The Court of Appeal appears to have calmed the kerfuffle caused by the decision of the Divisional Court on 20 July 2005 in R (W) v Commissioner of Police for the Metropolis [2005] EWHC 1586 (Admin). Lawyers with a (professional) taste for anti-social behaviour will recall that (amongst other things) this had - somewhat controversially - decided that the power in section 30(6) of the Anti-Social Behaviour Act 2003 was permissive and not coercive. The Court of Appeal on 11 May 2006 took a different view holding that this measure 'plainly carries with it a coercive power' (see R (W) v (1) Commissioner of Police for the Metropolis (2) London Borough of Richmond-upon- Thames (3) Secretary of State for the Home Department [2006] EWCA Civ 458).
So what's section 30(6) when it's at home? This provides that:
'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.
- is under the age of 16, and
- 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.'
Divisional Court
The Divisional Court (Brooke LJ And Mitting J) had concluded 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.'
Section 30(4) enables one or more directions to be given by a constable, namely including: requiring persons in a group to disperse immediately or when and how specified; requiring any person who lives outside the relevant locality to leave that locality immediately or when and how specified and prohibiting any such person from returning to the locality for such period up to 24 hours as may be specified by the constable.
Court of Appeal
However, the Court of Appeal (Sir Igor Judge P, May and Wall LJJ) resonantly (but respectfully) disagreed with the decision of the Divisional Court. May LJ (who gave a judgment of the Court) said that:
'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. . .'
And:
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.'
As the Court helpfully pointed out: 'The word ‘remove’ is not generally apt for helping willing persons to travel from one place to another.' On the contrary, in the context of a power given to constables, 'the word ‘remove’ connotes the use of reasonable coercion, if necessary.'
The Court of Appeal also did not consider that section 30(6) had a 'curfew effect'. It noted that there were detailed and express provisions for local child curfew schemes in sections 14 and 15 of the Crime and Disorder Act 1998 which (according to the White Paper - Cmd 3809) were 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'. In the Court's view, 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'. The Court of Appeal considered that the sub-section gave no such arbitrary power.
However, a constable exercising the section 30(6) power was not free to act arbitrarily, for a purpose other than that for which the power was conferred. And that purpose was in the view of the Court '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.
And:
Another purpose is to prevent children from themselves participating in anti-social behaviour within a designated dispersal area at night.'
However, section 30(6) '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.' Nor does it 'confer a power to remove children simply because they are in a designated dispersal area at night.' For, under this legislation, children are free to go there without fear of being removed provided they do not themselves participate in anti-social behaviour and that they avoid others who are behaving anti-socially.
It was also accepted in the proceedings by the Secretary of State that the discretionary power can only be used if, in the light of its purpose, it is reasonable to do so. Also, the Metropolitan Police Commissioner then accepted 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.'
So, following this decision of the Court of Appeal, section 30(6) of the Anti-Social Behaviour Act 2003:
- Does in fact contain a coercive power.
- But does not have a 'curfew effect'.
It is hoped that the legal uncertainty created by the July 2005 decision of the Divisional Court will now be laid to rest.
