Legal Update: Rights of 17-year-olds in custody

Currently, when a 17-year-old young person is arrested, police are permitted to treat him or her as an adult, under the Police and Criminal Evidence Act 1984 and Code C of the Police Code of Practice. This means that 17-year-olds miss out on receiving special protections available to children when they are arrested. However, a recent case, R (on application of HC, a child) v Secretary of State for the Home Department and Commissioner of Police of the Metropolis [2013] EWHC 982, in which Coram Children’s Legal Centre acted as a neutral intervenor, found that the practice of treating 17-year-olds who are arrested as adults was inconsistent with the European Convention on Human Rights and the UN Convention on the Rights of the Child (UNCRC).

The case was brought on behalf of HC, who was arrested four weeks after his 17th birthday on suspicion of stealing an iPhone. Shortly after he was arrested, he asked that his mother be informed, but this request was refused. He was in custody for four and a half hours before his mother learned of his arrest, and during his total 11 and a half hours in custody, he was not permitted to speak to his mother, or to have her or another trusted adult present.

Police law and guidance
Most of the statutory provisions relating to criminal justice in the UK draw a distinction between those under the age of 18 and those over 18. However, when in police custody, those aged 17 are legally treated as adults. The significance of treating 17-year-olds as adults when arrested is that they miss out on the special provisions applying to children.

According to the Police and Criminal Evidence Act, all persons under 17 have an unqualified right to have a friend, relative or other person told of their arrest and detention. Persons aged under 17 also have the right to have an “appropriate adult” – which can be a parent – present during questioning and other custody procedures. This is fundamentally important as the attendance of an appropriate adult ensures that children and young people are able to understand what is going on and have their voice heard during detention and interrogation.

Breach of human rights
The court held that the Home Secretary’s refusal to amend the Code of Practice to ensure that 17-year-olds who are arrested are treated as children during arrest and detention was in breach of Article 8 of the European Convention on Human Rights. Article 8(1) provides that “everyone has the right to respect for private and family life,” which the court held was engaged by a child in detention being refused permission to contact his or her parent. The court held that the interpretation of Article 8 must be informed by international law, and in particular, the UNCRC. International law sets out the special legal protections that must be provided to children in conflict with the law.

The court held that, according to international law, a child is defined as a person aged under 18, unless under national laws, majority is attained earlier. Under relevant national laws (including the Children Act 1989 and the Children Act 2004), the age of majority in the UK is 18 years. It was held that it is inconsistent with Article 8 to treat 17-year-olds as adults when in police detention. According to the court, “to do so disregards the definition of a child in the UNCRC, in all the other international instruments…and the preponderance of legislation affecting children and justice.” Therefore, the decision by the Home Secretary to refuse to amend the police guidance was found to be unlawful.

This decision is welcomed. Following concern long expressed by children’s rights organisations as to the treatment of 17-year-olds in police detention, it is encouraging that the UK government will now be required to bring criminal law fully into line with international standards, ensuring greater protection for all children in conflict with the law.