W, R (on the application of) v Commissioner of Police for the Metropolis & Ors

This is an application by W, who at the material time was 14 years old, for judicial review of the authorisation given to the police by the first defendant, the Metropolitan Police Commissioner (“the Commissioner”), with the consent of the second defendants, the London Borough of Richmond-upon-Thames (“the council”), to remove persons under the age of 16 from the dispersal areas in Richmond Town Centre and Ashburnham Road, Ham between the second week of June and 29th October 2004 and between 4th December 2004 and 4th January 2005 respectively. Although the periods for which these authorisations were in place are now long since past, and although W was not in fact removed by the police from either area, the application raises issues of general importance about the powers of police and community support officers (“CSOs”) in relation to children and young persons under the age of 16 when authorisations of this kind are given under s 30 of the Anti-Social Behaviour Act 2003.

This section, which is at the beginning of Part 4 of that Act (entitled “Dispersal of Groups etc”), provides, so far as is material, that:

“(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 or 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 for such period (not exceeding 24 hours) from the giving of the direction as he may specify;

....

(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 31 of the Act prescribes the formalities for a s 30(2) authorisation (s 31(1)), which may not be given without the consent of the local authority (s 31(2)), and must be given appropriate publicity (s 31(3)). Section 32(2) and (3) create criminal sanctions and a power of arrest in order to give teeth to a s 30(4) direction. Section 32(4) provides that:

“Where the power under section 30(6) is exercised, any local authority whose area includes the whole or part of the relevant locality must be notified of the fact.”

Section 33 gives authority to CSOs to exercise the powers given to constables in uniform by s 30(3) – (6). Section 34(1) gives the Secretary of State power to issue a code of practice about the giving or withdrawal of authorisations under s 30 and the exercise of powers conferred by s 30(3) to (6). He has not yet exercised that power. Section 36 contains definitions of the phrases “anti-social behaviour” and “public place” for the purposes of Part 4 of the Act.

No issue arises in these proceedings about the appropriateness of the designation of the dispersal areas in Richmond Town Centre and Ham on the grounds set out in s 30(1) of the Act. So far as Richmond Town Centre was concerned, the problem identified by Supt Channer, who as Superintendent (Operations) for Richmond Borough was responsible for the day-to-day running of Richmond Police Station in the spring and summer of 2004, was that large numbers of people, often fuelled by binge drinking, became involved in incidents of low level anti-social behaviour. This, he said, created a major issue for the local community. Richmond Railway Station enjoys both a direct mainline train service from Waterloo and also District Line connections from Central London, and on Friday and Saturday nights thousands of people were coming to Richmond to drink. They traditionally congregated in the town centre, on Richmond Green and on the Riverside. The authorisation was originally planned to run from the beginning of June to the end of October because the number of “non-seated drinkers” increased considerably during the summer period. There was considered to be no need to extend it into the winter months.

The problem in Ham was limited to the Ashburnham Road area. Police records for the months of August to October 2004 showed that of the 95 reported acts of disturbance in a public place in Ham in those three months, 31 of them related to that area. There were also 14 reports of graffiti and 53 entries relating to criminal damage to vehicles. Supt Davis, who took over responsibility as Superintendent (Operations) for Richmond Borough in November 2004, concluded from extensive local consultations that the s 30(1) criteria were satisfied, and he decided, with the council’s consent, to make a s 30(2) authorisation for one month, so as to cover the period of the school holidays and the Christmas and New Year period. The effectiveness of the authorisation would then be reviewed. C/I Phipps, who led the Richmond Borough Community and Partnership Unit at that time, has told us that in Ham the problems were mainly caused by young people who lived locally.

The evidence shows that the designation of these two dispersal areas was very popular with local people. Supt Davis told the court that the police received very supportive e-mails and letters, including one which said what a change it was to get up in the morning and find that the local bus stop had not been vandalised.

As we have said, the only issue that arises in these proceedings relates to the meaning of the powers conferred by s 30(6) (for which see para 2 above). The language of “removal” appears to have been “borrowed” from s 46 of the Children Act 1989, which provides, so far as is material, that:

“(1)

Where a constable has reasonable cause to believe that a child would otherwise be likely to suffer significant harm, he may –

(a)

remove the child to suitable accommodation and keep him there; or

(b)

take such steps as are reasonable to ensure that the child’s removal from any hospital, or other place, in which he is then being accommodated is prevented.

(2)

For the purposes of this Act, a child with respect to whom a constable has exercised his powers under this section is referred to as having been taken into police protection.

(3)

As soon as is reasonably practicable after taking a child into police protection, the constable concerned shall –

(a)

inform the local authority within whose area the child was found of the steps that have been, and are proposed to be, taken with respect to the child under this section and the reasons for taking them;

(b)

give details to the authority within whose areas the child is ordinarily resident (‘the appropriate authority’) of the place at which the child is being accommodated;

(c)

inform the child (if he appears capable of understanding) –

(i)

of the steps that have been taken with respect to him under this section and of the reasons for taking them; and

(ii)

of the further steps that may be taken with respect to him under this section;

(d)

take such steps as are reasonably practicable to discover the wishes and feelings of the child;

(e)

secure that the case is inquired into by an officer designated for the purposes of this section by the chief officer of the police area concerned; and

(f)

where the child was taken into police protection by being removed to accommodation which is not provided –

(i)

by or on behalf of a local authority; or

(ii)

as a refuge, in compliance with the requirements of section 51,

secure that he is moved to accommodation which is so provided.”

It is unnecessary for present purposes to set out the provisions contained in s 46(4) to (11). They are far more detailed than anything that appears in Part 4 of the 2003 Act which gives no guidance at all as to what is supposed to happen if a constable in uniform or a CSO “removes” a person under the age of 16 from a dispersal area to his/her place of residence only to find that there is nobody there, and that it is bolted and barred.

In the absence of the code of guidance which Parliament empowered the Secretary of State to issue, it is hardly surprising that there was a good deal of confusion at first about the meaning and effect of the s 30(6) powers. For example, after Inspr Mullins, the Community Inspector for Richmond, had addressed a consultation meeting in the Vestry Hall at Richmond on 4th May 2004, the minute of the meeting, which appeared on the Council’s website, attributed these words to him:

“Work was also taking place to prevent under 16s from causing problems, and the police would now be challenging any under 16s out at night (between 9pm and 2am) and taking them home to their parents.

Parents would be written to and confronted, and if the situation continued, would be shown video footage of their children’s bad behaviour. This was a priority for the whole Borough.”

Inspr Mullins has told the court that this minute is not a complete and exact record of what he said. He says:

“In addition to the dispersal power, the authorisation gives the power to police to remove under 16 year olds to their home during specified hours. I explained this to the meeting. I considered that under 16s out late at night were vulnerable and it would be the duty of patrolling officers to consider whether there was a duty of care and the need to return the youngsters home. I note that the report has recorded ... that the power could be exercised between 9pm and 2am whereas in fact the legislation provides between 9pm and 6am. I am not sure whether this is a simple error or whether some confusion has crept in as a result of another concept. Certainly, I know from experience that a lot of the problems on patrol arise between 9pm and 2am and I might have commented upon this. There are particular problems at this time between Thursdays and Saturdays, when groups congregate and there is under age drinking and graffiti. I understood the legislation. The report indicates that police will now be challenging any under 16s etc. This comment should be read in the context of the previous paragraph of the report where I describe the legislation as “allowing the police” (not “requiring the police”) to act. I envisaged that when the authorisation came into effect, it would be likely that under 16s out between 9pm and 6am would be approached by uniformed officers and communicated with. I would expect an explanation to be given about the designated area. I would expect under 16s to be taken home only if the circumstances justified it because of their vulnerability or because they were causing trouble. One factor would be that the local officers would tend to know local youngsters and it might be a matter of concern only if they were repeatedly out late. I did not say that all under 16s would be taken home. In taking a young person home, there are resource implications in that the officer involved is diverted from other activities. We would have to rely on already stretched limited resources.”

The public notices used by the Richmond police for both dispersal areas were based on text provided by a small team in the Metropolitan Police Safer Neighbourhoods unit. After giving details of the location of the dispersal area and the directions which constables or police CSOs might give, the notice continued:

“If you are under 16 you are not allowed to be here between the hours of 9pm and 6am unless you are under the effective control of a parent or responsible person over the age of 18.

You may be removed to your home or place of safety if more appropriate.”

When it was pointed out to the unit that this language was misleading, a revised form of notice was issued which substituted the words “you may not be allowed” for the words “you are not allowed”.

Supt Channer says that the local police foresaw that they would use their s 30(6) powers “where the individual was vulnerable, e.g. drinking alcohol”. They never foresaw taking young persons under 16 home from a dispersal area simply because they were found there between 9pm and 6am, and they would not have had the resources to do this. C/I Phipps suggested that the exercise of a s 30(6) discretion might depend on how young the child in question was, how late at night it was, whether the child was particularly vulnerable or in distress, and whether violent or other anti-social behaviour was taking place around him/her. During the five months for which the Richmond Town Centre authorisation was in force, the police only exercised their s 30(6) powers on one occasion, when a boy of 13 was found at about 10.30 pm in the company of a group of young men between the ages of 16 and 18 who were carrying alcohol and shouting and swearing. Sgt Beazley, who was a member of the Richmond Police Safer Neighbourhood team, took the boy back to his home in Ealing. He told the court that the child would have been removed anyway despite the s 30(6) power because he needed to be removed to a place of safety.

He added that children were only removed if there was a likelihood of significant harm to them. This restriction on the s 30(6) power is nowhere in the language of that sub-section (which refers only to the risk of significant harm at the young person’s place of residence).

In the Ashburnham Road area two children under the age of 16 were spoken to by the police during the authorisation period and advised to go home, but no under 16s were actually removed under s 30(6) powers.

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 22nd 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 s 30(4) powers.

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.

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 s 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 s 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 22nd 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.

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 s 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 23rd September 2004 they were concerned only with the dispersal area in Richmond. They were later enlarged to embrace the Ashburnham road dispersal area, too.

W’s evidence was based on the premise that s 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.

As is now customary on these occasions we were treated by counsel to scholarly expositions of ECHR law. It is often forgotten, however, that English common lawyers contributed to the drafting of the ECHR, and the resolution of points of statutory interpretation in cases like this can very often be achieved without any need to refer to Strasbourg law at all. After all, all of us have the right to walk the streets without interference from police constables or CSOs unless they possess common law or statutory powers to stop us. There is no relevant common law power, and s 30(6) of the 2003 Act does not create an express power to use force. The question then remains: does the power to use force exist by necessary implication? For the difficulties in establishing a necessary implication see Lord Nicholls in B (A Minor) v DPP [2000] 2 AC 428 at p 464:

“’Necessary implication’ connotes an implication which is compellingly clear. Such an implication may be found in the language used, the nature of the offence, the mischief sought to be prevented and any other circumstances which may assist in determining what intention is properly to be attributed to Parliament when creating the offence.”

See also R (Morgan Grenfell Ltd) v Special Commissioner for Income Tax [2002] UKHL 21; [2003] 1 AC 563 per Lord Hobhouse of Woodborough at para 45:

“It is accepted that the statute does not contain any express words that abrogate the taxpayer’s common law right to rely upon legal professional privilege. The question therefore becomes whether there is a necessary implication to that effect. A necessary implication is not the same as a reasonable implication as was pointed out by Lord Hutton in B (A Minor) v Director of Public Prosecutions [2002] 2 AC 428, 481. A necessary implication is one which necessarily follows from the express provisions of the statute construed in their context. It distinguishes between what it would have been sensible or reasonable for Parliament to have included or what Parliament would, if it had thought about it, probably have included and what it is clear that the express language of the statute shows that the statute must have included. A necessary implication is a matter of express language and logic not interpretation.”

The central issue we have to determine in this case is therefore whether the power to “remove” a person to his place of residence if he is believed on reasonable grounds to be under the age of 16 and not under the effective control of a parent or responsible person aged 18 or over, is permissive or coercive. If it is permissive, no question of any wrongful act or any infringement of his Convention rights can arise.

Mr Otty, who appeared for the Secretary of State, submitted that the power is coercive and that it does permit a child to be removed to his home against his wishes, and, if necessary, by the use of reasonable physical force. He argued that the draftsman deliberately chose to use the same word “remove” as appears in s 46 of the Children Act 1989 (“the 1989 Act”). Because, in that section, the power is clearly coercive, he said that it must also be coercive when found in s 30(6) of the 2003 Act.

An elementary canon of construction is that a word takes colour from its context. The context of s 46 of the 1989 Act is demonstrated by its heading: “removal and accommodation of children by police in cases of emergency”. Section 2(1) of the Child Abduction Act 1984 (“the 1984 Act”), which creates the offence of child abduction by a person other than a parent or guardian etc, prohibits the taking or detention of a child under 16, so as to remove or keep him from the lawful control of any person having lawful control of him “without lawful authority or reasonable excuse”. Section 46 of the 1989 Act provides lawful authority to a constable to do what is otherwise prohibited by s 2(1) of the 1984 Act where he “has reasonable cause to believe that a child would otherwise be likely to suffer significant harm”.

The power to “remove” in s 46 is clearly both permissive and coercive. It does not merely make lawful what might otherwise be unlawful. It also permits a constable to “remove” a child from the control of his parents or guardian. If the parents or guardian resist, it is plain that, to avoid a breach of the peace, reasonable physical force may be used to effect the removal. Further, in relation to the child, the police can “keep” him in suitable accommodation for up to 72 hours, for his own protection. This power can clearly be exercised whether or not the child consents and in relation to the child himself it is therefore also coercive.

In this context, we accept that Parliament intended that, in relation to the child as well as the parents or guardian, the power to “remove” also included by necessary implication the power to use reasonable force to “remove” a child to suitable accommodation, even against his will.

The context in which “remove” is used in s 30(6) of the 2003 Act is completely different, except that it is also exercisable in relation to a child. There is no question of removing the child from his parents or guardian. On the contrary, the power may not be exercised if he is under the effective control of a parent or responsible person. The exercise of the power is not restricted to cases of emergency. It is exercisable whenever a person who is believed on reasonable grounds to be under 16 years of age is found between the hours of 9pm and 6am in a dispersal area and the criteria set out in s 30(6)(b) are fulfilled. There is no need for the constable (or CSO) to be satisfied that the child would otherwise be likely to suffer significant harm. It follows that the fact that the word “remove” is used in each section cannot possibly be determinative of its meaning when found in s 30(6).

There are two factors which suggest that Parliament may have intended to create a coercive power. The first is that one of the ordinary meanings of the word “remove” is to “carry away” or “take away”. In the case of a child, this may require physical effort. In the event of resistance on the part of the child, it may also require physical force. However, this is not the only possible meaning of the word “remove”. In the Home Office circular 04/2004 which accompanied the bringing into force of Part 4 of 2003 Act on 20^th January 2004 the author referred to the power as a power to “return” (see paras 17-20 of the circular), and this is a word which in ordinary language does not carry with it the implication of the use of physical force.

The second factor is the statutory context. 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.

We are not willing to attribute such an intention to Parliament. Furthermore, if the author of the Home Office circular accurately reflects the thinking of his department, that was not the intention of the promoting department, either. The circular identifies the need to protect a child from the undesirable influence and example of older peers. The fulfilment of such a purpose does not necessarily imply the need for a coercive power. If Parliament considered that such a power was needed, it should have said so, and identified the circumstances in which it intended the power to be exercised.

Against those factors, which point, weakly and ambiguously at best, in favour of a coercive power, there are some clear indications that Parliament intended the power to be permissive only. Part 4 does not make it an offence for a child to be in a dispersal area between the stated hours. There is, accordingly, no power for a constable to arrest a child who is found there. There is no power for a constable to require the child to give his name and address. Without it, unless the constable already knows the child’s place of residence, the power, even if coercive, could not be exercised. There are no ancillary powers to deal with circumstances which could often be expected to arise: for example, if the child was removed home, but could not gain admission, the constable is not authorised to take him elsewhere for his own safety unless the conditions in s 46 of the 1989 Act are satisfied, and then only under that statutory power. There is no provision equivalent to s 117 of the Police and Criminal Evidence Act 1984, which confers on a constable the power to use reasonable force, if necessary, to exercise a power conferred by that Act, except where a provision of the Act provides that the power may only be exercised with the consent of some person other than a police officer.

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 455f-g, per Lord Edmund-Davies at p461g and per Lord Scarman at p463e. Section 30(6) contains no such express provision.

For those reasons, we are entirely satisfied that the power to remove in s 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 s 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.

For these reasons we would grant this application. Although we are willing to hear counsel as to the form of order we should make, it appears to us at present that it would be sufficient to make a declaration to the effect that s 30(6) of the Anti-Social Behaviour Act 2003 does not confer on a constable in uniform or a police community support officer any power to use force in removing a person to his place of residence under the powers conferred by that sub-section.