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

This is a judgment of the Court.

There has been much concern in recent years about anti-social behaviour. Part 1 of the Crime and Disorder Act 1998 enables a relevant authority, including a local government council and a chief officer of police, to apply to a court for an anti-social behaviour order prohibiting a person aged 10 or over from doing anything described in the order. Breach of such an order is an offence and the offender is liable to imprisonment or a fine. The present appeal concerns Part 4 of the Anti-social Behaviour Act 2003, which provides for dispersal of groups.

Section 30 of the 2003 Act provides:

“Dispersal of groups and removal of persons under 16 to their place of residence

(1)

This section applies where a relevant officer has reasonable grounds for believing

(a)

that any members of the public have been intimidated, harassed, alarmed or distressed as a result of the presence of behaviour of groups of two or more persons in public places in any locality in his police area (the “relevant locality”), and

(b)

that anti-social behaviour is a significant and persistent problem in the relevant locality.

(2)

The relevant officer may give an authorisation that the powers conferred on a constable in uniform by subsections (3) to (6) are to be exercisable for a period specified in the authorisation which does not exceed 6 months.

(3)

Subsection (4) applies if a constable in uniform has reasonable grounds for believing that the presence or behaviour of a group of two or more persons in any public place in the relevant locality has resulted, or is likely to result, in any members of the public being intimidated, harassed, alarmed or distressed.

(4)

The constable may give one or more of the following directions, namely-

(a)

a direction requiring the persons in the group to disperse (either immediately or by such time as he may specify and in such way as he may specify),

(b)

a direction requiring any of those persons whose place of residence is not within the relevant locality to leave the relevant locality or any part of the relevant locality (either immediately or by such time as he may specify and in such way as he may specify), and

(c)

a direction prohibiting any of those persons whose place of residence is not within the relevant locality from returning to the relevant locality or any part of the relevant locality for such period (not exceeding 24 hours) from the giving of the direction as he may specify;

but this subsection is subject to subsection (5).

(5)

A direction under subsection (4) may not be given in respect of a group of persons-

(a)

who are engaged in conduct which is lawful under section 220 of the Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52), or

(b)

who are taking part in a public procession of the kind mentioned in section 11(1) of the Public Order Act 1986 (c. 64) in respect of which-

(i)

written notice has been given in accordance with section 11 of that Act, or

(ii)

such notice is not required to be given as provided by subsections (1) and (2) of that section.

(6)

If, between the hours of 9pm and 6am, a constable in uniform finds a person in any public place in the relevant locality who he has reasonable grounds for believing-

(a)

is under the age of 16, and

(b)

is not under the effective control of a parent or a responsible person aged 18 or over,

he may remove the person to the person’s place of residence unless he has reasonable grounds for believing that the person would, if removed to that place, be likely to suffer significant harm.”

Section 36 defines “anti-social behaviour” as:

“… behaviour by a person which causes or is likely to cause harassment, alarm or distress to one or more other persons not of the same household as the person.”

It defines “public place” as:

“(a)

any highway, and

(b)

any place to which at the material time the public or any section of the public has access, on payment or otherwise, as of right or by virtue of express or implied permission.”

This would, so it seems, include cinemas, restaurants, coffee bars and public houses. It defines “relevant officer” as “a police officer of or above the rank of superintendent”.

Section 30 of the 2003 Act thus enables a senior police officer to delineate an area in which there has been significant and persistent anti-social behaviour. The officer may then authorise uniformed constables for a period not exceeding 6 months to give dispersal directions to groups of persons whose public presence or behaviour in the delineated area has resulted, or is likely to result, in members of the public being intimidated, harassed, alarmed or distressed. A person who knowingly contravenes a direction given to him under section 30(4) commits an offence and is liable on summary conviction to a fine or imprisonment (section 32(2)). An authorisation may not be given without the consent of the local authority for the relevant area (section 31(2)). Publicity must be given to the authorisation before the beginning of its operative period (section 31(3), (4) and (5)). Designated community support officers have power to exercise the powers conferred on a uniformed constable by section 30(3) to (6) (section 33, amending the Police Reform Act 2002). When the power in section 30(6) to remove a person under the age of 16 is exercised, the relevant local authority must be notified (section 32(4)).

By section 34, the Secretary of State may issue a code of practice about authorisations under section 30 and the exercise of the powers conferred by section 30(3) to (6). The Secretary of State has not yet done so. If he had, relevant officers and uniformed constables or community support officers would be obliged to have regard to it (section 34(4) and (5)). The Home Office issued a circular in January 2004 – Circular 004/2004.

Richmond-upon-Thames had trouble with widespread anti-social behaviour during 2004. Around the Green and along the Riverside, on weekends in the summer months, large numbers of people would come into the area to drink. On a weekend evening, up to 8,000 people might be drinking along the Riverside. In the area of the town centre, the Green and the Riverside, the police could expect to receive an average of a call a day concerning disturbances in a public place or on licensed premises, excluding reports of crime. On 14^th May 2004, Superintendent Channer duly authorised the exercise of the powers conferred by section 30(3) to (6) of the 2003 Act in respect of a defined area of central Richmond for a period from 1^st June 2004 to 29^th October 2004. The London Borough of Richmond-upon-Thames duly consented to the giving of this authorisation.

In another part of the Borough, around Ashburnham Road in Ham, residents complained of frequent occasions when youths and children were brawling in the street, racing cars, letting off fireworks, committing criminal damage and intimidating residents. In the 3 months from August to October 2004, there were in this area 31 disturbances reported to the police, as well as 53 reported incidents of criminal damage. There was a particular problem with the bus service, with young people lying in the road stopping buses, pulling off windscreen wipers, and attacking bus drivers. As a result, the bus company withdrew services to the area after 6p.m.

Superintendent Davis, with the consent of the local authority, duly gave an authorisation under section 30(2) of the 2003 Act for a designated area around Ashburnham Road from 4^th December 2004 to 4^th January 2005.

The designation of these two dispersal areas was popular with local people and successful in reducing reports of crime and disturbance. During the operative period of the two dispersal areas, the police used the powers under section 30(6) to remove a person under 16 to the person’s place of residence once only. On 1^st October 2004, a police officer took a boy aged 13 from Richmond town centre to his home in Ealing. The boy had been found in the company of some 16 to 18 year olds who were drinking and carrying alcohol, shouting and swearing. The police officer reckoned that the 13 year old needed to be removed to a place of safety. The power under section 30(6) was never used in the Ham dispersal area. Two children under 16 were spoken to by the police during the authorisation period and advised to go home.

The judgment of the Divisional Court in the present proceedings [2005] 1 WLR 3706; [2005] EWHC 1586 (Admin) has the following account of W, the claimant, and his concerns and those of his parents:

“16.

W lives with his parents in Ashburnham Road. He first became aware of the existence of the Richmond town centre dispersal area when he visited shops in Richmond with a school friend on 22 June 2004 as they were returning home from a school visit to central London. A policeman seemed to be watching them while they were shopping, and when he followed them out of the shop and towards the river W decided to confront him. According to W, the “policeman”, who turned out to be a CSO, explained to them that they were in a dispersal area and that he thought they had been acting suspiciously. He gave them a piece of paper which contained a map of the dispersal area, and told them about the effect of the police’s section 30(4) powers.

17.

The CSO concerned in the incident made a witness statement that night, after W’s father had complained to the police about the way his son had been treated. This statement gives a much fuller account of what happened, but we can confine ourselves for present purposes to the officer’s comment that he formed the impression that both boys were good boys and were merely behaving unusually. He felt he should advise them that if they “acted the goat” too much, people could get the wrong impression.

18.

W said he was extremely distressed at being told off. When he got home and told his father what had happened, they saw a reference to section 30 of the 2003 Act in the paper W had been given. They then learned that the existence of the dispersal area not only conferred the section 30(4) powers W had been told about but that it also allowed the police to take under 16s back to their homes if they were out after 9 pm without a responsible adult, even if they had not done anything wrong. After his experience on 22 June, W did not feel he could be out in Richmond town centre any more in the evenings without his parents: he could not even meet his friends or go to the cinema because he might be picked up by a policeman or a CSO, and he did not want the ignominy of being taken home by the police.

19.

His father contacted a solicitor at Liberty, and because that organisation had been concerned about curfew powers for a long time it decided to support this legal challenge. During the pre-action exchanges the Commissioner’s director of legal services told Liberty that he considered that section 30(6) conferred on the police the power to use reasonable force when removing a young person under the age of 16 to his place of residence. When these proceedings were instituted on 23 September 2004 they were concerned only with the dispersal area in Richmond. They were later enlarged to embrace the Ashburnham Road dispersal area, too.

20.

W’s evidence was based on the premise that section 30(6) gave the police the power to use reasonable force to remove him to his home from a dispersal area against his will. He expressed concern that the police might use their power at any time, and he objected to the constraints that this fear imposed on the way he lived his life, particularly as he lived in the Ashburnham Road dispersal area. He felt unable, for example, to take a bus home after 9 pm when he went to band practice in Kingston, and he had to rely on someone else to give him a lift home. This embarrassed him, because he felt he was old enough to be independent. He also felt unable to go out to the local Tesco store for his parents after 9 pm, for fear that the police might decide that he ought not to be out so late, and that they should take him home. In the week after the Ashburnham Road dispersal area came into effect he felt uncomfortable walking the short distance back to his home from a friend’s house after 9.30 pm, and he did not stop worrying about the possibility of being picked up by the police until he got inside the front door of his house.”

The concerns of Liberty who sponsor these proceedings for W, include what has been referred to as “the curfew effect” of section 30(6), the fear of which the case of W exemplifies. The Richmond dispersal authorisation was in force when W started the proceedings, and it was of that authorisation that he complained. The Ham dispersal authorisation came later, but has been absorbed into the proceedings.

The judicial review claim form, issued on 23^rd September 2004, sought judicial review of “the continuing authorisation by the First Defendant, and the consent given by the Second Defendant, granting the police power to forcibly remove persons under 16 from the Richmond Area during the curfew hours”. The claim form sought as remedies:

“(a)

a declaration that section 3 of the Human Rights Act 1998 requires that section 30(6) of the 2003 Act should be read down so as either (1) to limit a constable’s power to remove a person under 16 to cases in which the constable reasonably believes the person is himself acting or likely to act in an anti-social manner, or (2) to construe the sub-section as not giving the constable power to use reasonable force to remove the person;

(b)

a declaration that the Richmond dispersal authorisation was unlawful because it was given on a misunderstanding as to the meaning and scope of section 30(6); and an order quashing the authorisation; or

(c)

a declaration of incompatibility under section 4 of the Human Rights Act in respect of section 30(6).”

The Secretary of State was joined in the proceedings as an Interested Party.

There is no properly arguable case that the dispersal authorisations themselves were unlawful. There is a proper concern about the meaning and extent of section 30(6) of the 2003 Act. However, W himself was never removed to his place of residence under section 30(6).

It was contended before the Divisional Court on behalf of W that section 30(6) did not authorise a constable to use reasonable force; or that, if it did, it should be read down or was incompatible with a variety of W’s Convention rights. It was contended on behalf of the defendants and the Secretary of State that section 30(6) did authorise a constable to use reasonable force; that it did not infringe any of W’s Convention rights; and that in any event W was not a victim of any unlawful act for the purpose of section 7 of the Human Rights Act, and so had no standing to bring that part of the proceedings.

The Divisional Court considered the meaning and extent of section 30(6). They concluded in paragraph 34 that they were entirely satisfied that:

“… the power to remove in section 30(6) is permissive, not coercive. It therefore confers no power on the police or a CSO to interfere with the movements of someone under the age of 16 who is conducting himself lawfully within a dispersal area between the hours of 9 pm and 6 am. Such a person is just as susceptible as anyone else to being made the subject of a section 30(4) direction. Section 30(6) merely confers on the police a very welcome express power to use police resources to take such a person home if he is willing to be taken home.”

The court made a declaration accordingly. They refused the defendants and the Secretary of State permission to appeal, but Mummery LJ granted permission on the papers. This is the Secretary of State’s and the Commissioner’s appeal against the decision of the Divisional Court.

Since W was never removed to his place of residence under section 30(6) of the 2003 Act, we were initially concerned whether the proceedings might be hypothetical within the strictures of the House of Lords in R v Secretary of State for the Home Department, ex parte Wynne [1993] 1 WLR 115. However, the meaning and effect of the sub-section is a matter of general concern, not least to the police, who have, since the decision of the Divisional Court in effect refrained from using it. All parties now before the court agree that the court is able to consider the matter against the facts of W’s case, and they invite this court to do so. We are persuaded that we can properly do so, both because the decision of the Divisional Court would otherwise remain in unsatisfactory limbo; and because the issues are clear cut. Does section 30(6) authorise the use of reasonable force or not? If it does, what is its ambit? The claimant’s concern that the designation of the Richmond dispersal areas had for him a “curfew effect” derives more from the second issue than the first.

It is suggested, correctly we think, that section 30(6) has two purposes – to prevent children from themselves participating in anti-social behaviour and to protect them from anti-social behaviour of others within a dispersal area. There is no reason, relevant for present purposes, why children, as much as adults, should not be free to go as they wish in public after 9p.m. But they should no more participate in anti-social behaviour than should adults. If they do so behave within a dispersal area during the operative period of an authorisation under section 30 of the 2003 Act, they are as amenable as are adults to a dispersal direction under section 30(4). But that is backed by a criminal sanction, and Mr Otty, for the Secretary of State, suggests that it may be preferable to remove a child to his place of residence than to risk the possibility for the child of criminality. That may be one purpose. But we think that the purpose of protecting the child is more prominent and evident from the statutory language. A child in close proximity with anti-social behaviour in an authorised dispersal area at night may well need protection from the physical and social risks of the behaviour of others. How better to do this than to take the child home?

The first question is whether the power of the constable under section 30(6) to “remove” the person under 16 to his place of residence carries with it a power to use reasonable force if necessary. In our judgment, it plainly does, for reasons which we can briefly explain.

It is of course correct, as the Divisional Court said, that all of us have the right to walk the streets without interference from police constables unless they have common law or statutory powers to stop us. There is no relevant common law power. The Divisional Court said that section 30(6) does not create an express power. But that, in our view, begs the question. If “remove” carries with it the power to use reasonable force if necessary, there is an express power. We do not think that the court is concerned with implication, although we entirely accept that a statutory power to curtail a person’s freedom of movement must be “compellingly clear” – see Lord Nicholls of Birkenhead in B (a minor) v Director of Public Prosecutions [2000] 2 AC 428 at 464A, where the question was nevertheless one of necessary implication.

There is no provision, such as there is in section 117 of the Police and Criminal Evidence Act 1984, expressly giving constables a power to use reasonable force to remove children. The absence of such a provision is an element of the argument that constables are not so empowered. The question remains whether “remove” carries with it the power to use reasonable force, if necessary.

There are other uses of the word “remove” in contemporary legislation. Section 46 of the Children Act 1989 has provisions for taking a child into police protection. Section 46(1) gives power to a constable who has reasonable cause to believe that a child would otherwise be likely to suffer significant harm, to “remove the child to suitable accommodation and keep him there”. The constable may also take such steps as are reasonable “to ensure that the child’s removal from any … place in which he is being accommodated is prevented.” The Divisional Court held (paragraph 26) and all parties agree that this power to “remove” may be coercive. The phrase “significant harm” reappears in section 30(6) of the 2003 Act. Actual or likely future significant harm is the basis for a local authority to institute care proceedings under Part IV of the 1989 Act, and the threshold without which a care order cannot be made – see sections 31(2) of the 1989 Act.

Reference was also made to section 2(1) of the Child Abduction Act 1984, where the word “remove” connotes the use of force. But this section encompasses unlawful conduct; it does not give a power to constables. By contrast, section 15(3) of the Crime and Disorder Act 1998 provides that a constable:

“… may remove the child to the child’s place of residence unless he has reasonable cause to believe that the child would, if removed to that place, be likely to suffer significant harm”

where the constable has reasonable cause to believe that the child is in contravention of a ban imposed by a curfew notice. This provision, which uses the same words as the relevant part of section 30(6) of the 2003 Act, in our judgment plainly carries with it a coercive power in the use of the word “remove”. The same, we think, applies to its use in section 16(3) of the 1998 Act. That section empowers a constable to “remove” a truant child or young person to designated premises or his school, where the child or young person is found in a public place in an area and at a time duly specified under the section. This has close affinity with section 30(6) of the 2003 Act, and again plainly carries with it a power of coercion, although, as with section 30(6), there is no equivalent in the 1998 Act of section 117 of the 1984 Act. Just as the Secretary of State submits in the present appeal that a merely permissive and persuasive power of removal would be ineffective, so too would a merely permissive power to encourage truant children to go back to school. A duly authorised curfew notice would be ineffective, if it were not backed by a power of coercion.

The Divisional Court, who do not refer to sections 15 and 16 of the 1998 Act, pointed to the elementary canon of construction that a word takes colour from its context. They considered that the context in which the word “remove” is used in section 46 of the 1989 Act is completely different from its context in section 30(6) of the 2003 Act. They described the respective contexts in paragraph 28 of the judgment. For section 30(6), two factors suggested that Parliament may have intended to create a coercive power. First, a natural meaning of the word “remove” in the context might require physical force, if the child resisted. However, this was not the only possible meaning of the word “remove”, as indicated by the language used in the relevant Home Office circular, where the power is referred to as a power to “return”. In our view, this non-statutory Home Office circular is not a guide to the construction of the word “remove” in section 30(6).

Second, the Divisional Court referred to the statutory context which they described in paragraph 30 of the judgment as follows:

“Part 4 of the 2003 Act is intended to give police officers enhanced powers to minimise anti-social behaviour in defined areas. If Parliament were to be taken to have regarded all children found in such areas between the relevant hours as potential sources of anti-social behaviour, a coercive power to remove them might be a natural corollary. However, to attribute such an intention to Parliament would be to assume that it ignored this country’s international obligations to treat each child as an autonomous human being.”

This, however, in our view begs the question of the ambit of the section 30(6) power, which we address later in this judgment.

The Divisional Court were not willing to attribute to Parliament the intention which they had identified. The Home Office circular identified the need to protect a child from the undesirable influence and example of older peers. This did not necessarily imply the need for a coercive power. If Parliament had so intended, it should have said so and identified the circumstances in which it intended the power to be exercised. This implies that the power in section 30(6) if it were coercive, would be unconstrained. As will appear, we do not think that it is.

The Divisional Court considered that the weak and ambiguous factors in favour of the coercive power were outweighed by clear indications that Parliament intended the power to be permissive only. It is not an offence for a child to be in a dispersal area between the stated hours. There is no power of arrest. There is no power for a constable to require a child to give his name and address. Without that information, the power could not be exercised. We note that there is in fact such a power in section 50(1) of the Police Reform Act 2002 which covers this point in part. There are no ancillary powers, for example, to deal with the situation where the child’s place of residence is unoccupied and locked. There is no express power to use reasonable force. But above all:

“… there is the long standing and clear presumption that Parliament does not intend to authorise tortious conduct except by express provision; see Morris v Beardmore [1981] AC 446, per Lord Diplock, at p 455FG per Lord Edmund-Davies at p 461H, and per Lord Scarman, at p 463E. Section 30(6) contains no such express provision.”

We respectfully disagree with the Divisional Court’s conclusion that the word remove in section 30(6) does not carry with it a coercive power. In its context, we consider that the word “remove” naturally and compellingly means “take away using reasonable force if necessary”. It is not, in our view, a matter of implication, but of meaning. If the word did not have this meaning, the power would in the context be pointless. The police do not need an express power merely to use their resources to take a child or young person home, if he is willing to be taken home, in the circumstances contemplated by the sub-section. We are inclined to think that the word “remove” nearly always connotes a use of force. You have to use a force to “remove” an inanimate object, although the object is by definition incapable of sentient resistance. The word “remove” is not generally apt for helping willing persons to travel from one place to another. In the context of a power given to constables, the word “remove” connotes the use of reasonable coercion, if necessary. This applies as much to section 30(6) of the 2003 Act as to section 46 of the 1989 Act and sections 15 and 16 of the 1998 Act. Indeed, the constable’s powers under section 30(6) sit easily with the protective duties given to the police under section 46 of the 1989 Act. Insofar as section 30(6) authorises what would otherwise be a tort, its scope is limited as discussed below. This limitation addresses one of the main concerns of the Divisional Court.

We grant that the sub-section is not, perhaps, drafted to cover explicitly all contingencies which might arise. But a child in a designated dispersal area in Richmond, whose place of residence is in Newcastle-upon-Tyne, or a child whose place of residence is locked and unoccupied, may well be in need of police protection under the 1989 Act; as may a child who refuses to give his name and address, who may also possibly be obstructing the police in the exercise of their duty. A child’s need for protection must surely outweigh any theoretical right to conceal his identity. We note also that the power is given, not only to constables, but to community support officers, whose training and other powers are much more limited. These considerations do not persuade us to give a limited meaning to the word “remove” which, in our view, it does not in its context have.

W’s concern and that of Liberty is that section 30(6), if it gives coercive powers, has an illegitimate “curfew effect”. In our judgment, it does not have a curfew effect, although we have some sympathy with W’s idea that it might in the light of the terms of the notices and public statements given by the Richmond police – see paragraphs 10-12 of the judgment of the Divisional Court. We also have some sympathy with the police, when the Secretary of State had issued no code of practice under section 34.

There are detailed express powers for local child curfew schemes in sections 14 and 15 of the 1998 Act. These are intended to provide “an effective immediate method of dealing with clearly identified problems of anti-social and disorderly children who are too young to be left out unsupervised at night” – see paragraph 5.8 of the Government White Paper “No More Excuses – A New Approach to Tackling Youth Crime in England and Wales” (Cmd 3809). Section 30 of the 2003 Act is concerned in the first instance with areas where anti-social behaviour by those over the age of 16 is a significant and persistent problem. Dispersal directions under section 30(4) may of course include directions to those who are under the age of 16, but that is incidental.

Section 30(6) would only have a “curfew effect” if it gave an arbitrary power of removal; as if it gave a constable power to remove to his place of residence any unaccompanied child within a designated dispersal area at night whatever the child was doing and whatever the circumstances prevailing in the area. In our judgment, the sub-section does not give such an arbitrary power.

In R (Gillan and Another) v Commissioner of Police of the Metropolis [2006] 2 WLR 537, the House of Lords held that an authorisation and confirmation under sections 44 to 46 of the Terrorism Act 2000, allowing police officers to stop and search members of the public at random for articles that could be used in connection with terrorism, had been lawful as a matter of domestic law. The first issue concerned the construction of the expression “expedient” in section 44(3) – see the opinion of Lord Bingham of Cornhill at paragraph 13ff. The claimants suggested that the powers were “sweeping and far beyond anything ever permitted by common law powers”. There was reliance on the principle of legality articulated in R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115, 130, 131. In rejecting this part of the claimant’s argument, Lord Bingham said that examination of the statutory context showed that the authorisation and exercise of the power were very closely regulated. He said at page 545G:

“There is indeed every indication that Parliament appreciated the significance of the power it was conferring but thought it an appropriate measure to protect the public against the grave risks posed by terrorism, provided the power was subject to effective constraints. The legislation embodies a series of such constraints.”

Lord Bingham then enumerated the constraints for that legislation.

There are legislative constraints on the powers conferred by section 30 of the 2003 Act. These include the requirement to designate an area (section 30(1)(a)); that anti-social behaviour should there be a significant and persistent problem (section 30(1)(b)); that the period is limited to not more than 6 months (section 30(2)); that the constable has reasonable grounds for believing that the presence or behaviour of a group of two or more persons in a public place has resulted or is likely to result in members of the public being intimidated, harassed, alarmed or distressed (section 30(3)); that the constable’s first main power is to give dispersal directions (section 30(4)); the limitations in section 30(5); the formal safeguards for authorisation (section 31(1)) and the required seniority of the relevant officer (section 36); the requirement for the consent of the local authority (section 31(2)); and the requirement for publicity (section 31(3), (4) and (5)). Specifically for the power in section 30(6), there is the constraint that the constable must have reasonable grounds for believing that a person under the age of 16 is not under the effective control of a parent or a responsible person aged 18 or over; and the requirement that, if the power under section 30(6) is exercised, a relevant local authority must be notified (section 32(4)). Further and importantly in Gillan Lord Bingham said at 546C of the relevant constraints of that case:

“Lastly, it is clear that any misuse of the power to authorise or confirm or search will expose the authorising officer, the Secretary of State or the constable, as the case may be, to corrective legal action.”

Later in his opinion, Lord Bingham discussed the Human Rights Convention requirement of lawfulness. He said at paragraph 34:

“The lawfulness requirement in the Convention addresses supremely important features of the rule of law. The exercise of power by public officials, as it affects members of the public, must be governed by clear and publicly accessible rules of law. The public must not be vulnerable to interference by public officials acting on a personal whim, caprice, malice, predilection or purpose other than that for which the power was conferred. That is what, in this context, is meant by arbitrariness, which is the antithesis of legality. This is the test which any interference with or derogation from a Convention right must meet if a violation is to be avoided.

The stop and search regime under review does in my opinion meet that test.”

Among considerations supporting that conclusion, Lord Bingham said at page 554A:

“In exercising the power the constable is not free to act arbitrarily, and would be open to civil suit if he does. It is true that he need have no suspicion before stopping and searching a member of the public. This cannot, realistically, be interpreted as a warrant to stop and search people who are obviously not terrorist suspects, which would be futile and time-wasting.”

So in the present case, in our judgment, a constable exercising the power given by section 30(6) of the 2003 Act is not free to act arbitrarily. He is not free to act for a purpose other than that for which the power was conferred – see also Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 at 1030B. The power is not a power of arrest – see Gillan at paragraph 25. The purpose for which the power was conferred is, in our view, clear and largely uncontentious. It is to protect children under the age of 16 within a designated dispersal area at night from the physical and social risks of anti-social behaviour by others. Another purpose is to prevent children from themselves participating in anti-social behaviour within a designated dispersal area at night. The sub-section does not confer an arbitrary power to remove children who are not involved in, nor at risk from exposure to, actual or imminently anticipated anti-social behaviour. It does not confer a power to remove children simply because they are in a designated dispersal area at night. Children are, so far as this legislation goes, free to go there without fear of being removed, provided that they do not themselves participate in anti-social behaviour and provided that they avoid others who are behaving anti-socially. Furthermore, the Secretary of State accepts that the discretionary power can only be used if, in the light of its purpose, it is reasonable to do so; and the Commissioner accepts that, to act reasonably, constables must have regard to circumstances such as how young the child is; how late at night it is; whether the child is vulnerable or in distress; the child’s explanation for his or her conduct and presence in the area; and the nature of the actual or imminently anticipated anti-social behaviour.

It follows that section 30(6) of the 2003 Act does not have a curfew effect such as W apprehended. It also follows that, since the power was never used to remove W to his place of residence, there was no reasonable or sufficiently serious, real or immediate apprehension by him that the legislation, if it were operated in his case, would infringe any Convention right to give him the standing of a victim to challenge the legislation on human rights grounds – see section 7 of the Human Rights Act 1998. The gathering together in the present appeal of sixty or so authorities to that and related ends was largely unnecessary.

For these reasons, we would allow the appeal, quash the Divisional Court’s order and declaration and dismiss the claim for judicial review.