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The Court found that the curfew power could not have been intended to include the right to use force. Lord Justice Brooke explained: “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 section 30(6) of the 2003 Act does not create an express power to use force.”

James Welch, Legal Director at Liberty, said:"We all have a shared interest in genuine efforts to address crime but you don't teach respect by acting unfairly. Today our Divisional Court has confirmed Liberty's view that it should never be a crime just to be a child."‘W’ made the statement: "Of course I have no problem with being stopped by the police if I've done something wrong. But they shouldn't be allowed to treat me like a criminal just because I'm under-sixteen."

Alex Gask, Liberty’s Legal Officer acting for ‘W’, stated: “This is a victory for the presumption of innocence, and the right of everyone, no matter what their age, not to be subjected to coercive powers without good cause”.

The Administrative Court considered Parliament’s intentions when drafting the curfew power and Lord Justice Brooke highlighted the right of every child in the UK to be treated as an individual and not to be assumed a troublemaker. In the Judgment he stated “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.”

At the moment in areas authorised under section 30 of the Anti-social Behaviour Act police officers and community support officers are given two distinct powers. The first is a power to disperse groups and direct them to leave the area and the second is a curfew power to remove anyone under the age of 16 who is in a public place between 9pm and 6am, if they are not under the effective control of an adult. The curfew power can be used against young people regardless of whether they are even suspected of bad behaviour, and the Metropolitan Police, Richmond Council and the Home Office argued that it allows for the use of force. Liberty was representing ‘W’ in a challenge to this second curfew power only (please see below for a more complete summary of the powers involved).

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NOTES TO EDITORS

Lord Justice Brooke quotations from the Judgment:“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.”On parliament’s intentions:“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.”“If Parliament considered that such a [coercive] power was needed, it should have said so, and identified the circumstances in which it intended the power to be exercised”On practical flaws:“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…”Summary“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.…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”Background BriefingAuthorisation of Dispersal AreasSection 30 of the Anti-Social Behaviour Act 2003 (the Act) allows a police officer of or above the rank of Superintendent to authorise a particular area where there are reasonable grounds to believe that anti-social behaviour is a significant, persistent problem. The authorisation can be for any time period, up to a maximum of six months, and gives uniformed police (including Community Support Officers) two powers for use within the “curfew/dispersal area”: the dispersal power contained in section 30(4) of the Act, and the curfew power contained in section 30(6). While Liberty has serious concerns about the breadth of the s30(4) dispersal power, ‘the challenge being brought on behalf of ‘W’ is to the s30(6) curfew power only.Dispersal PowerThe dispersal power contained in section 30(4) of the Act applies to groups of two or more people, and can only be exercised if the police officer has reasonable grounds to believe that someone has been, or is likely to be, intimidated, harassed, alarmed or distressed by the presence or behaviour of the group in question (or one of its members). If the police officer is satisfied that this is the case, then he can direct the people in the group to disperse, and can also direct any member of the group not resident in the dispersal area to leave the dispersal area (and prohibit return within 24 hours). This power can be used against people of any age.Curfew Power Section 30(6) effectively provides the power to enforce a localised curfew. Between the hours of 9pm and 6am, uniformed policemen can return to their homes anyone who they reasonably believe to be under 16 to go home, if they are not under the effective control of an adult. The only situation in which a police officer cannot exercise this power is where he/she has reasonable grounds for believing that the person would be likely to suffer “significant harm” if taken home. It is extremely important to realise that once this power has been granted to officers for a particular area they do not need to have any suspicion at all that the young person in question is actually involved or is likely to be involved in anti-social behaviour. All that is necessary is for the officer to have reasonable grounds for believing that the individual is under the age of 16 and is not under the effective control of a parent or other responsible person aged 18 or over.