| Court of Appeal — Jurisdiction — Academic point of law — Whether Court of Appeal having jurisdiction to hear case, and if so in what circumstances
Police — Powers — Dispersal of Groups — Police Commissioner designating dispersal areas — Officers authorised to remove persons under 16 from areas — Whether power of removal permissive or coercive — Anti-Social Behaviour Act 2003, s 30(6)
R (W) v Commissioner of Police of the Metropolis and another,
Secretary of State for the Home Department, interested party [2006] EWCA Civ 458
CA : Judge, May and Wall LJJ : 11 May 2006
Notwithstanding the House of Lords’ strictures as to the hearing of hypothetical proceedings, the Court of Appeal was able to find jurisdiction in a case which, inter alia, raised a matter of general concern, and where a decision of a lower court would otherwise remain in unsatisfactory limbo.
S 30(6) of the Anti-Social Behaviour Act 2003 conferred on a police constable in uniform or a community support officer power to use reasonable force in removing a person under 16 to his place of residence under the powers conferred by that subsection.
The Court of Appeal so stated when allowing the appeal of the first defendant, the Commissioner of Police of the Metropolis, and the interested party, the Secretary of State for the Home Department, against the decision of the Queen’s Bench Divisional Court (Brooke LJ and Mitting J) of 20 July 2005 ([2005] 1 WLR 3706) granting a declaration in a claim for judicial review by the claimant, W, a boy under 16, acting by his parent and litigation friend, PW, of the authorisation given to the police by the first defendant, with the consent of the second defendant, Richmond-upon-Thames London Borough Council, to remove persons under the age of 16 from the dispersal areas in Richmond town centre and Ashburnham Road, Ham, in specific weeks between June 2004 and January 2005.
S 30(6) of the 2003 Act provides: “If, between the hours of 9 pm and 6 am, 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.”
S 33 of the 2003 Act gives to Community Support Officers (CSOs) authority to exercise the powers given to constables in uniform by s30(3) to (6). The Commissioner designated two dispersal areas in the borough where anti-social behaviour was a significant and persistent problem. He authorised officers to exercise the power under s 30(6) to remove persons under the age of 16 from those areas between certain hours in specified weeks of the year. The claimant lived and socialised in those areas. He sought judicial review by way of a declaration, inter alia, that s 30(6) did not permit an officer to use force when removing a person under 16.
MAY LJ, giving the judgment of the court, said that since W was never removed to his place of residence under s 30(6) of the 2003 Act the proceedings initially appeared to be hypothetical within the strictures of the House of Lords in R v Secretary of State for the Home Department, Ex p Wynne [1993] 1 WLR 115. However, the court would proceed because: (i) the meaning and effect of the subsection was a matter of general concern, not least to the police; (ii) all parties before the court agreed that the court was able to consider the matter against the facts of W’s case and invited the court to do so; (iii) the decision of the Divisional Court would otherwise remain in unsatisfactory limbo; (iv) the issues were clear cut. Turning therefore to the central issue, whether the power to “remove” a person under s 30(6) of the 2003 Act was permissive or coercive: the word “remove” in s 30(6) of the 2003 Act carried with it a coercive power; and the word in its context naturally and compellingly meant “take away using reasonable force if necessary”. However, a constable or CSO exercising the power given by s 30(6) was not free to act arbitrarily.
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Appearances: Javan Herberg and Victoria Windle (Liberty, Southwark) for the claimant; Sam Grodzinski (Directorate of Legal Services, Metropolitan Police, and Legal Services, Richmond London Borough Council) for the commissioner and the local authority; Timothy Otty (Treasury Solicitor) for the Secretary of State, interested party.
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