 5(3) of the ECHR where it is necessary for that person’s own protection. The detention must remain directed towards bringing the person promptly before a competent court and must be free from arbitrariness.

Such detention is permissible only for a short period, in exceptional circumstances connected with the nature, circumstances and context of the suspected offence, and where no reasonably available protective alternative exists. Generic concern for the detainee’s safety is insufficient. These limits apply especially strictly where the detainee is a child.

The claimant, aged 15, was arrested and charged following a gang-related incident in which he had been injured. The custody officer refused bail, relying principally on the need to detain him for his own protection and to prevent further offending. He was detained overnight before being brought before a youth court.

The claim sought a declaration that section 38(1)(b)(ii) of the Police and Criminal Evidence Act 1984 was incompatible with Article 5 of the ECHR, a declaration that the detention was unlawful, and damages. The central issues were whether own-protection detention could be compatible with Article 5(1)(c), and whether the claimant’s detention satisfied the applicable limitations.

1. The claim was dismissed. Sections 38(1)(a)(vi) and 38(1)(b)(ii) of the Police and Criminal Evidence Act 1984 were not incompatible with Article 5 of the ECHR insofar as they authorised detention for the detainee’s own protection. The claimant’s overnight detention was compatible with Article 5.

2. Article 5(1) contains an exhaustive list of permitted grounds of detention, which must be narrowly interpreted. Article 5(1)(c) must be read together with Article 5(3). Detention must be intended to bring the detainee promptly before a court, but that purpose requirement does not mean that detention must be necessary to secure attendance at court. Pre-trial detention may also be justified by relevant and sufficient reasons such as preventing interference with justice, public disorder or harm to the detainee.

3. Following the approach in IA v France and confirmed in Buzadji v Moldova, own-protection detention is capable in principle of being a relevant and sufficient reason. It is permissible only for a short period and in exceptional circumstances connected with the nature of the suspected offences, the conditions in which they were committed and their context.

4. Relevant considerations include the age and maturity of the detainee, the risk and seriousness of reprisals, the characteristics of those from whom protection is required, and whether those persons are in custody or likely to be detained. Detention is necessary only where no reasonably available non-custodial means can provide protection. Public authorities exercising the statutory discretion must apply these limitations under section 6 of the Human Rights Act 1998.

5. The claimant’s detention lasted about 13 hours and ended when he was brought before the youth court. The custody record identified a recent gang-related fight, serious injuries, the claimant’s age, the local setting and the risk of further attack. Those matters demonstrated exceptional circumstances rather than a generic safety concern. The short period also explained why protective alternatives could not realistically be arranged. The separate risk of further offending was itself a valid ground.