The Queen on the Application of HC (a child, by his litigation friend CC) v The Secretary of State for the Home Department and Others  EWHC 982 (Admin) (25 April 2013)
In the United Kingdom, 17 year olds apprehended by police are treated as adults. The High Court of Justice has held that to treat 17 year olds as adults offends the UN Convention on the Rights of the Child, which informs the UK’s obligations under the European Convention on Human Rights and the Human Rights Act 1998 (UK). Accordingly, the UK must adapt its existing practices so that 17 year olds are treated as children. The law should promote the child’s best interests and provide special protections appropriate to their age.
Under some UK laws and the police Code of Practice, 17 year olds apprehended by police are treated as adults. As a consequence, they are denied the benefit of some procedural protections that apply to children. Specifically, where a person aged 16 or less is taken into custody, the police are required to notify an appropriate adult (parent or guardian) as soon as practicable after arrest. Police may not question or take the fingerprints of a child 16 or under until the appropriate adult is present.
The applicant in this case turned 17 years old four weeks before he was arrested on suspicion of robbery. Because he was 17, he was denied permission to contact his mother (the police exercised their discretion, available only in respect of adults, to withhold the right to contact a friend or family member).
When the applicant’s mother was told (possibly by relatives) some hours later, she was not allowed to speak to her child. The applicant had never been in trouble with police and ultimately was not charged. Although the police’s investigative processes and failures were not central to the Court’s determination, the Court noted that if the police had checked the applicant’s phone records it would have been apparent the 17 year old could not have been responsible for the robbery.
Against this background, the applicant asked the Secretary of State to exercise her legislative powers to revise the police Code of Practice so that 17 year olds would be treated as children. As children they would be entitled to have an appropriate adult present during questioning. The Secretary of State refused, on the basis that it was not necessary to treat a 17 year old as a child with special protections.
The question that came before the court was not whether the police had acted improperly when they complied with the code, but rather whether the Secretary of State could lawfully refuse to amend the code. This meant determining whether the Secretary of State is required to afford special protection for children in detention and, if so, whether 17 year olds are considered children.
Per Lord Justice Moses (Mr Justice Parker concurring) the Court held that the Secretary of State acted unlawfully in refusing to amend the Code of Practice.
Under section 6 of the Human Rights Act it is unlawful for public authorities (such as the Secretary of State) to act incompatibly with rights protected under the European Convention, to which the UK is a party. Lord Justice Moses reasoned that the question then was whether any rights contained in the European Convention required a 17 year old to be treated as a child and receive special protection in custody.
The European Convention does not define who is a child and who is an adult. Article 8 does, however, protect the right to privacy and family life. The Lord Justice cited a number of decisions of the European Court of Human Rights which held that article 8 includes the right to develop and maintain familial relationships in prison. Relying on earlier decisions of the High Court and the UK Supreme Court in relation to the rights of minors under the European Convention, he further concluded the right to privacy and respect for family life under the European Convention “must be interpreted in harmony with the general principles of international law”.
Turning to international law, Lord Justice Moses considered the rights of children under the Convention on the Rights of the Child. The Convention on the Rights of the Child is the most well-recognised, authoritative international statement on the rights of children. Fortunately, it defines a child as a person less than 18 years of age (article 1). It goes on to set out the specific rights of children to connection with family (articles 5 and 9) and to be treated with dignity and special protection in detention (articles 39 and 40). Article 3 also provides that “the best interests of the child should be of primary consideration” in all actions by administrative or legislative bodies including the police and executive arms of government.
The UK is a party to the Convention on the Rights of the Child and, as Lord Justice Moses noted, has been criticised by the UN Committee on the Rights of the Child for distinguishing between 17 year olds and other children and failing to make domestic laws that prioritise the best interests of 17 year olds. Citing the Committee’s authoritative guidance on the interpretation and application of the Convention on the Rights of the Child (General Comment No. 10), the Lord Justice concluded there is broad international consensus that 17 year olds must not be treated as adults in the criminal justice system. 17 year olds “must be treated differently from adults and sheltered by special protection designed to meet their best interest”.
Accordingly, the Lord Justice held that the protection of family life under article 8 must be interpreted in accordance with the Convention on the Rights of the Child, which requires states to act in the best interests of children and preserve the right to family. The Lord Justice stated:
Once it is acknowledged that Article 8 is engaged and that it must be interpreted in harmony with the UNCRC it follows that those who are 17 fall within the definition of children whose best interests must be a primary consideration.
The Lord Justice noted this does not mean it will always be in the child’s best interests to have their parent present in custody, but it is the child’s best interests that must be paramount and this is not reflected in the Code of Practice and enacting laws as they currently stand.
For these reasons the Lord Justice determined the Secretary of State had breached her obligations under the Human Rights Act. As the “fault lies [with the Secretary of State] in failing to distinguish between adults and 17 year-olds when detained”, the Lord Justice held it was not necessary to determine whether the Commissioner of Police had acted improperly in applying, to the letter, the Code of Practice that failed to take account of the applicant’s rights as a child.
Recognising the potential for abuse of rights in carrying out police roles, the Lord Justice cautioned that while it may be permissible to treat 17 year olds differently to younger children, police treatment must nevertheless prioritise the best interests of the child.
Lord Justice Moses considered briefly in obiter whether the Secretary of State’s decision not to amend the Code could also offend article 6 of the European Convention (right to a fair trial) or could be seen as an ‘irrational’ response under domestic principles of administrative law.
Drawing on domestic jurisprudence and academic literature that emphasises the importance of protecting children in custody, the Lord Justice concluded that there is a domestic obligation to protect juveniles. 17 year olds are particularly vulnerable in the justice system and that imbalance is not cured unless special protections, such as the presence of an appropriate adult, are assured. The Lord Justice did not decide the point but intimated that as the Secretary of State had made a deliberate decision to exclude 17 year olds from the juvenile system on a number of rational grounds (although the Lord Justice dismissed those grounds as reasonable), it would not necessarily be an irrational policy response.
On the other hand the Lord Justice strongly suggested that article 6 of the European Convention was likely to have been engaged and breached based on existing case law suggesting the right to a fair trial may be compromised as soon as a person is taken into custody. The Lord Justice opined:
“It is difficult to think of an occasion where the need to obtain advice and help from someone who is familiar and trusted is more vital than the very first occasion of detention in a police station on suspicion of an offence”.
Lord Justice Moses remarked in his opening comments that the irony in the case was that the applicant was not permitted to seek the support of his family in custody but at the same time was not considered to have capacity to bring a legal claim without support from his litigation guardian.
There is a similar irony in the way we treat young people aged 17 in the criminal justice system in Australia. In Queensland, 17 year olds are currently incarcerated in adult prisons and are treated more or less like adults in that system, contrary to Lord Justice Moses’ conclusions about the international definition of a child and state obligations to protect the interests of children.
Like the UK, the UN Committee on the Rights of the Child has also criticised Australia for tolerating laws in Queensland that do not prioritise the best interests of 17 year olds in the criminal justice system (Concluding Observations, Australia, 20 October 2005, CRC/C/15/Add.268 [Rec.74]).
This case highlights the direct benefit of enforceable domestic protection of human rights under the UK Human Rights Act. It also illustrates the important role of enforceable regional human rights mechanisms to build consensus and connection between domestic and international human rights standards. Without an enforceable domestic human rights instrument at federal level, Australia is at risk of falling out of step with international expectations about the treatment of children under domestic law.
Even absent an Australian Human Rights Act, Lord Justice Moses’ judgment is instructive as an advocacy tool in the Australian context. The Lord Justice cites a wealth of domestic and international opinion about the need to protect vulnerable 17 year olds in the criminal justice system, including numerous academic findings, governmental statements, judicial pronouncements and international commentary.
As the Lord Justice opined:
"[T]his case demonstrates how vulnerable a 17 year-old may be… Many 17 year-olds do not believe they need any guidance at all. They demonstrate all the youthful arrogance of which many parents are aware. All the more need, then, for help and assistance from someone with whom they are familiar”.
The best interests of 17 year old children, their connection with family, their safety, development and education should also guide Australian decisions about the placement and treatment of children in accordance with Australia’s international obligations under the UN Convention on the Rights of the Child.
The full decision can be found at: http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/c-v-sshd-and-met-police-summary.pdf
Madeleine Forster is a former secondee lawyer at the Human Rights Law Centre.